Opinion
03-CV-0308E(F).
February 11, 2005
LUIS BODDEN, Arthurkill Correctional Facility, Staten Island, New York, Pro Se.
MICHAEL A. BATTLE, United States Attorney, GAIL Y. MITCHELL, Assistant United States Attorney, of Counsel, Buffalo, New York, Attorney for Respondents.
REPORT and RECOMMENDATION
JURISDICTION
This case was referred to the undersigned by Honorable John T. Elfvin on August 28, 2003 for all pretrial matters, including a report and recommendation on dispositive motions. The matter is presently before the court on motions to dismiss filed by Respondent on July 22, 2003 (Doc. No. 7).
Although the docket indicates that Petitioner filed a motion to dismiss on August 20, 2003, an examination of the document Petitioner filed on August 20, 2003 (Doc. No. 10), establishes that it is not a separate motion but, rather, a response in opposition to Respondent's motion to dismiss.
BACKGROUND
Petitioner, a native and citizen of the Dominican Republic, commenced this habeas proceeding on April 14, 2003, pursuant to 28 U.S.C. § 2241, challenging a Final Administrative Order of Removal ("Final Removal Order"), issued by the Immigration and Naturalization Service ("INS"), as based on state criminal convictions which were defective. By order of April 21, 2003 (Doc. No. 3), Petitioner was directed to file an amended petition clarifying whether he was challenging his state court criminal convictions pursuant to 28 U.S.C. § 2254, or his pending removal pursuant to 28 U.S.C. § 2241. On May 20, 2003, Petitioner filed an Amended Petition (Doc. No. 4) ("Amended Petition") stating he seeks relief pursuant to 28 U.S.C. § 2241, and does not challenge, in this proceeding, his state court criminal convictions.On July 21, 2003, Respondent filed an Answer and Return (Doc. No. 6), attached to which as Exhibit A is a copy of the Certified Administrative Record pertaining to Petitioner's proceedings before the Immigration Court. On July 22, 2003, Respondent filed a motion to dismiss the petition for lack of jurisdiction and failure to state a claim, and a Memorandum of Law in Support of Motion to Dismiss the Petition (Doc. No. 8) ("Respondent's Memorandum"). On August 20, 2003, Petitioner filed in opposition to Respondent's motion to dismiss an Answer and Return (Doc. No. 10) ("Petitioner's Response"). On September 19, 2003, Respondent filed in further support of the motion to dismiss a Reply Memorandum of Law (Doc. No. 13) ("Respondent's Reply"). Oral argument was deemed unnecessary.
Based on the following, Respondent's motion to dismiss (Doc. No. 10) should be GRANTED and the Amended Petition should be DISMISSED.
FACTS
Taken from the petition, Certified Administrative Record, and motion papers filed in this action.
Petitioner Luis Bodden ("Bodden"), a native and citizen of the Dominican Republic, entered the United States at San Juan, Puerto Rico on September 14, 1989 without submitting to an inspection by an immigration officer. AR 59, 60, 90. Bodden, who was born on December 15, 1964, was 24 years old at the time of entry. AR 4. Since entering the United States, Bodden married Clare Marie Colon, a United States citizen, on February 9, 1996. AR 75, 80, 85. Bodden has three biological children, all born in the United States including a son, born on July 27, 1994, another son born on March 13, 1996, and a daughter born on May 9, 1996. Petition, Exhibit A; AR 72, 85.
References to "AR" are to the pages of the Certified Administrative Record pertaining to Bodden's proceedings before the Immigration Court, a copy of which is attached as Exhibit A to Respondent's Answer and Return (Doc. No. 6).
Bodden's daughter is the daughter of Bodden's wife. AR 72. It is not clear from the record who is the mother of Bodden's sons, although the span of only three months between the birth of Bodden's younger son and Bodden's daughter indicates the children have different mothers.
Bodden maintains he also has two stepchildren who were born in the United States, including a stepdaughter born on May 13, 1988, and a stepson born on December 3, 1991. Petition, Exhibit A. Bodden explains that these two "stepchildren" are the children of one Lisa Hernandez whom Bodden refers to as his "fiancé," Am ended Petition at 2, 3, 4, although the record is devoid of any indication that Bodden ever divorced his wife, Clare. Rather, Bodden alleges in the Amended Petition that his marriage "[h]as not been judicially annulled nor terminated." Amended Petition at 2. Nevertheless, Bodden indicated in an application filed with the INS to adjust his immigration status that he did not plan to practice polygamy in the United States. AR 86.
