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United States District Court, S.D. New York

July 26, 2004.

EDWARD J. McELROY, Regional Director, Immigration and Naturalization Service, Respondent.

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge


In this action, before me on consent pursuant to 28 U.S.C. § 636(c), Petitioner Jaime Rafael Batista ("Batista") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his order of removal from the United States. (See Pet. at 2; Pet. Mem.)*fn1 Batista brings this petition on the ground that the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") incorrectly held that Batista was subject to removal for his 1986 weapons offense conviction. (Pet. Mem. at 1-8.) In addition, Batista claims that he was, in fact, eligible for several forms of discretionary relief from removal. (Id. at 13-17.) For the reasons set forth below, the petition is hereby dismissed. BACKGROUND

Batista, a native and citizen of the Dominican Republic, entered the United States at New York City on March 10, 1978, as a lawful permanent resident. (R. at 143, 155).*fn2 At the time of his entry he was 26 years old, and, since then, he has resided primarily in New York City and the surrounding areas. (See id. at 122.)

  I. Criminal History

  Through a number of encounters with law enforcement authorities, Batista has compiled a history of criminal proceedings against him involving weapons, drugs, and other offenses.*fn3 On March 6, 1982, Batista was arrested on charges of possession of a weapon in the second degree and reckless endangerment in the first degree, as well as menacing. (Id. at 131.) Batista's criminal record does not disclose the disposition of this arrest. (See id.) On August 27, 1983, Batista was arrested for criminal possession of a weapon in the third degree, a class D felony. (Id. at 131-32; see also N.Y. Penal L. § 265.02(4)). On or about January 11, 1984, Batista pleaded guilty to this charge and was sentenced in New York Supreme Court, County of New York, to probation for a term of five years. (R. at 131.)

  Approximately 10 months following this sentencing, on November 21, 1984, Batista was arrested for third-degree weapons possession, in violation of the terms of his probation. (Id. at 132.) In the ensuing criminal proceedings against him, Batista failed to appear in court after being released on bail, causing the court to issue a bench warrant for his arrest on April 21, 1986. (Id. at 132.) On September 12, 1986, Batista pleaded guilty to attempted third-degree criminal possession of a weapon, a class E felony, and was sentenced as a predicate felon to serve a prison term of two to four years. (Id. at 132-33; 139 (record of sentence), 140 (indictment), 142 (record of sentence and commitment) see also N.Y. Penal L. §§ 110, 265.02.) In addition, he pleaded guilty to second-degree bail jumping, also a class E felony, and was sentenced to serve 18 months to three years in prison for that crime, to be served concurrently with the sentence for his 1986 weapons conviction. (R. at 132-33; 142; see also N.Y. Penal L. § 215.56.) After serving a portion of his sentence, Batista was released on parole by the New York State Department of Corrections on April 11, 1988. (R. at 133.) On November 17, 1989, however, Batista was again imprisoned as a parole violator. (Id.) The administrative record does not reveal the reason for Batista's parole revocation. He was not released again until June 1, 1990. (Id.)

  Batista's next encounter with law enforcement authorities occurred on June 12, 1993, at which time he was arrested on a misdemeanor charge of assault with intent to cause serious injury. (Id. at 133.) No disposition is reported as to this charge. (Id.) On June 8, 1994, Batista pleaded guilty to a misdemeanor crime for attempted possession of a gambling device, and was sentenced to pay a $200 fine or to serve 30 days in jail. (Id. at 134; see also N.Y. Penal L. §§ 110 & 225.30.) Batista satisfied his sentence by paying the fine, and was released. (R. at 134.) On March 23, 1995, Batista was convicted upon pleading guilty to a misdemeanor charge of seventh-degree criminal possession of a controlled substance, and was sentenced to pay a fine of $100 or to serve 15 days in jail; he chose again to pay the fine. (See id. at 134; see also N.Y. Penal L. § 220.03.)

  Batista has one final conviction, for which he is currently incarcerated. On April 30, 1996, Batista was arrested on felony charges including third-degree criminal sale of a controlled substance, third-degree criminal possession of a controlled substance, and criminal sale of a controlled substance on a school ground. (R. at 135.) On February 2, 1999, he was sentenced to serve a prison term of 10 to 20 years, after a jury convicted him of criminal sale of a controlled substance in the third-degree, a class B felony. (Id.; see also N.Y. Penal L. § 220.39(1).)

  II. Removal Proceedings

  The removal proceedings that are the subject of Batista's habeas petition were commenced on July 28, 1999, when the Immigration and Naturalization Service ("INS")*fn4 issued an administrative Notice to Appear in removal proceedings, charging Batista with being removable from the United States as an alien convicted of a crime involving weapons possession, pursuant to Section 237(a)(2)(C) of the Immigration and Nationality Act of 1952 (the "INA" or "Act"). (R. at 153-55.) Specifically, the Notice to Appear alleged that Batista was removable because he was not a citizen of the United States and because he was convicted of the crime of attempted criminal possession of a weapon in the third degree, pursuant to the judgment entered September 12, 1986. (Id. at 155; see supra at 3.) At the time, Batista was incarcerated at the Upstate Correctional Facility in Malone, New York ("Upstate") for his 1999 conviction for criminal sale of a controlled substance in the third degree. (Id. at 135, 153.)

