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CAESAR v. ASHCROFT

January 3, 2005.

MARVIN O. CAESAR, Petitioner,
v.
JOHN ASHCROFT, U.S. Atty. Gen., and U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (ICE),[fn1] Respondents.



The opinion of the court was delivered by: LEONARD SAND, Senior District Judge

*fn1 In the original caption, U.S. Immigration and Customs Enforcement is incorrectly listed as the "Board of Immigration and Customs Enforcement."

OPINION

Petitioner Marvin Caesar ("Petitioner") filed this pro se habeas corpus petition pursuant to 28 U.S.C. § 2241, seeking relief from a final order of deportation. He asks that this Court "in its discretion and jurisdiction grant? petitioner relief from deportation under [section] 212(c) of the [Immigration and Nationality] Act" (Petition ["Pet."] at 4 ¶ 2); that this Court "rule? that petitioner's crimes of criminal possession of stolen property in the 3rd degree and unauthorize[d] use of a motor vehicle are not deportable [a]cts or crimes of Moral Turpitude" (Pet. at 4 ¶ 3); and that this Court "restore petitioner's bond pending his Appeal, and if this court deems it necessary release petitioner on a lower bond that that originally set by the [Immigration and Naturalization] Service" (Pet. at 4 ¶ 4). For the reasons set forth below, the petition is dismissed.

  I. Background

  Petitioner is a native and citizen of Guyana who entered the United States on April 22, 1987 as a Lawful Permanent Resident. His parents, his five brothers and his wife are all either Lawful Permanent Residents or United States citizens, and he has four children, all of whom are United States citizens.

  Beginning in 1990, Petitioner accumulated a rather lengthy list of criminal convictions in New York State courts. In July of 1990 and July of 1991, Petitioner twice pled guilty to unauthorized use of a vehicle without the consent of the owner, in violation of New York Penal Law ["P.L."] § 165.05(1), and received conditional discharges. In October of 1991, he pled guilty to criminal possession of stolen property in the third degree, in violation of P.L. § 165.50; in August of 1992 he was sentenced on that charge to eight months imprisonment, and also pled guilty to attempted unauthorized use of a vehicle in the third degree, in violation of P.L. §§ 110 and 165.05, and was sentenced to twenty days imprisonment. In December of 1993 he pled guilty to attempted petit larceny, in violation of P.L. §§ 110 and 155.25, and was sentenced to sixty days imprisonment. Also in December of 1993, he again pled guilty to unauthorized use of a vehicle without the consent of the owner, in violation of P.L. § 165.05(1), and was sentenced to seven months imprisonment.

  In April of 1994, Petitioner was served with an Order to Show Cause charging that he was deportable under section 241(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA"). That section, then as now, declared an alien to be deportable if, "at any time after admission," the alien was "convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct." 8 U.S.C.S. § 1227(a)(2)(A)(ii) (2004). The two convictions charged were Petitioner's October 1991 conviction for criminal possession of stolen property in the third degree, and his December 1993 conviction for attempted petit larceny.

  Following service of the Order to Show Cause, Petitioner was convicted of several more violations of New York State law. In June of 1994, he pled guilty to aggravated unlicensed operation of a motor vehicle in the second degree, in violation of New York Vehicle and Traffic Law § 511, and was fined $500. In September of 1995, he pled guilty to attempted grand larceny in the fourth degree, in violation of P.L. §§ 110 and 155.30; he initially received a conditional discharge accompanied by ten days of community service, but was resentenced to 30 days imprisonment in June of 1998 after violating the terms of his conditional discharge. In July 1998, he pleaded guilty to forgery in the third degree, in violation of P.L. § 170.05, and resisting arrest, in violation of P.L. § 205.30, and in May of 1999 he was sentenced on those offenses to time served. In April of 2003, he was convicted of disorderly conduct, in violation of P.L. § 240.20, and was given a conditional discharge and sentenced to 3 days of community service. In December of 1994, meanwhile, Petitioner, then represented by counsel, had filed a request for relief from deportation under § 212(c) of the INA. That section provided that "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 without regard to [various grounds for exclusion]," so long as the aliens in question had not "been convicted of one or more aggravated felonies and . . . served for such felony or felonies a term of imprisonment of at least 5 years." 8 U.S.C.S. § 1182(c) (1994) (repealed 1996). Although § 212(c) by its terms only refers to relief from exclusion from the United States, it had been held long before 1994 to be applicable to relief from deportation as well. See Francis v. INS, 532 F.2d 268 (2d Cir. 1976); Matter of Silva, 1976 BIA LEXIS 66, 16 I. & N. Dec. 26 (B.I.A. 1976).

