United States District Court, S.D. New York
February 8, 2005.
ORETH A. JOHNSON, Petitioner,
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
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212(c)"), 8 U.S.C. § 1182(c) (repealed by the Illegal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
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.
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
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][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][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
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
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
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 upon
Johnson's lengthy residence in the United States, his family
relationships in this country and his expression of remorse for
his past mistakes.
At the close of the hearing, the IJ rendered an oral decision
denying Johnson's application for § 212(c) relief. The IJ noted
that at the time of his first deportation hearing in 1997,
Johnson had conceded the charges that were the basis of his
removal. The IJ concluded that Johnson had been ordered removed
on the strength of "clear, convincing and unequivocal evidence."
The IJ then stated that because Johnson had met the permanent
resident and domicile requirements, and the requirement that he
not have served five years imprisonment for an aggravated felony,
a waiver of deportation was "in theory available." However, the
IJ stated, having weighed the positive and negative factors
presented in Johnson's case, he had determined that Johnson was
not eligible for § 212(c) relief.
Among the positive factors militating in Johnson's favor, the
IJ noted, were his family ties, the amount of time he had spent
as a permanent resident in the United States and the degree
of hardship that would be involved if Johnson were to return to
Guyana. With respect to Johnson's family ties, the IJ concluded
that, although Johnson's family members had submitted letters on
his behalf in connection with his removal proceedings, none had
appeared at the hearing, suggesting that the family ties were
"not strong." The negative factors presented in this case, the IJ
found, were Johnson's criminal record, which included four
convictions for crimes involving drugs and violence, Johnson's
failure to appear in court for criminal proceedings and Johnson's
1994 conviction for assault which the IJ characterized as "an
egregious offense." The IJ concluded that, on balance, Johnson
was not eligible for a discretionary waiver of deportation.
Accordingly, the IJ ordered Johnson removed to Guyana.
Thereafter, Johnson filed an appeal with the BIA. On October 7,
2002, the BIA, in a per curiam opinion, dismissed Johnson's
appeal. The BIA's decision rendered Johnson's removal order
final. See Lleo-Fernandez v. INS, 989 F. Supp. 518, 520 n. 2
On December 10, 2002, petitioner filed the instant application
for habeas corpus relief. On January 10, 2003, in order to
preserve the court's jurisdiction to reach the merits of this
case, the petitioner's removal was stayed. Petitioner's claims
are addressed below.
Federal courts have jurisdiction under 28 U.S.C. § 2241 to hear
and determine petitions for writs of habeas corpus seeking review
of final removal orders, but only with respect to legal or
constitutional issues. See Calcano-Martinez v. INS,
533 U.S. 348, 351-52, 121 S. Ct. 2268, 2269-70 (2001). Accordingly, a
habeas corpus petition brought pursuant to § 2241 may be used
only "to challenge incarceration or orders of deportation as
being `in violation of the Constitution
or laws or treaties of the United States.'" Sol v. INS,
274 F.3d 648, 651 (2d Cir. 2001) (quoting 28 U.S.C. § 2241[c]).
"[F]ederal jurisdiction over § 2241 petitions does not extend to
review of discretionary determinations by the IJ and the BIA."
Id. at 651; see also Caesar v. Ashcroft, No. 04 Civ.
8195, 2005 WL 14686, at *3-4 (S.D.N.Y. Jan. 3, 2005); Mattis v.
Ashcroft, No. 04 Civ. 2333, 2004 WL 2471314, at *2-3 (S.D.N.Y.
Nov. 3, 2004).
Denial of § 212(c) Relief
The petitioner appeals from a decision of the BIA denying his
request for a waiver of deportation pursuant to § 212(c).
Petitioner states that he is seeking "a stay of deportation" and
asserts that the IJ erred when he concluded that Johnson had no
family ties in the United States. However, this Court has no
jurisdiction to grant § 212(c) relief. See Mattis, 2004 WL
2471314, at *2. Moreover, the determination of the IJ and BIA
that the equities in Johnson's favor were not sufficient to
warrant granting him such relief was a matter of discretion.
Therefore, the Court lacks jurisdiction to review Johnson's
challenge to the BIA's decision.