  On August 13, 1999, Batista received notice from the Immigration Court that there would be an administrative hearing regarding the INS's charges, held at the Downstate Correctional Facility in Fishkill, New York ("Downstate"), and that he would be entitled to participate in this hearing via video-conferencing from Upstate. (Id. at 151-52.) Batista's removal hearing commenced before Immigration Judge Mitchell A. Levinsky ("IJ Levinsky"), at Downstate, on February 29, 2000. (Id. at 73-84.) At the time, Batista was represented by the Reverend Robert Vitaglione, an accredited immigration representative, who had previously filed a notice of appearance on Batista's behalf. (See id. at 74, 149-50.) Batista, through his representative, admitted the allegations in the Notice to Appear, namely, that he was an alien and that he had been convicted of attempted criminal possession of a weapon in the third degree. (See id. at 76.) He indicated, however, that he intended to seek the following forms of relief: (1) cancellation of removal pursuant to INA Section 240A, 8 U.S.C. § 1229b(a); (2) a discretionary waiver of exclusion, pursuant to former INA Section 212(c), 8 U.S.C. § 1182(c);*fn5 and (3) an adjustment of his immigration status to that of a lawful permanent resident, pursuant to INA Section 245(a), 8 U.S.C. § 1255(a). (Id.) IJ Levinsky adjourned the hearing until August 24, 2000, for additional briefing on the legal issues involved, and gave Batista until April 10, 2000, to file his applications for relief. (See id. at 80.)

  The hearing continued as scheduled on August 24, 2000. (Id. at 86-120.) During the hearing, Batista testified to various circumstances of his life in the United States. (Id. at 91-105.) Regarding his family, Batista testified that he had eight children, seven of whom resided in the United States, born of four different mothers. (Id. at 91-99.) At the time, the ages of his children ranged from infancy to 23 years. (Id.) He also indicated that he had 20 half-siblings living in the United States. (Id. at 100.) Batista stated that he provided for his children from time to time, that he planned to work to support his family and to pay for his children's education, and that his children would not want him to be deported. (Id. at 110-12, 116.)

  Batista also testified that had a seventh grade education (id. at 105), and had held several jobs, many of them "off the books," since his arrival in the United States (id. at 101-103, 108). Batista stated that he was Catholic, regularly attended church, had participated in rehabilitative programs, and had received no prison "tickets." (Id. at 105-107.) Batista conceded that he had been a habitual drug user from 1983 to 1996. (Id. at 109-10.)

  At one point during cross-examination, the parties and the IJ realized that Batista's rap sheet listed a conviction for bail jumping in the second degree. (See id. at 71, 117, 133.) Both parties acknowledged that the underlying 1984 weapons offense, for which Batista was convicted of jumping bail in 1986, was an offense for which he was sentenced to two to four years (id. at 118), and the IJ found that this fact made the bail jumping offense itself an aggravated felony pursuant to INA Section 101(a)(43)(T). (Id. at 72, 117-18; see 8 U.S.C. § 1101(a)(43)(T).)*fn6 The IJ found that, as an "aggravated felon," Batista was statutorily ineligible for the relief sought. (R. at 71-72.) Although Batista did not dispute the fact of his weapons conviction, the term of his sentence on that conviction, the fact that he jumped bail,*fn7 or the fact of his additional bail jumping conviction (see id. at 115, 118), Batista, as represented by Reverend Vitaglione, did not explicitly concede that these facts rendered him ineligible for the relief sought (see id. at 117-18).

  At the conclusion of Batista's testimony, IJ Levinsky issued an oral decision finding Batista removable from the United States as charged by the INS, and also finding that he was ineligible for any of the requested forms of relief from removal. (Id. at 72.) The basis for the decision was that Batista's status as an aggravated felon barred him from "any and all relief from removal." (Id.). Specifically, IJ Levinsky noted that: (1) this status rendered Batista statutorily ineligible for cancellation of removal; (2) that Batista was also barred from relief under Section 212(c) because such a waiver of exclusion was not available in removal proceedings and, in any event, such relief was not available to him as an aggravated felon; and (3) Batista was ineligible for adjustment of status because aliens convicted of aggravated felonies are not admissible to the country and cannot apply for a waiver of admissibility. (Id. at 71-72.) Consequently, IJ Levinsky ordered Batista to be removed to the Dominican Republic. (Id.)

  On August 31, 2000, Batista timely filed an administrative appeal of the IJ's decision with the BIA. (Id. at 61-62.) Batista's brief was prepared and submitted pro se, as Reverend Vitaglione had ceased representing Batista in the matter. (See R. at 19, 46.) On appeal, Batista made a number of contentions challenging the order of removal and claiming eligibility for relief from removal. Batista claimed that the 1986 weapons conviction, for which the INS sought to remove him, was not a removable offense as defined by the applicable sections of the INA effective at the time of the conviction, and that later amendments to the INA were being improperly applied to him retroactively. (Id. at 27-29, 33.) He also contended that it was improper for the INS to have charged him with being removable on the basis of his 1986 weapons conviction because the sentencing judge had issued a judicial recommendation against deportation ("JRAD") for that crime (id at 31-32), and also because, in 1986, the INS purportedly confirmed to him that he was not removable for that offense (id at 28-31). In addition, Batista asserted that he was unfairly prejudiced by the lapse in time between his 1986 weapons conviction and the commencement of removal proceedings against him in 1999. (Id. at 30-31.) Finally, Batista made various arguments claiming that he was in fact eligible for cancellation of removal, a former Section 212(c) waiver of deportation, and for adjustment of his immigration status, including the argument that the INS should not have been permitted to use his bail jumping conviction against him, when that conviction had not served as a basis for the charges against him. (See id. at 31-35.) On April 10, 2001, the BIA issued a decision affirming IJ Levinsky's order of removal and dismissing Batista's administrative appeal. (Id. at 5-8.) The BIA found that it lacked authority to review the INS's decision to commence removal proceedings against Batista and that, as an initial matter, there seemed to be no merit to the contention that any delay in the commencement of such proceedings was prejudicial. (Id. at 6.) Regarding the JRAD allegedly issued with respect to Batista's conviction for attempted criminal possession of a weapon, the BIA noted that there was no evidence or support for Batista's claim that such a JRAD was issued, and thus the BIA affirmed that the 1986 weapons conviction was an adequate basis for removal. (Id.) The BIA also held that an INS officer's visit to Batista in 1986 did not, under the INA, constitute formal "notice" of his deportation status under the INA. (Id.) Rather, the BIA determined that Batista received formal notice of the charges against him on August 3, 1999, with the Notice to Appear. (Id.) Because Batista received that formal notice after the effective date of INA Section 237(a)(2)(C), he was properly charged under that section. (Id.)

