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NOLASCO v. U.S.

November 3, 2004.

EDDY BELLO NOLASCO, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

Pro se petitioner Eddy Bello Nolasco*fn1 seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging a June 20, 1997 Order*fn2 of the Immigration Judge ("IJ") deporting him from the United States to the Dominican Republic. See Record at 28. To challenge his order of deportation, Nolasco filed a petition pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of New Jersey on February 22, 2002. That court transferred the case to the Southern District of New York because it found that Nolasco was then detained in this district. The District Court of New Jersey construed Nolasco's petition as a writ of habeas corpus under 28 U.S.C. § 2241.*fn3 Magistrate Judge Debra Freeman agreed with this construction. See Report and Recommendation ("R&R") at 1 n. 1. I also agree.

  The sole issue raised in his habeas petition is the validity of this deportation order. Nolasco's petition asserts that his due process and equal protection rights were violated during his deportation proceedings because the IJ and the BIA erroneously considered him ineligible for discretionary relief under former section 212(c) of the Immigration and Nationality Act of 1952 ("INA").

  The petition was referred to Magistrate Judge Freeman who issued an R&R on November 3, 2003, familiarity with which is assumed. Judge Freeman recommended that the petition be granted and the matter be remanded to the BIA for consideration of Nolasco's eligibility for relief from deportation under both former section 212(c) and section 245(a) of the INA, what in combination is known as Gabryelsky relief.*fn4

  On December 18, 2003, the Government objected to Judge Freeman's Report on the following grounds: (1) St. Cyr and Drax*fn5 do not apply because Nolasco's order of deportation was executed prior to the date of these decisions; (2) the United States of America is not a proper respondent; (3) this Court lacks subject matter jurisdiction because the reinstatement statute, INA § 241(a)(5),*fn6 bars reopening or review of the deportation order; (4) Nolasco's September 17, 1999 conviction for illegal reentry after deportation precludes him from challenging the validity of his June 20, 1997 deportation order under principles of res judicata; and (5) it would be futile to reopen Nolasco's deportation proceedings because he cannot avoid deportation for several reasons. See Respondent's Objections to the Magistrate Judge's November 4 [sic], 2003 Report and Recommendation ("Objections").

  Petitioner filed a response to the Government's Objections on May 28, 2004, see Petitioner's Response to the Objections ("Response"), to which the Government replied on June 25, 2004, see Government's Reply to Nolasco's Response to Objections to the Magistrate Judge's November 4 [sic], 2003 Report and Recommendation ("Reply"). Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, this Court reviewed the petition and the R&R de novo, as well as the Objections, Response and Reply. For the following reasons, Judge Freeman's R&R is adopted in its entirety.

  I. FACTS

  A. Nolasco's Criminal History

  On September 21, 1995, in the New Jersey Superior Court, Hudson County, Nolasco pled guilty to the possession of cocaine with intent to distribute within 1,000 feet of a school, and to the unlawful possession of a handgun. See Record at 56, 52. On January 26, 1996, Nolasco was sentenced to five years imprisonment on the drug charge and eighteen months on the handgun charge, to be served concurrently. See id. It appears that he was paroled on these charges on February 5, 1998, but was then taken into custody by the INS on a detainer. See New Jersey State Records, Department of Corrections, Ex. P to the Declaration of Assistant United States Attorney Patricia L. Buchanan dated December 18, 2003 ("Buchanan Decl.").

  B. Nolasco's Deportation Proceedings

  On January 2, 1997, the Immigration and Naturalization Service ("INS") served Nolasco with an Order to Show Cause charging him with being deportable on the following grounds: (1) his conviction for unlawful possession of a handgun; (2) his conviction for possession of a controlled substance; and (3) his conviction for an aggravated felony as defined in section 101(a)(43) of the INA. See Record at 70-78. These are deportable offenses pursuant to sections 241(a)(2)(C), 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the INA. See 8 U.S.C. §§ 1251(a)(2)(C), 1251(a)(2)(B)(i), and 1251(a)(2)(A)(iii).

  On March 6, 1997, immigration proceedings commenced before IJ Daniel Meisner in Newark, New Jersey. See Record at 33-37. The proceedings were adjourned several times and concluded on June 20, 1997. See id. at 41-51. Nolasco admitted the allegations and conceded all three charges contained in the Order to Show Cause. See id. at 44. The following colloquy occurred at the June 20th hearing:
[Nolasco]: I have my whole family here.
[IJ]: You know I understand that, but the law has changed from what it had been a year or so ago. And the law now indicates that if you have been convicted of a serious crime called an aggravated felony, like possession of drugs with intent to distribute near a school, and you've been sentenced to a year or more on that crime, then you can't present an application to stay here based on your family, or equities, the hardship in leaving.
[Nolasco]: Well, I'd like to do that.
[IJ]: And the fact that on the drug charge you're sentenced to possibly serve up to five years, really bars you from any type of relief that I can think of. And, therefore, no matter how sympathetic I am to your situation, the fact that you have lived here a long time, and you have your whole family here, I just cannot exercise discretion in your favor. I can't grant the case, no matter how compelling it is, because the application just cannot be filed under the new law.
Id. at 46-47. At the end of the hearing, the IJ issued an oral decision finding Nolasco deportable based on all three charges contained in the Order to Show Cause. See id. at 29-30. The IJ further found that because Nolasco had been convicted of an aggravated felony, namely, possession of cocaine with intent to distribute within 1,000 feet of a school, he was ineligible for a waiver under former section 212(c) of the INA. See id. at 30. Nolasco was ordered deported to the Dominican Republic. See id. at 30-31.

  Through counsel, Nolasco appealed the IJ's decision to the BIA. See id. at 24-27. On appeal, Nolasco's sole argument was that he should have been permitted to seek section 212(c) relief from deportation. See id. at 6-19. By decision dated May 4, 1998, the BIA affirmed the IJ's decision. See id. at 3. Relying on Matter of Soriano, 21 I. & N. Dec. 516, 533 (Op. Att'y Gen. Feb. 21, 1997),*fn7 the BIA found Nolasco statutorily barred from relief from deportation under section 212(c) by operation of section 440(d) of the AEDPA.*fn8 Nolasco did not initially file a writ of habeas corpus or a petition for review challenging the order of deportation. C. Nolasco's Deportation and Subsequent Conviction for Illegal Reentry*fn9

  On July 2, 1998, Nolasco was deported from the United States to the Dominican Republic pursuant to a final order of deportation issued on May 4, 1998. See Warrant of Removal/Deportation and INS printout, Ex. C to Buchanan Decl. On July 31, 1999, Nolasco entered the United States at JFK International Airport by using an altered United States passport claiming to be a United States citizen named "Gilberto Valentin." See Passport, Ex. F to Buchanan Decl. The INS detected Nolasco's fraud and placed him under arrest. See INS Memo to File dated August 1, 1999, Ex. E to Buchanan Decl. On August 2, 1999, the INS released Nolasco ...


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