Abimbolav.Ashcroft

United States District Court, E.D. New YorkAug 28, 2002
01 CV 5568 (NG) (E.D.N.Y. Aug. 28, 2002)

01 CV 5568 (NG)

August 28, 2002


ORDER


NINA GERSHON, United States District Judge

Petitioner Rafiu Ajadj Abimbola filed this habeas corpus petition pursuant to 28 U.S.C. § 2241 on August 16, 2001, challenging his final order of removal and his detention by the Immigration and Naturalization Service ("INS") pending the execution of the final order of removal. By order dated February 27, 2002, I granted petitioner's application for a stay pending the resolution of this petition. For the reasons stated below, the petition is denied and the stay is lifted.

Facts

Rafiu Ajadj Abimbola, a native of Nigeria, entered the United States as a visitor on July 3, 1991, and adjusted his status to that of a lawful permanent resident on September 8, 1994. On February 24, 1997, petitioner was convicted pursuant to a guilty plea in the Eastem District of New York of bank fraud in violation of 18 U.S.C. § 1344. He was sentenced to a term of imprisonment of 21 months. On May 7, 1999, petitioner was convicted in Superior Court, Norwalk, Connecticut, of Larceny in the Third Degree in violation of Connecticut General Statutes § 53a-119 and § 53a-124 for a 1995 larceny, and for failure to appear. For these offenses, petitioner was sentenced to a term of imprisonment of 1 year.

As a result of his federal conviction, petitioner was served with a Notice to Appear dated June 15, 1999, charging him with being removable as an alien convicted of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). Subsequently, the Notice to Appear was amended to include the charge that petitioner was removable based on his Connecticut conviction as an alien convicted of an aggravated felony under the same provision. Following the completion of his sentences, petitioner was taken into INS custody in June 2000.

Beginning on July 24, 2000, a series of hearings were held before an Immigration Judge ("IJ") in Oakdale, Louisiana. Petitioner requested a change of venue to New York on the grounds that his witnesses and attorney were in New York. The IJ denied the motion on March 26, 2001. Several adjournments were granted to provide petitioner an opportunity to obtain an attorney. Petitioner retained an attorney, but the attorney withdrew at petitioner's request. During a hearing, it also came to light that petitioner's appeal of his bank fraud conviction in the Eastern District of New York was still pending. The INS withdrew the charge of removability based on that conviction. Petitioner sought relief in the form of asylum, withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention").

By decision dated June 22, 2001, the IJ found petitioner removable. He found petitioner ineligible for asylum, and denied petitioner's request for withholding of removal and relief under the Torture Convention because he did not find petitioner's testimony that he faced persecution credible; and, even if his testimony were credible, the IJ found, any potential persecution petitioner faced would not occur at the instigation of, or with the consent or acquiescence of, public officials, or that the Nigerian government would be unwilling or unable to protect petitioner. On February 12, 2002, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision. The BIA also denied petitioner's motion to remand for further proceedings under former INA § 212(c).

Discussion

1. Petitioner's Challenge to his Final Order of Removal

Petitioner first challenges his final order of removal on the ground that the Connecticut case did not result in a "conviction," and that the crime was not an aggravated felony. The state record indicates that petitioner pled guilty in the Connecticut case, and there is a notation in the state record indicating "Alford," presumably a reference to North Carolina v. Alford, 400 U.S. 25 (1970). The statute defines the term "conviction" as:

(A). . . a formal judgment of guilty of the alien entered by a court or, if adjudication of guilt has been withheld, where —
(i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
(ii) the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed.
8 U.S.C. § 1101(a)(48). The inclusion ofpleas of nolo contendre clearly indicates an intent to include situations, such as this case, where a petitioner pleads guilty but does not expressly admit his guilt. Moreover, Alford recognized that a plea of guilty where a petitioner does not expressly admit his guilt has the same effect as a plea where a petitioner expressly admits his guilty. See Alford, 400 U.S. at 37.