  The BIA also held that Batista had not demonstrated that he was eligible for any form of discretionary relief from removal. (See id. at 7.) Specifically, the BIA agreed with IJ Levinsky's determination that Batista's aggravated felony conviction for bail jumping, as defined in Section 101(a)(43)(T) of the INA, 8 U.S.C. § 1101(a)(43)(T), rendered him statutorily ineligible for cancellation of removal. (Id.) Noting that Batista bore the burden of establishing eligibility for cancellation of removal, the BIA reasoned that the rap sheet, combined with Batista's own admissions with regard to the bail jumping conviction, adequately met the definition of bail jumping for purposes of the INA and rendered him an aggravated felon. (Id.) The BIA found Batista statutorily ineligible for relief under former Section 212(c) because, even if that former section applied, such relief had never been available to aliens convicted of firearms offenses. (Id.) Finally, the BIA found that, while Batista's weapons conviction did not per se preclude him from seeking adjustment of status, he lacked one of the statutory prerequisites to adjustment — he had not established that he was eligible to receive an immigrant visa.*fn8 (Id. at 7-8.)

  As a result, the BIA dismissed Batista's appeal. This habeas corpus petition followed.


  Batista challenges his order of removal on a number of grounds. First, he argues that the BIA erred in applying current standards retroactively, when it held him removable based on his 1986 conviction. (Pet. Mem. at 1-11, 17.) Second, he argues that the BIA incorrectly held that he was ineligible for any type of discretionary relief, and that this matter should be remanded so that he may seek such relief. (Pet. Mem. at 12-14, 17.)


  By appealing the order of removal to the BIA, Batista exhausted his administrative remedies, and thus his habeas petition is properly before this Court. See, e.g., Byfield v. Ashcroft, No. 00 Civ. 4238 (JGK), 2003 WL 21649442, at *2 (S.D.N.Y. July 14, 2003).

  This Court retains jurisdiction under 28 U.S.C. § 2241 to review the legal claims against a final order of removal raised by an alien subject to removal or deportation by reason of having committed a criminal offense. See Airini v. McElroy, No. 98 Civ. 5379 (JGK), 2003 WL 21649434, at *3 (S.D.N.Y. July 14, 2003) (citing I.N.S. v. St. Cyr, 533 U.S. 289, 314 (2001)). Courts retain jurisdiction "to review constitutional claims as well as `purely legal' determinations of statutory application and interpretation `affecting the substantial rights of aliens.'" Fernandez v. I.N.S., No. 03 Civ. 2623, 2004 WL 951491, at *1 (E.D.N.Y. Apr. 29, 2004) (quoting Calcano-Martiniez v. I.N.S., 232 F.3d 328, 342 (2d Cir. 2000); Hernandez v. I.N.S., 157 F.3d 106, 122 (2d Cir. 1998)). Federal jurisdiction over 28 U.S.C. § 2241 does not extend, however, to review of discretionary determinations. Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001).

  Here, the Court may not review the agency's factual findings or the Attorney General's exercise of discretion, but may review the legal questions of whether the INA was improperly applied retroactively in Batista's case, and whether Batista is statutorily eligible for relief from removal. See, e.g., Hernandez, 157 F.3d at 120 n. 10. Indeed, in this case, neither party contests the Court's jurisdiction over the legal challenges to Batista's order of removal.


  A. Batista's Challenge To the Purported Retroactive Application of Section 237(a)(2)(C)

  1. Applicability of Section on the Facts Presented

  Batista claims that he was erroneously charged with removal in 1999 under Section 237(a)(2)(C) of the INA, because the INS retroactively applied that statute to his 1986 conviction, for which he asserts he received notice in 1986 that he would not be deported. (See Pet. Mem. at 8-9.) Batista argues that his 1986 weapons conviction was not a deportable offense at the time he committed it and that subsequent amendments to the INA, making the crime a ground for deportation, may not be applied to him. (Id. at 1-9.) Respondent argues that the INS did not officially charge Batista until the agency filed its Notice to Appear in removal proceedings on August 5, 1999,*fn9 and, therefore, that it permissibly charged him under the applicable statute in effect in 1999. (Resp. Mem. at 11.)*fn10

  Batista was charged with being removable under Section 237(a)(2)(C) of the Act, as an alien convicted of a firearms offense. (See 8 U.S.C. § 1227(a)(2)(C); R. at 155.) At the time Batista was convicted, however, the relevant statute allowed for deportation or removal only if the alien was convicted of possessing or carrying an automatic or semi-automatic firearm. See 8 U.S.C. § 1251(a)(14) (1983). Subsequent amendments have broadened this section to include convictions for, inter alia, carrying, possessing, or using any firearm.*fn11 See 8 U.S.C. § 1227(a)(2)(C); see also Immigration Act of 1990 ("IMMAct") § 602(a), Publ. L. No. 101-649, 104 Stat. 4978, 5077-82.

