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LOPEZ v. ASHCROFT

United States District Court, S.D. New York


February 2, 2005.

ANTONIO LOPEZ, Petitioner,
v.
JOHN ASHCROFT AND YVONNE SMALLS, Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

The petitioner, proceeding pro se, has filed a second amended petition for habeas corpus relief under 28 U.S.C. § 2241 to challenge his removal to the Dominican Republic. Interpreting his petition liberally, the Court deems it to rest on four grounds: (1) the petitioner was not deportable because he is a United States national within the meaning of Immigration and Nationality Act ("INA") § 101(a)(22)(B), 8 U.S.C. § 1101(a)(22)(B); (2) the petitioner was entitled to cancellation of removal under INA § 240A(a), 8 U.S.C. § 1229b(a); (3) the petitioner was entitled to a waiver of inadmissibility under former INA § 212(c), 8 U.S.C. § 1182(c) (1995); and (4) the removal proceedings should have been terminated to allow the petitioner to complete naturalization proceedings.

Under a very liberal interpretation, the petition could be deemed as well a request for adjustment of status under INA § 245, 8 U.S.C. § 1255, and for a hearing on whether to grant a discretionary waiver of deportation under INA § 212(h), 8 U.S.C. § 1182(h), for extreme hardship to the petitioner's lawfully resident wife and children. The petitioner, however, who was represented by counsel in connection with proceedings before the Immigration and Naturalization Service, did not raise these grounds in those proceedings. Pursuant to 8 U.S.C. § 1252(d)(1), a court in this Circuit will not review a final order of removal in the habeas corpus context to the extent that the petitioner has not exhausted administrative remedies. See Theodoropoulos v. INS, 358 F.3d 162, 170(2d Cir. 2004); Beharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003).

  The Court notes that the petitioner apparently pled guilty in 1989 to criminal sale of a firearm in the second degree under New York's Penal Law § 265.11(2). At that time the statute provided in pertinent part: "A person is guilty of criminal sale of a firearm in the second degree when he is not authorized pursuant to law to possess a firearm and he unlawfully . . . possesses a firearm with the intent to sell it." See Act of June 13, 1980, ch. 233, sec. 11, § 265.11(2), 1980 N.Y. Laws 374, 378. Page 2

  The respondents are directed to answer the petition on or before February 23, 2005. The respondents are further directed to include with their submissions copies of documents that will establish the precise offenses to which the petitioner has pled guilty or of which he has been convicted, and to brief the following questions, in addition to any others they deem relevant: (1) is the offense to which the petitioner pled guilty in 1989 an "aggravated felony" within the meaning of the INA? (2) how should affirmative and negative answers to (1) affect the disposition of this petition insofar as it is deemed to rest on the above-enumerated grounds?

  SO ORDERED.

20050202

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