On December 30, 1997, Bodden filed an application with the INS seeking to adjust his status to that of a lawful permanent resident ("LPR"). AR 79-81, 105-30. Because the INS lost the documentation Bodden submitted in support of his status adjustment application, AR 81, 91, Bodden was never scheduled for a status adjustment interview or an employment authorization appointment. AR 81. On March 13, 2000, Bodden refiled his status adjustment application and supporting documentation. AR 81-92. On July 28, 2000, Bodden's status adjustment application was denied because neither Bodden nor his wife appeared for an interview and no valid explanation for failing to appear was given. AR 95-96. Accordingly, the application was denied for lack of prosecution. AR 96.
Bodden has a history of criminal convictions in New York State Supreme Court, New York County, for narcotics possession. In particular, on March 26, 1991, Bodden was convicted of attempted criminal possession of a controlled substance, cocaine, in the third degree, in violation of New York Penal Law ("N.Y. Penal Law") §§ 110 and 220.16(1) (McKinney 2000), for which Bodden was sentenced to a term of incarceration of 90 days. On June 7, 1991, Bodden was again convicted of attempted criminal possession of a controlled substance, cocaine, in the third degree, in violation of N.Y. Penal Law §§ 110 and 220.16(1), for which Bodden was sentenced to a term of incarceration of nine months. AR 36-43. On October 31, 2000, Bodden was convicted of criminal possession of a controlled substance, cocaine, in violation of N.Y. Penal Law § 220.06(5), a Class D felony, for which Bodden was sentenced to a term of incarceration of two to four years. AR 25, 69. Finally, on March 22, 2001, Bodden was convicted of criminal possession of a controlled substance in the fourth degree, in violation of N.Y. Penal Law § 220.09(1), a Class C felony, for which Bodden was sentenced to a term of incarceration of three to six years. AR 68.
References to N.Y. Penal Law are to McKinney 2000 unless otherwise indicated.
On May 14, 2002, while Bodden, in connection with his criminal convictions, was incarcerated at Gowanda Correctional Facility ("Gowanda") in Gowanda, New York, the INS commenced expedited administrative removal proceedings against Bodden, pursuant to Immigration and Nationality Act ("INA") § 238(b), 8 U.S.C. § 1228(b), by issuing a Notice of Intent to Issue a Final Administrative Removal Order ("Notice of Intent"), charging Bodden with removability as an aggravated felon under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), as defined under INA § 101(a)(43)(b) and (U), 8 U.S.C. § 1101(a)(43), based on Bodden's New York criminal convictions on June 7, 1991 and March 22, 2001. AR 10-11. In particular, the Notice of Intent informed that Bodden was "amenable to expedited administrative removal proceedings" because Bodden is not a citizen or national of the United States, but is a native and citizen of the Dominican Republic who illegally entered the United States and who is neither lawfully admitted for permanent residence in the United States nor, based on his criminal convictions in New York State courts on June 7, 1991 and on March 22, 2001, eligible to adjust his status to LPR. AR 10. The Notice of Intent advised that Bodden has the right to be represented by counsel, to rebut the charges against him and to request an extension of time to rebut the charges. AR 10. The Notice of Intent further advised that Bodden could request withholding or deferral of removal based on fear of persecution or torture upon removal to a specific country, although a grant of such request would not necessarily prevent Bodden's removal to another country other than the country originally specified for removal. AR 10.
On May 14, 2002, Bodden acknowledged receipt of the Notice of Intent, and checked boxes on the acknowledgment form indicating that he (1) admitted all the allegations contained in the Notice of Intent, (2) admitted that he was deportable and not eligible for any relief from removal, (3) waived his right to rebut and contest the charges, (4) waived his right to petition for review of the Final Removal Order, and (5) did not request withholding or deferral of removal. AR 11. Bodden also indicated that he wished to be removed to the Dominican Republic and waived the 14-day period for executing the Final Administrative Order of Removal. AR 11. At no time did Bodden seek representation by counsel in connection with the expedited administrative removal proceedings.
