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.
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 ...