Summary
Noting that Criminal Sale of Marijuana in the Fourth Degree is "clearly a drug offense for which petitioner is removable under 8 U.S.C. § 1227(B)."
Summary of this case from Copeland v. AshcroftOpinion
01 CV 7821 (NG)
August 28, 2002
ORDER
Petitioner Bevis Yakubu Scipio filed this habeas corpus petition pursuant to 28 U.S.C. § 2241 on November 20, 2001, requesting a stay of removal pending the resolution of this petition, and challenging his detention by the Immigration and Naturalization Service ("INS") and his final order of removal. By order dated November 28, 2001, I granted petitioner's application for a stay pending the resolution of this habeas corpus. For the reasons stated below, the petition is denied and the stay is lifted.
Facts
Bevis Yakubu Scipio, a native of Guyana, was admitted to the United States as a lawful permanent resident ("LPR") on February 18, 1989. Petitioner is a resident of the Eastern District of New York. On March 6, 2001, petitioner was convicted after a plea of guilty in the New York State Supreme Court, Kings County, of criminal sale of marijuana in the fourth degree in violation of N.Y. Penal Law § 221.40. Petitioner was sentenced to incarceration for 45 days. Following completion of his sentence, petitioner was taken into INS custody on March 31, 2001. Petitioner was served with a Notice to Appear on April 10, 2001, charging petitioner with being removable from the United States as an alien convicted of an aggravated felony and a drug-related offense pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and 8 U.S.C. § 1227(a)(2)(B)(i), respectively.
On August 14, 2001, an Immigration Judge ("IJ") found petitioner removable after several hearings. At the hearings, petitioner did not request any form of relief from removal. Petitioner waived his appeal, and his order became administratively final. See 8 C.F.R. § 3.38(b) (appeal must be taken within 30 days); 8 C.F.R. § 3.39 (decision of an IJ becomes final upon waiver of appeal or expiration of the time to appeal). Following the entry of a final order of removal, petitioner was provided with the opportunity to show that he should be released on supervision and/or bond pending his removal pursuant to 8 U.S.C. § 1231(a) on the ground that he was not a danger to the community or a risk of flight. On September 27, 2001, the INS found that he was not entitled to be released pending his removal.
Discussion
1. Petitioner's Challenge to his Final Order of Removal:
Petitioner challenges his final order of removal on the ground that he was denied equal protection of the law under the Due Process Clause of the Fifth Amendment by INA § 212(h), that he was not convicted of an aggravated felony, and that he is entitled to apply for discretionary relief under former ENA § 212(c) and INA § 212(h). All of these claims, except his equal protection claim, are unexhausted. "A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d); Rhoden V. Reno, 2001 WL 224073 (2d Cir. 2001); Maria v. McElroy, 68 F. Supp.2d 206, 216 (E.D.N.Y. 1999). Exhaustion of administrative remedies is excused where 1) available remedies provide no genuine opportunity for adequate relief 2) irreparable injury may occur without immediate judicial relief; 3) administrative appeal would be futile; and 4) in certain instances a plaintiff has raised a substantial constitutional question which could not be resolved through the administrative process. See Howell v. INS, 72 F.3d 288, (2d Cir. 1995); Maria, 68 F. Supp.2d at 216.
In this case, it is undisputed that petitioner did not apply for waiver under either former INA § 212(c) or INA § 212(h) before the IJ, and he waived appeal of the IJ's decision. Further, petitioner makes no showing that his failure to exhaust these claims should be excused. Therefore, petitioner may not claim that he is entitled to apply for discretionary relief under former INA § 212(c) and INA § 212(h), and that he was not convicted of an aggravated felony because he has not exhausted these claims.
In contrast, petitioner is entitled to raise an equal protection challenge to INA § 212(h) because he raises a constitutional issue for which administrative remedies offer no adequate relief and which would be futile to raise before the IJ or the Board of Immigration Appeals ("BIA"). See Jankowski V. INS, 138 F. Supp.2d 269, 276 (D.Conn. 2001), reversed on other grounds, 291 F.3d 172 (2d Cir. 2002).