  IMMAct authorizes the application of its provisions to all aliens "notwithstanding that . . . the facts, by reason of which an alien is [deportable under new law], occurred before the date of the enactment of this Act." IMMAct § 602(c). By their terms, however, the IMMAct amendments do not apply "to deportation proceedings for which notice has been provided to the alien before March 1, 1991." See IMMAct § 602(d); see, e.g, Bell v. Reno, 218 F.3d 86, 94 (2d Cir. 2000) (the redesignations provided for in IMMAct § 602(a) are "amendments" within the meaning of Section 602(d)'s effective date provision).

  Thus, where notice was provided after the effective date of March 1, 1991, an alien may be charged under the current version of the Act,*fn12 despite the fact that he or she was convicted prior to the enactment of the amendment. See Bell, 218 F.3d at 94 (under the "effective date" provision of Section 602(d), where petitioner was given notice of his removal proceedings after March 1, 1991, he was subject to the amended version of the statute, despite the fact that he pleaded guilty to the underlying crime in 1985); see also Gelman v. Ashcroft, 372 F.3d 495, 2004 WL 1354113, at *4 (2d Cir. June 17, 2004) (reaffirming same) ; Kuhali v. Reno, 266 F.3d 93, 110-11 (2d Cir. 2001) (in the context of the IIRIRA's explicit effective date provision, actions taken after that date were "clearly encompassed by the new provisions," despite the fact that the underlying conviction occurred before its enactment); see, e.g., Hamama v. I.N.S., 78 F.3d 233, 236 (6th Cir. 1996) (1990 amendments expanding definition of deportable weapons offenses applied to alien who was convicted of the crime in 1988, but was served with a notice of deportation proceedings in 1992); Lopez-Amaro v. I.N.S., 25 F.3d 986, 988-89 (11th Cir. 1994) (where petitioner received notice of deportation in 1991, for a 1983 weapons conviction, the expanded scope of deportable weapons offenses "unmistakable" applied to her). Accordingly, if Batista received notice after March 1, 1999, then he would be subject to removal under Section 237(a)(2)(C), despite the fact that the weapons offense of which he was convicted, when committed, would not have rendered him subject to removal.

  Batista acknowledges that "the Government served [him] with the Notice to Appear on July 28, 1999." (Pet. Mem. at 9.) He maintains, however, that he also received notice in 1986 that he would not be deported for the 1986 weapons conviction that was the subject of the later Notice to Appear. (See id.) Specifically, Batista asserts that, in 1986, "the Service served Fishkill Correctional Facility with an order deciding not [to] initiate proceedings against [him]," although he has not been able to locate a copy of this order. (Id. at 10 n. 1.) As this alleged "notice" was received prior to the effective date of the relevant amendment, Batista argues that his 1986 conviction cannot now be used to support the charge of deportability. (Id. at 8-9, 17.) Respondent argues that Batista's interpretation of "notice" is flawed because this term has been interpreted to refer to the notice of the initiation of immigration proceedings against an alien, and that such proceedings are initiated when the INS files the charging document in an Immigration Court, which did not occur in this case until 1999. (Resp. Mem. at 11.)

  Batista cannot prevail on his argument that the order he allegedly received from the INS in 1986, stating that the INS was not going to initiate proceedings, was tantamount to "notice" within the meaning of IMMAct § 602(d), and that the IMMAct amendments are therefore inapplicable to him. IMMAct's effective date provision states that the amendments do not apply to "proceedings for which notice has been provided to the alien before March 1, 1991." In this provision, the phrase "notice . . . to the alien" means notification to the alien that the INS has commenced formal proceedings against him or her. See Thom v. Ashcroft, 369 F.3d 158, 164 (2d Cir. 2004). The immigration regulations provide that removal proceedings commence when the INS files its charging document in an Immigration Court. See 8 C.F.R. § 1003.14 (2004) ("Jurisdiction vests, and proceedings before an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service."); see also 8 U.S.C. § 1229a(a)(3) ("[A removal] proceeding under this section shall be the sole and exclusive procedure for determining whether an alien may be . . . removed from the Unites States."). Such a charging document comes in the form of a Notice to Appear, which in this case, was indisputably issued on July 28, 1999. (R. at 153.) See, e.g, Thom v. Ashcroft, 369 F.3d 158, 164 (2d Cir. 2004) (holding that INS proceedings started in 1998, "the year in which the INS served [the alien] with a Notice to Appear and filed that Notice with the immigration court" and not in 1984, the year the INS issued a detainer notice to the alien; thus, the amendments under IIRIRA and AEDPA applied to petitioner); Bell, 218 F.3d at 94 (because the INS commenced removal proceedings against the alien in 1998, he was "was given notice" of such proceedings at that time and the IMMAct amendments applied to him); Cyrus v. Ashcroft, No. 00 Civ. 3621(FB), 2002 WL 377050, at *1 (E.D.N.Y. Mar. 8, 2002) (removal proceedings for a petitioner accused under Section 237(a)(2)(C) "were instituted by issuance to petitioner of a Notice to Appear for a removal proceeding").

