United States District Court, E.D. New York
April 29, 2004.
SATURNINO FERNANDEZ, Petitioner,
IMMIGRATION AND NATURALIZATION SERVICES, Respondent.
The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge
MEMORANDUM AND ORDER
Petitioner Saturnino Fernandez ("Petitioner") brings the
instant petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241 ("§ 2241"), requesting that this court review his
final order of removal. The United States Attorney's Office for
the Eastern District of New York, acting on behalf of Respondent,
filed its opposition to the petition on October 14, 2003, requesting dismissal of the writ. For the
reasons state herein, the Petition must be dismissed.
Petitioner is a fifty-one year-old native and citizen of the
Dominican Republic who has been living in the United States as a
lawful permanent resident ("LPR") since December 31, 1968. (Decl.
of Dione M. Enea ["Enea Decl."], Ex. 1.) On July 11, 2001,
Petitioner was convicted of criminal possession of a controlled
substance in the third degree in violation of section 220.16 of
the New York Penal Law, and sentenced to three and one-half to
ten and one-half years in prison. (Enea Decl., Ex. 2.) The
Immigration and Naturalization Service ("INS") initiated removal
proceedings against Petitioner on March 28, 2002, alleging that
he was deportable under the Immigration and Nationality Act
("INA") Section 237(a)(2)(B)(i) as a non-citizen who has been
convicted of a drug-related violation.*fn1 (Enea Decl., Ex.
3.) Following an October 9, 2002 hearing before an immigration
judge ("IJ"), Petitioner's request for cancellation of removal
pursuant to INA § 240A(a) was denied. He waived his right to
appeal to the Board of Immigration Appeals ("BIA"). (Enea Decl.,
On January 2, 2003, Petitioner filed a motion to reopen and
reconsider the October 9, 2002 decision, claiming that he should have been given
an opportunity to apply for cancellation of removal because his
conviction did not constitute an "aggravated felony" under the
Second Circuit interpretation of INA § 101(a)(43)(B). (Enea
Decl., Ex. 6.) Finding that Petitioner had not offered any new
evidence or pointed out any legal errors in the decision, the IJ
noted that Petitioner had already been afforded the opportunity
to apply for discretionary relief under INA § 240A(a), and denied
the motion. (Enea Decl., Ex. 7.) Petitioner filed a timely appeal
with the BIA, which affirmed the IJ's January 21, 2003 decision
and dismissed the appeal on April 14, 1997. (Enea Decl., Ex. 8.)
He is currently in the custody of the New York State Department
of Correctional Services at the Arthur Kill Correctional Facility
in Staten Island, New York.
Although intended to restrict judicial review of administrative
decisions so as to expedite removal proceedings, neither the
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA") nor the Antiterrorism and Effective Death Penalty Act
("AEDPA") of 1996 repealed federal habeas corpus jurisdiction for
deportable aliens under 28 U.S.C. § 2241. See INS v. St. Cyr,
533 U.S. 289, 300 (2001). Courts retain jurisdiction to review
constitutional claims as well as "purely legal" determinations of
statutory application and interpretation "affecting the
substantial rights of aliens." Calcano-Martinez v. INS,
232 F.3d 328, 342 (2d Cir. 2000); Henderson v. INS, 157 F.3d 106, 122 (2d Cir. 1998); see 28 U.S.C. § 2241(c)(3). Federal
jurisdiction over § 2241 petitions, however, does not extend to
review of discretionary determinations. Sol v. INS,
274 F.3d 648, 651 (2d Cir. 2001); see, e.g., Liu v. INS, 293 F.3d 36,
41 (2d Cir. 2002) ("[R]eview of any discretionary decision made
by the Attorney General" is "plainly prohibited"). Thus, although
the Court retains authority on habeas review to consider claims
alleging unconstitutionality or erroneous application of law,
Wang v. INS, 320 F.3d 130, 143 (2d Cir. 2003), it is not
permitted to second-guess the Attorney General by reassessing the
evidence or reviewing administrative findings of fact and
credibility. Sol, 274 F.3d at 651.
Petitioner challenges the IJ's denial of relief on two grounds,
asserting that (1) he has not been convicted of an aggravated
felony as defined in INA § 101(a)(43)(B); and (2) his deportation
without a hearing would result in a due process violation of his
right to "familial integrity" under the Fifth and Fourteenth
Amendments of the United States Constitution as well as various
sources of international law. (Pet. for Writ of Habeas Corpus at
5-9.) Respondent argues that Petitioner was, in fact, not charged
with deportability on the ground that he was an aggravated felon,
and that the requirements of due process were already met because
Petitioner had an opportunity to present his claim for § 240A(a)
relief during the March 28, 2002 immigration hearing.*fn2
(Resp.'s Mem. at 5-6.)
