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May 24, 2004.

EVARISTO MATOS-CUEVAS, Petitioner, -against- JOHN ASHCROFT, Respondent

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Evaristo Matos-Cuevas petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (2000), raising due process challenges to an order of deportation issued by an Immigration Judge ("IJ") and upheld by the Board of Immigration Appeals ("BIA"). For the reasons set forth below, the writ is denied and the petition is dismissed.


  Matos-Cuevas was born in the Dominican Republic and entered the United States illegally in 1985. (Certified Administrative Record ("R.") at 189-90) In 1988, Matos-Cuevas legalized his status, and on April 2, 1992, he became a lawful permanent resident of the United States. (R. at 190) In 1989, Matos-Cuevas pleaded guilty to attempted criminal sale of a controlled substance in the third degree and was sentenced to six months in prison and five years on probation. (R. at 190, 210, 231) He did not appeal this conviction. (R. at 176)

  In May 1995, Matos-Cuevas was convicted after a bench trial in New York Supreme Court of two counts of criminal sale of a controlled substance in the third degree and sentenced to two concurrent sentences of four and one-half to nine years imprisonment. (R. at 221, 246) He appealed these convictions to the New York Supreme Court, Appellate Division, Second Department. (R. at 175, 247)

  On September 15, 1995, the Immigration and Naturalization Service ("INS") served Matos-Cuevas with an Order to Show Cause and Notice of Hearing, alleging that he was subject to deportation because of his May 1995 convictions, pursuant to § 241(a)(2)(B)(i) of the Immigration and Nationality Act ("INA"). (R. at 293-300) On December 7, 1995, Matos-Cuevas participated in a deportation hearing before an IJ, with the aid of a Spanish interpreter. (R. at 165) Matos-Cuevas told the IJ that he had filed a direct appeal from his May 1995 convictions, and the IJ adjourned the proceedings to confirm whether the convictions were on appeal. (R. at 168-71) On January 5, 1996, deportation proceedings resumed, and the IJ confirmed that Matos-Cuevas's case was in fact on appeal. (R. at 175) The INS attorney then said that he wanted to amend the Order to Show Cause to include deportation charges based on Matos-Cuevas's 1989 conviction, and the IJ recessed the proceedings to allow the amendment to be filed. (R. at 177-80)

  On January 31, 1996, deportation proceedings resumed, and the INS formally withdrew the charge of deportation based on the May 1995 conviction. (R. at 184) Matos-Cuevas testified that he was a lawful permanent resident of the United States and that he was convicted of attempted criminal sale of cocaine in New York Supreme Court in 1989. (R. at 189-90) The IJ found that Matos-Cuevas was eligible to apply for a waiver of deportation pursuant to former § 212(c) of the INA, codified as 8 U.S.C. § 1182(c) (1994) (repealed 1996), and explained to Matos-Cuevas that he should file a § 212(c) application by March 1, 1996. (R. at 185, 190-91) The IJ provided Matos-Cuevas with the § 212(c) application package and a postage prepaid envelope, and the IJ told Matos-Cuevas that he could present evidence showing that he should not be deported at his final hearing on March 7, 1996. (R. at 191-92) Matos-Cuevas later requested a continuance of the March 7 hearing, and the proceedings were rescheduled for April 8, 1996. (R. at 224, 260-61)

  On April 8, 1996, when deportation proceedings resumed, Matos-Cuevas told the IJ that he had been unable to complete all the necessary paperwork because there was no translator at the prison to help him. (R. at 197-98) Matos-Cuevas then said that he was not feeling well, and the IJ recessed the proceedings to allow Matos-Cuevas to take his "heart pill", nitroglycerin. (R. at 198-99) When the hearing resumed, Matos-Cuevas explained that he took nitroglycerin for his high blood pressure and stated that he was well enough to continue with the proceedings. (R. at 199-200) The IJ then recessed the proceedings to allow Matos-Cuevas to fill out his I-191 form with the help of the court's Spanish interpreter. (R. at 203-04) Matos-Cuevas filled out the form with the aid of the interpreter, but he refused to sign it, claiming that he needed additional time.*fn1 (R. 204-05) The IJ then issued an oral decision, ordering that Matos-Cuevas be deported. (R. 206) The IJ noted that Matos-Cuevas had admitted the allegations in both Orders to Show Cause and found that Matos-Cuevas had refused to complete a request for § 212(c) relief from deportation. (R. at 161-62)

