The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge
Petitioner Oumar Kamara was convicted of three counts of sexual
abuse and one count of endangering the welfare of a child in
Supreme Court, Bronx County. Petitioner has brought a habeas
petition under 28 U.S.C. § 2254, alleging (1) that his conviction
was based on the testimony of an incompetent witness, (2) that he
has been subject to post-release supervision that was not
included in his sentencing, and (3) that he was not given the
Miranda warnings before he signed a statement to the police.
As part of the § 2254 application, petitioner moves for an
order staying an order of removal by the U.S. Citizenship and
Immigration Services until the habeas petition is adjudicated.
This is the motion now before the court.
Following the conviction, petitioner was sentenced to two years
prison on each of the counts of sexual abuse and to one year
prison on the count of child endangerment, with all terms to run concurrently.
Petitioner appealed his conviction on the ground that a
six-year-old child could not be sworn as a witness, and therefore
there was insufficient evidence to support his conviction. The
conviction was affirmed by the Appellate Division, First
Department, on November 27, 2001. People v. Kamara,
733 N.Y.S.2d 404 (2001). The Court of Appeals denied leave to appeal
on February 1, 2002. People v. Kamara, 740 N.Y.S.2d 703 (2002).
Petitioner has not filed a § 440.10 application.
Petitioner has completed his prison terms. However, he has been
taken into custody by the USCIS.
Petitioner is presently in the custody of the USCIS at the
Montgomery County Correctional Facility in Norristown,
Pennsylvania. Prior to February 2004, petitioner was in custody
of the USCIS at the Berks County Prison in Leesport,
Pennsylvania. Petitioner alleges that prior to the state court
conviction he had been granted asylum in the United States, but
that his asylum was terminated because of his conviction. He
further alleges that the USCIS has ordered him removed from the
country. Petitioner has challenged the order of removal in a
separate action, alleging that his deportation would violate the
U.N. Convention Against Torture. This challenge was denied, and
petitioner appealed that denial in the U.S. District Court for
the Eastern District of Pennsylvania. That court issued a 30 day
stay of the order of removal on March 31, 2003. It is not clear
whether that court has issued any further orders.
Petitioner filed his habeas petition with this court on
December 3, 2002. His motion for a stay was filed on April 11,
2003. Petitioner argues that unless a stay is granted, he is
likely to be removed from the United States prior to the
adjudication of his habeas petition. DISCUSSION
8 U.S.C. § 1252(e)(1) prohibits a court from granting any
equitable relief in any action pertaining to an order to exclude
an alien except as specifically authorized by statute. See also
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471
(1999). None of the specific authorizations apply in this case.
Although § 1252 does not prohibit a court with habeas
jurisdiction from issuing a stay of deportation pending that
review, that exception is limited to cases where the habeas
petition challenges the order of removal, not an underlying state
court conviction. See Calcano-Martinez v. I.N.S.,
533 U.S. 348 (2001); see also Wallace v. Reno, 194 F.3d 279 (1st Cir.
1999). Petitioner's motion cites a number of cases granting a
stay of deportation. However, those are cases where the
petitioner was either directly appealing the order of removal or
collaterally attacking the order of removal through a habeas
claim under § 2241. Petitioner's habeas claim in this case is
brought under § 2254 and challenges his conviction in state
This court is without authority to grant petitioner's motion
for a stay of removal. The motion is denied.