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United States District Court, S.D. New York

August 22, 2004.

JOSEPH E. McCOY, Superintendent, Cayuga Correctional Facility, and the IMMIGRATION AND NATURALIZATION SERVICE,[fn1] Respondents.

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge[fn2] [fn2] Veronica Berger, a summer 2004 intern in my Chambers and a second-year law student at Cornell Law School, provided substantial assistance in the research and drafting of this opinion.

*fn1 As noted in Magistrate Judge Michael Dolinger's Report and Recommendation ("R & R"), the Immigration and Naturalization Service ("INS") is not the proper respondent to this petition. 28 U.S.C. § 2243 (providing that the "writ . . . shall be directed to the person having custody of the person detained"). Thus, the Court adopts Magistrate Judge Dolinger's recommendation and grants the Government's request that Edward J. McElroy, the District Director of INS's New York District, be substituted for the INS as respondent.


Pro se petitioner Michael P. Holmes ("Holmes") challenges his final order of removal from the United States and seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), Magistrate Judge Michael Dolinger issued a Report and Recommendation ("R & R") in which he recommended this Court deny the writ and dismiss Holmes' petition. Holmes filed written objections to the R & R within the statutory 10-day period. For the reasons set forth below, Holmes is not entitled to habeas relief and his petition is therefore denied.


  Holmes entered the United States in or around May 1991.*fn2 At that time, Holmes' three siblings and mother resided in the United States. The Immigration and Naturalization Service ("INS")*fn3 learned of his presence in the United States on January 16, 1993, at which time it instructed Holmes to leave the United States on his own accord prior to January 31, 1993. Holmes did not leave the United States, but rather remained in Rochester, New York, and married U.S. citizen Aronda McKnight ("McKnight"). McKnight and Holmes have a child together and McKnight also has four other children. Holmes accepts responsibility for McKnight's children and rears them as his own. On April 14, 1994, INS served Holmes with an administrative Order to Show Cause and charged him as deportable for unlawfully residing in the United States pursuant to Immigration and Nationality Act ("INA") § 241(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B), recodified at INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). Before deportation proceedings commenced, Holmes pled guilty in June of 1994 to a class C felony of third degree attempted sale of a controlled substance in Supreme Court, Monroe County and received both five weeks probation and five weeks of Saturday detention. Holmes appealed and the Fourth Department affirmed the conviction. People v. Holmes, 668 N.Y.S.2d 961 (4th Dep't 1997).

  On January 4, 1995, INS initiated a deportation hearing against Holmes in Buffalo, New York. For the purposes of the hearing, Holmes retained Bonnie Crogan-Mazur, an attorney from the International Institute of Buffalo ("IIB"). Immigration Judge ("IJ") Walter Durling temporarily stayed the proceedings upon learning that: (1) McKnight had filed an immigration visa petition on behalf of Holmes in an attempt to adjust his status; and (2) although Holmes' 1994 guilty plea might make him ineligible for adjustment, the appeal of his conviction was still pending. In the interim, IJ Durling directed that all future correspondence be sent to Crogan-Mazur. Subsequently, in November of 1994, Holmes' immigration visa was approved based on McKnight's petition. However, on December 24, 1996, Holmes was arrested in Clarkstown, New York, when police stopped a car — in which Holmes was a passenger — that contained a sawed-off shotgun and narcotics.*fn4 On May 20, 1997, Holmes pleaded guilty to second-degree criminal possession of a controlled substance, a class A felony.*fn5 The County Court, Rockland County sentenced Holmes to prison for eight years to life. On appeal, the Second Department affirmed the conviction, People v. Holmes, 702 N.Y.S.2d 840 (2d Dep't 2000), and his subsequent application for leave to appeal to the New York Court of Appeals was denied, 95 N.Y.2d 890 (2000) (TABLE), as was his motion for reconsideration, 95 N.Y.2d 964 (2000) (TABLE).

