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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. ยง 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 ...

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