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United States District Court, Northern District of New York

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 Band of Seneca Indians, 85 F.3d 874, 903 (2d Cir. 1996). The AEDPA, however, eliminated § 106(a)(10) of the INA and replaced it with a provision which provides that:

Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense covered by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject to review by any court.
AEDPA § 440(a); Henderson v. Immigration and Naturalization Service, 157 F.3d 106, 117 (2d Cir. 1998); Pena-Rosario, 83 F. Supp.2d at 355.

Enactment of the IIRIRA further modified Immigration Law by eliminating § 212(c) of the former INA (8 U.S.C. § 1182(c)),*fn8 which (as amended by AEDPA) had governed the Attorney General's discretion to waive deportation for certain permanent residents. Pena-Rosario, 83 F. Supp.2d at 356. In place of INA § 212(c), the IIRIRA created a new procedure entitled "Cancellation of removal." See 8 U.S.C. § 1229b. The IIRIRA also amended 8 U.S.C. § 1252(g) so that it now provides that:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Henderson, 157 F.3d at 117 n. 7; Kusumoto v. U.S. Dept. of Justice, 98-CV-271, 1998 WL 213715, at *3 (N.D.N.Y. Apr. 9, 1998) (McAvoy, C.J.).

While at first blush the above statutes may appear to support respondent's position regarding the subject matter jurisdiction of a district court to consider habeas petitions challenging the validity of removal orders, the Second Circuit recently observed in Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) that "the Supreme Court [has] held that the jurisdiction-stripping provisions of the . . . AEDPA . . . and IIRIRA . . . which prevent certain classes of aliens from obtaining judicial review of their removal orders, do not deprive federal courts of jurisdiction to consider challenges by such aliens to their removal orders raised in § 2241 habeas petitions." Wang, 320 F.3d at 140 (citing Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289, 299 (2001)). Thus, this court has subject matter jurisdiction over this action notwithstanding the above-referenced provisions of the AEDPA and the IIRIRA.

Nevertheless, the court must consider whether the petition should be dismissed for substantive reasons.

2. Impact of AEDPA on St. George's Eligibility for Relief from Removal
As noted above, before passage of the AEDPA, discretionary relief from deportation was available through a waiver of deportation. See INA § 212(c) (repealed); Santos-Gonzalez, 93 F. Supp.2d at 289. However, in light of the AEDPA, aliens who are convicted of certain enumerated offenses, including drug-related crimes or aggravated felonies, are ineligible for discretionary relief from deportation. See St. Cyr v. Immigration and Naturalization Service, 229 F.3d 406, 410 (2d Cir. 2000), aff'd, 533 U.S. 289 (2001); U.S. v. Cottone, ___ F. Supp.2d ___, 2003 WL 341210, at *3 (E.D.N.Y. Feb. 14, 2003) ("[t]he AEDPA made certain classes of criminals, including those convicted of an aggravated felony, ineligible for relief from deportation under Section 212(c)") (citing AEDPA § 440(d); 8 U.S.C. § 1227).*fn9

In this case, St. George argues that because the "conduct of [his] conviction" occurred prior to the enactment of the AEDPA and the IIRIRA, it was improper for these statutes to be considered by Judge Miller in considering his request to remain in this country. See generally Supporting Mem. at PP. 4-8. That argument, however, overlooks the fact that "[t]he critical moment to assess whether the AEDPA applies to an alien and whether he is eligible for § 212(c) relief is the date of the guilty plea." Hibbert v. Ashcroft, 01CIV4384, 2002 WL 1205736, at *3 (S.D.N.Y. Mar 11, 2002) (citing St. Cyr, 229 F.3d at 420-21); see also, Green-Mendoza v. Ashcroft, 99CIV9911, 2002 WL 1870285, at *3 (S.D.N.Y. Aug. 14, 2002) ("it is the conviction and not the criminal conduct that eliminates § 212(c) discretionary relief") (citing Domond v. Immigration and Naturalization Service, 244 F.3d 81, 85 (2d Cir. 2001)).

In this case, St. George admits that he plead guilty to the criminal possession charge on July 26, 1996. Supporting Mem. at P. 3; see also, Record at 255. Since St. George plead guilty to that charge after the enactment of the AEDPA on April 24, 1996, any argument that the AEDPA was wrongfully, retroactively applied against St. George by Judge Miller must fail. See Green-Mendoza, 2002 WL 1870285, at *3; Hibbert, 2002 WL 1205736, at *3. Thus, St. George's application for a waiver of removal was necessarily subject to the provisions of the AEDPA, and this court must determine whether his CPCS conviction rendered him ineligible to remain in this country under that Act.

