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McCLATCHIE v. IMMIGRATION AND NATURALIZATION SERVICE

United States District Court, W.D. New York


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 States citizenship as a child during the 1970s. AR 98-99. The IJ adjourned the proceeding to permit Petitioner an opportunity to submit documentation supporting his citizenship claim. AR 99-101.

  The removal proceeding resumed on June 13, 2003, when Petitioner appeared with counsel, Stephen K. Tills, Esq., who requested another adjournment. AR 102-04. The matter was again adjourned until June 27, 2003, when Petitioner appeared with his attorney who stated that although Petitioner did not have a valid citizenship claim, Petitioner denied the Government's assertion that Petitioner was an aggravated felon on the because the amount of controlled substances involved in Petitioner's 1997 and 2001 criminal convictions indicated the drugs were for personal use, rather than for drug trafficking. 105-12. The matter was again adjourned to allow Petitioner to present legal authority in supporting of his argument. AR 114-16.

  When the proceeding resumed on August 7, 2003, Petitioner, through his attorney, again asserted that although he did not dispute that his 1991 conviction qualified as a felony, his 1997 and 2001 convictions did not. AR 117-19. Admitted into evidence by the Government were INS Form I-213 (Record of Deportable/Inadmissible Alien) dated January 4, 2002, AR 168-69, a copy of Petitioner's Immigrant Visa and Alien Registration form dated April 27, 1978, AR 170, and a certified copy of Petitioner's court conviction record, and a pre-sentence investigation report dated March 12, 2001.*fn6 AR 171-200. Admitted into evidence by Petitioner were Petitioner's motion to terminate the removal proceeding to permit Petitioner to apply for citizenship and a memorandum of law in support, AR 123-56, INS Form N-400 (Application for Naturalization) dated "4/2002," AR 158-61,*fn7 and INS Form N-600 (Application for Certificate of Citizenship) dated "4 2002." AR 162-66. At the conclusion of the matter on August 7, 2002, the IJ found Petitioner removable as his criminal convictions in New York rendered, under applicable law, Petitioner an aggravated felon, and also denied Petitioner's requests for relief from removal on the basis that his status as an aggravated felon rendered Petitioner ineligible for such relief. AR 37-48. On September 3, 2002, Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") which, on December 18, 2002, affirmed the IJ's decision. AR 1-2.

  DISCUSSION

  Petitioner challenges the final order of removal on the basis that his criminal record does not render him an aggravated felon and, thus, Petitioner is eligible for discretionary relief from removal under INA § 212(c), as in effect prior to the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as well as INA § 240A(a), 8 U.S.C. § 1229b(a), currently in effect. Petition ¶¶ 8-9, Petitioner's Memorandum, passim. Respondent argues in support of dismissal that Petitioner is not eligible for relief under either INA § 212(c), since repealed, or under 8 U.S.C. § 1229b(a). Respondent's Memorandum at 7-10.

  Prior to its repeal in 1996, INA § 212(c), formerly codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents ("LPRs"). Specifically, the INA provided that aliens who were also long-time LPRs were eligible to seek discretionary waiver of deportation "based on factors such as length of prior residence in the United States, family and personal ties to this country, positive histories of employment and community service, and (for those persons deportable by reason of having committed a crime) proof of genuine rehabilitation." Henderson v. I.N.S., 157 F.3d 106, 109 (2d Cir. 1998) (citing 8 U.S.C. § 1182(c), and Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995)).

  In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, including § 440(d) which limited eligibility for relief under § 212(c). Later in 1996, Congress also enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, specifically including § 304(b) which repealed § 212(c) altogether. Additionally, the IIRIRA replaced the discretionary form of relief known as "suspension of deportation," previously available under INS § 212(c) with a new form of discretionary relief called "cancellation of removal," that allows the Attorney General to cancel removal for certain resident aliens. INA § 240A, codified at 8 U.S.C. § 1229b. Unlike the prior discretionary relief of suspension of deportation, which could be granted even as to a long-time LPR who had been convicted of an aggravated felony, a removable alien who has been convicted of an aggravated felony is no longer eligible for cancellation of removal. INA § 240A, 8 U.S.C. § 1229b(a).

