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ACAITURRI v. ASHCROFT

April 29, 2004.

JOSE LUIS ACAITURRI, Petitioner,
v.
JOHN ASHCROFT, Attorney General of the United States, Respondent.



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

MEMORANDUM AND ORDER

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.

  DISCUSSION

  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 ...


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