  Thus, Respondent is correct that the only relevant "notice" here was in 1999, when Batista was charged as removable, and when the INS issued and filed the Notice to Appear for removal proceedings. Under the governing law, Batista was in fact subject to removal under Section 237(a)(2)(C) as an alien convicted of a firearms offense, despite the fact that he was convicted of that crime in 1986. 2. Constitutional Concerns

  Batista also maintains that the "more than nineteen years delay" in initiating proceedings against him, and the retroactive application of Section 237(a)(2)(C) to this case, violated his rights under the Equal Protection Clause.*fn13 (Pet. Mem. at 9.) He also argues that the decision to initiate removal proceedings against him in 1999 raises a "Double Jeopardy Clause concern," based on the fact that the agency had allegedly already decided not to charge him. (See supra at 13-14; see also Pet. Mem. at 9 (citing U.S. Constitution, Fifth Amendment).)

  Congress may enact legislation with retroactivity as long as such application is justified by a rational basis. Kuhali, 288 F.3d at 111. The Second Circuit has found that "Congress . . . has a legitimate interest in expeditiously removing dangerous aliens from the country, and uniform application of the new statute to remove all aliens convicted of certain offenses rationally furthers that purpose." Id. (emphasis in original); see also Hamama, 78 F.3d at 236 ("[T]he government clearly has a legitimate interest in protecting society from the illegal use of dangerous weapons, and legislation that deports aliens who have commit or have committed crimes involving firearms is a rational means of furthering that interest.") (emphasis in original); United States v. Yacoubian, 24 F.3d 1, 7-8 (9th Cir. 1994) ("[INA § 237(a)(2)(C)'s predecessor] survives [rational basis] scrutiny because its means — retroactive application of the firearm . . . conviction deportation provision — is rationally related to a legitimate governmental purpose. It results in uniform application of the deportation provision to aliens convicted of firearm offenses, no matter when those convictions occurred."); see, e.g., Bazuaye v. I.N.S., No. 97 Civ. 1280 (HB), 1997 WL 122768, at * 2(S.D.N.Y. Mar. 18, 1997) ([L]ong-established Supreme Court and Second Circuit precedent has upheld . . . retroactive application of immigration laws.") (citing, inter alia, Lehmann v. U.S., 353 U.S. 685, 690 (1957) (allowing deportation based on convictions that were not grounds for deportation when they occurred)).

  Thus, the application of Section 237(a)(2)(C) to Batista's 1986 weapons conviction does not violate his due process or equal protection rights. See Kuhali, 288 F.3d at 111 (finding that alien's due process rights were not violated where he was served with a notice of removal, 19 years after his 1980 conviction, and charged under Section 237(a)(2)(C)); see also Hamama, 78 F.3d at 237 (discussing predecessor to INA § 237(a)(2)(C) and finding that equal protection rights were not violated by finding deportable those aliens who were charged after March 1, 1991, despite the fact that those charged prior to that date, for the same crime, would not have been deportable); Yacoubian, 24 F.3d at 6-9 (applying 1990 firearm amendments to alien who was convicted in 1982 and given a JRAD for the offense, and finding that such application did not violate the alien's due process rights and that the JRAD was no longer effective under changes to the immigration laws). Likewise, there are no ex post facto or double jeopardy concerns raised by the INS's decision to charge Batista in 1999, even if he was notified that he would not be so charged in 1986, because these constitutional protections apply only in the context of criminal prosecutions and deportation proceedings have consistently been classified as civil in nature. See, e.g., Kuhali, 288 F.3d at 111. ("A long and constant line of precedent establishes that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.") (citations omitted); see also Domond v. I.N.S., 244 F.3d 81, 87 (2d Cir. 2001) ("The ex post facto clause forbids retroactive application of penal legislation, not civil legislation, and `deportation, no however severe its consequences, has consistently been classified as a civil rather than a criminal procedure.'") (quoting Harisiades v. Shaughnessy, 342 U.S. 580 (1952)); Oliver v. I.N.S., 517 F.2d 426, 428 (2d Cir. 1975) (double jeopardy protections do not apply to immigration proceedings which are civil in nature); see Breed v. Jones, 421 U.S. 519, 528 (1975) ("[T]he risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not `essentially criminal.'") (citations omitted)).

  B.Batista's Claims of Eligibility for Relief From Removal

  Even if Batista is subject to removal for his 1986 weapons conviction, he claims that the BIA nonetheless erred in finding him ineligible for relief from removal. Specifically, Batista contends that he is eligible for cancellation of removal, discretionary waiver of removal, and adjustment of status. Each of these arguments will be addressed in turn.

  1. Cancellation of Removal under INA Section 240A

  Cancellation of removal under INA § 240A is not available to an alien who has been convicted of an aggravated felony. See 8 U.S.C. § 1229b(a)(3) (the Attorney General may cancel removal in the case of an alien who is deportable unless, inter alia, that alien has been convicted of an aggravated felony); see, e.g., Swaby v. Ashcroft, 357 F.3d 156, 159 (2d Cir. 2004) (noting that IIRIRA created the relief of cancellation of removal, "which allows the Attorney General to cancel removal proceedings for certain resident aliens, excluding those convicted of an aggravated felony."); Alvarez-Garcia v. United States Immigration and Naturalization Serv., 234 F. Supp.2d 283, 287 (S.D.N.Y. 2002) ("Because petitioner was convicted of an aggravated felony . . . he is not eligible for cancellation of removal."); Hibert v. Ashcroft, 01 Civ. 4384 (JSR) (JSR)(JCF), 2002 WL 1205736, at *2 (S.D.N.Y. Mar. 11, 2002) ("Cancellation of removal is not available to any alien who has been convicted of an aggravated felony.").

