United States District Court, S.D. New York
February 24, 2004.
ROBINSON SALVADOR CHALAS-ZAPATA, Petitioner,
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.
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
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.
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)).
A. Jurisdiction and Scope of Review
Federal courts have jurisdiction pursuant to 28 U.S.C. § 2241 to
issue writs of habeas
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,
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. Because
Chalas-Zapata has raised no objection to this substitution, Edmund J.
McElroy will be substituted for respondents in this action.
C. Petitioner Does Not Have A Constitutional Right to a Bond Hearing
Because His Removal Is Imminent
After serving his prison sentence, petitioner was transferred to
federal custody and is currently being held for deportation without a
bail or bond hearing. Petitioner contends that this detention without a
hearing, although pursuant to INA § 236(c), codified at 8 U.S.C. § 1226(c),
is an unconstitutional deprivation of due process.*fn1
Lawful permanent residents are entitled to due process under the Fifth
Amendment to the U.S. Constitution. Landon v. Plasencia, 459 U.S. 21,
32-33 (1982). Petitioner contends that section 236(c) amounts to an
irrebuttable presumption that criminal aliens scheduled for deportation
are dangerous and present a risk of flight. Some courts have found the
presumption in section 236(c) to violate due process when it is made
without any individualized consideration or when aliens are detained
indefinitely. See Ngo v. INS, 192 F.3d 390, 398-99 (3d. Cir. 1999).
Petitioner's analysis of section 236(c) is irrelevant to his
circumstances, however, because he is subject to a final order of
removal, and is being properly detained pending removal, pursuant to
The law dictates that petitioner must be detained pursuant to INA
section 241(a)(2) because he is removable pursuant to INA sections
237(a)(2)(B)(i), and 237(a)(2)(C), codified at 8 U.S.C. § 1227(a)(2)(B)(i)
and 1227(a)(2)(C). Section 241(a)(2) provides, in relevant part as
follows: "During the removal period, the Attorney General shall detain
the alien. Under no circumstances during the removal period shall the
Attorney General release an alien who has been found . . . deportable
under section 1227(a)(2)." Moreover, detention pursuant to section 241 is
constitutional, even without a bond hearing, as long as that removal is
reasonably foreseeable. Zadvydas v. Davis, 533 U.S. 678, 699-700 (2001);
Wane v. Ashcroft 320 F.3d at 146. Thus, to the extent Chalas-Zapatas is
detained pursuant to section 241, there is no due process violation
because his removal is imminent.
The government asserts that Chalas-Zapata is being detained pursuant to
section 241, while petitioner appears to assert that he is actually being
detained pursuant to INA § 236(c). Section 241 will govern
Chalas-Zapata's detention if he is subject to a final order of removal,
while section 236(c) governs detention of aliens whose removability is
being reviewed. The determination of whether petitioner is subject to a
final order of removal is governed by INA § 241(a)(1), which provides:
"if the removal order is judicially reviewed and if a court orders a stay
of the removal of the alien . . . " then the removal period is to begin
on "the date of the court's final order." In Wang v. Ashcroft, the
petitioner, just as Chalas-Zapata, asserted that his detention was
pursuant to section 236(c), not section 241, because the pursuit of the
habeas review stays the finality of the order of removal. 320 F.3d at
147. The Wang court, without resolving the issue, held that even if the
petitioner were correct and the detention were governed by section 236(c)
during the period of a habeas appeal, the petitioner's detention would
governed by section 241 again at the moment the court issued its
decision. Id. The Wang court denied the petitioner's other grounds for
relief, and his removal became imminent at that moment. Id. Therefore,
any challenge he raised to his detention based on section 236(c) became
moot. Id. Similarly, this Court has stayed petitioner's removal only
until determination of this petition and has found the underlying removal
order to be valid, as set forth below. From the time this opinion is
issued, his detention is governed by section 241 and any challenge to
detention under section 236(c) is rendered moot. The detention without
bail or bond does not violate due process unless the removal is not
"reasonably foreseeable." Id.
