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United States District Court, E.D. New York

April 29, 2004.

JOHN ASHCROFT, Attorney General of the United States, Respondent.

The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge


Petitioner Jose Luis Acaiturri ("Petitioner") brought the above-captioned petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ("§ 2241") on May 1, 2002. Thereafter, he sought leave to amend the petition, which this Court initially granted on July 31, 2003. For the reasons stated herein, the amended petition is dismissed. BACKGROUND

Petitioner first entered the United States with his father on a tourist visa in 1982 at the age of three years. The visa was never renewed, but on September 28, 1992, at the age of 13, his status was adjusted to that of Lawful Permanent Resident. (Petition for Writ of Habeas Corpus ("Pet.") ¶ 6; Decl. of Sharon L. Volkhausen ("Volkhausen Decl."), Ex. 1.) In 1996, at the age of 16 years, he pled guilty to a charge of attempted burglary in the third degree and was sentenced to a term of one year incarceration. Petitioner was again arrested in Nassau County on or about August 6, 2000, and was found guilty of the misdemeanors of petit larceny and sexual abuse, for which he received concurrent sentences of six months and three months, respectively. At the end of the term of imprisonment, Petitioner was transferred to the custody of the Immigration and Naturalization Service ("INS"). (Pet. ¶ 7.) On November 30, 2000, Petitioner was served with a Notice to Appear, placing him in removal proceedings pursuant to Immigration and Naturalization Act ("INA) § 237(a)(2)(A)(iii) as an "aggravated felon" as defined by INA § 101(a)(43)(G), based on the 1996 conviction. (Volkhausen Decl., Ex. 4.) On February 2, 2001, his Notice to Appear was amended to include, as additional ground for removal, conviction for two crimes of moral turpitude, pursuant to INA § 237(a)(2)(A)(ii).*fn1 (Volkhausen Decl., Ex. 5.) Petitioner applied for a waiver of removal under former § 212(c) of the INA, pursuant to St. Cyr v. INS, 229 F.3d 406 (2d Cir. 2000) (aff'd INS v. St. Cyr, 533 U.S. 289 (2001)), and for cancellation of removal under § 240A of the INA. (Volkhausen Decl., Exs. 7, 8.)

  On February 20, 2001, following a hearing at which Petitioner was represented by Counsel, the Immigration Judge ("IJ") issued an oral decision and a written summary denying all forms of relief and ordering his removal. (Mot. to Amend Pet. for Writ of Habeas Corpus ("Am. Pet."), Ex. 1, Oral Decision of the Immigration Judge, at 3; Volkhausen Decl., Ex. 8, Order of the Immigration Judge.) The IJ acknowledged that under St. Cyr v. INS and based on the date of entry of his guilty plea, Petitioner was eligible to seek a Waiver of Deportation pursuant to former § 212(c) of the INA. However, the IJ found that Petitioner did not qualify for such relief because his status was not adjusted to that of LPR until 1992, and thus he did not have seven years of uninterrupted lawful domicile in the United States. (Am. Pet., Ex. 1, at 3.) The IJ also denied Petitioner's request for Cancellation of Removal pursuant to INA § 240A, on the ground that Plaintiff had not accrued the required five years of lawful admission, because under § 240A, such accrual stopped when Petitioner was convicted of a crime in 1996. (Id. at 4.) Petitioner filed an appeal with the Board of Immigration Appeals ("BIA"), which denied the appeal, but for somewhat different reasons, on June 15, 2001. (Am. Pet., Ex. 2.) Petitioner filed a Petition for Review of the BIA decision and a motion for a stay of removal pending review in the Second Circuit Court of Appeals on July 13, 2001. (Pet. ¶ 10.) Prior to any hearing or decision on that petition, Petitioner filed a motion to withdraw his application for a stay of removal and was removed to Ecuador in July, 2002. Thereafter, he withdrew the appeal. (Am. Pet. at 5.)

  On May 1, 2002, while his petition for review remained pending before the Second Circuit, Petitioner filed the instant Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, challenging his detention. On July 28, 2003, after he was removed, Petitioner filed a motion with this Court to amend his pleadings to ask for a review of the Order of Removal. The government opposes this motion on the ground that Petitioner was no longer "in custody" at the time of the making of this motion and thus that this Court does not have jurisdiction over Petitioner's claims. This court initially permitted Petitioner to file the amended petition.


  I. Jurisdiction

  Federal courts retain jurisdiction to review orders of removal through petitions for habeas corpus relief under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (rejecting the government's argument that sections of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA") stripped courts of jurisdiction over § 2241 habeas corpus petitions). However, the scope of jurisdiction is limited to consideration of pure questions of law and constitutional questions; it does not extend to the review of the factual findings or the discretionary decisions made by the Attorney General or the agencies under his control. See Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir. 2000) (holding that federal courts retain jurisdiction to review "purely legal statutory and constitutional claims"). Such discretionary decisions may only be reviewed for violations of the Constitution or laws and treaties of the United States. See 28 U.S.C. § 2241(c)(3).

