The opinion of the court was delivered by: NINA GERSHON, District Judge
Petitioner is a citizen of Guyana. He was admitted to the United
States on June 11, 1989 as a lawful permanent resident. On October 15,
1999, petitioner was convicted of sexual abuse in the second degree and
acting in a manner injurious to a child, and sentenced to time served and
three years of probation. On July 28, 2000, petitioner was arrested for
selling marijuana to an undercover detective, and re-sentenced to nine
months imprisonment for violating the terms of his parole. On November
16, 2000, petitioner pleaded guilty to one count of criminal sale of
marijuana in the fourth degree and was sentenced to 30 days imprisonment.
Following this marijuana conviction, on January 29, 2001, the Immigration
and Naturalization Service ("INS") began deportation proceedings against
petitioner on the grounds that petitioner was convicted of an aggravated
felony and was "convicted of a violation of any law or regulation . . .
relating to a controlled substance other than a single offense involving
possession of one's own use of 30 grams or less of marijuana." On August
1, 2001, petitioner had a hearing before Immigration Judge William Van
Wyke ("IJ"), who found petitioner deportable and ordered him removed.
Although petitioner reserved his right
to appeal the IJ's decision to the BIA at the hearing, he later waived
that right in a letter to the IJ,*fn1 at which time the IJ's decision
became final. 8 C.F.R. § 1003.39.
Petitioner filed the instant petition pursuant to 28 U.S.C. § 2254
in the United States District Court for the Southern District of New York
on June 15, 2001, arguing that the criminal court never informed him that
his conviction could result in deportation, and that the respondent
erroneously considered his conviction an aggravated felony, rather than a
misdemeanor. On August 25, 2001, the petition was transferred to this
court and referred to Magistrate Judge Lois Bloom. By an order dated
September 4, 2001, Judge Bloom construed the petition as being brought
under both 28 U.S.C. § 2254 and 2241.*fn2 On April 7, 2002, before
respondent filed an answer to petitioner's habeas petition, petitioner
was deported to Guyana. On September 23, 2003, Judge Bloom issued a
Report and Recommendation recommending that the petition be dismissed. No
objections were filed to Judge Bloom's Report and Recommendation.*fn3
The doctrine of exhaustion of administrative remedies requires that a
party seek all possible relief within the deciding agency before he or she
may pursue federal judicial review of an agency decision. This doctrine
may be statutorily derived or judicially created. The Immigration and
Naturalization Act ("INA"), 66 Stat. 163, as amended, 8 U.S.C. § 1101
et seq., provides for judicial review of a final order of removal only if
"the alien has exhausted all administrative remedies available to the
alien as of right." 8 U.S.C. § 1252(d)(1). Following the Supreme
Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), the Second
Circuit has questioned whether this statutory exhaustion requirement
applies to habeas petitioners. See Beharry v. Ashcroft, 329 F.3d 51, 60-62
(2d Cir. 2003). However, Beharry found that, even if the statutory
exhaustion requirement does not apply, the judicially created doctrine of
exhaustion may be applied to bar an immigration habeas petition when the
petitioner has failed to exhaust his administrative remedies. Id. at 62.
Here, petitioner explicitly waived his right to appeal to the BIA. An
alien's waiver of the right to appeal an IJ's decision to the BIA is a
failure to exhaust administrative remedies for jurisdictional purposes.*fn4
Theodoropoulos v. INS, 313 F.3d 732, 737 (2d Cir. 2002); see Mejia-Ruiz
v. INS, 51 F.3d 358, 364 (2d Cir. 1995). Thus, because petitioner waived
his right to appeal the deportation order to the BIA, he failed to
exhaust all available administrative remedies. A district court may not
review an adverse administrative determination "until the party has first
sought all possible relief within the agency itself." Beharry v.
Ashcroft, 329 F.3d at 56. Accordingly, his
petition must be dismissed for lack of subject matter jurisdiction
under the doctrine of exhaustion unless an exception applies. See
Beharry, 329 F.3d at 63; Theodoropoulos, 313 F.3d at 737.
The INA's exhaustion requirement is absolute by its terms, allowing no
exceptions.*fn5 However, a number of exceptions do apply to the
judicially-created exhaustion requirement. Specifically, a petitioner may
not be required to exhaust administrative remedies when "(1) available
remedies provide no genuine opportunity for adequate relief; (2)
irreparable injury may occur without immediate judicial relief; (3)
administrative appeal would be futile; and (4) in certain instances a
plaintiff has raised a substantial constitutional question." Beharry, 329
F.3d at 62 (citations omitted).
Here, petitioner's failure to exhaust his administrative remedies, by
waiving his available administrative appeal cannot be excused under
either the judicially created exhaustion requirement or the statutory
exhaustion requirement. See Beharry, 329 F.3d at 63. Thus, there
is no subject matter jurisdiction to hear petitioner's claim for habeas
corpus relief, and the petition is dismissed.
For the reasons stated above, petitioner's petition for habeas corpus
is dismissed and the Clerk of Court is directed to close this case. As
petitioner has failed to make a substantial showing of the denial of a
constitutional right, a certificate of appealability is denied.