The opinion of the court was delivered by: Richard Casey, District Judge
Pro Se Petitioner Luis Ney Heredia-Matos ("Heredia-Matos") brings a 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 Respondent Immigration and Naturalization Service ("INS"). By Report and Recommendation, dated November 25, 2002, Magistrate Judge Kevin Nathaniel Fox recommended that the petition be denied. This Court agrees.
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waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c), 8 U.S.C. § 1182(c) repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") § 304[b]); (2) the INS took him into custody improperly for a crime for which his sentence had been served; and (3) the INS violated certain provisions of federal immigration law by failing to initiate removal proceedings immediately upon Petitioner's release from New York State custody in 1990.
First, Petitioner suggests that he is eligible for a discretionary waiver of deportation pursuant to the INA § 212(c) because his 1988 conviction was obtained through a guilty plea.
The Supreme Court has 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." See INS v. St. Cyr, 533 U.S. 289, 326 (2001). Because Petitioner's 1988 conviction was obtained through a guilty plea, this conviction does not preclude him from eligibility for § 212(c) relief Thus, Petitioner correctly posits that the Board of Immigration Appeals ("BIA") was erroneous in ruling that he was ineligible for § 212(c) relief based on his 1988 controlled substance conviction.
Although the BIA erred with respect to his 1998 conviction, Petitioner is ineligible for relief from deportation based on other crimes for which he has been convicted. In 1999, Heredia-Matos was convicted of third-degree criminal sale of a controlled substance, which constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43). Both the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") and the IIRIRA, which amended the INA, require that aliens convicted of aggravated felonies, including drug-trafficking crimes, be deported. See 8 U.S.C. § 1101(a)(43), 8 U.S.C.S. 1182(c) (immigrants found to be trafficking drugs are deportable); Gerbier v. Holmes, 280 F.3d 297 (3rd Cir. 2002) (holding that a drug conviction is an aggravated felony for deportation purposes if conviction contains a trafficking component). Consequently, as an aggravated felon, Petitioner is ineligible for § 212(c) relief.
Petitioner's 1983 convictions for third-degree criminal sale and third degree criminal possession of a controlled substance also classify as aggravated felonies under 8 U.S.C. § 1101(a)(43). Because these convictions were obtained through a jury verdict, they do not qualify for the exception established by the Supreme Court in St. Cyr, which made § 212(c) relief available to aliens who pled guilty prior to the enactments of AEDPA and IIRIRA, even if such a plea resulted in a conviction of an aggravated felony.
Furthermore, the Second Circuit has ruled that weapons offenders are ineligible for discretionary waiver of deportation under INS 212(c). See Cato v. INS, 84 F.3d 597, 601 (2d Cir. 1996) (Petitioner was not eligible for discretionary waiver of deportation under 212(c) because Congress did not provide an exclusion for weapons offenses and had a legitimate reason to treat weapons offenders differently). Thus, Petitioner's 1983 conviction for possession of a weapon also makes him ineligible for § 212(c) relief.
Although the BIA erred when it concluded that Petitioner was ineligible for § 212(c) relief based on his 1988 controlled substance conviction, Petitioner is removable on other grounds. Thus, a remand of this case to the BIA would be an exercise in futility since other statutory grounds for denying the petition exist. See N.L.R.B. v. American Geri-Care. Inc., 697 F.2d 56 (2d Cir. 1982) (holding that reversal and remand are required only where there is a substantial chance that, but for the error, the administrative agency might have reached a different conclusion).
Second, Petitioner claims that the INS took him into custody improperly based on a crime for which his sentence had been served. As Judge Fox suggests, there is no indication in the record that Petitioner was ever taken into INS custody. This claim is therefore without merit.
As his final claim, Petitioner suggests that the INS violated federal immigration law by failing to initiate his removal proceedings immediately upon Petitioner's release from New York State custody in 1990. Under 8 U.S.C. § 1229(d)(1) and (2), an alien has no standing to assert a claim challenging the Attorney General's actions with respect to the initiation of removal proceedings. See Tapia-Garcia v. United States, 53 F. Supp.2d 370, 385 (1999) (citing Campos v. INS, 62 F.3d 311 (9th Cir. 1995)). Thus, the Petitioner is entitled to no relief on these grounds.
A court may adopt those portions of a Report and Recommendation to which the parties do not object and with which the court finds no clear error. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). To date, the Petitioner has filed one objection. Pursuant to the federal "prisoner mailbox rule," notice of appeal is timely when a pro se prisoner delivers his papers to prison authorities for mailing to the federal court by the specified deadline. Houston v. Lack, 487 U.S. 266 (1988). In this case, however, Petitioner did not deliver papers to prison authorities until January 10, 2003, forty-nine (49) days after the Report and Recommendation was issued by Judge Fox. Rule 72(b) of the Federal Rules of Civil Procedure requires that parties file objections to a Magistrate's recommendation within ten (10) days. Thus, because Petitioner's objection was untimely, this Court need not address its merits.
Even if Petitioner's objection were filed in a timely manner, the objection is without merit. Although the BIA erred with respect to Petitioner's 1998 conviction, Petitioner is ineligible for relief from deportation based on other crimes for which Petitioner has been convicted. This Court is conscious of the Supreme Court's statement that "the grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based." S.E.C. v. Chenery Corp., 318 U.S. 80 (1943). However, the Chenery doctrine does not mean that reversal and remand are required each and every time an administrative agency assigns a wrong reason for its action. Rather, it requires reversal and remand only where there is a significant chance that, but for the error, the agency might have reached a different result. See N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759 (1969). Here, Petitioner's 1983 and 1999 convictions clearly preclude him from § 212(c) eligibility. Thus, as stated above, remand of this case to the BIA would be an exercise in futility. See N.L.R.B. v. American Geri-Care, Inc., 697 F.2d 56 (2d Cir. 1982).
The Court accepts and adopts the Report and Recommendation of Magistrate Judge Kevin Nathaniel Fox with the above-mentioned modifications to the reasoning. Thus, the petition is denied and the ...