  Batista, however, claims that, even if he was convicted of an aggravated felony (i.e., bail jumping),*fn14 that fact should not have been used against him in a Section 240A determination, because the bail jumping conviction was not cited in the notice of his removal proceedings. Thus, Batista appears to contend that, by allowing that conviction to bar cancellation of removal, the IJ and BIA violated his due process rights to adequate notice. (See Pet. Mem. at 12, 17.)

  Batista's due process argument is without merit. Section 239 of the INA requires a Notice to Appear to list, inter alia, (1) the acts or conduct alleged to be in violation of the law, and (2) the charges against the alien and the statutory provisions alleged to have been violated. See 8 U.S.C. § 1229(a). It is true that, in this case, the Notice to Appear served on Batista stated only that he was being charged as deportable under Section 237(a)(2)(C) of the INA, for committing a firearms offense, specifically the weapons charge of which he was convicted in 1986. (See R. at 155.) Batista was not specifically charged as deportable under Section 237(a)(2)(A)(iii), as an aggravated felon, and, indeed, the BIA, in affirming the IJ's decision, made this clear. (See R. at 6 (acknowledging that Batista "was only charged with deportability pursuant to section 237(a)(2)(C) of the Act, as an alien convicted of a firearms offense, and not as an aggravated felon pursuant to section 237(a)(2)A) (iii) of the Act").) But, for a separate aggravated felony to be considered in the context of a Section 240A application, it need not have been charged in the notice of removal proceedings.

  Nothing in Section 239 or the Due Process Clause requires that the INS "anticipate the forms of discretionary relief that an alien may seek and to set forth in the Notice to Appear any acts, conduct or charges that would render the alien ineligible for those forms of relief." Iturralde-Manosalva v. Reno, No. 00 Civ. 9735 (BJS), 2001 WL 1398689, at *3 (S.D.N.Y. Nov. 9, 2001); see also Brown v. Ashcroft, 360 F.3d 346, 351 (2d Cir. 2004) ("Indeed, to require otherwise would prove unmanageable for the government, as the variety of defenses and strategies in removal proceedings is innumerable.") (citation omitted). Thus, the fact that Batista's bail jumping conviction became relevant only at the immigration hearing does not mean that it was error for the IJ or BIA to have considered it in the context of Batista's application for cancellation of removal. See Iturralde-Manosalva, 2001 WL 1398689, at *3 (where alien was served with a Notice to Appear based on his firearms offense, the fact that a prior narcotics conviction came into play in response to, and as the basis to deny, his request for cancellation of removal did not violate the alien's rights); see also Cyrus v. Ashcroft, 00 Civ. 3621 (FB), 2002 WL 377050, at *2 (E.D.N.Y. Mar. 8, 2002) (although alien was charged as deportable based on a weapons offense under Section 237(a)(2)(C), he was ineligible for cancellation of removal because his other convictions for a drug-related offense and assault rendered him ineligible as an aggravated felon); see also Brown, 360 F.3d at 351 (alien's due process rights were not violated where the INS relied on a conviction that was not the basis for the removal proceeding in arguing that the alien was not eligible for Section 212(c) discretionary relief).

  Finally, IIRIRA specifies that the definition of aggravated felony, as set forth in 8 U.S.C. § 1101(a)(43), "shall apply to actions taken on or after the enactment of this Act, regardless of when the conviction occurred." IIRIRA § 321(c), 110 Stat. at 3009-628; see also 8 U.S.C. § 1101(a) ("[N]otwithstanding any other provision of law, the term [aggravated felony] applies regardless of whether the conviction was entered before, on, or after, September 30, 1996.") Here, the INS initiated removal proceedings in 1999, after the enactment of the Act (see discussion supra at 13-15), and Batista is therefore subject to the current definition. See Kuhali, 266 F.3d at 110-11 ("Because the INS initiated removal proceedings [in] . . . 1999, well after the IIRIRA's enactment on September 30, 1996, [the alien's] 1980 conviction is clearly encompassed by the new provisions"); Echendu v. United States, No. 02 Civ. 1255 (DGT), 2003 WL 21653370, at * 3-4 (E.D.N.Y July 14, 2003) (alien was properly classified as an aggravated felon for failing to appear, even though, when alien pleaded guilty to failure to appear in 1993, his conviction was not classified as an aggravated felony) (citing, inter alia, United States v. Luna-Reynoso, 258 F.3d 111, 113 (2d Cir. 2001) ([I]n 1996, Congress plainly stated, in enacting [IIRIRA], that the new definition was to be used immediately, regardless of when the newly included offenses had been committed.")).

  Because Batista's conviction for bail jumping fits within the current definition of an "aggravated felony" (see supra at 6 n. 6), he was properly found ineligible for cancellation of removal.

