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March 25, 2003


The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge.


I. Background

Petitioner, pro se Pierre St. George is a native and citizen of Haiti and became a lawful permanent resident of the United States in 1982. See Certified Administrative Record in St. George v. Immigration and Naturalization Service, No. A24-716-007 (attached to Dkt. No. 13), ("Record") at P. 29.

On July 26, 1996, St. George plead guilty to criminal possession of a controlled substance in the second degree. Record at P. 236 ("CPCS conviction"),*fn2 and as a result, St. George was sentenced on September 11, 1996, to five and one-half years to life imprisonment*fn3 (Record at PP. 30, 236). St. George's parole status into the United States was thereafter terminated (Record at P. 243). On December 10, 1997, St. George was advised that the INS would be seeking his removal from the United States at a hearing before an Immigration Judge due to his CPCS conviction (Record at PP. 245, 253-255).

On September 27, 1999, Immigration Judge Joe Miller presided over a hearing regarding the charges brought against St. George by the INS. At that time, Judge Miller informed St. George about the charges and what he was required to establish in order to avoid removal from the United States (Record at 44-46). Judge Miller adjourned that hearing until December 1, 1999, and St. George elected to represent himself (Record at PP. 52-53). At that hearing, Judge Miller heard testimony from St. George and after considering his request for cancellation of removal pursuant to 8 U.S.C. § 1229b(a),*fn4 he concluded that based upon the evidence before him, cancellation of removal was not warranted (Record at PP. 116-18). Judge Miller then ordered St. George deported to France and, if that country would not accept him, to his native country, Haiti (Record at PP. 119-20). St. George appealed Judge Miller's decision to the Board of Immigration Appeals ("BIA") which dismissed St. George's appeal (Record at P. 4).

St. George commenced this action on September 25, 2000, pursuant to 28 U.S.C. § 2241. In his petition, St. George argues that Judge Miller's order directing his removal from the United States violates the Ex Post Facto Clause of the United States Constitution.*fn5 Specifically, St. George argues that Judge Miller wrongfully, retroactively applied the provisions of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996) to the detriment of St. George, despite the fact that the conduct that formed the basis of his conviction occurred prior to the date on which the IIRIRA was enacted. Pet. at Ground One. St. George also argues that his application for a waiver of removal was improperly denied based upon the retroactive application of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pet. at Ground Two.

In opposing the petition, respondent INS*fn6 initially argues that this court lacks subject matter jurisdiction over St. George's petition. It alternatively argues that because St. George was ineligible for discretionary relief from removal, his petition must be denied (see Dkt. No. 15).

II. Discussion

A. Propriety of Motion

Initially, the court notes that although the INS brought its motion as one seeking to dismiss St. George's petition (see Dkt. No. 14), those papers are, in fact, a response in opposition to the petition, together with a copy of the relevant administrative record. See Dkt. Nos. 13-15. Therefore, this court will consider matters submitted along with the motion to dismiss as well as St. George's habeas petition and supporting memorandum, in arriving at a recommendation regarding respondent's motion.*fn7

B. Merits of the Motion

1. Judicial Review of Immigration Orders

Respondent initially appears to claim that amendments to the Immigration Law, and in particular, the enactment of the IIRIRA, deprived this court of subject matter jurisdiction over St. George's petition. Dkt. No. 15 at P. 5.

Prior to the enactment of the AEDPA, aliens under a final order of removal due to a criminal conviction could seek judicial review both in the appropriate court of appeals (under 8 U.S.C. § 1105a(a)) (cross-referencing 28 U.S.C. § 2341-2351), see Pena-Rosario v. Reno, 83 F. Supp.2d 349, 354 (E.D.N.Y. 2000), and in federal district court by way of a habeas corpus petition brought pursuant to former § 106(a)(10) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1105a(a)(10) ("any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings"). See Poodry v. Tonawanda ...

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