  Petitioner properly named the Attorney General of the United States as his custodian and the proper respondent in this case. See 8 U.S.C. § 1222(a) [1226(c)(1)] ("The Attorney General shall take into custody any alien who [is deportable or inadmissible for having committed a crime]."); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (finding the Attorney General to be a proper respondent). At the time he filed his initial Petition, Petitioner was in the custody of the Attorney General. This Court has personal jurisdiction over the Attorney General. See Arias-Agramonte v. Comm'r of INS, No. 00 Civ. 2412, 2000 WL 1617999, at *9 (S.D.N.Y. Oct. 30, 2000).

  II. Initial Motion for Release from Detention

  In the initial Petition for a writ of habeas corpus, Petitioner challenged his detention by the INS and requested that he be released on bond or immediately deported. Petitioner was removed from the United States in July, 2002. Accordingly, the requested relief has been granted and the issue raised in the initial petition is moot.

  III. Opportunity to Amend

  After his removal and the withdrawal of his pending petition for review in the Court of Appeals, Petitioner requested leave of this Court to amend the instant petition to add his claims challenging his final order of removal. Respondent argues that leave to amend should not be granted, because at the time the amended petition was filed, Petitioner was no longer "in custody" and that the addition of these claims unrelated to his original petition is an attempt to circumvent the "in custody" requirement for filing petitions pursuant to 28 U.S.C. § 2241(c)(3).

  Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend the party's pleadings once as a matter of course prior to filing of responsive pleadings, or after a response to a complaint has been filed, by leave of the court, "when justice so requires." Fed.R.Civ.P. 15(a). Here, the Petition was stayed by the Court before Respondent had filed an answer or other responsive pleading. The stay was not lifted until Petitioner filed his Motion to Amend and the Court directed Respondent to respond to the Amended Petition. Accordingly, no prejudice flows to Respondent as a result of the amended pleading.

  Further, Petitioner argues that he should be granted leave to amend in the interest of justice. (Pet.'r's November 14, 2003 Mem. in Supp. Pet. for Habeas Corpus ("Pet.'r's Mem.") at 12.) First, Petitioner appears to argue that he consented to deportation and withdrawal of the Second Circuit Petition for Review in reliance upon his right to seek relief through a habeas petition. (Am. Pet. at 4-5; Pet.'r's Mem. at 10.) Petitioner now claims that he entered into a stipulation with the United States Attorney's Office in the Southern District of New York that he could challenge the constitutionality of his Immigration proceedings in this Court. Petitioner presents no specific evidence of any reliance on this form of relief or even any indication that he expected to pursue this relief at the time he consented to removal (while represented by different counsel).

  Second, Petitioner argues that he was precluded from raising those claims at the time he filed the initial Petition because he had not yet exhausted his administrative remedies, and "was waiting for the Second Circuit to rule on the merits of his agency review petition." (Pet.'r's Mem. at 9.) Yet Petitioner was already subject to a final Order of Removal following the BIA's denial of his appeal, and such review was neither necessary nor permitted. 8 U.S.C. § 1252(a)(2)(C) ("Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . . of this title."); see also Zhang v. INS, 274 F.3d 103, 107 (2d Cir. 2001) ("[A]lthough an alien in custody could seek relief by way of a petition for habeas corpus in the district court, this Court has no jurisdiction to entertain a petition for review of an order of removal brought by an alien removable because of his commission of an aggravated felony.") (citation omitted).

  Ignorance of the correct procedures for challenging his Final Order of Removal may not serve as an excuse for procedural default. Nonetheless, this Court does not believe that amendment would be precluded under the specific circumstances here. Petitioner was undoubtedly in custody when he initially filed his Petition. Although the stay of deportation was lifted, the Petition itself was not withdrawn. Respondent had not answered the Petition, nor otherwise suffered prejudice from Petitioner's year-long delay in amending his petition.

  Yet the Court need not decide if the Amendment is properly brought on procedural requirements, as it would be denied on the merits in any case, for the reasons described below. Since the amended petition does not present any claims that may serve as grounds for relief, the motion to amend is denied as futile. See O'Hara v. Weeks Marine, Inc., 294 F.3d 55, 69 (2d Cir. 2002) (holding that "a district court may deny leave to amend the complaint if the amendment would be futile.")