As Bodden did not challenge the charges against him in the Notice of Intent, the INS, pursuant to expedited administrative removal proceedings and without a hearing before an Immigration Judge ("IJ"), issued on May 14, 2002, the Final Removal Order on the basis of Bodden's status as an aggravated felony offender under INA § 238(b), 8 U.S.C. § 1228(b), ordering Bodden removed to Dominican Republic. AR 1. As Bodden was then incarcerated at Gowanda, on May 14, 2002, an INS Immigration Detainer ("the detainer") was lodged against Bodden with the New York Department of Correctional Services ("DOCS") at Gowanda, advising that Bodden's removal from the United States had been ordered and directing DOCS to notify the INS at least 30 days prior to Bodden's scheduled release from Gowanda. AR 2-6.
On February 6, 2003, Bodden and his family filed with the Board of Immigration Appeals ("BIA") an appeal of the Final Removal Order. Petition, Exhibit C. In his appeal, Bodden sought cancellation of removal under 8 U.S.C. § 1229b on the basis that Bodden had continuously resided in the United States for more than 14 years, that his removal would cause extreme hardship to his wife, to whom he was still legally married, as well as to his children and fiancé, all who are United States citizens, and that despite his criminal convictions, which Bodden did not challenge, he has been a person of good moral character. Petition, Exhibit C at 1-3. Bodden also alleged a violation of his constitutional rights because he was not represented by counsel in the expedited administrative removal proceedings. Id. The appeal was rejected for lack of jurisdiction as the BIA "has jurisdiction only when charges of deportability/removal against an individual have been filed with [the Office of the Immigration Judge]." Petition, Exhibit B. As the Final Removal Order issued with regard to Bodden was generated by the INS agency, the BIA was without jurisdiction over it. Petition, Exhibit B.
The exhibits attached to the original Petition (Doc. No. 1) are not attached to the Amended Petition Bodden filed on May 20, 2003 (Doc. No. 4).
Bodden, who remains in the custody of DOCS, is incarcerated at Gowanda in connection with his criminal convictions and his earliest release date from DOCS custody is January 8, 2006. AR 5.
DISCUSSION
Bodden challenges the Final Removal Order on the basis that his removal would result in extreme hardship to his three biological children, his two "stepchildren," his wife and his fiancé. Amended Petition at 2-4. Respondent seeks to dismiss the Amended Petition for lack of jurisdiction on the basis that Bodden did not exhaust administrative remedies, Respondent's Memorandum at 7-13; and for failure to state a claim on the basis that Bodden, based on his state criminal convictions, is considered an aggravated felon for whom no relief from removal is available under the INA. Id. at 14-19. Respondent further maintains that Bodden's assertion that the removal order is premature until he has collaterally attacked the state criminal convictions on which his aggravated felon status is based is without merit. Id. at 19-20.
1. Jurisdiction over the Amended Petition
The court initially addresses whether it has jurisdiction to entertain Bodden's Amended Petition before reaching its merits. A district court is authorized pursuant to 28 U.S.C. § 2241 ("§ 2241") to grant a writ of habeas corpus whenever a petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." See Sol v. Immigration and Naturalization Service, 274 F.3d 648, 651 (2d Cir. 2001) ("A petition for habeas corpus may be used to challenge incarceration or orders of deportation as being `in violation of the Constitution or laws or treaties of the United States.'") (quoting 28 U.S.C. § 2241(c)(3)), cert. denied, 536 U.S. 941 (2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009 (1996), have limited the district court's jurisdiction in matters of immigration. Nevertheless, the Supreme Court has held that an alien detained in administrative custody pursuant to a removal order may obtain review of that order in district court pursuant to § 2241. INS v. St. Cyr, 533 U.S. 289, 308-09 (2001). Further, the Second Circuit has held that habeas review is available under § 2241 for "claims of erroneous application or interpretation of statutes." Wang v. Ashcroft, 320 F.3d 130, 143 (2d Cir. 2003) (italics in original). Nevertheless, "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Sol, supra, at 651.
In the instant case, Bodden's present incarceration in Gowanda pursuant to a state court criminal conviction renders Bodden in the custody of DOCS. Significantly, 28 U.S.C. § 2241(c)(2), permits a district court to entertain a petition for habeas relief only where the petitioner is in custody for "an act done or omitted" under an order of a federal court. Further, the writ acts upon the person who holds the prisoner in the alleged unlawful custody, and not upon the prisoner who seeks relief. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95 (1973). Nevertheless, the Second Circuit has held that where, as here, an alien is in DOCS custody, and is also subject to a detainer lodged by the INS, as well as a Final Removal Order, the alien is also in INS custody for purposes of § 2241. Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003). Specifically, the "final order of removal is sufficient, by itself, to establish the requisite custody." Id. at 354.