  2. Discretionary Waiver of Deportation under Former Section 212(c)

  Batista additionally argues that he should be eligible for a discretionary waiver of deportation under former Section 212(c) of the INA. (Pet. Mem. at 15, 17.) Former Section 212(c), which was in effect in 1986 when Batista pleaded guilty to the offense of criminal possession of a weapon, provided:

Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General. . . . This subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
8 U.S.C. § 1182(c) (1994) (repealed Sept. 30, 1996). Although the provision, on its face, applied only to aliens in exclusion proceedings, it was interpreted "to authorize any permanent resident alien with `a lawful unrelinquished domicile of seven consecutive years' to apply for a discretionary waiver from deportation." I.N.S. v. St. Cyr, 533 U.S.289, 295 (2001) (citation omitted). Section 212(c) relief, however, was available only if the ground for deportation was "substantially equivalent" to a ground for exclusion under Section 212(a) of the INA, 8 U.S.C. § 1182(a), or, by its nature, could not possibly be analogous to a ground for exclusion. See Drax v. Reno, 338 F.3d 98, 107-08 (2d Cir. 2003); Cato v. I.N.S., 84 F.3d 597, 599 (2d Cir. 1996); Bedoya-Valencia v. I.N.S., 6 F.3d 891, 897 (2d Cir. 1993). Where the ground of deportation was "one that could conceivably have [had] an analogous ground of exclusion under § 212(a) but . . . Congress ha[d] not chosen to include that ground in § 212(a)," the deportee would not have been eligible for relief under Section 212(c). Drax, 338 F.3d at 108 (quoting Cato, 84 F.3d at 600).

  On April 24, 1996 Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132, 110 Stat. 1214, and Section 440(d) of that statute precluded aliens who were convicted of committing drug or aggravated felonies, regardless of the length of imprisonment, from obtaining Section 212(c) relief. Former Section 212(c) was subsequently repealed in 1996 by IIRIRA Section 304(b) and was replaced by the form of relief known as cancellation of removal. See 8 U.S.C. § 1229b; see, e.g., Bonney v. Ashcroft, 279 F. Supp.2d 319, 322 (S.D.N.Y. 2003); Cruz v. United States Dept of Justice, No. 00 Civ. 0919 (DAB), 2002 WL 986861, at *3 (S.D.N.Y. May 14, 2002). However, the Supreme Court has held "that § 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law in effect." St. Cyr, 533 U.S. at 326.

  Batista pleaded guilty, and was found removable, on a conviction of a weapons offense. However, even though Section 212(c) was in effect at the time of Batista's conviction, he would not have then been eligible for a discretionary waiver of deportation on the ground of his weapons conviction, because, as to that ground, Congress did not opt to include an analogous ground of exclusion under Section 212(a). See Cato, 84 F.3d at 600-602 (noting that an "alien, deported on the ground of a weapons conviction, is ineligible for § 212(c) relief"); Gibson v. Ashcroft, 01 Civ. 9400 (WHP) (GWG), 2002 WL 461579, at *3 (S.D.N.Y. Mar. 26, 2002) (firearms conviction rendered petitioner ineligible for section 212(c) relief, even where the petitioner pled guilty, "because conviction of a firearms offense . . . has no corresponding grounds in the list of the offenses for which an alien may be excluded from entry); Cyrus, 2002 WL 377050, at * 2 ("[Petitioner] was convicted on each of his two weapons-related offenses prior to the enactment of the 1996 Acts; however, [he] was statutorily ineligible for § 212(c) relief at the time of his convictions because he was an alien ordered deported following a weapons-related conviction.") (citations omitted).

  In sum, Batista cannot be eligible now for a discretionary waiver of deportation with respect to his weapons conviction because he would not have been eligible for such relief even prior to the enactment of AEDPA and IIRIRA.

  3. Adjustment of Status under INA Section 245(a)

  Finally, Batista argues that he is eligible for relief from deportation under Section 245(a) of the INA, 8 U.S.C. § 1255(a). (Pet. Mem. at 14.) Although a discretionary waiver under Section 212(c) is not available to Batista based on his weapons conviction, Section 245(a) provides for an "adjustment of status," an alternate form of relief which is available to qualified aliens with a weapons conviction. See Drax, 338 F.3d at 101-102; In re Rainford, 20 I. & N. Dec. 1041 (B.I.A. Sept. 9, 1992) (a weapons conviction will not preclude showing of admissibility for purposes of an adjustment of status under Section 245(a)). "`Adjustment of status' . . . allows a deportable alien who would be admissible to the United States if he were seeking to enter the country to adjust his status to that of an alien seeking entry" Drax, 338 F.3d at 113 (citing 8 U.S.C. § 1255(a)). Batista, however, cannot qualify for this discretionary relief, given his record of convictions.

  Under Section 245(a), the Attorney General has the discretion to adjust the status of an otherwise illegal alien to the status of an admissible alien, only where the alien: (1) has applied for an adjustment of status; (2) is "eligible to receive an immigrant visa and is admissible to the United States for permanent residence"; and (3) and an immigrant visa is "immediately available" to him at the time he files his application. 8 U.S.C. § 1255(a) (emphasis added). An alien who, like Batista, has been convicted of an aggravated felony is not considered "admissible to the United States for permanent residence." See 8 U.S.C. § 1255(a)(1); see also Airini v. McElroy, No. 98 Civ. 5379 (JGK), 2003 WL 21649434, at *5 (S.D.N.Y. July 14, 2003) (noting that an aggravated felony conviction renders an alien inadmissible and thus ineligible for Section 245(a) relief). Similarly, an alien who, like Batista, has been convicted of a drug offense is also inadmissible and is thus precluded from relief under Section 245(a). See 8 U.S.C. § 1182(a)(2)(A)(i)(II); see also Alvarez-Garcia v. I.N.S., 234 F. Supp.2d 283, 288 (S.D.N.Y. 2002) ("Specifically, petitioner is inadmissible because he has been convicted of violating a law relating to a controlled substance" and is thus ineligible for Section 245(a) relief).*fn15 Because Batista is inadmissible to the United States, Batista does not meet Section 245(a)'s enumerated statutory requirements.

