United States District Court, S.D. New York
March 22, 2004.
THANH VAN GIAP, Petitioner against IMMIGRATION AND NATURALIZATION SERVICE, Respondent
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Petitioner Thanh Van Giap ("Giap"), pro se, seeks habeas relief from an
order declaring him deportable. Giap's petition raises issues which are
largely beyond the Court's jurisdiction, and, to the extent his claims
are properly before the Court, they are meritless. The petition is
Giap was born in Vietnam in August 1972. His father was an American
serviceman in the Vietnam war. Giap was admitted to the United States in
1989 as a lawful permanent resident alien. In 1997, a jury in New York
City convicted Giap of second-degree murder, for which he was sentenced
to 25 years to life in prison. Following that conviction, the Immigration
and Naturalization Service ("INS") charged Giap with being deportable as
an alien convicted of an aggravated felony. See 8 U.S.C. § 221(a)(2)(A)
At his removal proceedings, Giap sought protection from
deportation under the United Nations Convention Against Torture (the
"Convention"). See 8 C.F.R. § 208.16 (codifying relevant portions of the
Convention). The immigration judge determined that Giap failed to meet
his burden to show that Giap would "more likely than not . . . be
tortured in the country of removal." Id. The Board of Immigration Appeals
("BIA") issued a one-sentence order summarily affirming the immigration
judge's order. Giap seeks relief from deportation by the present habeas
Giap first argues that the immigration judge erred in denying Giap's
claim under the Convention. However, habeas review of deportation orders
extends only to "statutory or constitutional claim[s]"; it "does not
extend to review of factual or discretionary determinations." Sol v.
I.N.S., 274 F.3d 648, 651 (2d Cir. 2001); see also Reves-Sanchez v.
Ashcroft, 261 F. Supp.2d 276, 292 (S.D.N.Y. 2003) ("The BIA's factual
determination that Reyes-Sanchez failed to demonstrate that it is more
likely than not that he will be tortured if returned to the Dominican
Republic is a discretionary decision, and is therefore not reviewable by
this Court."). Giap does not argue that the immigration judge made any
legal errors in that determination, and thus his claim is not cognizable
on habeas review.
Giap next argues that the BIA's summary order affirming the immigration
judge did not qualify as meaningful appellate review. Again, that claim
is cognizable on habeas under Sol only if it raises a legal question. On
a charitable reading of Giap's filing, Giap perhaps intends to challenge
the BIA's summary affirmance procedure as a violation of Due Process. The
Court agrees with every federal appeals court that has addressed this
issue and concludes that such a claim would be meritless. See Falcon
Carriche v. Ashcroft, 350 F.3d 845, 848 (9th Cir. 2003); Georgia v.
Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003); Mendoza v. U.S. Atty. Gen.,
327 F.3d 1283, 1288 (11th Cir. 2003); Soadjede v. Ashcroft, 324 F.3d 830,
831-33 (5th Cir. 2003); Albathani v. I.N.S., 318 F.3d 365, 374-79 (1st
Cir. 2003); see also, Claros v. Farguharson, No. 02 Civ. 1308, 2003 WL
21639408, at *6-*7 (D. Conn. July 8, 2003). Although the Second Circuit
has yet to address this precise question, the Court notes that the Second
Circuit has its own summary affirmance procedure, see 2d Cir. Local R. §
0.23, which is presumably consistent with Due Process. Such procedures
are "workload management devices" which do not "establish that the
required review is not taking place." Albathani, 318 F.3d at 379.
Finally, Giap argues that he is not subject to deportation because he
is an American citizen. The Court lacks
jurisdiction over that claim because the immigration laws set forth a
procedure under which the courts of appeals, not the district courts, have
jurisdiction to determine citizenship claims of criminal aliens. See
8 U.S.C. § 1252 (b)(5); see also Alvarez-Garcia v. United States I.N.S.,
234 F. Supp.2d 283, 290 (S.D.N.Y. 2002). ("Thus, criminal aliens, such as
petitioner, are required to bring petitions for review of citizenship and
nationality claims in the courts of appeals."). Giap would have to raise
this claim with the Second Circuit.
For the reasons stated, it is hereby
ORDERED that the Thanh Van Giap's petition for a writ of habeas corpus
The Clerk of Court is directed to close this case.
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