In contrast, courts have held that the filing with state prison officials of an INS detainer against an alien who serving a term of incarceration for a state criminal conviction, but as to whom no final order of removal exists, does not create custody in the INS. See Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 540-41 (5th Cir. 2003) (holding that unless the INS has "actually ordered" an alien's deportation, the sole existence of an immigration detainer does not create custody in the INS, and observing such conclusion was consistent with the majority of circuits).
In Simmonds, the INS commenced removal proceedings against an alien who was serving an indeterminate life sentence in a New York correctional facility relative to his conviction of an aggravated felon. Simmonds, supra, at 352. Following administrative proceedings before an Immigration Judge ("IJ"), the alien was found removable as well as ineligible for cancellation of removal or other discretionary relief from removal based on the alien's status as an aggravated felon. Id. A final order of removal was issued as to the alien after his appeal to the Board of Immigration Appeals ("the BIA") was dismissed, and the INS then filed a detainer with DOCS officials directing DOCS to contact the INS upon the alien's release from DOCS custody. Id. Prior to being released from DOCS custody, the alien filed a petition seeking relief pursuant to 28 U.S.C. § 2241 attacking a final order of removal which, but for a favorable result in the habeas proceeding, would result in the alien's detention and ultimate removal by the INS. Simmonds, supra, at 352-53. The Second Circuit held that although the alien was not yet in the physical custody of the INS, the INS nevertheless had constructive custody over the alien based on both the detainer lodged with DOCS and the final order of removal. Id. at 356.
The jurisdictional inquiry, however, does not end with the determination that an alien is in the custody of the INS; rather, for jurisdiction to lie, the claims contained in the petition must also be ripe. Simmonds, supra, at 356-57. Ripeness concerns whether a case has been brought prematurely and consists of "two overlapping threshold criteria for the exercise of a federal court's jurisdiction," i.e., constitutional ripeness and prudential ripeness. Id. (citing cases). Constitutional ripeness "prevents the court from declaring the meaning of the law in a vacuum and from construction generalized legal rules unless the resolution of an actual dispute requires it," whereas when a court exercises prudential ripeness "it means that the case will be better decided later and that the parties will not have constitutional rights undermined by the delay." Id. (italics in original).
In Simmonds, supra, the Second Circuit found that although the alien was in the custody of the INS for jurisdictional purposes, the petition's claims were not ripe for review. In particular, the court determined that the petition's claims presented a live case or controversy, i.e., that the alien would sustain immediate injury that would be redressed by the relief requested from the court, but that it would, nevertheless, be imprudent for the court to consider the petition at that time because the issues would be "be better resolved at a time closer to [the alien's] parole." Simmonds, supra, at 358-59. According to the Second Circuit, the claims were not prudentially ripe as such claims could be rendered moot if the alien is never granted parole thereby precluding, as a matter of comity, execution of the final order of removal, or the correct resolution of the claims may depend on whether and how the relevant law is amended in the future, before the alien was released on parole, especially given that "the laws dealing with immigration, removal, and the rights of aliens have been especially changeable in recent years." Id. at 359-60. As such, the court declined to exercise jurisdiction over the petition and dismissed it without prejudice.
In the instant case, the court has jurisdiction over Bodden's Amended Petition as Bodden is subject to the Final Removal Order which is, without more, sufficient to create custody in the INS. Simmonds, supra, at 354. The claims presented in the Amended Petition are also both constitutionally and prudentially ripe for consideration. In particular, the claims are constitutionally ripe insofar as Bodden attacks the Final Removal Order "which, but for a favorable result in a habeas corpus proceeding, will result in his detention and ultimate deportation by the INS." Simmonds, supra, at 358. Furthermore, Bodden's claims are also prudentially ripe as Bodden is eligible for release from the custody of DOCS, which would allow the Final Removal Order to be executed, in less than one year on January 8, 2006, AR 5, and there is no proposed legislation pending which, if enacted, would grant Bodden relief from removal. Thus, the uncertainty surrounding the alien's release from DOCS's custody and change in relevant law that operated to render judicially imprudent the court's consideration of the petition in Simmonds, supra, is not present in this case.
