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