  On May 25, 2000, INS moved to reopen Holmes' previous deportation proceeding and also to transfer venue from the current location, Buffalo, to the Immigration Court located at the Downstate Correctional Facility in Fishkill. On June 2, 2000, IJ Phillip Montante of the Executive Office for Immigration Review ("EOIR") granted INS' motion and sent notification of the change of venue to Holmes on June 5, 2000. Although Holmes sent a response seeking reconsideration, his letter was never considered. On June 22, 2000, INS filed an additional charge against Holmes, claiming he was deportable pursuant to INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251(a)(2)(B)(i), recodified at INA § 237 (a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), because he was an alien convicted of a controlled-substance offense. A copy of INS' motion to transfer venue was sent to Crogan-Mazur — presumably Holmes' counsel of record — prior to the EOIR's ruling on the motion. In the interim, the IIB informed the EOIR that Crogan-Mazur was no longer in its employ and Holmes' case file at the agency had been closed since 1995. This correspondence, however, was dated June 9, 2000, several days after the EOIR had ruled on the motion.

  On July 6, 2000, Holmes appeared pro se at the Fishkill deportation hearing. He informed IJ Mitchell Levinsky that attempts to contact Crogan-Mazur were unsuccessful, and he argued that the court could not decide his case while his 1997 conviction appeal was still pending. He also relayed to IJ Levinsky that he had attempted to appeal the change of venue to no avail. In response, IJ Levinsky informed Holmes that the 1997 conviction was final unless the New York Court of Appeals granted his appeal, and that he was unaware of Holmes' appeal of the change of venue. IJ Levinsky did, however, stay the proceedings to allow Holmes an opportunity to retain counsel. On December 4, 2000, Holmes appeared again in court without counsel and agreed to be represented — following IJ Levinsky's suggestion — by Reverend Robert Vitaglione ("Rev. Vitaglione"), an accredited immigration representative and the director of a free legal services provider for immigration proceedings, Comité Nuestra Señora de Loreto Sobre Asuntos de Inmigración. At the hearing Rev. Vitaglione conceded that Holmes was deportable because of his previous convictions, but requested discretionary relief from deportation based on INS' approval of Holmes' application for his adjustment of status. IJ Levinsky denied the request because he found Holmes ineligible for relief and ordered that he be deported to Jamaica.

  On December 22, 2000, Holmes filed an appeal pro se with the Board of Immigration Appeals, who in turn affirmed IJ Levinsky's deportation order on March 13, 2001. The December 4, 2000 order then became final, thus making it subject to limited collateral review. Holmes sought such review in this Court on December 27, 2001 pursuant to 28 U.S.C. § 2241. I referred the matter to Magistrate Judge Michael H. Dolinger for an R & R. On November 4, 2003, Magistrate Judge Dolinger issued an R & R, denying Holmes' petition on all grounds. Holmes filed timely objections to Magistrate Judge Dolinger's findings on December 5, 2003.*fn6


  A. Scope and Standard of Review

  Following the enactment of the jurisdiction-stripping provisions of the Antiterrorism and Effective Death Penalty Act of 1996 § 440(d), 110 Stat. 1277 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546 (Sept. 30, 1996), judicial review of habeas petitions was limited to "purely legal statutory and constitutional claims," Calcano-Martinez v. I.N.S., 232 F.3d 328, 342 (2d Cir. 2000), aff'd, 533 U.S. 348 (2001), and "claims based upon the erroneous application of statutes," Wang v. Ashcroft, 320 F.3d 130, 142-43 (2d Cir. 2003). The Court cannot, however, review factual or discretionary determinations by immigration judges or the Board of Immigration Appeals. Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001), cert. denied, 536 U.S. 941 (2002). Moreover, a petitioner cannot seek federal judicial review until all administrative remedies are exhausted. Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003).

  With respect to the R & R, the Court reviews those portions to which a petitioner does not object for clear error and it reviews de novo those portions of the R & R to which a petitioner interposes an objection. Fed.R. Civ. P. § 72(b); 28 U.S.C. § 636 (b)(1). Finding no clear error in those portions of the R & R to which there was no objection, I turn to those portions of the R & R wherein Holmes has filed objections.