D. There Is No Unconstitutional Retroactive Application of Section 240A
Petitioner also contends that the Immigration Judge improperly
considered his petition for discretionary relief pursuant to section 240A
of the INA, codified at 8 U.S.C. § 1229b.*fn2 He argues that because that
statute became effective in April of 1997, it is a violation of his
constitutional rights to apply it to conduct that took place in 1996.
Petitioner believes that his application for discretionary relief should
be governed by the statutory predecessor to section 240A; namely, section
212(c). Petitioner asserts that the retroactive application of these laws
is contrary to congressional intent, and that the application of AEDPA
and IIRIRA retroactively is illogical because the retro activity only
bars section 212(c) relief for individuals in removal proceedings, while
those in exclusion proceedings are eligible for section 212(c) relief.
Petitioner's contention is directly contrary to well-settled law on this
point, and the Immigration Judge did
not violate Chalas-Zapatas' due process rights when applying section 240A
to his request for cancellation of removal.
As a preliminary matter, Chalas-Zapata has not shown that he sought
relief pursuant to section 212(c). In fact, he applied to the Immigration
Judge, and the BIA, for relief pursuant to 240A(a). (James Aff., Exh.
C). Moreover, petitioner has not demonstrated that the application of
section 212(c) instead of 240A(a) would in any way alter the judge's
final determination. The amendments to section 212(c) contained in the
IIRIRA primarily pertained to the eligibility of certain aliens for
discretionary relief. Thus, because Chalas-Zapata is eligible for
relief, this is a distinction without a difference.
Chalas-Zapata's challenges to the retroactive application of INA
section 240A, instead of section 212(c), have already been presented to
and rejected by the United States Supreme Court. See INS v. St. Cyr,
533 U.S. 289 (2001). Section 212(c) of the INA (previously codified at
8 U.S.C. § 1182(c)(1994)) was repealed by section 304(b) of IIRIRA.
Section 212(c) had provided that "[a] liens lawfully admitted for
permanent residence who temporarily proceeded abroad voluntarily and not
under an order of deportation, and who are returning to a lawful
unrelinquished domicile of seven consecutive years, maybe admitted in the
discretion of the Attorney General. . . ." This statute was interpreted
by both the courts and the BIA to authorize the Attorney General to grant
discretionary relief from deportation. See INS v. St. Cyr, 533 U.S. at
295-96 (2001). The IIRIRA, now section 240A, modified section 212(c) by
limiting the circumstances under which that relief is available.
St. Cyr v. INS., 229 F.3d 406, 418 (2d Cir. 2000), aff'd sub nom., INS
v. St. Cyr, 533 U.S. 289 (2001), held that it "would border on the
absurd" to argue that aliens would have altered
their conduct in committing crimes based on which provision would govern
their entitlement to discretionary relief, and that consequently,
congressional repeal of section 212(c) did not amount to a due process
violation. See also Rankine v. Reno, 319 F.3d 93, 100 (2d Cir. 2003).
Moreover, Chalas-Zapatas pled guilty to his crimes in 1998, and the date
of the guilty plea is the date that determines which provision governs
the alien's entitlement to apply for discretionary relief. See INS v.
St. Cyr, 533 U.S. at 101 (2001); Khan v. Ashcroft 352 F.3d 521, 524-25 (2d
Cir. 2003). Therefore, petitioner is not entitled to apply for relief
under 212(c). IIRIRA's effective date was in April 1997, and therefore
before the date of petitioner's guilty plea. Thus, IIRIRA governs the
petitioner's entitlement to discretionary relief.
Petitioner claims that the government has filed a petition for
certiorari with the Supreme Court on the constitutionality of AEDPA's
retroactive application and that this Court should stay this action
pending the Supreme Court decision. The Supreme Court has already
determined that it is constitutional to apply IIRIRA to conduct taking
place before that act's 1997 effective date when the guilty plea was
entered after that effective date. See INS v. St. Cyr, 533 U.S. 289
(2001). Therefore, there is no need to stay this action pending another
Supreme Court decision on an issue that has already been resolved.
