United States District Court, S.D. New York
March 26, 2015
CESAR AMBERTH, Defendant.
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge.
On March 10, 2015, the Court received a letter motion from defendant Cesar Amberth, who is currently incarcerated, requesting that the Court issue an order granting Amberth immediate deportation. Dkt. 90. For the following reasons, Amberth's motion is denied.
In April 2009, Amberth was sentenced to 135 months' incarceration. Dkt. 58. To date, he has served part of his sentence. Acting pro se, Amberth now requests immediate deportation under 8 U.S.C. § 1252(h)(2)(A), a prior version of a provision now codified at 8 U.S.C. § 1231(a)(4). Dkt. 90. Amberth states that he is a non-violent criminal offender and thus is among the class of individuals eligible to be deported before the completion of their sentence of imprisonment. Id.
Amberth is correct that some individuals may be deported before completing their sentence of imprisonment. However, the Court lacks the power to order that which Amberth seeks. Under 8 U.S.C. § 1231(a)(4), " the Attorney General has the discretion to remove an alien before the alien has completed his sentence of imprisonment, subject to certain conditions. However, § 1231(a)(4)(D) explicitly states that the provision does not create a private right of action against any official of the United States to compel the release or removal of any alien." United States v. Gomez, No. 02 Cr. 790 (JGK), 2008 WL 5062697, at *1 (S.D.N.Y. Nov. 10, 2008) (emphasis added). "Thus, while the statute gives the Attorney General discretion to initiate deportation proceedings for non-violent offenders who are incarcerated, it does not give an incarcerated alien a right to be deported nor any cause of action to require the Attorney General to exercise her discretion." Tapia-Garcia v. United States, 53 F.Supp.2d 370, 386 (S.D.N.Y. 1999). As such, there is "no basis" for the Court to order Amberth's early removal from the United States. Gomez, 2008 WL 5062697, at *1; accord de Jesus Calle v. I.N.S., No. 03 Civ. 5566 (SJ), 2004 WL 825598, at *1 (E.D.N.Y. Apr. 6, 2004) ("Although it is possible that under 8 U.S.C. § 1231(a)(4)(B) an alien could receive early removal prior to the completion of a sentence of imprisonment by decree of the Attorney General, this is a discretionary determination over which the Court has no jurisdiction. There is no private right to compel deportation prior to the completion of a sentence of incarceration.").
However, the Court directs the Government to send Amberth a letter, if it has not yet done so, "explain[ing] the process by which [he] may seek early removal." Gomez, 2008 WL 5062697, at *1.
For the foregoing reasons, Amberth's motion is denied. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 90.