Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

JOHNSON v. UNITED STATES IMMIGRATION & NATURALIZATION SERV.

February 8, 2005.

ORETH A. JOHNSON, Petitioner,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE Respondent.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE WILLIAM H. PAULEY III, UNITED STATES DISTRICT JUDGE.

I. INTRODUCTION

  Before the Court is Oreth A. Johnson's ("Johnson") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2241. Petitioner challenges a final order of removal from the United States issued by the Immigration and Naturalization Service ("INS").*fn1 Johnson contends that the INS's Bureau of Immigration Appeals ("BIA") erred when it denied his application for a discretionary waiver of deportation pursuant to the Immigration and Nationality Act ("INA") § 212(c) ("§ 212(c)"), 8 U.S.C. § 1182(c) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act ["IIRIRA"] § 304 [b]). In addition, Johnson claims Page 2 that the BIA's decision deprived him of his constitutional right to due process and his rights under international law.

  The respondent opposes the petitioner's application for a writ of habeas corpus. According to the respondent, insofar as Johnson challenges the BIA's discretionary determination to deny him § 212(c) relief, his petition should be dismissed for lack of subject matter jurisdiction. In addition, the respondent contends that Johnson's due process and international law claims are precluded from federal review because Johnson failed to raise them during administrative proceedings before the BIA; moreover, respondent maintains, the claims are without merit. For the reasons set forth below, I recommend that the petition be denied.

  II. BACKGROUND

  Johnson is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident in July 1987. On April 8, 1994, Johnson was convicted and sentenced to sixty (60) days in jail and five years probation based on his plea of guilty to attempted criminal sale of a controlled substance in the third degree in violation of N.Y. Penal Law §§ 110 & 220.39. On July 28, 1994, following a bench trial in New York State Supreme Court, New York County, Johnson was convicted for first-degree assault with intent to cause physical injury, see N.Y. Penal Law § 120.10(1), first-degree assault with intent to disfigure, see N.Y. Penal Law § 120.10(2), attempted assault in the first degree, see N.Y. Penal Law §§ 110 & 120.10, and criminal possession of a weapon in the fourth degree, see N.Y. Penal Law § 265.01. Johnson received an unconditional discharge with respect to the first assault charge and the weapons charge and a sentence of 28 months to seven years imprisonment for the second assault charge and the attempted assault charge. The sentence was stayed. In connection with the assault Page 3 charges, Johnson failed to make a court appearance and a bench warrant was issued for his arrest.

  A probation report prepared in connection with Johnson's 1994 assault offenses described the crimes as "vicious and violent." According to the report, following an incident in a fast food restaurant in Pennsylvania Station in Manhattan, near midnight on December 26, 1994, Johnson attacked another customer with a knife and a box cutter. The victim suffered lacerations on his face and left hand, and his left thumb was nearly severed. Johnson reportedly fled the scene, leaving the victim lying a pool of blood, before being apprehended by the police.

  On September 22, 1995, Johnson, under an alias, pled guilty in New York State Supreme Court, New York County, to attempted criminal sale of a controlled substance in the third degree, see N.Y. Penal Law §§ 110 & 220.39, for which he was sentenced to time served and five months' probation. On April 8, 1996, under another alias, Johnson pled guilty, in New York State Supreme Court, New York County, to attempted criminal sale of a controlled substance in the fifth degree, see N.Y. Penal Law §§ 110 & 220.31, for which he was sentenced to serve 18 months to three years imprisonment.

  On July 5, 1996, the INS filed an order to show cause and notice of hearing charging that Johnson's 1994 attempted sale of a controlled substance in the third degree rendered him deportable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i) (formerly section 241[a][2][B][i] of the INA) (alien convicted of a controlled substance offense other than a single offense involving possession for one's own use of 30 grams or less of marijuana) and INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii) (formerly section 241[a][2][A][iii] of the INA) (alien convicted of an aggravated felony). On March 7, 1997, an immigration judge ("IJ") ordered Johnson deported. The IJ had determined, among other things, that Johnson was Page 4 ineligible for a discretionary waiver of deportation pursuant to § 212(c). According to the IJ, recent congressional enactments had eliminated such relief for a person who, like Johnson, had been convicted for a drug related crime classifiable as an aggravated felony. Thus, the IJ concluded, "by the law" he was barred from granting Johnson the relief he sought.*fn2

  Johnson did not appeal the order of deportation to the BIA. However, on November 17, 2000, Johnson filed a petition for a writ of habeas corpus, seeking an opportunity to apply for § 212(c) relief. On April 13, 2001, while his habeas corpus petition was pending, Johnson requested the same relief by way of a motion to reopen administrative removal proceedings. On June 25, 2001, the United States Supreme Court ruled, in INS v. St. Cyr, 533 U.S. 289, 326, 121 S. Ct. 2271, 2293 (2001), that "§ 212(c) relief remains available for aliens whose convictions Page 5 were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect." Following that ruling, an IJ at the Executive Office for Immigration Review granted Johnson's motion to reopen and a hearing was scheduled for November 19, 2001, in York, Pennsylvania. At the scheduled hearing, which was adjourned to and continued on January 17 and May 14, 2002, an IJ granted Johnson's motion to change venue to the Immigration Court in Newark, New Jersey. In light of the IJ's decision to grant Johnson's request for a § 212(c) hearing, the court dismissed his habeas corpus petition for lack of subject matter jurisdiction. See Johnson v. United States INS, No. 00 Civ. 8803, 2002 WL 54420, at *2 (S.D.N.Y. Jan. 9, 2002).*fn3

  At the May 14, 2002 hearing, Johnson, appearing with counsel, testified on his own behalf. He stated that his mother, two brothers and three sisters all lived in the United States and that his mother, two of his sisters and one of his brothers were United States citizens. He also testified that he had one child, a daughter, twenty years old, and that she was a legal permanent resident. Johnson stated that although he kept in contact with his mother and siblings, he had recently lost touch with his daughter. Johnson stated that his father still lived in Guyana.

  Johnson testified further that he owned no property in Guyana and that he had not returned to that country since 1987. He testified that he had been employed in Guyana as a clerk for a cement company. In the United States, Johnson stated, he had been employed at a health food store and as construction worker, a security guard and a landscaper for the Central Park Conservancy. While he was employed by the Central Park Conservancy, Johnson injured his Page 6 hand and now receives about $500 per month disability compensation. Johnson stated that if he were deported to Guyana, it would be difficult for him to find work, that it would change his life and be "very hard" on him.

  Johnson then testified concerning his convictions and expressed remorse for his past conduct. He stated that while incarcerated he had participated in various programs including a life skills program from which he had learned to alter his behavior. When asked why he wanted to stay in the United States, Johnson stated that he wanted to become a drug counselor so that he could help others. No other witnesses testified at the hearing. At the conclusion of testimony, Johnson's attorney urged the IJ to grant his client a discretionary waiver of deportation based ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.