D. The Immigration Judge and the BIA Properly Applied Section 240A(a):
Petitioner Is Subject to a Valid Order of Removal
Chalas-Zapata's petition challenges the BIA's determination that the
Immigration Judge correctly applied the statutory standards in refusing
to cancel Chalas-Zapata's removal. Petitioner and respondent agree that
Chalas-Zapata qualified to petition the Immigration Judge for
discretionary relief from removal pursuant to INA section 240A(a), which
for cancellation of removal by legal permanent residents. Pursuant to
petitioner's reading of that statute, in order to show his entitlement to
a cancellation of removal, he need only show that a balance of the
equities favors allowing him to remain in this country. The Immigration
Judge's decision is governed, both sides agree, by Matter of Marin, 16
I. & N. Dec. 581, 584 (BIA 1978), which requires the judge to balance
"the adverse factors evidencing an alien's undesireability as a permanent
resident with the social and humane considerations presented in his
behalf." Id. Petitioner asserts that the Immigration Judge wrongfully
applied a higher standard the standard set forth in INA section 240A(b)
which applies only to non-permanent residents. Section 240A(b) requires
the alien requesting a cancellation of removal to show that "removal
would result in exceptional and extremely unusual hardship to the aliens'
spouse, parent, or child, who is a citizen of the Untied States or an
alien lawfully admitted for permanent residence."
Petitioner's claim on this point fails. The Immigration Judge found
Chalas-Zapata to be a lawful permanent resident, and applied the relevant
laws in doing so. Indeed, the judge found that "respondent has shown
outstanding and unusual equities" but then noted that "the possession of
outstanding equities alone does not compel a finding that relief is
warranted." (Aff. James, Exh. D, p. 14). The ultimate decision of the
judge was based on his finding that, after weighing the favorable and
unfavorable aspects of Chalas-Zapata's case, no discretionary relief
should be granted. (Id.).
Petitioner also challenges the manner in which the Immigration Judge
performed the balancing test and the factors he considered. Specifically,
he claims that the judge improperly applied Matter of Marin in that he
did not credit the importance of petitioner's family ties in New York,
did not credit the fact that petitioner worked and paid taxes subsequent
to his arrest, and
questioned whether he worked "under the table" prior to the arrest.
Petitioner also disputes the judge's finding that petitioner was a "major
player in the drug trafficking trade" as contradictory to the judge's
finding that petitioner's brother-in-law initiated Chalas-Zapata's
involvement in drug trading. Finally, Chalas-Zapata argues that the judge
was not entitled to consider petitioner's lack of cooperation with the
police as a negative factor because it is not listed as a factor for
consideration listed in Matter of Marin, Chalas-Zapata asserts that if
the Immigration Judge had correctly applied Matter of Marin, the judge
would have cancelled petitioner's removal instead of wrongly requiring
Chalas-Zapata to demonstrate "extreme or unusual equities."
The majority of these challenges are on factual issues, and cannot be
properly raised in this habeas petition. See Wane v. Ashcroft 320 F.3d at
143. Chalas-Zapata's assertion that the Immigration Judge wrongfully
applied a more stringent test required by 240A(b) for non-permanent
residents does not appear to have any firm factual basis. The judge
stated that he was requiring a showing of "unusual equities" because of
the serious nature of the crime committed by Chalas-Zapata. He was
exercising discretion in evaluating the request for cancellation: he gave
heavy weight to petitioner's crime as an "adverse factor evidencing"
Chalas-Zapata's "undesirability as a permanent resident" and therefore
required a greater showing of positive "social and humane considerations
presented on his behalf before he would cancel petitioner's removal.
Matter of Marin, 16 I. & N. Dec. at 584. This Court is prohibited from
reviewing this sort of discretionary factual determination by the
Immigration Judge. Wang v. Ashcroft, 320 F.3d 130 at 143 (quoting INS v.
St. Cyr., 533 U.S. at 301).
Chalas-Zapata has not shown that his order of removal results from any
legal errors or constitutional violations, nor has he shown a due process
violation in his present detention without bail or bond pending his
immediate deportation. For these reasons, Chalas-Zapata's petition for a
writ of habeas corpus and for a stay of his removal is denied.