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.

McCLATCHIE v. IMMIGRATION AND NATURALIZATION SERVICE

April 8, 2005.

MARLON McCLATCHIE, Petitioner,
v.
IMMIGRATION and NATURALIZATION SERVICE, Respondent.[fn1]



The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge

*fn1 The Immigration and Naturalization Service ("INS") was abolished and the entire United States' immigration system was restructured with the enactment of the Homeland Security Act of 2002, which became effective as of March 1, 2003, (Pub.L. 107-296, Nov. 25, 2002, 116 Stat. 2135) ("Homeland Security Act"). 6 U.S.C. § 291 et seq. The Homeland Security Act created the Department of Homeland Security and the Bureau of Immigration and Customs Enforcement ("the BICE"). The BICE is responsible for certain functions previously handled by the INS, including enforcement functions relating to the detention and removal of aliens from the United States.

DECISION and ORDER

JURISDICTION

  The parties to this action consented to proceed before the undersigned on June 10, 2003. The matter is presently before the court on Respondent's motion to dismiss (Doc. No. 6), filed May 14, 2003. BACKGROUND

  Petitioner Marlon McClatchie ("Petitioner") commenced this action seeking habeas relief pursuant to 28 U.S.C. § 2241 on January 30, 2003. Specifically, Petitioner challenges a final administrative order of removal issued by an Immigration Judge ("IJ") on behalf of the Immigration and Naturalization Service ("INS"), arguing that Petitioner was denied relief from removal based on an incorrect determination that prior criminal convictions have rendered him an aggravated felon and, as such, ineligible for the otherwise available discretionary relief from removal. By order filed on April 17, 2003 (Doc. No. 5), the INS was given until May 12, 2003 to answer the Petition.

  On May 14, 2003, Respondent filed a motion seeking an extension of time in which to move to dismiss, and also to dismiss the Petition pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In support of its motion, Respondent filed a Memorandum of Law (Doc. No. 7) ("Respondent's Memorandum"), and the Affidavit of Assistant United States Attorney Monica J. Richards (Doc. No. 8) ("Richards Affidavit"). A copy of the Certified Administrative Record relevant to Petitioner's proceeding before the IJ is also attached to Respondent's Motion as Exhibit A to the Richards Affidavit. On May 16, 2003, Respondent's motion was granted as to its request for an extension of time in which to move to dismiss.

  On June 16, 2003, Petitioner filed a traverse (Doc. No. 11) ("Petitioner's Traverse"), and a "Memorandum of Law in Opposition to Memorandum of Law in Support of Respondent's Motion to Dismiss the Habeas Petition" (Doc. No. 12) ("Petitioner's Memorandum"). On February 18, 2004, Petitioner also filed a letter (Doc. No. 14) ("Petitioner's Letter") attached to which, as Exhibit A, is a copy of a judicial decision submitted as authority in support of the Petition. Oral argument was deemed unnecessary.

  Based on the following, Respondent's motion to dismiss (Doc. No. 6) is GRANTED, and the Petition is DISMISSED.

  FACTS*fn2

  Petitioner, a native and citizen of Trinidad and Tobago, entered the United States at Miami, Florida as a lawful permanent resident ("an LPR") on April 27, 1978. AR 11, 83, 170, 252.*fn3 Since that time, Petitioner has continuously resided in the United States. AR 11. Petitioner's mother, child and fiancée, all who are United States citizens, also reside in the United States. AR 11.

  On December 4, 1991, Petitioner was convicted by plea in New York Supreme Court, Kings County, of Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of New York Penal Law ("N.Y. Penal Law") §§ 110 and 220.39(1) (McKinney 2003),*fn4 ("the 1991 conviction"), a class B felony, for which Petitioner was sentenced to five years probation. AR 12, 83, 192, 252. On April 10, 1997, Petitioner was again convicted by plea in New York Supreme Court, Kings County, of Criminal Possession of a Controlled Substance in the Seventh Degree, in violation of N.Y. Penal Law § 220.03, ("the 1997 conviction") a class A misdemeanor. AR 13, 83, 191, 252. On September 7, 2001, Petitioner was further convicted by plea in Washington County Court, New York, of Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of N.Y. Penal Law § 220.06, ("the 2001 conviction"), a class D felony, for which Petitioner was sentenced as a second felony offender to an indeterminate term of incarceration of two to four years.*fn5 AR 14, 83-84, 171, 252. The controlled substance involved in all three of Petitioner's criminal convictions in New York was cocaine. AR 220.

  A Notice to Appeal charging Petitioner as a removable alien pursuant to Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(ii), on the basis that Petitioner's criminal record rendered Petitioner an aggravated felon, and INA § 237(a)(2)(B)(i), 8 U.S.C. § 237(a)(2)(B)(i), based on Petitioner's conviction of the three prior drug offenses, and directed Petitioner to appear before the IJ to contest the charges. AR 251-53. Accordingly, Petitioner appeared before Immigration Judge John B. Ried on January 24, 2002, although the proceeding was adjourned to permit Petitioner an opportunity to obtain legal counsel. AR 50-57. The proceeding before the IJ was subsequently adjourned on February 6, 13 and 28, 2002, and April 4, 2002 to accommodate Petitioner's assertions that he was attempting to obtain legal counsel. AR 60, 63, 67-68, 72-73. When the administrative removal proceeding resumed on April 18, 2002, Petitioner was proceeding pro se, but the proceeding was adjourned to permit the IJ an opportunity to review papers submitted by Petitioner. 74-79.

  Upon resuming the removal proceeding on April 25, 2002, the IJ advised Petitioner, who continued to proceed pro se, of Petitioner's rights and responsibilities in connection with the proceeding. AR 80-83. Petitioner admitted that he was born in Trinidad and Tobago, that he entered the United States at Miami, Florida, on April 27, 1978, and that his criminal history included three convictions for crimes involving controlled substances. AR 83-84, 91-94. Petitioner further stated that he had a common-law wife with whom he resided in the Adirondack area of New York State, and that his mother became a United States citizen on March 4, 1988. AR 84-85, 91-92. Petitioner also testified that none of his three criminal convictions involved the use of firearms, that the convictions all related to a period of Petitioner's life during which Petitioner was using illegal drugs, but that Petitioner had since completed a substance abuse program and planned to marry his common-law wife on the day that he was arrested by the INS and served with the Notice to Appear. AR 84-93.

  Petitioner moved to adjourn the administrative removal proceeding to permit him an opportunity to become a naturalized citizen. AR 94-95. The IJ denied the motion on the basis that Petitioner's criminal convictions rendered him an aggravated felon who was, therefore, prima facie ineligible to apply for naturalization, and there was reason to conclude that Petitioner had derivative citizenship based on his mother's naturalization which occurred, undisputedly, after Petitioner's 18th birthday. AR 95-98. Petitioner argued in opposition that as his New York criminal convictions would have qualified as misdemeanors under corresponding federal law, he is not an aggravated felon for removal purposes, and that he had obtained United ...


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.