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CHALAS-ZAPATA v. U.S. ATTORNEY GENERAL

February 24, 2004.

ROBINSON SALVADOR CHALAS-ZAPATA, Petitioner,
v.
U.S. ATTORNEY GENERAL JOHN ASHCROFT, THE IMMIGRATION AND NATURALIZATION SERVICE, THE COMMISSIONER OF THE IMMIGRATION AND NATURALIZATION SERVICE, AND THE INS DISTRICT DIRECTOR FOR FISHKILL, NEW YORK, Defendants



The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION AND ORDER

Salvador Chalas-Zapata brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2441. He challenges the validity of his detention by the Bureau of Immigration and Customs Enforcement ("ICE") without bail or bond as well as the validity of the determination of the Board of Immigration Appeals ("BIA") denying him a cancellation of removal pursuant to the Immigration and Nationality Act of 1952 ("INA") section 240A(a). For the reasons set forth below, Chalas-Zapata's petition for a writ of habeas corpus is denied.

I. Background

  Chalas-Zapata, a citizen of the Dominican Republic, entered the United States in December 1972, at the age of twelve, and became a lawful permanent resident. (Petition, ¶ 1, 2; Return, ¶ 2). He has resided in New York State for more than thirty years. (Id. ¶ 2). Petitioner has extensive family in New York, including a wife and two children. (Aff. Gonzalez in Supp. Writ of Habeas Corpus, ¶ 2). In January of 1996, Chalas-Zapata was arrested and in 1998 he was Page 2 convicted of criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law § 265.02 and criminal possession of a controlled substance in the second degree, in violation of N.Y. Penal Law § 220.16. (Petition, ¶ 3). He was sentenced to seven years to life in state prison. (Return, ¶ 4).

  Based on that conviction, the Immigration and Naturalization Service ("INS") issued to Chalas-Zapata a notice to appear in 1998 on a charge that he was deportable based on his criminal convictions, in accordance with INA §§ 237(a)(2)(B)(i) and 237(a)(2)(C). (Decl. James, Exh. B). A removal hearing was conducted in 1999. (Petition, ¶ 3, 5). At that removal hearing, Chalas-Zapata did not contest that he was deportable based on the 1998 conviction and requested a discretionary cancellation of removal pursuant to the INA § 240A(a), codified at 8 U.S.C. § 1229b. The Immigration Judge ("IT') found petitioner to be eligible for that statutory relief, but determined that Chalas-Zapata did not merit a favorable exercise of discretion. (Petition, ¶ 5, 6; Decl. James, Exh. D, p. 3). The Immigration Judge issued a seventeen page decision in which he found that the serious nature of Chalas-Zapata's crimes required him to show "unusual and outstanding equities" before he would exercise his discretion to grant petitioner a cancellation of removal. (Decl. James, Exh. D, p. 11). The Immigration Judge based his balancing of the equities on two prior BIA decisions, Matter of Marin, 16 I & N Dec. 581 and Matter of Buscemi, 19 I & N Dec. 628. (Decl. James, Exh. D. p. 3).

  The Immigration Judge specifically found that Chalas-Zapata was "convicted of a very serious felony involving the possession of a huge amount of cocaine, in excess of 13 pounds" (Return, 19, Decl. James, Exh. D, p. 12) and held that Chalas-Zapata "has not met his burden of proof, and that the negative factors outweigh the positive factors in this case." (Return, ¶ 11, Decl. Page 3 James, Exh. D, p. 16). The Immigration Judge ordered petitioner's removal to the Dominican Republic.

  Petitioner challenged that decision in an appeal to the BIA based on the grounds that the Immigration Judge applied an incorrect legal standard when he required Chalas-Zapata to show "outstanding equities" favoring a cancellation of removal (Decl James, Exh. E). Petitioner argued at the BIA that he should be required to show only that the positive aspects of his case outweighed the negative. In affirming the Immigration Judge's decision not to grant cancellation of removal, (Petition, ¶ 6, Decl. James, Exh. E), the BIA wrote that "[t]he Immigration Judge properly found that the negative factors outweigh the positive factors. . . ." (Return, ¶ 14, Decl. James, Exh. E). Thus, Chalas-Zapata is currently subject to a final order of deportation.

  Chalas-Zapata has now completed his state prison sentence. In November of 2003 Chalas-Zapata filed a petition for a writ of habeas corpus; that writ was dismissed without prejudice for lack of federal jurisdiction because he was not in federal custody at the time he filed the petition. (See Order dated November 24, 2003, 03 Civ. 9051 (SHS)). Petitioner was then transferred to the custody of ICE of the United States Department of Homeland Security. Chalas-Zapata, now in federal custody, states that he is scheduled to be deported "immediately." (Petition, ¶ 10). This Court has stayed the government from deporting Chalas-Zapata until the resolution of this petition for habeas corpus. (See Order dated November 24, 2003, 03 Civ. 9327 (SHS)).

 II. Discussion

 A. Jurisdiction and Scope of Review

  Federal courts have jurisdiction pursuant to 28 U.S.C. § 2241 to issue writs of habeas Page 4 corpus to review final orders of removal. See INS v. St. Cyr, 533 U.S. 289, 300 (2001); Wang v. Ashcroft 320 F.3d 130, 140 (2d Cir. 2003). While the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") § 440(d), 110 Stat. 1277 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546 (Sept. 30, 1996), limit that review, courts are entitled to review and remedy "errors of law, including the erroneous application or interpretation of statutes." Wang v. Ashcroft 320 F.3d 130 at 143 (quoting INS v. St. Cyr., 533 U.S. at 301). Thus, this Court has subject matter jurisdiction to entertain this writ of habeas corpus and to review legal determinations, including the application and interpretation of statutes, made in the immigration proceedings. However, the Court has no authority to "review [] factual or discretionary determinations" by the IJ and the BIA. Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001). Indeed, in Sol the Second Circuit held explicitly that "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Id.

  Respondents also argue that this Court lacks subject matter jurisdiction because the Court cannot review a final order of deportation unless the "alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). However, Chalas-Zapata exhausted his administrative remedies on the order of removal because he has obtained a determination of the BIA. Cf. St. Cyr v. INS, 229 F.3d 406, 410 (2d Cir. 2000) aff'd I.N.S. v. St. Cyr, 533 U.S. 289 (2001).

 B. Edward J. McElroy Is Substituted for Respondents

  Respondents request that the Court dismiss all the respondents as improper parties and substitute the Director of the New York City Field Office for ICE Detention and Removals, Page 5 Edward J. McElroy, in their place because 1) Mr. McElroy is the person with "direct control over the petitioner's detention," and 2) the proper respondent for an immigration-related petition for a writ of habeas corpus is the INS district director, not the Attorney General. ...


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