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COPELAND v. ASHCROFT

February 10, 2003

RICHARD COPELAND[FN1], A42-260-351 PETITIONER,
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, JAMES W. ZIGLER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, M. FRANCES HOLMES, BUFFALO DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, AND UNITED STATES DEPARTMENT OF JUSTICE, RESPONDENTS.



The opinion of the court was delivered by: Charles J. Siragusa, District Judge

DECISION AND ORDER

INTRODUCTION

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in connection with a final removal order issued by the U.S. Immigration and Naturalization Service ("INS"). For the reasons that follow, that application is denied.

28 U.S.C. § 2241

A petition for habeas corpus pursuant to 28 U.S.C. § 2241 "may be used to challenge incarceration or orders of deportation as being `in violation of the Constitution or laws or treaties of the United States.'" Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001) (quoting 28 U.S.C. § 2241(c)(3)), cert. denied, 122 S.Ct. 2624 (2002). In this regard, a district court has "jurisdiction to review purely legal statutory and constitutional claims."Id. (citations omitted). The Court has jurisdiction over the instant petition, since it raises only purely legal claims.

IMMIGRATION AND NATIONALITY ACT ("INA") SECTION 237

Two subsections of INA § 237, 8 U.S.C. § 1227, apply to the instant proceeding. Section 1227(a)(2)(A)(iii) provides, in relevant part, that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." (emphasis added). Section 1227(a)(2)(B)(i) provides, in relevant part, that

[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.

(emphasis added). 21 U.S.C. § 802 defines the term "controlled substance" to include marihuana. 21 U.S.C. § 802(6); 21 U.S.C. § 812, Schedule I(c)(10).

INA SECTION 240A

INA § 240A, 8 U.S.C. § 1229b, provides discretionary relief from deportation, known as cancellation of removal, in certain circumstances. Specifically, § 240A(a) provides:

The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien — (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony.

8 U.S.C. § 1229b(a) (emphasis added). The term "aggravated felony" is defined at 8 U.S.C. § 1101(a)(43)(B) to include "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 18 U.S.C. § 924(c)(2) defines a "drug trafficking crime" as "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import Act (21 U.S.C. § 951 et seq.), or the Maritime Drug Law Enforcement Act (46 U.S.C. App. 1901 et seq.)." The Controlled ...


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