The opinion of the court was delivered by: Sidney H. Stein, United States District Judge.
Rogelio Reyes-Sanchez, a citizen of the Dominican Republic, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging a final decision of the Board of Immigration Appeals ("BIA") denying his applications for withholding and deferral of removal pursuant to the Immigration and Nationality Act (the "INA") and the Convention Against Torture (the "CAT") and ordering his removal from the United States. On May 18, 2002, while this petition was pending, the Immigration and Naturalization Service*fn1 (the "ENS") removed Reyes-Sanchez to the Dominican Republic, where he currently resides.
Petitioner challenges the BIA's decision on the grounds that: (1) the BIA improperly designated his conviction for attempted sale of cocaine as a "particularly serious crime," thereby barring him from eligibility for withholding of removal pursuant to the INA and the CAT; (2) the CAT's implementing regulations, promulgated by the Attorney General, are invalid as inconsistent with the plain language and international understanding of the CAT, and that therefore, the BIA applied the improper legal standards in evaluating petitioner's claims; and (3) the BIA erroneously concluded that petitioner, who suffers from AIDS, failed to prove more likely than not that he would be tortured in the Dominican Republic on account of his medical condition. With respect to his third claim, petitioner specifically alleges that he is more likely than not to be tortured in the Dominican Republic because that government's HPV medication policy will deprive him of the life-sustaining medication he requires; doctors in the Dominican Republic, some of whom are state agents, are afraid of individuals with HIV and AIDS and do not provide them with appropriate medical care; and because there is a presumption in the Dominican Republic that any man with HIV or AIDS is a homosexual and that some doctors refuse to give homosexuals the same medical treatment as they give heterosexuals. (Pet. Brief at 40, 49-50).
For the reasons set forth below, the petition for a writ of habeas corpus is denied.
Petitioner, a citizen of the Dominican Republic, was admitted to the United States as a visitor for pleasure on August 16, 1985 and became a lawful permanent resident on March 15, 1990. On January 29, 1991, he pled guilty to one count of attempted criminal sale of a controlled substance (cocaine) in the third degree, in violation of N.Y. Penal Law § 220.39(1). He was sentenced to Five years of probation. On June 12, 1996, he was convicted of violating his probation and was sentenced to six months' imprisonment.
On April 27, 2000, the INS initiated removal proceedings against Reyes-Sanchez, and on January 16, 2001, served him with Additional Charges of Inadmissibility/Deportability alleging that he was subject to removal from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(A)(iii), as an alien convicted of an aggravated felony as defined in 8 U.S.C. § 1101 (a)(43)(B) (drug trafficking offense) based on his 1991 conviction for attempted criminal sale of a controlled substance in the third degree.
In November 2001, an Immigration Judge ("IJ") found petitioner removable from the United States pursuant to 8 U.S.C. § 1227 (a)(2)(B)(i) (conviction for violating controlled substance law) and 8 U.S.C. § 1127 (a)(2)(A)(iii) (conviction for aggravated felony). (IJ Decision, JA 116-133.)*fn2 After a rigorous analysis, which gave serious consideration to petitioner's conviction and criminal history, as well as the equities (including his long term residency in the United States, the presence of his child — a U.S. citizen — in the United States, and his good behavior while imprisoned), the IJ denied petitioner's application for a discretionary waiver pursuant to section 212(c) of the INA, 8 U.S.C. § 1182 (c). (JA 123-27.) The IJ also denied petitioner's application for withholding of removal pursuant to the INA and the CAT after considering the circumstances of petitioner's conviction and finding that he had been convicted of a "particularly serious crime," rendering him ineligible for relief offered by the INA and the CAT pursuant to 8 U.S.C. § 1231(b)(3)(B). (JA 127-29.) The IJ explicitly declined to find that the failure of the Dominican Republic's government to subsidize medical treatment for all HIV and AIDS patients constituted "torture" within the meaning of the CAT. (JA 16.). However, the IJ granted petitioner's application for deferral of removal pursuant to Article 3 of the CAT, finding that petitioner "might be intentionally denied appropriate medical treatment because of his status as an HIV patient with full blown ADS." (JA 17.) The IJ based his finding on petitioner's contention that some doctors in the Dominican Republic, some of whom are public officials, intentionally refuse treatment to patients with HIV and AIDS. (JA 16-17.)
The INS and Reyes-Sanchez cross-appealed the IJ's decision to the BIA. Petitioner contended that: (1) the IJ erred in denying his application for section 212(c) relief, (2) the IJ erred in determining that petitioner's conviction for attempted criminal sale of a controlled substance in the third degree is a "particularly serious crime"; and (3) petitioner should be granted withholding of removal pursuant to the INA and the CAT. The INS asserted that the IJ erred in granting petitioner's deferral of removal pursuant to the CAT because petitioner failed to prove more likely than not that he would be tortured if returned to the Dominican Republic.
On April 25, 2002 the BIA issued a decision dismissing petitioner's appeal and granting the INS's appeal, thereby denying petitioner's application for deferral of removal pursuant to the CAT and ordering petitioner removed from the United States. (JA 1-5.) The BIA found that the IJ did not abuse its discretion in denying petitioner's application for section 212(c) relief. (JA 3.) With respect to petitioner's claim that his 1991 conviction was not a "particularly serious crime, " the BLA explained that it is bound by the decision of the U.S. Attorney General in In re Y-L, A-G, and R-S-R, 23 I. & N. Dec. 270 (A.G. March 5, 2002), in which the Attorney General classified aggravated drug trafficking convictions as "particularly serious crimes," except where "extraordinary and compelling" circumstances warrant a departure from that classification. In re Y-L, 23 I. & N. Dec. at 274. (JA 3.) The BIA further found that petitioner had not demonstrated that his conviction fell within the exception for "extraordinary and compelling" circumstances, as set forth in In re Y-L.
