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VILLAR v. BOARD OF IMMIGRATION APPEALS

United States District Court, E.D. New York


April 8, 2005.

MANUEL VILLAR, Petitioner,
v.
BOARD OF IMMIGRATION APPEALS, and EDWARD GRANT, Respondents.

The opinion of the court was delivered by: NINA GERSHON, District Judge

OPINION AND ORDER

Pro se petitioner Manuel Villar, a native and citizen of the Dominican Republic, applies to this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his custody by the Bureau of Immigration and Customs Enforcement ("ICE"). In February 1990, petitioner was convicted in New York Supreme Court, New York County, of criminal possession of a weapon in the third degree, in violation of N.Y. Penal Law § 265.02, and sentenced to time served. Petitioner had spent twenty one days in jail at the time his sentence was imposed. Subsequently, petitioner left the United States. He returned on November 11, 2002, at which time he was detained by immigration authorities at John F. Kennedy International Airport because he did not possess an immigrant visa or other valid entry document. On November 12, 2002, the Immigration and Naturalization Service ("INS"), predecessor to ICE, commenced removal proceedings against petitioner.

On June 23, 2003, an Immigration Judge found petitioner to be removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I),*fn1 as an undocumented alien, based in part on petitioner's own admissions. As relief from removal, petitioner, then represented by counsel, sought an adjournment of the proceedings pending the adjudication of two applications for adjustment of his status to lawful permanent resident of the United States — one based on the Legal Immigration and Family Equity Act of 2000 (the "LIFE Act"), and the other based on his marriage to a lawful permanent resident of the United States. The Immigration Judge denied the adjournment, finding that both applications were futile because, as a matter of law, petitioner was not eligible to adjust his status, and ordered petitioner's removal. On August 6, 2004, the Board of Immigration Appeals affirmed the decision of the Immigration Judge.

  Petitioner filed the instant petition for habeas corpus relief on November 13, 2004. He challenges only the Immigration Judge's finding that he is ineligible, as a matter of law, to adjust his status under the LIFE Act. By order dated November 19, 2004, this court stayed the order of removal entered against petitioner pending the adjudication of his petition. For the reasons set forth below, the court now denies the petition and lifts the stay.

  DISCUSSION

  The LIFE Act, codified at 8 U.S.C. § 1255(i), enables certain aliens living in the United States unlawfully to apply for an adjustment of status to lawful permanent resident. The Immigration Judge found that petitioner was precluded from obtaining relief under the LIFE Act by, inter alia, his New York State conviction for criminal possession of a weapon in the third degree. Certain criteria for eligibility for LIFE Act relief are set forth in 8 C.F.R. § 245a.11. One such criterion is that the applicant "has not been convicted of any felony." 8 C.F.R. § 245a.11(d)(1). Under New York law, criminal possession of a weapon in the third degree is a class D felony. N.Y. Penal Law § 265.02. Nevertheless, petitioner argues that because he was sentenced to less than one year in prison, his crime does not constitute a felony. This argument is unavailing. A felony consists of a crime for which the maximum penalty is a term of imprisonment greater than one year; the actual sentence imposed is irrelevant. Here, New York law expressly defines petitioner's crime as a class D felony, punishable by up to seven years in prison. N.Y. Penal Law § 70.00(2)(d). Thus, petitioner's conviction for criminal possession of a weapon in the third degree does preclude him from relief under the LIFE Act.

  The court notes that, in his reply to respondents' opposition, petitioner relies on Firstland International, Inc. v. Immigration and Naturalization Service, 377 F.3d 127 (2d Cir. 2004). In that case, the court held that the INS was not authorized to revoke a previously approved visa petition without notice when the beneficiary had already entered the United States. Id. at 132. The instant case, however, does not involve revocation of a previously approved visa petition. In fact, there is no evidence in the record that petitioner was ever the beneficiary of an approved visa petition. Accordingly, Firstland International has no relevance here. CONCLUSION

  For the reasons set forth above, petitioner's application for a writ of habeas corpus is denied. The stay of the order of removal entered against petitioner is hereby lifted.

  SO ORDERED.


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