UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
March 13, 2009
CESAR AUGUSTO ZOQUIER, PRO SE, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Pro se petitioner Cesar Augusto Zoquier, a federal prisoner presently confined in Phillipsburg Pennsylvania, brings what has been filed as a petition for a writ of habeas corpus pursuant to Title 28 USC Section 2241, which is in effect a request for immediate deportation. On November 21, 2006, judgment was entered sentencing petitioner to, inter alia, fifty-seven months of imprisonment. United States v. Zoquier, Docket No. 06-cr-45. On August 21, 2007, the United States Court of Appeals summarily affirmed the judgment of conviction. See Docket Entry # 21. The petition is denied for the reasons set forth below.
Petitioner moves pursuant to 8 U.S.C. § 1252(h)(2)(a)*fn1 for immediate deportation alleging that he is eligible for such relief because he pled guilty to a non-violent offense. The Attorney General "is authorized to remove an alien . . . before the alien has completed a sentence of imprisonment . . . if the Attorney General determines that (I) the alien is confined pursuant to a final conviction for a nonviolent offense . . . and (II) removal of the alien is appropriate and in the best interest of the United States." 8 U.S.C. §1231(a)(4)(B). Thus, it is the Attorney General and not this court who possesses the discretion to grant petitioner the relief he seeks. Thye v. United States, 109 F.3d 127, 128 (2d Cir. 1997) (per curiam).
Moreover, it is well-settled that petitioner has no private right of action to compel the Attorney General to deport or remove him from the United States before the completion of his sentence. 8 U.S.C. § 1231(a)(4)(D); Thye, 109 F.3d at 128; Ndike v. United States, No. 08 CV 1211, 2008 WL 4790943, at *1 (E.D.N.Y. Oct. 31, 2008) (denying motion for immediate removal); Gil v. United States, No. 07 CV 3166, 2007 WL 2293442, at *1 (E.D.N.Y. Aug. 9, 2007) (same); United States v. Munoz-Pulgo, No. 01 CR 954, 2003 WL 22047210, at *1 (S.D.N.Y. Aug. 29, 2003) (denying motion for immediate deportation); United States v. Gonzales, No. 93 CR 1148, 1996 WL 391586, at *1 (E.D.N.Y. June 21, 1996) (same) (citing Yepes v. United States, No. 96 CV 2370, slip op. at 4 (E.D.N.Y. May 17, 1996); Lim v. United States, No. 96 CV 2369, slip op. (E.D.N.Y. June 12, 1996)).
Accordingly, petitioner's request for immediate deportation or removal is denied. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to close this case.
DORA L. IRIZARRY United States District Judge