United States District Court, S.D. New York
February 2, 2005.
ANTONIO LOPEZ, Petitioner,
JOHN ASHCROFT AND YVONNE SMALLS, Respondents.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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
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.
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?
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