  B. Holmes' Objections

  Holmes challenges the deportation order on three grounds, all of which are reviewed de novo by the Court. First, Holmes argues the Immigration Court's change of venue deprived him of his due process rights and the deportation order must therefore be vacated. Second, Holmes contends he is entitled to discretionary relief from deportation under the INA § 212(h), 8 U.S.C. § 1182(h). Third, Holmes asserts that he is entitled to relief under international law and that his deportation would violate the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), 1465 U.N.T.S. 85, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/39/51 (1984); 23 I.L.M. 1027 (1984). I address each of Holmes' objections seriatim.

  1. Change of Venue

  Holmes first contends the transfer of venue of the immigration proceedings from Buffalo to Fishkill violated his due process rights. In an immigration proceeding, venue lies in the Immigration Court where the charging document is filed. 8 C.F.R. §§ 3.20(a), 3.14 (2000); see also Jian v. I.N.S., 28 F.3d 256, 258 (2d Cir. 1994) (citing 8 C.F.R. § 3.20(a) (1993)). "The Immigration Judge, for good cause, may change venue only upon motion by one of the parties, after the charging document has been filed with the Immigration Court." 8 C.F.R. § 3.20(b) (2000). However, under the applicable regulations at the time of Holmes' deportation proceedings, an IJ may only grant a change of venue once the other party has been given notice as well as a fair opportunity to be heard regarding the motion. Id.; see also Jian, 28 F.3d at 259. The administrative record in this case reveals that Holmes' previous counsel was given the requisite notice, but she was no longer employed by the agency. The EOIR received correspondence from the IIB indicating that it no longer represented Holmes, as well as Holmes' request for reconsideration of the change of venue, but took no action thereafter.

  Assuming that the EOIR's failure to respond to this correspondence or construe Holmes' June 13, 2000 letter as an appeal constituted error, this alone does not constitute a valid challenge to the final deportation order. Instead, Holmes must also demonstrate that he was prejudiced as a result. Lovell v. I.N.S., 52 F.3d 458, 461 (2d Cir. 1995) ("Since the INS's change-of-venue regulation does not reflect a fundamental right derived from the Constitution or Federal law, an incorrect decision under that regulation would entitle petitioner to a remand only if he can show that it caused him prejudice."). According to the Second Circuit, "[i]n order to demonstrate prejudice, petitioner must show that the . . . venue change affected either the outcome or the overall fairness of the . . . proceeding." Id.

  Holmes alleges that he was prejudiced because once in Fishkill, he could no longer avail himself of the services of his previously retained attorney, Crogan-Mazur, or call witnesses on his behalf. Holmes' argument with respect to his legal representation fails because Crogan-Mazur left the IIB after Holmes' 1994 deportation hearing before IJ Durling and thus no longer represented him. Indeed, the agency had closed his case file some five years prior to the 2000 immigration proceeding. IJ Levinksy adjourned the proceeding to provide Holmes with an opportunity to secure counsel and recommended an accredited immigration representative, Rev. Vitaglione. Holmes argues that Rev. Vitaglione was incompetent because he was unfamiliar with Holmes' case, had not spoken to Holmes prior to the hearing, and did not object to facts Holmes believed to be false. Many of these facts, however, related to Holmes' two convictions that were affirmed on appeal and not open to collateral attack in a deportation proceeding. Moreover, Holmes has not presented evidence or argument that competent counsel would have acted otherwise, or secured a different result, given that he was statutorily ineligible for relief from deportation, as will be discussed further below.

  Holmes also contends that the transfer of venue hampered his ability to call witnesses, including his wife, children, and community members. The law is clear that notwithstanding the witnesses' inability to make a physical appearance, they could have testified telephonically or via affidavits. Lovell, 52 F.3d at 462 (ruling that a change of venue does not infringe on a petitioner's right to present evidence because the petitioner still retains the right to present affidavits or other documentary evidence on his behalf); see also Abimbola v. Ashcroft, No. 01 Civ. 5568, 2002 WL 2003186, at *4 (E.D.N.Y. Aug. 28, 2002). Although Holmes was not able to call witnesses on his behalf, such as his wife, friends, or community members, he nevertheless presented documentary evidence at the hearing, including an inmate progress report, letters from community programs and friends, and an affidavit of hardship from his wife, McKnight. There is, therefore, no basis to conclude that Holmes suffered prejudice as a result of the change in venue. United States v. Crown, No. 95 Cr. 18, 1995 WL 600876, *4 (S.D.N.Y. Oct. 12, 1995) (finding that there was no prejudice from the change of venue where the IJ permitted the petitioner's wife to testify via telephone). Thus, Holmes' objection on this score does not warrant habeas relief because he cannot demonstrate the requisite prejudice.

