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.
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.
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.
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 ...