Further, petitioner's conviction was for an aggravated felony. An aggravated felony for purposes of the statute includes, among other things, "a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(G). Contrary to petitioner's contention, this definition encompasses his conviction for larceny in the third degree. See United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) (noting that the legislative history of IIRIRA indicated a clear intent to expand the definition of aggravated felony as applied to theft offenses to bring more convictions within its ambit, and holding that misdemeanor larceny is a theft offense under 8 U.S.C. § 1101(a)(43)(G)), cert. denied, 533 U.S. 904 (2001).

Petitioner, relying on In re Phillips (BIA June 6, 2001), an unpublished decision, argues that, since some acts that constitute larceny under Connecticut General Statutes § 53a-119 do not require an intent to deprive another of property, the INS cannot remove petitioner based on this statute for a theft offense. In re Phillips recognized that, under BIA precedent, the taking of property constitutes a theft offense under 8 U.S.C. § 1101(a)(43)(G) whenever there is a criminal intent to deprive the owner of the rights and benefits of ownership. Id. In re Phillips went on to hold that:

a plain reading of some of [the larceny] statute's sections indicates that neither specific intent nor an intent to meaningfully deprive another of their property are necessarily required for a larceny conviction. For example, Connecticut General Statutes § 53a-119(10) criminalizes the untimely return of a leased or rented car. There is no requirement that the renter failing to return the vehicle do so intentionally. The Connecticut Supreme Court has found that some of the subsections of Connecticut General Statutes § 53a-119 can stand independently of the basic larceny definition set forth in the statute's predicate language and further, that the offenses in the subsections need not include the elements cited in this statute's basic definition. See State v. Gabriel, 192 Conn. 405 (1984); see also State v. Perez, 181 Conn. 299 (1980).

Id.

Petitioner has not shown that the IJ and the BIA erred in declining to follow In re Phillips. Connecticut General Statutes § 53a-119 states as follows:

A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:

(1) Embezzlement. . . .

(2) Obtaining property by false pretenses. . . .

(3) Obtaining property by false promise. . . .

(4) Acquiring property lost, mislaid or delivered by mistake. . . .

(5) Extortion. . . .

(6) Defrauding of public community. . . .

(7) Theft of services

(8) Receiving stolen property. A person is guilty of larceny by receiving stole property if he receives, retains, or disposes of stolen property knowing that it has probably been stolen or believing that it has probably been stolen. . . .

(9) Shoplifting. . . .

(10) Conversion of a motor vehicle. A person is guilty of conversion of a motor vehicle who, after renting or leasing a motor vehicle under an agreement in writing which provides for the return of such vehicle to a particular place at a particular time, fails to return the vehicle to such place within the time specified, and who thereafter fails to return such vehicle to the agreed place or to any other place of business of the lessor within one hundred twenty hours after the lessor shall have sent a written demand to him for the return of the vehicle by registered mail. . .
(11) Obtaining property through fraudulent use of an automated teller machine . . .

(12)Library theft. . . .

(13) Conversion of leased property. . . .

(14) Failure to pay prevailing rate of wages. . . .

(15) Theft of utility service. . . .

Connecticut General Statutes § 53a-119. As the IJ found, "[m]any of the examples given in section 53a-119 are offenses that involve fraud and deceit, but, under Connecticut law, all ofthem constitute theft offenses. Since the Connecticut statute includes an intent to deprive another of property or to appropriate the same to himself or a third person, it defines a theft offense under Board precedent." The BIA affirmed the IJ, s decision, holding that, as an unpublished decision, In re Phillips has no precedential value.

Petitioner's reliance on State v. Gabriel, 192 Conn. 405 (1984) and State v. Perez, 181 Conn. 299 (1980) is misplaced. Gabriel and Perez recognize that the requirement of an intent to deprive another of property does not apply to receiving stolen property, which requires under the statute that the person receive the stolen property knowing or believing that it has probably been stolen. Gabriel, 192 Conn. at 405; Perez, 181 Conn. 299. However, these cases do not support the conclusion that some acts that constitute larceny under Connecticut General Statutes § 53a-119 do not qualify as theft offenses under 8 U.S.C. § 1101(a)(43)(G). That section explicitly recognizes that theft offenses "includ[e] receipt of stolen property." Since petitioner has not pointed to any case law holding that the intent to deprive another of property requirement found in the first sentence of the Connecticut larceny statute does not apply to any other subsections, all the specific examples in the Connecticut larceny statute fall under the INA's definition of theft, either as the taking of property with the intent to deprive the owner of the rights and benefits of ownership or as the receipt of stolen property.