  Matos-Cuevas filed a timely appeal of the IJ's decision with the BIA, arguing that the IJ abused his discretion by denying § 212(c) relief without considering Matos-Cuevas's good moral character, long duration of residence in the United States, family ties, and rehabilitation during incarceration. (R. at 153) Matos-Cuevas argued also that (1) his treatment for hypertension and angina pectoris would be jeopardized if he were deported, (2) he submitted a complete § 212(c) application on February 29, 1996, (3) his medical emergency at the April 8, 1996, hearing prevented him from understanding or responding to the IJ's insinuation that his § 212(c) application was incomplete, (4) the INS should be foreclosed from deporting him based on the 1989 conviction because it chose not to do so in 1992, and (5) the IJ abused his discretion in failing to consider Matos-Cuevas's § 212(c) application. (R. at 83-84, 98-101) On January 24, 1997, the BIA issued a decision dismissing Matos-Cuevas's appeal. (R. at 75-77) The BIA described the facts in the case and concluded that Matos-Cuevas had abandoned his application for § 212(c) relief by refusing to sign the application without providing a reasonable explanation for his refusal. (R. at 77) The BIA noted also that Matos-Cuevas did not explain why he was able to complete one part of the application, Form G-325, but was unable to complete Form I-191. (R. at 77)

  On November 7, 1997, the BIA received from Matos-Cuevas a motion to reconsider its decision on his appeal; this motion was dated November 4, 1997. (R. at 63-67; 71-73) In this motion, Matos-Cuevas claimed that he had submitted a § 212(c) application on February 28, 1996, and he alleged also that, because he was rattled during the April 8, 1996, hearing by the IJ's attacks on his credibility and by his illness, he was unable to understand the deficiencies in his I-191 form. (R. at 71-73) On November 14, 1997, Matos-Cuevas submitted to the BIA a supplemental motion for reconsideration in which he claimed that he had not received notice that his appeal was dismissed until October 8, 1997, when the BIA responded to his inquiry about the status of his appeal. (R. at 57-58)

  On November 18, 1997, the BIA notified Matos-Cuevas that his motion was rejected because it did not include the required filing fee or request for a fee waiver. (R. at 70) On November 28, 1997, Matos-Cuevas submitted a fee waiver request to the BIA, and the BIA then filed his motion to reconsider. (R. at 54-56) On January 2, 1998, and on March 1, 1998, Matos-Cuevas sent additional documents to the BIA entitled "Motion to Reopen" and "Respondent's Pro Se Supplement to Motion to Reopen Deportation Proceedings", in which he argued that his hypertension had worsened since the deportation hearings and that he should be granted a remand or permission to supplement the record to show that he was unlikely to obtain proper medical treatment for his condition in the Dominican Republic. (R. at 3-5, 23-30)

  On April 15, 1998, the BIA denied Matos-Cuevas's motion to reconsider as untimely. (R. at 1-2) The BIA found that its prior order was entered on January 24, 1997, and any motion to reconsider would have been due on or before February 24, 1997, pursuant to 8 C.F.R. § 3.2(b)(2). (R. at 2) The BIA noted further that, even if it credited Matos-Cuevas's interpretation of the law and found that he need only file his motion within 30 days after he learned of the BIA's decision, Matos-Cuevas still did not meet this deadline because his motion was not properly filed until November 28, 1997, more than 30 days after he received the BIA's decision on October 7, 1997. (R. at 2) On July 7, 1998, the BIA further informed Matos-Cuevas that the April 15 decision also constituted a decision on his motion to reopen. (Pet., Ex. E)

  Matos-Cuevas filed his original habeas petition on May 29, 2001,*fn2 arguing that the BIA violated his due process rights by failing to consider his motion to reopen and supplemental motion to reopen and claiming that he had presented substantial evidence in support of his request for a waiver of deportation. (Pet. at 3-5) In responding to Matos-Cuevas's petition, the Government argued that: (1) this court lacks jurisdiction to review the BIA's discretionary denials of Matos-Cuevas's motions; (2) even if this court has jurisdiction, the BIA did not abuse its discretion in denying the motions; and (3) remand to the BIA would be futile because Matos-Cuevas is not entitled to relief from deportation. (Resp't Memo, at 10-21) Matos-Cuevas then submitted an amended petition, and this court issued an order stating that the case would be considered and decided on the amended petition. (Order of Nov. 2, 2001)

  In the amended petition, Matos-Cuevas alleges two separate grounds for habeas relief. First, he argues that the I-191 form is "unconstitutionally misleading", which, according to Matos-Cuevas, means that the § 212(c) application he submitted to the IJ, which was missing an I-191 form, was actually timely and properly submitted. (Am. Pet. ¶ 9) As a result, Matos-Cuevas argues, the IJ's denial of his properly-filed § 212(c) application without a hearing was a violation of his due process rights. (Am. Pet. ¶ 9) Second, Matos-Cuevas argues that when the BIA received but did not adjudicate his Motion to Reopen and Supplemental Motion to ...

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