  At some time between February and September of 1995 — the precise date is not clear from the record — Petitioner's request for § 212(c) relief was denied by an Immigration Judge ("IJ"), who concluded that Petitioner had not demonstrated that he was deserving of a favorable exercise of discretion. Petitioner, still represented by counsel, appealed to the Board of Immigration Appeals ("BIA"), which in March 1997 held him to be ineligible, under § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, even to be considered for § 212(c) relief. Following various procedural complications not relevant here, Petitioner in January 1999 filed a pro se habeas corpus action in this District, pursuant to 28 U.S.C. § 2241, challenging the BIA's ruling. Caesar v. McElroy, 99 Civ. 0945 (RMB) (S.D.N.Y.).

  The 1999 habeas action was resolved in July 1999, on consent of the parties, by a stipulation vacating the final order of deportation issued by the BIA and remanding for further proceedings in accordance with Henderson v. INS, 157 F.3d 106 (2d Cir. 1998), which had held that "[AEDPA] § 440(d) does not apply to cases initiated before the date of its enactment." 157 F.3d at 129. In October 1999, the BIA in turn remanded Petitioner's case to the IJ so that the record could be updated. Petitioner was again represented by counsel before the IJ. The IJ, in an April 2003 decision, again found Petitioner to be deportable, and determined that he did not warrant a favorable exercise of discretion under § 212(c). Though the IJ found that Petitioner had established "outstanding equities" in that most or all of his family members were in the United States and his deportation would cause them and him emotional and possibly financial hardship, she determined that Petitioner's continued criminal record, accompanied by his failure to file tax returns for various years and his default on certain student loans, showed insufficient rehabilitation to warrant § 212(c) relief. Matter of Caessar [sic], File No. A-41-330-826 (U.S. Immigration Court April 7, 2003), at 10 (Respondents' Return ["Ret."] at A13-A25, A22).

  On May 4, 2004, Petitioner was taken into custody by U.S. Immigration and Customs Enforcement ("ICE"),*fn2 and detained at York County Prison in York, Pennsylvania. Petitioner requested review by an IJ of the decision to detain him, and on May 14, 2004, an IJ ordered him released on $17,500 bond. Petitioner alleges that he was unable to post this bond (Pet. at 4 ¶ 18).

  On August 5, 2004, following an appeal on which Petitioner was represented by counsel, the BIA adopted and affirmed the IJ's decision, agreeing that Petitioner had "presented outstanding equities" but also agreeing that those equities were insufficient to justify § 212(c) relief in light of "[Petitioner's] continuing encounters with the criminal justice system, not only after being placed in deportation proceedings, but even after the Immigration Judge's 1995 decision put him even more clearly on notice of the significance of demonstrating genuine efforts at rehabilitation." In re Caesar, File A41-330-826 (B.I.A. Aug. 5, 2004), at 1 (Ret. at A1). The order of deportation thus having become final, Petitioner's bond was withdrawn. (Pet. at 4 ¶ 18; Respondents' Memorandum in Opposition to Petition for Writ of Habeas Corpus ["Resp. Mem."] at 17.)

  On October 14, 2004, Petitioner filed the instant pro se petition. The government, on October 19, 2004, consented to a stay of ...


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