Due Process Claim
The Court has jurisdiction to review constitutional claims
raised in a habeas corpus petition. In this case, petitioner
contends that his due process rights were violated when the BIA
improperly found him deportable as an aggravated felon. Johnson
also appears to argue that he was improperly subjected to an
unconstitutional retroactive application of the immigration laws.
In addition, Johnson contends that his deportation would be
"contrary to the nation's obligations" under the International
Covenant on Civil and Political Rights. The respondent contends
that the Court lacks jurisdiction to review these claims because
they were not presented to the IJ or BIA. Furthermore, the
respondent argues, the claims are without merit.
In his response to the government's opposition to his habeas
corpus application, petitioner notes that he did present his due
process claims to the BIA in his supplemental brief. Petitioner
is correct. Although petitioner's due process and international
law claims do not appear to have been raised before the IJ or in
petitioner's initial brief in support of his appeal to the BIA,
petitioner's supplemental brief on appeal includes a section
entitled "Due Process Clause," in which petitioner asserts that
due process issues are implicated in this case.
28 U.S.C. § 1252(d)(1) provides, in relevant part: "A court may
review a final order of removal only if . . . the alien has
exhausted administrative remedies available to the alien as of
right." The Second Circuit has determined that this limitation
applies to habeas corpus review. See Theodoropoulos v. INS,
358 F.3d 162, 168-71 (2d Cir. 2004). Furthermore, where a
petitioner has failed to exhaust his administrative remedies with
respect to claims raised in a habeas corpus petition, a district
court lacks subject matter jurisdiction to entertain those
claims. See id.
In the instant case, a review of the record reveals that
petitioner's international law claim was not presented to the IJ
or BIA and, therefore, remains unexhausted. Consequently, the
Court has no subject matter jurisdiction to consider that claim.
See Caesar, 2005 WL 14686, at *9. However, construing
petitioner's pro se submissions liberally and "interpret[ing]
them to raise the strongest arguments they suggest," Wright v.
Comm'r of Internal Revenue, 381 F.3d 41, 44 (2d Cir. 2004), the
Court finds that petitioner did exhaust his administrative
remedies with respect to his due process claim. Nevertheless, the
Court finds this claim to be meritless.
Petitioner asserts that his constitutional right to due process
was violated when the BIA improperly found him deportable as an
aggravated felon. As noted above, in 1996, the INS
determined that Johnson was deportable under the provisions of
the INA pertaining to a controlled substance offense (INA §
237(a)(2)(B)(i), 8 U.S.C. § 1227 (a)(2)(B)(i)) and an aggravated
felony (INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii)).
Petitioner's 1994 conviction for attempted criminal sale of a
controlled substance in the third degree, which served as the
predicate for Johnson's order of removal, is also an aggravated
felony. See 8 U.S.C. § 1101(a)(43)(B) & (U) (defining
aggravated felony to include any "drug trafficking crime," as
defined in 18 U.S.C. § 924[c], 18 U.S.C. § 924[c] in turn
defining "drug trafficking crime" to include "any felony
punishable under the Controlled Substances Act");
21 U.S.C. § 841(a)(1) (punishing as felony a conviction for knowingly or
intentionally distributing or dispensing a controlled substance).
Therefore, the BIA properly ordered petitioner removed from the
United States as an aggravated felon pursuant to INA §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
Johnson also argues that he was improperly subjected to an
unconstitutional retroactive application of the immigration laws.
Although Johnson does not specify what statutory provisions were
applied to him retroactively, he appears to argue that the BIA
erred when it barred him from applying for a § 212(c) waiver at
the time of his 1997 removal hearing. Since Johnson's 1994
conviction, which served as the basis for his order of removal,
was obtained through a guilty plea, the Supreme Court's ruling in
St. Cyr making § 212(c) relief available to aliens who pled
guilty prior to the enactments of AEDPA and IIRIRA, applied in
his case. However, as discussed earlier in this writing, Johnson
was accorded a § 212(c) hearing. Therefore, his claim that he was
improperly subjected to an unconstitutional retroactive
application of the law is unfounded.
For the reasons set forth above, it is recommended that
petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable William H.
Pauley III, 500 Pearl Street, Room 2210, New York, NY 10007, and
to the chambers of the undersigned, 40 Centre Street, Room 540,
New York, NY, 10007. Any requests for an extension of time for
filing objections must be directed to Judge Pauley. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Reynoso,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd.,
838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).