However, this claim lacks merit. INA § 212(h) provides as follows:
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) of this section and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if —
(B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship to the United States citizen or lawfully resident spouse, parent, son, or daughter of such alien.
No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal activity involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture. No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony..8 U.S.C. § 1182(h). Under this statute, as interpreted by the BIA, an LPR who has been convicted of an aggravated felony is categorically ineligible for relief; even if a citizen or LPR family members would suffer an extreme hardship, but a non-LPR who has committed the same aggravated felony may apply for relief under 8 U.S.C. § 1182(h). See Jankowski-Burczyk, 291 F.3d at 175.
Petitioner argues that this denies him equal protection of the law because this disparate treatment between similarly situated individuals is irrational. However, the Court of Appeals for the Second Circuit recently rejected this claim in Jankowski-Burczyk. See id. The Court of Appeals held that:
when a legislative body has made a classification within a given statutory scheme as a whole, we will not subject every subsection and every amendment of every subsection to rational-basis scrutiny. The INA in particular merits such deference. Over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens. Therefore, since the INA creates separate classifications for LPRs and non-LPRs, and treats each class differently throughout, LPRs and non-LPRs are not similarly situated, and different treatment of them by Congress does not violate the equal protection component of the Due Process Clause.
Id. at 177-78. The Court of Appeals went on to hold that, even if LPRs and non-LPRs are similarly situated, the different treatment under INA § 212(h) is rationally related to legitimate government purposes. See id. at 177-179.
Even if the other challenges petitioner raises to his final order of removal had been exhausted, these claims also lack merit. Petitioner's claim that he was entitled to relief under INA § 212(h) lacks merit because, an LPR who is under a final order of removal for a drug related offense is entitled to relief under INA § 212(h) only if his conviction relates to a single offense of simple possession of 30 grams or less of marijuana. See 8 U.S.C. § 1182(h); Jankowski, 138 F. Supp.2d at 273. In this case, petitioner was convicted of selling marijuana.
In his response to the government's opposition to his petition, petitioner argues that he is also entitled to an adjustment of status under INA § 245. This claim is unexhausted because petitioner did not present it to the IJ, and waived appeal of the IJ's decision. Petitioner has not shown that this failure to raise the claim should be excused. Additionally, this court cannot address the merits of the claim because it was not raised in the petition for a writ of habeas corpus; petitioner raised the claim for the first time in his reply papers, so the government has not had an opportunity to address the merits of the claim.
Petitioner relies on Steele v. Blackman, 236 F.3d 130 (3rd Cir. 2001), in support of his claim that he is not removable because he did not commit an aggravated felony. However, Steele did not address the issue of whether an LPR was removable under 8 U.S.C. § 1227; rather, the court in Steele held that an LPR who had been convicted of criminal sale of marijuana in the fourth degree under New York law, was entitled to apply for "cancellation of removal" under 8 U.S.C. § 1229b, which permits the Attorney General to cancel removal of an LPR who has been found removable under 8 U.S.C. § 1227 if he meets certain qualifications, including not having been convicted of an aggravated felony, because criminal sale of marijuana in the fourth degree is not a felony under New York law. See id. In any event, whether or not sale of marijuana in the fourth degree is an "aggravated felony" for purposes of the statute, it is clearly a drug offense for which petitioner is removable under 8 U.S.C. § 1227(a)(2)(B)(i).