The court's research shows there is pending before Congress proposed legislation which would permit granting discretionary relief from removal, including cancellation of removal, for long-term aliens who have been convicted of certain crimes, including nonviolent aggravated felonies. See, e.g., H.R. Res. 2585, 108th Cong. (2003) (proposing discretionary cancellation of removal for any alien convicted of nonviolent aggravated felonies "for which the alien was sentenced to serve, in the aggregate, a term of imprisonment of 4 years of less, but for neither of which the alien was actually incarcerated"); H.R. Res. 1485 106th Cong. (1999) (proposing discretionary cancellation of removal for any alien who has continuously resided in the United States for seven years after having been admitted in any status, and who has not been convicted of aggravated felonies for which the midpoint of the indeterminate sentences imposed is, in the aggregate, five years or more). Under neither legislative proposal, however, would Bodden be eligible to obtain such discretionary relief from removal.
Nor is there any merit to Bodden's assertion that the Final Removal Order is premature while a collateral attack against his state criminal convictions on which his aggravated felon status is based is pending in state court. Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991) (criminal drug trafficking conviction considered final and basis for deportation once direct appellate review is complete, regardless of whether conviction is collaterally challenged). Accordingly, a pending collateral challenge to one of Bodden's criminal convictions does not render Bodden's Final Removal Order premature.
Bodden has not specified what collateral challenge is pending in state court.
Accordingly, the court has jurisdiction over the Amended Petition.
2. Failure to Exhaust Administrative Remedies
Although the court has jurisdiction over Bodden's Amended Petition seeking habeas relief, the court's jurisdiction is limited to only those claims within the Amended Petition that were exhausted. Specifically, by its plain language, 8 U.S.C. § 1252(d) ("§ 1252(d)") mandates that "a court may review a final order of removal" only if a petitioner "has exhausted all administrative remedies available." Theodoropoulos v. Immigration and Naturalization Service, 358 F.3d 162, 171 (2d Cir. 2004) (quoting § 1252(d)). "Exhaustion of administrative remedies serves numerous purposes, including protecting the authority of administrative agencies, limiting interference in agency affairs, and promoting judicial efficiency by resolving potential issues and developing the factual record." Beharry v. Ashcroft, 329 F.3d 51, 56 (2d Cir. 2003). Further, § 1252(d)'s exhaustion requirement "applies to all forms of review, including habeas corpus." Theodoropoulos, supra, at 171.
In the instant case, Bodden alleges that his Fifth Amendment rights to due process were violated when he was denied legal representation in connection with the expedited administrative removal proceedings, Petitioner's Response at 1-2, and was denied the right to a hearing to rebut the charges against him, Amended Petition at 1-4; Petitioner's Response at 2-10, and also challenges the "retroactive" application of IIRIRA and AEDPA to bar Bodden's claims for relief from removal as unconstitutional, Amended Petition at 3; Petitioner's Response at 2-10. "The requirements of procedural due process apply only to the deprivation of interest encompassed within the Fifth Amendment's protection of life, liberty and property." Rojas-Reyes v. Immigration and Naturalization Service, 235 F.3d 115, 124 (2d Cir. 2000) (citing Board of Regents v. Roth, 408 U.S. 564, 569 (1972)). When such protected interests are at issue, "the right to a hearing is paramount." Id. In immigration cases, however, "the Due Process Clause requires only that an alien receive notice and a fair hearing where the INS must prove by `clear, unequivocal, and convincing' evidence that the alien is subject to deportation." Id. (quoting Woodby v. INS, 385 U.S. 276, 286 (1966)). In the instant case, the record establishes that Bodden was offered, but waived his right to a hearing.
In particular, on the form on which Bodden acknowledged receipt of the Notice of Intent, Bodden checked a box indicating he waived his "right to rebut and contest the above charges and [his] right to file a petition for review of the Final Removal Order," as Bodden "d[id] not wish to request withholding or deferral of removal." AR 11. Further, Bodden does not deny that he has failed to exhaust administrative remedies as to his claims, and provides no reason for such failure, nor does he maintain that an appeal to the BIA for review of the Final Removal Order would have been futile.