  Congress's repeal of § 212(c), however, was held inapplicable to aliens who pleaded guilty to felonies prior to the effective date of IIRIRA. INS v. St. Cyr, 533 U.S. 289, 322-24 (2001). As Petitioner's 1991 conviction for Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law §§ 110 and 220.39(1), was obtained by plea, occurred prior to the enactment of IIRIRA, Petitioner is not, based solely on the 1991 conviction, ineligible for discretionary relief from removal under § 212(c). St. Cyr, supra. Nevertheless, Petitioner's two remaining state criminal convictions, obtained by guilty pleas after IIRIRA's enactment, including his 1997 misdemeanor conviction for Criminal Possession of a Controlled Substance in the Seventh Degree in violation of N.Y. Penal Law § 220.03, as well as his 2001 conviction for Criminal Possession of a Controlled Substance in the Fifth Degree in violation of N.Y. Penal Law § 220.06, render him removable. Moreover, Petitioner's 2001 conviction, which is classified as a Class D felony, also renders Petitioner ineligible under INA § 240A, 8 U.S.C. § 1229b(a), for discretionary relief from removal.

  Specifically, Petitioner was found removable under INA §§ 237(a)(2)(A)(iii) and 237(a)(2)(B)(i). INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." Further, INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), provides that

[a]ny alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law of regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substance Act (21 U.S.C. § 802)), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, is deportable.
  In the instant case, Petitioner's 1997 conviction of Criminal Possession of a Controlled Substance in the Seventh Degree in violation of N.Y. Penal Law § 220.03 is classified as a misdemeanor, rather than a felony and, as such, does not support removal under INA § 237(a)(2)(A)(iii). See Singh v. Ashcroft, 2003 WL 1873624, *3 (E.D.N.Y. 2003) (observing that alien's state misdemeanor criminal sale of marijuana conviction did not support removal under INA § 237(a)(2)(A)(iii)). Nevertheless, Petitioner's 1997 conviction, which involved possession of cocaine, AR 180-89, 220, does support removal under INA § 237(a)(2)(B)(i), which provides for the removal of an alien convicted of a controlled substance violation as defined by Controlled Substance Act § 102, 21 U.S.C. § 802. See United States v. Graham, 927 F.Supp.2d 619, 620 (W.D.N.Y. 1996) (defendant alien's prior misdemeanor conviction under New York law for criminal sale of marijuana rendered alien defendant "aggravated felon" under INA § 101(a)(43) and, thus, ineligible for release on bail while awaiting trial on unlawful reentry charge).

  Specifically, 21 U.S.C. § 802 defines the term "controlled substance" to mean "a drug or other substance, or intermediate precursor, included in schedule I, II, III, IV, or V of part B of this title [21 U.S.C. § 812]." Cocaine, the drug involved in all three of Petitioner's New York criminal convictions, AR 220, is included in schedule II. 21 U.S.C. § 812, Schedule II (a)(4). Accordingly, Petitioner's 1997 conviction of criminal possession of cocaine renders Petitioner removable under INA § 237(a)(2)(B)(i).

  Likewise, cocaine was also the controlled substance involved in Petitioner's 2001 conviction of Criminal Possession of a Controlled Substance in the Fifth Degree, in violation of N.Y. Penal Law § 220.06. AR 220. Accordingly, Petitioner is also rendered removable under INA § 237(a)(2)(B)(i) based on his 2001 conviction. Further, as Criminal Possession of a Controlled Substance in the Fifth Degree is classified under New York law as a class D felony, N.Y. Penal Law § 220.06, Petitioner's 2001 conviction also renders Petitioner removable under INA § 237(a)(2)(A)(iii), which provides for the removal of any alien convicted of an aggravated felony.

  As relevant, the term "aggravated felony" is defined under INA § 101(a)(43) as "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act [21 U.S.C. § 802]), including a drug trafficking conviction (as defined in section 942(c) of title 18, United States Code). . . . The term applies to an offense described in this paragraph whether in violation of Federal or State law . . . for which the term of imprisonment was completed within the previous 15 years." 8 U.S.C. § 101(a)(43). As relevant to the instant case, the term "`drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)" 18 U.S.C. § 924(c)(2). The term "felony" as used in the Controlled Substances Act, includes "any Federal or State offense classified by applicable Federal or State law as a felony." 21 U.S.C. § 802(13).

  Here, as Petitioner's 2001 conviction is classified under New York law as a class D felony, N.Y. Penal Law § 220.06, the 2001 conviction qualifies as a "drug trafficking crime" under the Controlled Substances Act, 18 U.S.C. § 924(c)(2). See United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999) (where a state drug offense qualifies as a "drug trafficking crime" for purposes of 18 U.S.C. § 924(c)(2) if the convicting jurisdiction classifies the offense as a felony). As Petitioner's 2001 conviction qualifies as under the Controlled Substances Act as a "drug trafficking crime," it further qualifies as an "aggravated felony" as that term is defined under INA § 101(a)(43), 8 U.S.C. § 1101(a)(43)(B) to include "a drug trafficking conviction [as defined under 18 U.S.C. § 924(c)]". Graham, supra, at 620. Accordingly, Petitioner's 2001 conviction renders him an aggravated felon who is, by operation of law, ineligible for discretionary relief from removal otherwise available under INA § 240A, 8 U.S.C. § 1229b. 8 U.S.C. § 1229b(a) (providing that Attorney General has discretion to cancel removal as to permanent resident alien who is inadmissible or deportable if the alien "(1) has been lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of an aggravated felony.") (underlining added).

