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FERNANDEZ v. IMMIGRATION AND NATURALIZATION SERVICES

United States District Court, E.D. New York


April 29, 2004.

SATURNINO FERNANDEZ, Petitioner,
v.
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.

BACKGROUND

  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., Ex. 4-5.)

  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.

  DISCUSSION

  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.)

  CONCLUSION

  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.

  SO ORDERED.


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