United States District Court, S.D. New York
May 12, 2004.
UNITED STATES OF AMERICA -against- ROBERTO CAMPOSANO-BAEZ Defendant
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Roberto Camposano-Baez ("Camposano-Baez") moves this Court for an
order directing his immediate deportation pursuant to 8 U.S.C. § 1231
(" § 1231"). The Government opposes the motion. For the reasons
discussed below, Camposano-Baez's motion is denied.
Camposano-Baez pled guilty before this Court on April 4, 2003 to one
count of illegally re-entering the United States after deportation
following a conviction for an aggravated felony, in violation of
8 U.S.C. § 1326 (b). The Court sentenced Camposano-Baez on December 4, 2003 to
57 months incarceration to be followed by three years of supervised
release. He is currently in custody serving this sentence.
Relying solely on § 1231, Camposano-Baez moves this Court to order
his immediate deportation on the grounds that he pled guilty to a
non-violent offense, and thus, is eligible under this provision to be
deported. The relevant portion of § 1231 provides that: The Attorney General is authorized to remove an
alien in accordance with applicable procedures
under this Act before the alien has completed a
sentence of imprisonment
(i) in the case of an alien in the custody of the
Attorney General, if the Attorney General
determines that (I) the alien is confined pursuant
to a final conviction for a nonviolent
offense . . . and (II) the removal of the alien is
appropriate and in the best interest of the
United States; . . .
8 U.S.C. § 1231 (a)(4)(B). By its express terms, § 1231
grants the Attorney General discretion to remove an alien under certain
conditions. Camposano-Baez asks this Court to compel the Attorney General
to exercise his discretion.
The Court denies the motion under the Second Circuit's ruling in
Thye v. United States, 109 F.3d 127 (2d Cir. 1997). In
Thye, the Second Circuit affirmed the district court's denial
of the defendant's motion for immediate deportation under § 1231. The
Court in Thye reviewed the legislative history of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L.
104-132, § 438(a), 110 Stat. 1214, 1275, which amended § 1231,
and concluded that the AEDPA does not create a private cause of action
for criminal defendants to compel their deportation. See
id. at 128-30.
The same circumstances exist here. Under the plain language of §
1231 and the controlling precedent in Thye, Camposano
Baez may not bring a private action to compel or request the Attorney
General to exercise his discretion. ORDER
For the foregoing reasons, it is hereby
ORDERED that the motion of defendant Roberto Camposano-Baez
for an order for immediate deportation is DENIED.
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