The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE KIMBA M. WOOD, UNITED STATES DISTRICT JUDGE
Before the Court is William Woodrow Wilson's ("Wilson") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Wilson challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS").
Petitioner contends that he is entitled to relief because: (1) he is eligible for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182 (c) (repealed by the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") § 304[b]); (2) the determination by the INS that he was ineligible for a waiver of inadmissibility under INA § 212(h) ("§ 212(h)"), 8 U.S.C. § 1182 (h), by virtue of his status as a lawful permanent resident, effectively denied him equal protection under the Due Process Clause of the Fifth Amendment; and (3) the immigration court erred in denying his request to terminate the removal proceedings in order to give him an opportunity to submit evidence concerning his eligibility for naturalized citizenship.
Respondents oppose petitioner's application for a writ of habeas corpus. They contend that the petition should be dismissed for lack of jurisdiction, or else transferred to the Western District of Louisiana where venue would be proper. Alternatively, respondents claim, the petition should be dismissed on the merits.
For the reasons set forth below, I recommend that the petition be denied.
Wilson is a native and citizen of Jamaica. He was admitted to the United States as a lawful permanent resident on November 5, 1967, when he was four years old. On October 21, 1986, following a jury trial in the New York State Supreme Court, Queens County, Wilson was found guilty of robbery in the second degree, see N.Y. Penal Law § 160.10, and criminal possession of stolen property in the third degree, see N.Y. Penal Law § 165.50. Wilson was sentenced to two to six years imprisonment for the second degree robbery conviction and one year imprisonment for the third degree criminal possession of stolen property conviction. The sentences were to be served concurrently. On February 13, 1987, Wilson entered a guilty plea in New York State Supreme Court, Queens County, to assault in the first degree, see N.Y. Penal Law § 120.10, and was sentenced to a term of imprisonment of twenty-eight months to seven years for that offense. Robbery in the second degree and assault in the first degree are aggravated felonies pursuant to 8 U.S.C. § 1101 (a)(43).*fn1
On October 31, 1997, Wilson arrived at John F. Kennedy International Airport in New York, following a visit to Jamaica. Upon arrival, Wilson applied for admission to the United States as a returning lawful permanent resident. During an inspection of Wilson's passport, immigration officials discovered that Wilson had a criminal record; they determined, therefore, that he was inadmissible to the United States. Wilson was detained and placed in an INS facility in New York. Thereafter, Wilson was transferred to the Federal Detention Center in Oakdale, Louisiana.
On November 1, 1997, Wilson was served a Notice to Appear in Removal Proceedings. The Removal Proceeding was initiated pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182 (a)(2)(A)(i) (alien convicted for a crime involving moral turpitude); and INA § 212(a)(2)(B), 8 U.S.C. § 1182 (a)(2)(B) (alien convicted for two or more criminal offenses for which the aggregate sentence is five years or more).
On December 30, 1997, Wilson filed a motion in the immigration court seeking to be reclassified as an admitted alien. Wilson argued that, as a previously admitted lawful permanent resident of the United States, he should not be classified as an arriving alien upon his return from a "brief, casual and innocent" trip abroad. A hearing was held on December 30, 1997, in Oakdale, Louisiana, at which Wilson appeared, represented by counsel. The immigration judge ("IJ") who presided at the hearing determined to adjourn the proceedings in order to give Wilson an opportunity to submit evidence in support of his reclassification motion.
The hearing continued on January 14, 1998. Wilson testified, inter alia that he had traveled to Jamaica from the United States on or about October 20, 1997, and had returned on October 31, 1997. Wilson also testified that he had previously been convicted for the criminal offenses described above. Thereafter, the IJ denied Wilson's application for reclassification; he explained that, under INA § 101(a)(13)(C), as amended,*fn2 a lawful permanent resident who, like Wilson, has been convicted for certain criminal offenses, for example, a crime involving moral turpitude, is to be considered an applicant for admission into the United States, regardless of the nature or circumstances of his travel abroad. The IJ then scheduled a hearing on the issue of petitioner's removability.
When the hearing continued, on January 26, 1998, petitioner again testified concerning his criminal history. Counsel for the INS then withdrew certain allegations contained in the appearance notice, explaining that they were duplicative of charges made previously. Thereafter, the hearing was adjourned.
The hearing continued on February 26, 1998. Prior to issuing a decision regarding Wilson's removability, the IJ addressed the question whether Wilson had derived United States citizenship through his parents. Based on relevant documents presented at the hearing and the testimony of the petitioner, the IJ concluded that petitioner did not have citizenship status. Petitioner then asked the IJ to terminate the removal proceedings in order to afford petitioner an opportunity to apply for naturalized citizenship. The IJ denied this request, stating that he lacked the authority to ...