With respect to petitioner's application for deferral of removal pursuant to the CAT, the BIA found that the IJ erred in concluding that the refusal by some doctors in the Dominican Republic to provide some types of medical treatment to HIV patients constitutes the intentional infliction of physical and mental torture within the meaning of the CAT's implementing regulations. Like the IJ, the BIA also found no evidence that public officials in the Dominican Republic intentionally created and continue to maintain substandard medical conditions for persons with HIV or AIDS. To the contrary, the BIA found that "[t]he government of the Dominican Republic has made a significant effort to provide competent medical care for these patients despite its inability to cover the necessary costs. . . . In fact, the evidence shows that the government is currently attempting to manufacture generic versions of the necessary drugs for treatment in order to reduce medical costs for impoverished patients." (JA 4.)
Finally, the BIA concluded that "the evidence of record does not substantiate the Immigration Judge's finding that it is more likely than not that the respondent will be subjected to treatment rising to the level of torture with the acquiescence of a public and/or government official if returned to the Dominical Republic." (JA 4.) The BIA explained that although the evidence in the record suggested that HIV and AIDS patients in the Dominican Republic may receive substandard medical treatment from public and private hospitals, these conditions do not constitute "torture" within the meaning of the CAT as implemented by 8 C.F.R. § 208.18 (a). (JA 4.)
Accordingly, the BIA ordered petitioner removed from the United States and, as noted above, he was in fact subsequently removed to the Dominican Republic.
This Court properly has jurisdiction to consider Reyes-Sanchez's petition, which is here pursuant to an order from the U.S. Court of Appeals for the Second Circuit dated February 18, 2003. In order for this Court to exercise jurisdiction over the habeas petition, a non-citizen who has been deported must (1) satisfy the "in custody" requirement of the federal habeas statute and (2) demonstrate that the petition is not moot as a result of his deportation. See, e.g., Louise v. Costello, 2002 WL 1446618 at *2 (S.D.N.Y. July 2, 2002); So v. Reno, 2003 WL 1193509 at *5 (E.D.N.Y. Jan. 24, 2003)
On May 16, 2002, Reyes-Sanchez filed a petition for review of the BIA's decision in the Second Circuit. On May 18, 2002, while that petition was pending, the INS removed Reyes-Sanchez from the U.S. to the Dominican Republic.*fn3 On February 18, 2003, the Second Circuit determined that it did not have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252 (a)(2)(C), which provides in relevant part that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in . . . [8 U.S.C. § 1227 (B)]." The Second Circuit therefore transferred the petition for review to this Court pursuant to 28 U.S.C. § 1631, which instructs that:
Whenever a civil action is filed in a court . . . and
that court finds that there is a want of
jurisdiction, the court shall, if it is in the intrest
of justice, transfer such action or appeal to any
other such court in which the action or appeal could
have been brought at the time it was filed or
noticed, and the action or appeal shall proceed as if
it had been filed in or noticed for the court to which
it is transferred on the date upon which it was
actually filed or noticed for the court from which it
In addition to transferring the petition for review to this Court, the Second Circuit also directed this Court to consider the petition for review as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn4
(Second Cir. Order, Feb. 18, 2003.)
A. Petitioner Satisfies the "In Custody" Requirement of 28 U.S.C. § 2241
The "in custody" requirement of 28 U.S.C. § 2241 provides that "the writ of habeas corpus shall not extend to a prisoner unless . . . he is in custody under or by color of the authority of the United States or is committed for trial before some court thereof." 28 U.S.C. § 2241(c)(2). However, the habeas statutes require only that the petitioner be "in custody" at the time the petition is filed. See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (section 2254 petition); Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Scanio v. United States, 37 F.3d 858, 860 (2d Cir. 1994) (section 2255 petition); Louise v. Costello, No. 01 Civ. 3987 2002 WL 1446618 (S.D.N.Y. July 2, 2002) (section 2241 petition); Sango v. Reno, No. 00 Civ. 7983, 2001 WL 1223427 (S.D.N.Y. Oct. 15, 2001) (section 2241 petition) see also Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002) (petitioner "needed only to be `in custody' at the time the petition was filed to avoid a jurisdictional challenge based on the `in custody' requirements of [28 U.S.C. § 2241]."); Chong v. District Director, I.N.S., 264 F.3d 378 (3rd Cir. 2001) (alien was "in custody" for [section 2241] purposes, notwithstanding her removal from the United States, because custody is measured at time petition was filed) (citing Caraafas, 391 U.S. at 238).
Although the INS removed Reyes-Sanchez to the Dominican Republic on May 18, 2002, he was in INS custody at the time he filed his petition for review in the Second Circuit on May 16, 2002. Furthermore, because 28 U.S.C. § 1631 instructs that an action transferred from another court for want of jurisdiction "shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred," this Court is considering Reyes-Sanchez's petition for a writ of habeas corpus to have been filed on May 16, 2002 — the date on which he filed his petition for review in the Second Circuit — when he was still in INS custody.
Therefore, petitioner was "in custody" within the meaning of 28 U.S.C. § 2241, notwithstanding his removal to the Dominican Republic after the petition was filed. The Government, in its response to the instant ...