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Winston Griffith v. Board of Immigration Appeals

November 7, 2011

WINSTON GRIFFITH, PETITIONER,
v.
BOARD OF IMMIGRATION APPEALS, RESPONDENT.



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

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Petitioner Winston Griffith has moved for reconsideration of this Court's July 20, 2011 memorandum and order dismissing his petition for a writ of habeas corpus. For the reasons set forth below, the motion for reconsideration is granted and, upon reconsideration, the July 20, 2011 memorandum and order and the judgment entered in this case are vacated. The case will be transferred to the United States Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.

BACKGROUND

Griffith is a native and citizen of Guyana who was admitted to the United States as a lawful permanent resident in 1992. After he was convicted of controlled substance offenses in state court in 2009, the government commenced removal proceedings against him. Griffith was ordered removed by an immigration judge and, on September 17, 2010, the Board of Immigration Appeals (the "BIA") dismissed his appeal from that order.

Since then, Griffith has filed several motions to reopen his removal proceedings and for reconsideration of his removal order by the BIA. Among the grounds on which Griffith has sought to reopen his case is that his direct appeal of his criminal convictions is pending, and that the convictions are therefore not final for removal purposes.

Griffith filed a petition for a writ of habeas corpus in this Court on May 3, 2011.*fn1

In his petition, he challenged the validity of the final order of removal, as well as the BIA's subsequent refusal to reopen his removal proceedings. On July 20, 2011, I dismissed his petition because a district court has no jurisdiction to review a removal order. I noted that Griffith should file a petition for review in the United States Court of Appeals for the Second Circuit without expressing a view on whether such a petition would be timely. Judgment was entered on July 22, 2011.

By letter dated July 22, 2011, Griffith requested an extension of time to file reply papers in support of his habeas petition. Noting that it appeared that my July 20, 2011 order and his request for an extension had crossed in the mail, I construed Griffith's motion for an extension as a motion for reconsideration. I granted Griffith additional time to file papers in support of reconsideration.

Griffith thereafter filed an affirmation, in which he requests (i) reconsideration of the July 20, 2011 order; (ii) transfer of his case to the Second Circuit; and (iii) appointment of counsel. He raises the following grounds for this requested relief: (a) his criminal convictions are not removable offenses because he has not yet exhausted his direct appeal of those convictions; and (b) his order of removal did not become final until April 19, 2011, because the BIA issued an order in his case on that date and, therefore, his habeas petition should be treated as a timely filed petition for review and transferred to the Second Circuit. Griffith also asks for "an Advisory Opinion" regarding purported inconsistencies in the rulings of different immigration judges in his case and a purported clearly erroneous factual determination made by the immigration judge and the BIA in his case. Affirmation in Support of Pet'r's Mot. for Recons. & Appointment of Counsel ¶ 6, at 4, ECF No. 7. The government has not responded to Griffith's motion for reconsideration.

DISCUSSION

A. Standard for Reconsideration

A court may grant a motion for reconsideration and vacate a final judgment if "'the movant . . . present[s] factual matters or controlling decisions the court overlooked that might materially have influenced its earlier decision . . . [or] demonstrate[s] the need to correct a clear error or prevent manifest injustice.'" Sanluis Devs., L.L.C. v. CCP Sanluis, L.L.C., 556 F. Supp. 2d 329, 331 (S.D.N.Y. 2008) (quoting Griffin Indus. v. Petrojam, Ltd., 72 F. Supp. 2d 365, 368 (S.D.N.Y. 1999)) (other internal quotation marks and citation omitted) (second and third alterations in original); see also Fed. R. Civ. P. 59(e); Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004). B. Transferability of the Petition

A petition for review filed in the appropriate federal court of appeals is the "sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5); see also § 1252(b)(9); Ruiz-Martinez v. Mukasey, 516 F.3d 102, 113 (2d Cir. 2008). When an alien erroneously seeks review of a BIA decision in a district court, the case may be transferred to the appropriate federal court of appeals. Paul v. I.N.S., 348 F.3d 43, 46 (2d Cir. ...


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