The Second Circuit has held that an alien may waive his right to appeal by unambiguously indicating his intention not to seek review of a Final Removal Order. See Theodoropoulos, supra, at 169 (holding that alien's unambiguous response to IJ's query as to whether alien wished to appeal IJ's decision that alien was ineligible for statutory relief from removal, i.e., "No, Your Honor, I want to be removed as soon as possible to my country," constituted waiver of right to appeal final removal order). Moreover, the Second Circuit considers an alien's waiver of his right to appeal to the BIA as a failure to exhaust administrative remedies. Theodoropoulos, supra, (citing 8 C.F.R. § 3.38 (West 1999) ("A Notice of Appeal . . . may not be filed by any party who has waived appeal")). Although Bodden's waiver of his right to appeal the Final Removal Order to the BIA was made in writing, rather than verbally as in Theodoropoulos, supra, Bodden does not assert that he did not understand the acknowledgment form or that he was in any way coerced to sign the form such that the waiver was not voluntary. See United States v. Rangel De Aguilar, 308 F.3d 1134, 1139 (10th Cir. 2002) (alien without basis for collaterally attacking expedited administrative removal proceedings absent evidence that alien was coerced into waiving rights to rebut and contest charges on which removal proceedings were predicated, or to judicial review of final order of removal, or that alien did not understand nature of charges and rights available), cert. denied, 537 U.S. 1241 (2003). As such, that Bodden failed to exhaust administrative remedies as to his claims cannot be disputed.
Moreover, an alien's waiver of his right to appeal to the BIA is considered a failure to exhaust administrative remedies unless the failure to exhaust occurs amid limited circumstances in which the Second Circuit has recognized that exhaustion may not be required. Theodoropoulos, supra, at 169, 172-73. As such, exhaustion of administrative remedies may not be required where exhaustion of the relevant administrative review process would be futile because the relevant administrative procedure cannot provide the relief sought. Id. For example, a challenge to the constitutionality of a particular statute need not be posed to an administrative agency, although an agency's interpretation of that same statute is subject to the administrative exhaustion requirement. Id. at 172 (citing cases).
Here, insofar as Bodden's first two challenges, including that his Fifth Amendment right to due process was violated by the denial of legal representation and the opportunity to rebut the charges against him in connection with the expedited administrative removal process, can be interpreted as challenging the constitutionality of the expedited administrative removal proceedings, the constitutionality of such proceedings in the context of Fifth Amendment due process has already been upheld. Rangel De Aguilar, supra, at 1137-38 (holding alien's expedited administrative removal proceedings, in which alien was not represented by counsel and no audible record was made of alien's waiver of right to contest charges, was not fundamentally unfair in violation of alien's Fifth Amendment due process rights); United States v. Benitez-Villafuerte, 186 F.3d 651, 657-58 (5th Cir. 1999) ("Clearly the expedited statutory deportation scheme comports with the minimum requirements of due process pronounced by the Supreme Court"), cert. denied, 528 U.S. 1097 (2000). Bodden's waiver of his right to petition the BIA for review of the Final Removal Order under the expedited administrative removal proceedings thus did not violate Bodden's Fifth Amendment right to due process. See Benitez-Villafuerte, supra, at 657-58. Accordingly, there is no merit to Bodden's due process claims based on the alleged denial of legal representation and the right to contest the charges, regardless of exhaustion of such claims is required.
Furthermore, although the retroactive application of IIRIRA and AEDPA has been held unconstitutional, see Restrepo v. McElroy, 369 F.3d 627, 631-39 (2d Cir. 2004) (observing that retroactive application of IIRIRA and AEDPA may, under certain circumstances, be unconstitutional and citing cases), as discussed, infra, at 18-19, no such retroactive application occurred with regard to Bodden.
3. Failure to State a Claim
The only claim before the court is Bodden's assertion that the IIRIRA and the AEDPA were unconstitutionally retroactively applied to render Bodden ineligible for discretionary relief from removal. Bodden essentially claims that he was denied legal representation in connection with the expedited administrative removal proceedings and, thus, was deprived of the opportunity to present his argument that his removal will cause extreme hardship to his family members, including his wife, three biological children, his fiancé, and two stepchildren, all who are United States citizens. Amended Petition, passim. Bodden further maintains that he was denied equal protection and due process by the retroactive application of immigration laws under which Bodden is not eligible for discretionary relief from removal. Petitioner's Response, passim. There is no merit to Bodden's claims.
First, Bodden, by waiving his right to a hearing before an IJ as well as to an appeal, Bodden also waived his right to apply for discretionary relief from removal. However, even if Bodden had not so waived, or if such waiver were constitutionally infirm, the record conclusively establishes Bodden is ineligible for such relief. Accordingly, there is no merit to Bodden's allegation that he was denied due process or equal protection because he did not have legal representation and, thus, was denied the opportunity to make an argument for cancellation of removal.