Petitioner next challenges his final order of removal on the ground that the IJ improperly denied his motion to change venue. Venue lies at the Office of the Immigration Judge, where the charging document is filed. 8 C.F.R. § 3.20; Lovell v. INS, 52 F.3d 458, 460 (2d Cir. 1995). The IJ may change venue for "good cause" upon motion by one of the parties. Id. Good cause is determined by weighing such factors as administrative convenience; the alien's residence; the location of witnesses, evidence, and counsel; expeditious treatment of the case; and the cost of transporting witnesses and evidence to a new location. Lovell, 52 F.3d at 460. "A decision regarding venue is discretionary, and is reviewable only for abuse of discretion." Id. Further, since the change of venue regulations do not reflect a fundamental right derived from the Constitution or federal law, an incorrect decision under that regulation entitles a petitioner to a remand only if he can show that it caused him prejudice. Id.

Petitioner argues that venue should have been changed because his attorneys, Sheldon Walker, Esq., and the New York Legal Aid Society, were in New York. However, petitioner's motion for a change of venue reveals that Mr. Walker represented petitioner on an earlier immigration matter. Petitioner submitted no evidence to the IJ, and provides no evidence to this court, that Mr. Walker represented petitioner in the instant matter, or that Mr. Walker was unwilling to represent petitioner in Louisiana or appear telephonically. Petitioner claims that the New York Legal Aid Society, which could not represent petitioner in Louisiana, was assisting him, but the letter petitioner submits in support of this claim clearly indicates that the New York Legal Aid Society did not represent petitioner. The operative factor under Lovell is where a petitioner's counsel is located, not where a potential attorney is located.

Petitioner also argues that venue should have been changed to New York because several witnesses are located in New York. Specifically, petitioner claims that his family, members of the Oodua Peoples Congress ("OPC"), an organization petitioner claims he joined in 1993, and petitioner's family doctor are located in New York. However, petitioner has failed to show that the IJ abused his discretion in concluding that petitioner had failed to show that these witnesses could not provide their testimony telephonically or through affidavits. In his motion to change venue and his habeas corpus petition, petitioner does not indicate that his family was unable to provide testimony telephonically or by affidavits. Likewise, while petitioner claims that his family physician will not give confidential medical information over the telephone, he does not claim that his physician would be unwilling to provide medical information in an affidavit. Further, petitioner submits no evidence in support of his claim that his physician will not give information over the telephone. Petitioner also claims that members of the OPC will not divulge information over the telephone or in an affidavit because of security concerns and because, for "religious reasons," they will not reveal the trauma of torture. Again, petitioner submits no evidence in support of this claim. Nor does he make any showing that presenting live testimony if venue were transferred to New York would be safer, or protect members of OPC from having to reveal the trauma of torture.

Moreover, petitioner has failed to show that the outcome of the hearing would have been different had these witnesses testified because petitioner does not indicate what these witnesses would have testified about, except that the physician would have testified that petitioner had been beaten in Nigeria. However, this testimony would not have changed the outcome of the case because the IJ found that, even if petitioner had been persecuted by the Maitatsine, a radical Muslim group, such potential persecution did not entitle petitioner to withholding of removal under INA § 241(b)(3) or relief under the Torture Convention because petitioner had not shown that the Maitatsine persecution occurred at the instigation or with the consent or acquiescence of public officials, or that the Nigerian government was unwilling or unable to protect petitioner from the Maitatsine. On the contrary, the evidence showed that the Nigerian government banned the Maitatsine movement.

Finally, petitioner challenges his final order of removal on the ground that he is entitled to various forms of discretionary relief. Petitioner's claims that he is entitled to apply for cancellation of removal under INA § 240A, waiver under former INA § 212(c) and INA § 212(h), and relief under the International Covenant for Civil and Political Rights ("ICCPR") 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.2d206, 216 (E.D.N.Y. 1999). In this case, it is undisputed that petitioner did not apply for cancellation of removal under INA § 240A, or waiver under either former INA § 212(c) or ENA § 212(h) before the IJ. 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. Petitioner has made no showing that his failure to exhaust administrative remedies should be excused on any of these grounds. Therefore, petitioner is not entitled to raise any of these claims.