  In opposition to dismissal, Petitioner relies on Gerbier v. Holmes, 280 F.3d 297 (3d Cir. 2002), in which the court held that where an alien had pleaded guilty to a felony for violating a Delaware criminal statute "prohibiting trafficking in cocaine" based on the alien's possession of between 5 and 15 grams of cocaine, the offense did not constitute an "aggravated felony" under the INA because the offense did not contain an element of trading or dealing in controlled substances but, rather, was a "mere possession" offense and, alternatively, would not have qualified as a felony if punished under the Controlled Substances Act. Gerbier, supra, at 312-13. Respondent has not responded to this argument.

  The record does not specify under which subsection of N.Y. Penal Law § 220.06 Petitioner's 2001 conviction was obtained. Significantly, N.Y. Penal Law § 220.06(1) does contain a dealing or trading element. Specifically, "[a] person is guilty of criminal possession of a controlled substance in the fifth degree when he knowingly and unlawfully possesses: (1) a controlled substance with intent to sell it. . . ." Indeed, a thorough reading of the entire statute establishes that Petitioner's 2001 conviction must have been under the first subdivision as none of the other subdivisions are applicable to the circumstances surrounding the conviction, including that Petitioner was found in possession "of less than 1 grams [sic] of crack. . . ." AR 14; see also AR 220 (stating that each of Petitioner's three New York criminal "involved less than one gram of cocaine.").*fn8

  Unfortunately for Petitioner, even assuming, arguendo, that Petitioner's 2001 conviction, which was for mere possession and did not contain a trading or dealing element, and further assuming, arguendo, that such crime would not have qualified as a felony if punished under federal law, i.e., the Controlled Substances Act, Petitioner would nevertheless be ineligible for relief from removal under 8 U.S.C. § 1229b because his 1991 conviction for Attempted Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law §§ 110 and 220.39(1), is classified as a class B felony, and, significantly, contains a trading or dealing element. N.Y. Penal Law § 220.39(1) ("A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells: (1) a narcotic drug"). Petitioner is thus removable under INA § 237(a)(2)(B)(i) based on his 1991 conviction for violating N.Y. Penal Law § 220.39(1), although he remains eligible under INA § 212(c) for discretionary relief from removal based on his 1991 conviction given that such conviction was obtained by plea prior to the effective date of IIRIRA. St. Cyr, supra, at 322-24. Nevertheless, as discussed above, Petitioner has, subsequent to his 1991 conviction, been rendered removable pursuant to INA § 237(a)(2)(B)(i) based on both his 1997 and 2001 convictions. Further, Petitioner is ineligible for relief from removal under INA § 240A based on his 1997 and 2001 convictions because of his 1991 conviction for violating N.Y. Penal Law § 220.39(1).

  In particular, although the fact that Petitioner's 1991 conviction was obtained by plea prior to the effective date of IIRIRA and, thus, that conviction alone does not render Petitioner ineligible for discretionary relief under INS § 212(c), Petitioner nevertheless remains convicted of N.Y. Penal Law § 220.39(1). The 1991 conviction thus renders Petitioner ineligible for discretionary relief from removal, under INA § 240A, based on his 1997 and 2001 convictions as such relief, by operation of law, is available only to an alien who "has not been convicted of an aggravated felony," U.S.C. § 1229b(a)(3). Significantly, Petitioner's 1991 conviction constitutes an aggravated felony, as that term is defined under INA, and as construed by Gerbier, supra, given that the 1991 conviction contains an element of dealing or trading in controlled substances as that term is defined under the Controlled Substances Act.

  Accordingly, Petitioner is not eligible for relief from removal under either INA §§ 212(c) or 240A and, therefore, the IJ's failure to find Petitioner eligible for such relief does not support Petitioner's claim for habeas relief pursuant to 28 U.S.C. § 2241. CONCLUSION

  Based on the foregoing, Respondent's motion to dismiss (Doc. No. 6) is GRANTED, and the Petition is DISMISSED. Further, as the court finds there is no substantial question presented for appellate review, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2) (1996).

  Any petition for permission to appeal with the Circuit Clerk, United States Court of Appeals for the Second Circuit, New York, New York, must be filed within sixty (60) days of the date of judgment in this action. See Fed.R.App. 5(a)(1) & (2). Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.

  SO ORDERED.


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