  2. INA § 212(h) Waiver

  Holmes further argues that he is entitled to discretionary relief under INA § 212(h) because his wife is mentally ill, he supports five children, and he is a diabetic who will not be able to receive adequate medical care upon return to Jamaica. Under § 212(h), the Attorney General may waive certain grounds for removal where deportation would result in extreme hardship to the alien's spouse, parent, or child who is either a United States citizen or lawful permanent resident. INA § 212(h), 8 U.S.C. § 1182(h).*fn7 The waivable criminal grounds for deportation include "crimes involving moral turpitude, minor controlled substance offenses, and crimes involving prostitution and commercialized vice." Gonzalez-Polanco v. U.S.I.N.S., No. 02 Civ. 2734, 2002 WL 1796834, at *7 (S.D.N.Y. Aug. 5, 2002). As a non-lawful permanent resident, Holmes is potentially eligible for § 212(h) relief. However, where an alien has been convicted of a controlled substance offense, the statute, by its terms, restricts the availability of such relief to aliens convicted of "a single offense of simple possession of 30 grams or less of marijuana." INA § 212(h), 8 U.S.C. § 1182(h); e.g., Garcia-Rivas v. Ashcroft, No. 04 Civ. 292, 2004 WL 1534156, at *8 n. 9 (S.D.N.Y. July 7, 2004). Here, Holmes was convicted of two separate felony offenses involving the possession of more than four ounces of narcotics and sale of controlled substances, thus rendering him ineligible for a § 212(h) waiver. E.g., Gonzalez-Polanco, 2002 WL 1796834, at *7 (deciding that petitioner, a non-lawful permanent resident who was convicted of possession of cocaine, was not qualified to receive a § 212(h) waiver); Hernandez-Osoria v. Ashcroft, 01 Civ. 5545, 2002 WL 193574, at *4 (S.D.N.Y. Feb. 7, 2002) (attempted criminal possession and sale of cocaine). Finally, even if Holmes is eligible for discretionary relief, this Court cannot review discretionary decisions made by an IJ. Sol, 274 F.3d at 651. Given that IJ Levinsky made a discretionary finding that Holmes was not eligible for relief, this Court cannot challenge that decision unless it involved a misapplication of law, which Holmes does not argue. Therefore, Holmes is not entitled to § 212(h) discretionary relief.

  3. International Law and the Convention Against Torture ("CAT")

  Holmes argues that he has a right to be with his family pursuant to customary international law*fn8 and the International Covenant on Civil and Political Rights ("ICCPR"), and he also contends that a forced return to Jamaica would be a form of torture under the CAT. As a preliminary matter, any such relief, even if available, is not permitted if petitioner raises his international law and torture arguments for the first time in this Court, and thus has not exhausted all of his administrative remedies. Beharry, 329 F.3d at 56; Castillo Acevedo, 2003 WL 22416122, at *5.

