Opinion
02 Civ. 8701 (JSM).
July 18, 2003.
Richard Gerard Dade, Pro Se, Attorney for Petitioner.
Megan L. Brackney, Assistant United States Attorney, Attorney for the Government.
OPINION ORDER
Richard Gerard Dade, who pled guilty in the New York State Supreme Court, New York County, to charges of Sodomy in the First Degree, Rape in the First Degree, Sexual Abuse in the First Degree and Endangering the Welfare of a Child and Incest, brings this action pursuant to 28 U.S.C. § 2241 seeking to vacate an order of removal of the Immigration Naturalization Service ("I.N.S."). For the following reasons, the Petition is dismissed.
Although Petitioner claims that he is a national of the United States who cannot be removed, that claim may not be considered by this Court. Under the Immigration and Nationality Act, 8 U.S.C. § 1252(b)(2), (5), that claim must be presented to the Circuit Court of Appeals. See Drozd v. I.N.S., 155 F.3d 85, 91 (2d Cir. 1998).
There is no merit to Petitioner's claim that he is not removable or that he is entitled to discretionary relief. Based on his conviction of rape, Petitioner is subject to removal as an aggravated felon. Mugalli v. Ashcroft, 258 F.3d 52, 54 (2d Cir. 2001). The provisions for discretionary relief from removal were eliminated by the Antiterrorism and Effective Death Penalty Act of 1996, § 440(d), Pub.L. 104-132, 110 Stat. 1214 (Apr. 24, 1996) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 304(a), Pub.L. No. 104-208, 110 Stat. 3009-597 (Sept. 30, 1996). Since Petitioner did not plead guilty to the above charges until after the effective dates of those statutes, he is ineligible for discretionary relief and the fact that his crime occurred prior to the effective date is of no consequence. Dommond v. I.N.S., 244 F.3d 81, 87 (2d Cir. 2001). Nor was Petitioner eligible for cancellation of removal because that relief is only available to those who have "not been convicted of an aggravated felony." 8 U.S.C. § 1229b(a) (3). Similarly, Petitioner's conviction makes him ineligible to adjust his status. 8 U.S.C. § 1182(h). See Martinez v. Ashcroft, 236 F. Supp.2d 360, 363 (S.D.N.Y. 2002).
For the foregoing reasons, the Petition for relief pursuant to 28 U.S.C. § 2241 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21 (1962). The Court determines that the Petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). See Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.