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Guerrevo v. United States

UNITED STATES DISTRICT COURT ONLINE PUBLICATION ONLY EASTERN DISTRICT OF NEW YORK


July 26, 2010

VICTOR GUERREVO, PETITIONER,
v.
UNITED STATES OF AMERICA, DEFENDANT.

The opinion of the court was delivered by: John Gleeson, United States District Judge

MEMORANDUM AND ORDER

Pro se petitioner Victor Guerrevo filed this petition on July 9, 2010, claiming that, as a non-violent alien offender, he is entitled to a judicial order of immediate deportation. I deny his petition for the reasons given below.

On September 8, 2009, Guerrevo pleaded guilty in the same proceeding to conspiring to commit mail fraud and to being a felon in possession of a firearm. See United States v. Guerrero, No. 08-CR-819 (NG); United States v. Guerrero, No. 09-CR-398 (NG).*fn1 On May 6, 2009, he was sentenced to 48 months on both counts, to run concurrently, and three years of supervised release.

DISCUSSION

Under 8 U.S.C. § 1231(a)(4)(B), the Attorney General is authorized to remove a non-violent alien offender before he finishes serving his prison term. The decision whether to deport a prisoner pursuant to that authority "is a matter solely within the discretion of the Attorney General." Thye v. United States, 109 F.3d 127, 128 (2d Cir. 1997) (per curiam); see Gil v. United States, No. 07-CV-3166, 2007 WL 2293442, at *1 (E.D.N.Y. Aug. 9, 2007) (noting that courts in this Circuit apply Thye's holding to § 1231(a)(4)(B) because Thye construed a previous codification of the provision). Moreover, § 1231 does not support a private right of action to compel the Attorney General to exercise this discretion. See 8 U.S.C. § 1231(a)(4)(D) ("No cause or claim may be asserted under this paragraph against any official of the United States or of any State to compel the release, removal, or consideration for release or removal of any alien."); Duamutef v. INS, 386 F.3d 172, 182 (2d Cir. 2004).

CONCLUSION

Accordingly, the petition is denied. In forma pauperis status is denied for the purpose of an appeal because any appeal from this order would not be taken in good faith. See 28 U.S.C. § 1915(a)(3).

So ordered.

John Gleeson, U.S.D.J.


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