"Under the [AEDPA], a person convicted of criminal possession of a controlled substance in the second degree was rendered ineligible for a § 212(c) waiver." Henderson, 157 F.3d at 109; see e.g., Hernandez-Osoria v. Ashcroft, 01CIV5545, 2002 WL 193574 (S.D.N.Y. Feb. 7, 2002) (conviction for attempted criminal possession of controlled substance in fourth degree renders immigrant ineligible for waiver of inadmissibility). Thus, it is clear that St. George's CPCS conviction rendered him ineligible for a § 212(c) waiver of deportation, e.g., Henderson, 157 F.3d at 109, and the removal order issued by Judge Miller relating to St. George therefore did not constitute error. Accordingly, respondent's motion to dismiss the petition, which seeks a determination from this court that "Petitioner is eligible for relief under the [sic] 212(c)," see Supporting Mem. at P. 6, should be granted.

In light of the foregoing, this court need not address the issue of whether the IIRIRA was impermissibly, retroactively applied against St. George because "[t]he unavailability of § 212(c) relief, pursuant to the provisions of AEDPA, renders moot petitioner's claim of an impermissible retroactive application of IIRIRA." Green-Mendoza, 2002 WL 1870285, at *3; Hibbert, 2002 WL 1205736, at *3 (dismissing petition where petitioner ineligible for discretionary waiver under AEDPA regardless of whether IIRIRA was wrongfully, retroactively applied to the detriment of petitioner by BIA).

WHEREFORE, based upon the above, it is hereby

RECOMMENDED, that respondent INS' motion to dismiss (Dkt. No. 14) be GRANTED; and it is further

RECOMMENDED, that St. George's petition be DENIED and DISMISSED; and it is further

ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail.

NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.

*fn2 St. George apparently possessed approximately one pound of cocaine at the time of his arrest (Record at P. 116).

*fn3 St. George did not appeal that conviction (Record at P. 55).

*fn4 8 U.S.C. § 1229b provides, in part:

(a) Cancellation of removal for certain permanent residents 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).

*fn5 The Ex Post Facto Clause prohibits the retroactive application of penal legislation. U.S. Const., Article I, § 10, cl. 1; Lynce v. Mathis, 519 U.S. 433, 440 n. 12 (1997).

*fn6 The court refers to this respondent as the INS because that agency was in effect at the time the motion sub judice was filed.

*fn7 Moreover, where the subject matter jurisdiction of the court is questioned, the court may properly consider matters outside the pleadings. Maritima Petroleo E Engenharia LTDA v. Ocean Rig 1 AS, 78 F. Supp.2d 162, 165-66 (S.D.N.Y. 1999). Additionally, in the context of a motion to dismiss, a court may consider documents known to a petitioner upon which he relies in framing his pleading even when the documents are not annexed to the pleading. United Magazine Co. v. Murdoch Magazines Distribution, Inc., 00Civ.3367, 2001 WL 1607039, at *10 (S.D.N.Y. Dec. 17, 2001) (citation omitted); see e.g., Burger v. McElroy, 97Civ.8775, 1999 WL 203353, at *1 n. 1 (S.D.N.Y. Apr. 12, 1999) (court considered documents relevant to claim against INS but not attached to pleading in context of motion to dismiss); see e.g., Dollinger v. State Ins. Fund, 44 F. Supp.2d 467, 472 (N.D.N.Y. 1999) (McAvoy, C.J.) (court may consider administrative complaints and related determinations submitted by parties in the context of motion to dismiss).

*fn8 Prior to its repeal, § 212(c) of the INA had authorized the U.S. Attorney General to "waive the grounds for deportation under certain conditions in the case of a lawfully admitted permanent resident in deportation proceedings." See INA § 212(c) (repealed); 8 U.S.C. § 1182(c) (repealed); see also, Santos-Gonzalez v. Reno, 93 F. Supp.2d 286, 289 (E.D.N.Y. 2000).

*fn9 "The explicit goal of the AEDPA was to enhance the ability of the United States to deport criminal aliens." St. Cyr, 229 F.3d at 411 (internal quotation and citation omitted).

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