  Further, Batista cannot cure his inadmissibility by obtaining a waiver pursuant to INA Section 212(h), 8 U.S.C. § 1182(h). Section 212(h) is not available to Batista because his convictions render him ineligible to apply for this relief. See 8 U.S.C. § 1182(h) (waiver unavailable for any alien convicted of an aggravated felony or a drug charge, other than a "single offense of simple possession of 30 grams or less of marijuana"); see, e.g, Hernandez-Osoria v. Ashcroft, No. 01 Civ. 5545 (SAS), 2002 WL 193574, at *4 (S.D.N.Y. Feb. 7, 2002).

  This Court also notes that the BIA found Batista ineligible for adjustment of status on the separate ground that he had not demonstrated that an immigrant visa was immediately available to him. (R. at 3.) Assuming an alien is admissible to the United States, then the eligibility requirements of Section 245(a) require the alien to undertake a two-step process. First, either the alien or a permitted relative must file a petition for an immigrant visa, so that at some point in the future such a visa may become "immediately available" to the alien. 8 U.S.C. § 1255(a); 1154. Second, when the immigrant visa is "immediately available," the alien must proceed to file an application for an adjustment of status. 8 U.S.C. § 1255(a); 8 § C.F.R. § 299.1; see, e.g., Drax, 338 F.3d at 114. Subject to a limited exception, "an alien beneficiary may file the . . . adjustment application only after the [INS] has approved the . . . visa petition." Drax, 338 F.3d at 114 (quoting 8 C.F.R. § 245.2 (a)(2)(i)(B)). Once the visa petition has been approved (through a process that may take two to six months, see Drax, 338 F.3d at 114), the alien must still wait until that visa is actually "immediately available" to him before filing the application for adjustment of his status. See id.; 8 C.F.R. § 245.1(g)(1); 8 C.F.R. § 245.2(a)(2)(i)(A). The immediate availability of the visa depends on the "preference category" and "priority date" assigned to the visa application.*fn16

  Here, the IJ adjourned Batista's removal hearing for six months, in part so that Batista could take the steps necessary to obtain an immigrant visa, and then apply for adjustment of status. (R. at 80 (informing Batista that he was being given an adjournment to allow him to file the appropriate forms, including the I-130 form needed to apply for an immigrant visa).) Apparently, however, neither Batista nor any of his relatives used this opportunity to file a visa petition on his behalf, and indeed, it does not seem that Batista even contacted any of his relatives in this regard.*fn17 As Batista did not even seek an immigrant visa, he cannot now demonstrate the "immediate availability" of such a visa, and thus cannot show that he is eligible for relief under Section 245(a). See Spata v. I.N.S., 442 F.2d 1013, 1014 (2d Cir. 1971) ("[B]efore an application for an adjustment of status may be granted, not only must the alien be eligible to receive an immigrant visa, but a visa must be `immediately available to him at the time his application is approved.'"); Airini, 2003 WL 21649434, at *5 (noting that the BIA had held that the alien was ineligible for relief where he had not demonstrated visa availability for purposes of an adjustment of status); Cinquemani v. Ashcroft, No. 00 Civ. 1460 (RJD), 2001 WL 939664, at *5 (E.D.N.Y. Aug 16, 2001) (alien failed to meet the preconditions of Section 245(a) where he had not presented any evidence that a petition for a visa had been filed on his behalf).

  Further, as Batista was already offered an opportunity by the IJ to seek an immigrant visa, and yet failed to take even the initial steps necessary to do so, it would not be appropriate here to offer him a further extension of time for this purpose. See Johnson v. Vomacka, I.N.S., No. 97 Civ. 5687 (TPG), 2000 WL 1349251, at * 5-6 (S.D.N.Y. Sept. 20, 2000) (where the IJ gave the alien the opportunity to present evidence of relatives who were American citizens who would be in a position to apply for an Immediate Relative Visa, and then alien failed to do so, there was no showing of any ground for pursuing the "adjustment of status remedy"); compare Drax, 338 F.3d at 116 (remand was appropriate where the IJ repeatedly told the alien that he had no relief available to him and never instructed him to have an I-130 form filed on his behalf in the event that Section 245(a) could apply). And even if Batista did not fully understand the process he needed to pursue to obtain an immigrant visa,*fn18 remand here would, in any event, be futile, as Batista's aggravated felony and drug conviction would necessarily prevent him from obtaining an adjustment of status under Section 245(a), for the reasons discussed above. See, e.g, Brown v. Ascroft, 360 F.3d 346, 354-55 (2d Cir. 2004) ("When there is not the slightest uncertainty as to the outcome of a proceeding on remand, courts can affirm an agency decision on grounds other than those provided in the agency decision.") (internal quotation and citations omitted).


  For the foregoing reasons, Batista's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is dismissed. Further, the Court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2), because Batista has not "made a substantial showing of the denial of a constitutional right." The Clerk of the Court is directed to close this case on the Court's docket.


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