  Even if Holmes' objections on this score were not procedurally barred, he would still not prevail. Holmes contends that Articles 23(1) and 17 of the ICCPR give him a fundamental right to live with his family, and no one may unlawfully interfere with such a right. It is well established that the ICCPR does not create a privately enforceable right. As the Second Circuit has explained, "[a]n action arises under a treaty only when the treaty expressly or by implication provides for a private right of action. The treaty must be self-executing; i.e., it must prescribe rules by which private rights may be determined." Columbia Marine Svcs., Inc. v. Reffet, Ltd., 861 F.2d 18, 21 (2d Cir. 1988) (internal quotation marks omitted). The ICCPR is not self-executing, Flores v. Peru Copper Corp., 343 F.3d 140, 164 (2d Cir. 2003), and thus does not give rise to a private right of action, e.g., Cancel v. Goord, No. 00 Civ. 2042, 2001 WL 303713, *9 (S.D.N.Y. March 29, 2001) ("courts have uniformly held that the ICCPR is not self-executing and does not give rise to a private right of action"). Still, even considering the language of the ICCPR, Holmes is not entitled to relief. Article 23(1) provides that "the family is the natural and fundamental group unity of society and the State," while Article 17 provides that no one shall be subjected to arbitrary or unlawful interference with his family." International Covenant of Civil and Political Rights, Dec. 19, 1966, art. 17, 23, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976, entered into force for the United States Sept. 8, 1992). However, Holmes' future separation from his family is neither arbitrary nor unlawful given his felony convictions. Adebeyo v. Ashcroft, No. 02 Civ. 02648, 2003 WL 21143028, at *4 (E.D.N.Y. Mar. 6, 2003) (holding that the government's interference between petitioner and his family was not arbitrary or unlawful because he was not entitled to § 212(h) relief). Furthermore, even if such an international right to live with family did exist, such a right is superceded by any conflicting subsequent immigration legislation. Guzman v. Tippy, 130 F.3d 64, 66 (2d Cir. 1997) (ruling that international law had been displaced by the subsequent enactment of the Immigration and Nationality Act and a Supreme Court ruling).

  Holmes contends that under Beharry v. Reno, 183 F. Supp.2d 584 (E.D.N.Y. 2002), he is entitled to discretionary § 212(h) relief. The district court decision, which was reversed by the Second Circuit for lack of subject matter jurisdiction, 329 F.3d 51 (2d Cir. 2003), held that a lawful permanent resident otherwise eligible for a § 212(h) waiver but whose conviction was later designated an "aggravated felony" was entitled to a hearing on the availability of § 212(h) relief. Beharry, 183 F.Supp.2d at 604-5. In so holding, however, the Beharry court was careful to note that the decision "d[id] not constitute a ruling that petitioner cannot be deported." Id. at 605. Moreover, this decision involved a petitioner who was a lawful permanent resident, who, as discussed above, was categorically exempt from consideration for a § 212(h) waiver because of his "aggravated felony" conviction. Beharry is therefore inapplicable to the facts of this case in that Holmes was a non-lawful permanent resident who did not qualify for relief from deportation because his criminal record incorporated convictions for offenses other than "a single simple possession of 30 grams or less of marijuana." INA § 212(h), 8 U.S.C. § 1182(h); Gonzalez-Polanco, 2002 WL 1796834, at *8.

  Similarly, Holmes cannot show that his future deportation is a form of torture. Torture is defined as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. . . ." Wang, 320 F.3d at 134. The United States first became a signatory of the CAT to prevent the handing over of deportees to torturers. See Khouzam v. Ashcroft, 361 F.3d 161, 163, 169 (2004) (holding that petitioner, a suspect in a murder in Egypt, should not be deported because upon his return he would likely be taken to a prison and tortured). Thus, in order to prevail under a CAT claim, petitioner must prove he is more likely than not going to suffer intentional cruel and inhuman treatment if he returns to his native country. Id. Quite simply, deportation cases almost always involve the separation of families, and I am not prepared to equate such separation with torture. Finally, Holmes cannot claim that returning to Jamaica will be a form of torture due to a lack of medical treatment for his diabetes. Holmes offers no proof to even suggest that adequate medical care is unavailable in Jamaica. Bankhole v. I.N.S., 306 F.Supp.2d 185, 188 (D. Conn. 2003) (holding that petitioner's argument that "Nigeria is a very poor country . . . it may not have the resources to maintain an adequate prison system" is not sufficient to rise to the level of torture under the CAT). And even if such treatment were unavailable, that condition does not constitute torture under the CAT.

  Despite the unfortunate particulars surrounding this case — namely the effect on Holmes' five children and ill wife, as well as his positive contributions to his community*fn9 — Holmes can gain no relief in this Court.


  For the foregoing reasons, Holmes is not entitled to habeas corpus relief and his 28 U.S.C. § 2241 petition is therefore denied. Because Holmes has not made "a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 1915(a)(3), the Court also certifies that any appeal from this Opinion and Order could not be made in good faith. The Clerk of the Court is instructed to close this case and remove it from my docket.


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