Specifically, prior to its repeal in 1996, INA § 212(c), formerly codified at 8 U.S.C. § 1182(c), gave the Attorney General discretion to waive deportation under certain conditions for lawfully admitted permanent residents. In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, § 440(d) of which limited eligibility for such relief under § 212(c). Later in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(b) of which repealed § 212(c) altogether. IIRIRA replaced the discretionary relief of "suspension of deportation" previously available under INS § 212(c) with a new form of discretionary relief called "cancellation of removal," which allows the Attorney General to cancel removal proceedings for certain resident aliens, 8 U.S.C. § 1229b, excluding those convicted of an aggravated felon. 8 U.S.C. § 1252(a)(2)(C). The eligibility standards that must be met to obtain "cancellation of removal" are more strict than the eligibility standards required to "suspend deportation." In particular, the requisites for cancellation of removal include a longer period of residence in the United States, ten years, than the seven years required under the former suspension of deportation statute, 8 U.S.C. § 1254(a)(1) (" 8 U.S.C. § 1254(a)(1)"). See 8 U.S.C. § 1229b(d)(1), INA § 240A(d)(1) (" 8 U.S.C. § 1229b(d)(1)").
Prior to the enactment of IIRIRA, the INA provided that a noncriminal alien who was found deportable could apply for suspension of deportation pursuant to former 8 U.S.C. § 1254, INA § 244. Specifically, the IJ had discretion to suspend deportation if the applicant demonstrated "(1) continuous physical presence in the United States for seven years preceding the application; (2) `good moral character'; and (3) that the applicant's deportation would, in the opinion of the United States Attorney General, cause `extreme hardship' to the applicant or to a United States citizen or lawful resident spouse, parent, or child of the applicant." Rojas-Reyes, supra, at 120 (citing 8 U.S.C. § 1254(a)(1)).
As relevant, 8 U.S.C. § 1252(a)(2)(C) provides that
[n]otwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [INA] section 212(a)(2) or 237(a)(2)(A)(iii). . . .8 U.S.C. § 1252(a)(2)(C) (bracketed material added).
Further, INA § 237(a)(2)(A)(iii), codified at 8 U.S.C. § 1227(a)(2)(A)(iii), provides that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable."
The repeal of § 212(c), however, cannot be retroactively applied to aliens who pleaded guilty to felonies prior to the effective date of IIRIRA. INS v. St. Cyr, 533 U.S. 289, 322-24 (2001). Although Bodden's June 7, 1991 conviction, which was obtained by plea, occurred prior to the enactment of IIRIRA, Bodden's other conviction on which the Final Removal Order is predicated occurred on March 22, 2001, after IIRIRA's enactment. As 8 U.S.C. § 1252(a)(2)(C) renders an alien ineligible for discretionary relief from removal based on only one such conviction, the March 22, 2001 conviction, which Bodden has not alleged as wrongly reported in the record, is a sufficient basis for the Final Removal Order. Discretionary relief under § 212(c) was, thus, never available to Bodden insofar as the Final Removal Order is based on the March 22, 2001 conviction. See Mohammed v. Reno, 309 F.3d 95, 103 (2d Cir. 2002) (noting that St. Cyr is inapplicable where the alien "was convicted after section 212(c) relief became unavailable").
Further, Bodden's March 22, 2001 conviction was for criminal possession of a controlled substance in violation of N.Y. Penal Law § 220.09(1) which qualifies as an "aggravated felony," as that term is defined under federal law. See 8 U.S.C. § 1101(a)(43)(B); see United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir. 1999) (observing that whether in violation of federal or state law, the illicit trafficking in a controlled substance, including drug trafficking crimes, constitutes an aggravated felony as described in 8 U.S.C. § 1101(a)(43)(B)). Bodden does not argue otherwise. Accordingly, as neither the ADEPA or IIRIRA was unconstitutionally applied to Bodden based on his conviction of an aggravated felony that occurred prior to 1996, Bodden's argument that such laws were unlawfully retroactively applied to him is without merit.
CONCLUSION
Based on the foregoing, Respondent's motion to dismiss (Doc. No. 7) should be GRANTED, and the Amended Petition should be DISMISSED. Further, as the court finds there is no substantial question presented for appellate review, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2) (1996).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Petitioner and the Respondent.
SO ORDERED.