Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BATISTA v. McELROY

July 26, 2004.

JAIME RAFAEL BATISTA, Petitioner,
v.
EDWARD J. McELROY, Regional Director, Immigration and Naturalization Service, Respondent.



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

MEMORANDUM AND ORDER

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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.