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."
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.
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 ...