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United States District Court, Southern District of New York

April 11, 2003


The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge




Before the Court is Luis Rosales' ("Rosales") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Nationalization Service ("INS"). Petitioner contends that his constitutional right to due process was violated when the Immigration Judge ("IJ") who presided over his removal hearing denied him an opportunity to present evidence of his United States citizenship.

Respondent opposes petitioner's application for habeas corpus relief on the following grounds: (1) petitioner was properly ordered removed from the United States, as an alien who has been convicted for an aggravated felony; (2) petitioner's removal hearing was fundamentally fair and conducted in full compliance with the Due Process Clause of the Fifth Amendment; (3) insofar as petitioner seeks a determination from this court that he derived citizenship through his father, the court should dismiss the claim for lack of jurisdiction; and (4) in any case, petitioner's derivative citizenship claim has no merit. For the reasons set forth below, I recommend that the petition be denied.


Rosales is a native and citizen of Ecuador. He entered the United States on September 23, 1977, as a lawful permanent resident. On March 20, 1991, following a jury trial in New York State Supreme Court, New York County, Rosales was found guilty of murder in the second degree, see N.Y. Penal Law § 125.25, an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43),*fn1 and was sentenced to twenty-five years to life imprisonment. Rosales was also found guilty of criminal possession of a weapon in the second and third degrees see N.Y. Penal Law § § 265.03 and 265.02, for which he received sentences of five to fifteen years imprisonment and two and one-third to seven years imprisonment, respectively.

On March 6, 1998, Rosales was served a Notice to Appear in Removal Proceedings. The removal proceeding was initiated pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii) (alien convicted of an aggravated felony).

A hearing was held on May 29, 1998, at which the IJ informed Rosales that he would adjourn the proceedings in order to give petitioner an opportunity to obtain counsel. Rosales was also told that if he were unable to obtain counsel, he would have to represent himself when the hearing continued. The IJ then informed petitioner, inter alia, that he had the right to examine any documents that might be introduced into evidence by the respondent during the hearing, as well as the right to object to their inclusion in the record. In addition, Rosales was told that he had the right to cross-examine any witnesses produced by the respondent and also to introduce into evidence documents or exhibits of his own, as well as the testimony of witnesses.

When the hearing continued, on August 6, 1998, petitioner, appearing without counsel, stated that he had contacted an attorney who had discussed with him whether petitioner was a United States citizen. The IJ questioned petitioner about this matter and learned that petitioner believed he had derived citizenship through his father. The IJ then directed counsel for the respondent to determine whether petitioner's father had become a citizen through naturalization. The IJ explained to petitioner that, under the circumstances, in order to establish derivative citizenship, petitioner would need to submit proof that his father had been granted legal custody of him some time before petitioner reached the age of eighteen years. However, the IJ stated, failure to submit the requisite proof of citizenship, resulting in a finding that petitioner was removable from the United States, would not bar petitioner from returning to that court if were he able to secure such proof in the future; petitioner might then seek to have his case reopened. The IJ then determined to adjourn the hearing in order to give petitioner more time to prepare his defense.

The hearing continued on September 14, 1998. Petitioner, in response to questioning from the IJ, stated that he still had not obtained counsel and asked for "one last adjournment" of the proceedings. The IJ agreed to adjourn the hearing to October 21, 1998, but cautioned petitioner that no additional extensions of time in which to present his case would be granted. Counsel for the respondent then informed the court that he had determined that petitioner's father had become a United States citizen through naturalization in or around 1975 and that petitioner's parents were married at the time of petitioner's birth. The IJ explained to petitioner that, based on these facts, in order for petitioner to prove derivative citizenship, he would need to establish either that his mother had become a naturalized citizen before petitioner reached the age of eighteen years or that petitioner's father and mother had divorced prior to that date and petitioner had remained in his father's legal custody.

On October 21, 1998, petitioner, appearing without counsel, stated that the only documentation he had been able to secure concerning his citizenship status was an affidavit from his father, but he was unable to produce the affidavit in court because of problems he had experienced at the correctional facility where he was housed. The IJ told petitioner that an affidavit from petitioner's father was not sufficient, in any case, to establish citizenship. The IJ then commenced removal proceedings against petitioner. At the conclusion of the hearing, the IJ found that Rosales was removable as charged and ordered him removed to Ecuador.

On October 27, 1998, Rosales filed an appeal with the Board of Immigration Appeals ("BIA"). On March 29, 1999, the BIA dismissed Rosales' appeal. The BIA's decision rendered Rosales' removal order final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2 (S.D.N.Y. 1998).

The instant habeas corpus petition was filed on June 23, 1999. On July 22, 1999, this Court ordered a stay of removal in order to preserve the court's jurisdiction to reach the merits of the case. See 28 U.S.C. § 1651. In October 1999, respondent asked the court to suspend active consideration of petitioner's application for a writ of habeas corpus because the resolution of certain cases then pending in the Second Circuit Court of Appeals might affect the court's subject matter jurisdiction over Rosales' petition. The court granted respondent's application. Thereafter, on February 6, 2003, all pending appeals having been decided, your Honor ordered that this action be removed from the court's suspense docket and placed on the court's pending docket.



Federal courts have jurisdiction under 28 U.S.C. § 2241 to hear and determine petitions for writs of habeas corpus seeking review of final removal orders, but only with respect to legal or constitutional issues. See Calcano-Martinez v. INS, 533 U.S. 348, 351-52, 121 S.Ct. 2268, 2269-70 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 2287 (2001). Accordingly, a habeas corpus petition brought pursuant to § 2241 may be used only "to challenge incarceration or orders of deportation as being "in violation of the Constitution or laws or treaties of the United States.'" Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001)(quoting 28 U.S.C. § 2241 [c][3]).