  IV. Eligibility for Relief under Former Section 212(c) of the INA

  In his amended petition, Petitioner argues that he is entitled to a hearing to determine whether he is eligible for relief pursuant to former Section 212(c) of the INA. Prior to 1996, certain classes of removable aliens had the ability to seek a discretionary waiver of deportation under § 212(c) of the INA. In order to qualify for such relief, an alien must show that he (1) was a lawful permanent resident of the United States, (2) had an unrelinquished domicile of seven consecutive years, and (3) had not committed an aggravated felony for which he had served a term of at least five years. See 8 U.S.C. § 1182(c) (1994) (repealed). Then Congress passed AEDPA and IIRIRA in 1996. These two pieces of legislation drastically changed immigration law. Specifically, § 440(d) of AEDPA limited the availability of discretionary waivers of deportation for aliens convicted of aggravated felonies, and § 304 of IIRIRA eliminated this relief altogether for this class of aliens.

  Nonetheless, Petitioner argues that he remained eligible to seek relief under former § 212(c), because he pled guilty to an aggravated felony prior to the effective dates of the new laws. See St. Cyr v. INS, 533 U.S. 289 (2001) (limiting the retroactive application of the provisions of AEDPA and IIRIRA, and granting discretionary waiver hearings to aliens who pled guilty to an aggravated felony before the passage of the statutes, on the ground that such aliens might have pled guilty in reliance on the possibility of seeking a discretionary waiver of deportation). Indeed, Petitioner was afforded the opportunity to seek this relief at his Immigration hearing, where the IJ acknowledged that the Second Circuit's decision in St. Cyr was controlling. However, the IJ found that Petitioner was ineligible for § 212(c) relief because he did not have the requisite 7 years of domicile, since he did not gain legal residency status in the United States until 1992, and was convicted in 1996 on the basis of events that occurred in 1995. (Am. Pet., Ex. 1, at 4.) On appeal, the BIA declined to address this argument, finding that Petitioner was ineligible for § 212(c) relief as a result of his 2000 conviction for a second crime of moral turpitude. This crime and conviction occurred well after § 212(c) was repealed, and thus precluded Petitioner from applying for a waiver of deportation on that ground. This Court finds that the BIA correctly held that Petitioner was statutorily ineligible for relief as a result of the 2000 conviction.

  V. Eligibility for Cancellation of Removal Pursuant to Section 240A of the INA

  Finally, Petitioner argues that the IJ erred in finding that he was not eligible for cancellation of removal pursuant to § 240A of the INA. Section 240A was enacted as part of the 1996 statutes, in order to replace the now unavailable relief under former § 212(c) and to provide for discretionary relief from deportation, known as cancellation of removal, in certain circumstances. See 8 U.S.C. § 1229b. An alien may be eligible for relief under § 240A, if he or she "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony." 8 U.S.C. § 1229b(a).

  The IJ found that Petitioner was ineligible for relief under this provision, on the ground that his 1996 conviction prevented him from accruing the required five years of lawful permanent residency. (Am. Pet., Ex. 1, at 4.) Again, the BIA affirmed the result, but on different grounds. The BIA disregarded the residency requirement and focused on Petitioner's 1996 conviction for an aggravated felony. "Cancellation of removal under section 240A(a) of the Act is unavailable to an alien who has been convicted at any time of an aggravated felony." (Am. Pet., Ex. 2, at 2, citing 8 U.S.C. § 1229b(a)(3).)

  Petitioner counters that he is entitled to relief pursuant to § 240A because at the time he was convicted of the attempted burglary in 1996, that offense was not yet designated an "aggravated felony" under the INA. Although it is true that the enactment of IIRIRA changed the definition of "aggravated felony" to encompass Petitioner's 1996 burglary conviction, this does not affect his eligibility for relief under § 240A. The Second Circuit has recognized that retroactive application of the aggravated felony definition was intended by Congress and is not improper: "The amended provision defining the term `aggravated felony' closes with the statement: `Notwithstanding any other provision of law (including any effective date), the term ["aggravated felony"] applies regardless of whether the conviction was entered before, on, or after September 20, 1996.'" Brown v. Ashcroft, 360 F.3d 346, 353-54 (2d Cir. 2004) (quoting 8 U.S.C. § 1101(a)(43)). Accordingly, the Court finds that the BIA properly applied the law to find that Petitioner's 1996 conviction made him ineligible for Cancellation of Removal.*fn2 CONCLUSION

  For the foregoing reasons, the Court finds that Petitioner is ineligible for relief pursuant to § 240A on the basis of his 1996 conviction for an aggravated felony and ineligible for relief under former § 212(c) as a result of his 2000 conviction for a second crime of moral turpitude. Accordingly, the Motion to Amend his Petition is dismissed as futile. No other relief is available through 28 U.S.C. § 2241, and the petition for a writ of habeas corpus must be dismissed. The Clerk of the Court is directed to close this case. A certificate of appealability will not be issued.


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