In addressing Petitioner's due process challenges, this Court
finds no constitutional violation that might serve as the basis
for habeas corpus relief. Courts have often emphasized the
distinction between "eligibility for discretionary relief, on the
one hand, and the favorable exercise of discretion, on the
other." St. Cyr, 533 U.S. at 307; see also Yang v. INS,
109 F.3d 1185, 1195 ("[O]ne should not confuse claims of error . . .
with claims that the Attorney General refused to acknowledge
the existence of a discretionary power"). Petitioner's contention
that he should be eligible for discretionary relief, however,
confuses this distinction: Petitioner was not precluded from
seeking cancellation of removal as a matter of law, but rather,
he was denied relief as a matter of discretion. This
discretionary decision is not a proper basis for habeas relief.
Thus, the claim must be dismissed.
Although not addressed by the government, Petitioner's
constitutional and international human rights claims are equally
unfounded. Petitioner alleges that his deportation would violate
his right to be free from "arbitrary interference" with family
life and from "arbitrary expulsion," as provided for in the
Universal Declaration of Human Rights ("UDHR"), the International
Covenant for Civil and Political Rights ("ICCPR"), the Convention
on the Rights of the Child ("CRC"), and related principles of
customary international law. Although statutes and treaties have
the same legal effect under federal law, Breard v. Greene,
523 U.S. 371, 378 (1998), international treaties do not generally create privately enforceable rights in federal
courts, under the presumption that "the rights created by an
international treaty belong to a state." United States v.
Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001); Restatement
(Third) of the Foreign Relations Law of the United States § 907,
cmt. a (1987). Nonetheless, treaties can create individually
enforceable rights where they incorporate express language
providing for particular judicial remedies or where they create
fundamental rights on par with those protected by the United
States Constitution. Emuegbunam, 268 F.3d at 390.
Because the CRC has not yet been ratified by the United States,
only the ICCPR and the UDHR are at issue in this case.*fn3
Neither document, however, contains express language providing
for specific judicial remedies; the UDHR is not generally
considered to create private rights of action, while the ICCPR
has been declared by Congress to be non-self-executing. See
Maria v. McElroy, 68 F. Supp.2d 206, 231-32 (E.D.N.Y. 1999).
In Beharry v. Reno, 183 F. Supp.2d 584 (E.D.N.Y.
2002),*fn4 the court held that customary international law
requires the INS to hold a "compassionate hearing" prior to
deporting certain LPR's who have resided in the United States for
seven years, were convicted of crimes committed before the INA classified them as "aggravated
felonies" in IIRIRA, and can show extreme family hardship. Id.
at 603-05; see Alvarez-Garcia v. U.S.I.N.S., 234 F. Supp.2d 283,
289 (S.D.N.Y. 2002). Petitioner has resided in the United
States for 35 years and has two U.S. citizen daughters. However,
his crime was committed well after the effective date of IIRIRA,
which effectively renders him ineligible for such relief.
Even if this Court were to apply the principles set forth in
Beharry, international law does not prohibit Petitioner's
deportation simply because he has U.S. citizen family members
residing in the United States. Rather, these principles would be
construed to afford Petitioner a compassionate hearing at which
he could raise the issue of extreme hardship before the INS,
which nonetheless retains "a broad discretion to exclude."
Beharry, 183 F. Supp.2d at 605; see also Palmer v.
I.N.S., 4 F.3d 482, 487 (7th Cir. 1993) (holding that
petitioners bear the burden of showing "equities meriting
favorable exercise of the Attorney General's discretion"). The
March 28, 2002 hearing already afforded Petitioner ample
opportunity to "submit the reasons against his expulsion" (ICCPR
Art. 13), and thus the "interference with his family" which
would, no doubt, result from his deportation is neither
"arbitrary" nor "unlawful." (ICCPR Art. 17.)
For the foregoing reasons, this Court finds that it does not
have jurisdiction over Petitioner's claims. Petitioner has not shown that his order of
removal resulted from any legal errors or constitutional
violations, nor has he shown a violation of constitutional or
international law in his present detention pending deportation.
Petitioner's application for a writ of habeas corpus is therefore
dismissed. A certificate of appealability will not be issued. The
Clerk of the Court is directed that this Order closes this case.