Nor does petitioner's claim that he is entitled to apply for relief under old INA § 212(c) have merit. Prior to the enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 et seq. (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 et seq. (1996). the Attorney General had discretion to waive removal of aliens who met certain qualifications. See 8 U.S.C. § 1182(c) (1994); St. Cyr v. INS, 533 U.S. 289, 294-97 (2001). In 1996. AEDPA § 440(d) altered the eligibility requirements for applying for relief under INA § 212(c), and later that year, IIRIRA § 304 eliminated INA § 212(c) altogether. See Id. at 297. The Supreme Court has held that an LPR under a final order of removal has the right to apply for relief under former INA § 212(c) if he would have been entitled to apply for relief under former INA § 212(c) at the time he pled guilty to the crime for which he is being removed. See id. at 326. However, since it is undisputed in this case that petitioner pled guilty to the crime for which he is being removed on March 6, 2001, well after the enactment of AEDPA and IIRIRA, petitioner is not entitled to apply for relief under former INA § 212(c). See Domond v. INS, 244 F.3d 81, 85-86 (2d Cir. 2001) (holding that an LPR under final order of removal is not entitled to apply for relief under former INA § 212(c) if he plead guilty to the crime for which he is being removed after the enactment of AEDPA and IIRIRA, even if he committed the crime prior to the enactment of AEDPA and IIRIRA).
2. Petitioner's Challenge to his Detention Pending Removal:
Under INA § 236(c), 8 U.S.C. § 122(c)(1), the Attorney General is required to take into custody an LPR who is removable because of a conviction of an aggravated felony or a crime involving a controlled substance. The LPR may be released only if
that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding.8 U.S.C. § 1226(c)(2).
Once an alien is ordered removed, the Attorney General has 90 days, known as the removal period, in which to remove the alien. 8 U.S.C. § 1231(a)(1)(A). According to the statute:
(B) The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement).8 U.S.C. § 1231(a)(1)(B). Once the removal period begins, an alien's detention is governed by INA § 241(a), 8 U.S.C. § 1231(a). Under INA § 241(a), the Attorney General must detain aliens convicted of aggravated felonies and crimes involving controlled substances. 8 U.S.C. § 1231(a)(2). If the Attorney General has not effected removal within the removal period, and an alien has been convicted of an aggravated felony or a crime involving a controlled substance or the Attorney General determines that the alien is a risk to the community or unlikely to comply with an order of removal, the Attorney General may either continue to detain the alien or release the alien subject to supervision. 8 U.S.C. § 1231(a)(6).
In this case, petitioner claims that he is still under detention pursuant to INA § 236(c), rather than INA § 241(a), because the court has not issued a final order, and that INA § 236(c) is unconstitutional under the Due Process Clause of the Fifth Amendment both on its face and as applied to him because it permits detention without making an individualized determination whether petitioner is a risk to the community or likely to comply with an order of removal. Compare Rogowski v. Reno, 94 F. Supp.2d 177 (D.Conn. 1999) (holding that an alien who is under a final order of removal but is entitled to apply for relief pursuant to § 212(c) is detained under INA § 236(c), not INA § 241(a), and that INA § 236(c) is unconstitutional because it permits an alien to be held indefinitely without an opportunity to be heard regarding bail) with Avramenkov v. INS, 99 F. Supp.2d 210 (D. Conn. 2000) (distinguishing Rogowski and holding that INA § 236(c) is constitutional when applied to an alien under a final order of removal who is not entitled to relief under INA § 212(c)). This court need not address whether petitioner is detained under INA § 236(c) or INA § 241(a), or whether INA § 236(c) is unconstitutional, because, since petitioner already has received all the relief to which he claims he is entitled, petitioner's constitutional challenge is moot. Pursuant to 8 U.S.C. § 1231(a)(6), respondent has provided petitioner with an opportunity to show that he is not a risk to the community and that he is likely to comply with an order of removal, and has made an individualized determination that petitioner failed to make such a showing. Petitioner relies on Rogowski, 94 F. Supp. at 182, which held that a constitutional challenge to INA § 263(c) by an alien under a final order of removal was not moot, but in Rogowski, unlike in the present case, the petitioner had not received an individualized hearing regarding his bail. See id. at 217.
Conclusion
For the reasons stated above, petitioner's application for a writ of habeas corpus is denied. The November 28, 2001 stay of removal pending the resolution of this habeas corpus petition is lifted.
As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.
SO ORDERED.