While petitioner has exhausted his claims that he is entitled to withholding of removal under ENA § 241(b)(3) and for relief under the Torture Convention on the ground that the IJ made an erroneous credibility determination, this court may not review the IJ's credibility determination. Each of these claims:

does not raise a statutory or constitutional claim. . . . While review of purely legal issues does not necessitate reconsideration of the agency's factual findings or the Attorney General's exercise of [his] discretion, review on the merits of [petitioner]'s petition would involve precisely such reassessment of evidence. This sort of fact-intensive review is vastly different from what the habeas statute plainly provides: review for statutory or constitutional errors.

Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (citations and quotation omitted), cert. denied, 122 S.Ct. 2624 (2002).

Petitioner also argues that INA § 212(h) denies him equal protection of the laws because disparate treatment between similarly situated individuals, namely LPRs and non-LPRs, is irrational. However, the Court of Appeals for the Second Circuit recently rejected this claim in Jankowski-Burczyk. See Jankowski-Burczyk v. INS, 291 F.3d 172 (2d Cir. 2002). 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.

2. Petitioner's Challenge to his Detention Pending Removal

Under INA § 236(c), 8 U.S.C. § 1226(c)(1), the Attorney General is required to take into custody an alien who is removable because of a conviction of an aggravated felony or a crime involving a controlled substance. The alien 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 statue:

(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 an alien convicted of an aggravated felony or crime 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).

Under ENA § 241(a), the INS may detain an alien for a "reasonable time." Zadvydas v. Davis, 121 S.Ct. 2491, 2495 (2001) (upholding the constitutionality of ENA § 241(a), provided that the detention is for a reasonable time). A detention for six months is presumptively reasonable. See id. at 701. After this six month period, once an alien has provided good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the INS must respond with evidence sufficient to rebut this showing. See id.

In this case, petitioner claims, relying on Rogowski v. Reno, 94 F. Supp.2d 177 (D.Conn. 1999), that he is still under detention pursuant to INA § 236(c), rather than INA § 241(a), and that INA § 236(c) is unconstitutional. In Rogowski, the court held that a constitutional challenge to INA § 236(c) brought by an alien under an administrative final order of removal was not moot because the petitioner was entitled to apply for relief under former INA § 212(c), as well as judicial review of that determination, and the court stayed his removal pending the hearing. Id. at 182. Here, the challenge is moot. Unlike the petitioner in Rogowski, petitioner in this case is under an administrative final order of removal and, for the reasons stated above, he is not entitled to any administrative relief from that order. Since the removal period will begin as of the entry of the order being issued today, any continued detention will be pursuant to INA § 241(a). See 8 U.S.C. § 1231(a)(1)(B); Marnedov v. Reno, 2000 WL 1154329 (S.D.N.Y. 2000) (holding that a constitutional challenge to ENA § 236(c) becomes moot when a final order of removal becomes administratively final). Petitioner claims that his direct appeal of his final order of removal is pending before the Court of Appeals for the Second Circuit, but he does not claim that the Second Circuit has stayed his final order of removal. Therefore, 8 U.S.C. § 1231(a)(1)(B)(ii) does not apply, and petitioner is being detained pursuant to INA § 241(a). See 8 U.S.C. § 1231(a)(1)(B).

Petitioner's detention under INA § 241(a) is constitutional because he has not been detained for an unreasonable time. Petitioner's order of removal became administratively final on February 12, 2002. Fifteen days later, on February 27, 2002, this court stayed his final order of removal. See Copes v. McElroy, 2001 WL 830673 *6 (S.D.N.Y. July 23, 2001) (holding that, since the INS is prevented from effectuating an alien's removal when he is granted a stay on his final order of removal, the time during which a stay is in place is not counted in determining whether the petitioner has been detained for a reasonable time); Lawrence v Reno, 2001 WL 812242 (S.D.N.Y. July 18, 2001) (same).

Conclusion

For the reasons stated above, petitioner's application for a writ of habeas corpus is denied. The February 27, 2002 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.