In the instant case, Rosales' claim concerning the IJ's refusal to allow him to submit evidence of United States citizenship during his removal hearing alleges a violation of his Fifth Amendment right to due process; therefore, the claim raises a constitutional issue. Accordingly, this court has jurisdiction to entertain the instant petition and to determine whether the petitioner is entitled to habeas corpus relief.

Due Process Claim

"Although the Supreme Court has not specifically delineated the procedural safeguards to be accorded aliens in deportation or removal hearings, it is well settled that the procedures employed must satisfy due process." United States v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002)(citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212, 73 S.Ct. 625 [1953]). A deportation or removal proceeding is a civil action; therefore, the various due process protections that normally are associated with criminal trials are not required. See id. Nevertheless, a removal hearing must be fundamentally fair. See Tulloch v. INS, 175 F. Supp.2d 644, 648 (S.D.N.Y. 2001)(citing Iavorski v. United States INS, 232 F.3d 124, 128 [2d Cir. 2000]); Akhtar v. Reno, 123 F. Supp.2d 191, 198 (S.D.N.Y. 2000).

The statute governing the conduct of removal proceedings provides that an alien is entitled to, inter alia "a reasonable opportunity" to present evidence on his own behalf. 8 U.S.C. § 1229a(b)(4); see also Akhtar, 123 F. Supp.2d at 198. However, to prevail on a due process claim alleging the denial of a reasonable opportunity to present evidence, a petitioner must show both that he was denied such an opportunity and that this fundamental procedural error resulted in prejudice, that is, affected the outcome of the proceeding. See Akhtar, 123 F. Supp.2d at 198; Fernandez-Antonia, 278 F.3d at 159.

Petitioner claims that he was deprived of his constitutional right to due process during his removal hearing because the IJ failed to afford him an opportunity to introduce certain evidence, "to wit an affidavit from his family to establish that he [has] derived citizenship through his father." Petitioner, however, has not demonstrated that he was denied a "reasonable opportunity" to present such evidence. As discussed supra, over a period of approximately five months the IJ adjourned petitioner's hearing three times in order to give petitioner an opportunity to obtain counsel and secure the documents required to prove that he had derived United States citizenship through his father. In addition, the IJ advised petitioner concerning the consequences of failing to obtain counsel, directed the respondent to secure information regarding the citizenship status of petitioner's father, and explained to petitioner, on more than one occasion and in detail, the type of proof he would have to present in order to establish derivative citizenship.

Petitioner did not obtain counsel and failed to present the requisite proof of citizenship. At his final appearance before the IJ, petitioner referred to an affidavit prepared by his father which, it was suggested, would attest to petitioner's citizenship status. However, petitioner was unable to produce the affidavit at his hearing and, as the IJ had explained to him, such a document would not in any case have been sufficient to prove that petitioner had become a citizen through his father.

Furthermore, petitioner has not made the requisite showing of prejudice. Petitioner has not produced the affidavit he claims he was denied an opportunity to present at any time during this case. Nor does he explain how the affidavit, if presented to the immigration court, would have altered the outcome of the proceeding. Consequently, petitioner has not demonstrated that the IJ's ultimate decision to go forward with petitioner's removal hearing constituted a fundamental procedural error or resulted in prejudice. See Gutierrez v. Reno, No. 99 Civ. 11036, 2000 WL 1643585, at *4 (S.D.N.Y. Nov. 1, 2000) (finding that IJ's failure to adjourn removal hearing for a third time did not violate petitioner's rights to counsel or due process).

Eligibility for Relief from Removal

As respondent contends, petitioner was properly found removable. Having been convicted of second degree murder, an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), petitioner is removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1227(a)(2)(A)(iii). In addition, petitioner is ineligible for cancellation of removal pursuant to INA § 240A. Section 240A, codified at 8 U.S.C. § 1229b(a)(3), permits the Attorney General to cancel removal in the case of an alien who has not been convicted of an aggravated felony. Since Rosales was convicted of an aggravated felony in 1991, he is not entitled to relief under § 240A.

Nor is petitioner eligible for a waiver of deportation pursuant to former § 212(c) of the INA. Section 212(c), which was codified at 8 U.S.C. § 1182(c) and subsequently repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIIRA") § 304(b) in 1996, provided a discretionary waiver of deportation for aliens who were "lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years. . . ." 8 U.S.C. § 1182(c)(repealed)(1996) (quoted in INS v. St. Cyr, 533 U.S. 289, 295, 121 S.Ct. 2271, 2276 [2001]).

In June 2001, the United States Supreme Court considered whether provisions of, inter alia, the IIRIRA repealing discretionary relief from deportation applied retroactively to an alien whose conviction was obtained through a plea agreement. See St. Cyr, 533 U.S. at 320, 121 S.Ct. at 2290. The Court held that "§ 212(c) relief remains available for aliens whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Id. at 326, 2293.

Petitioner's order of removal, however, was based on his conviction for second degree murder, which was obtained, not through a guilty plea, but through a jury verdict. As a result, the Supreme Court's ruling in St. Cyr, making § 212(c) relief available to aliens who pled guilty prior to the enactment of the IIRIRA, does not apply in this case. Therefore, petitioner is not eligible for § 212(c) relief. Accordingly, for the reasons set forth above, the BIA properly ordered Rosales' removal from the United States.

Having determined that petitioner's due process claim is without merit and that petitioner was properly ordered removed, the Court need not address respondent's additional contentions, concerning petitioner's citizenship status.


For the reasons set forth above, I recommend that petitioner's application for a writ of habeas corpus be denied.


Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, New York, N.Y. 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, NY, 10007. Any requests for an extension of time for filing objections must be directed to Judge Wood. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); RYE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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