Opinion
No. 99-C V-4738
September 11, 2002
ORDER
Landel Uwin Inico has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the refusal of the Board of Immigration Appeals ("BIA") to grant him relief from deportation. The petition is denied because this court lacks jurisdiction to review the BIA's decision and because, in any event, petitioner is ineligible for an adjustment of immigration status or for a waiver of inadmissibility.
Inico, a Jamaican citizen, entered the United States on December 8, 1978. He remained in the country past his authorized stay and was placed into deportation proceedings in October 1981. Earlier that year, on April 8, petitioner had been convicted of grand larceny in the second degree (N.Y. Penal Law § 155.40). On May 24, 1989, petitioner was granted permission to leave the United States voluntarily by March 1 (later extended to October 31), 1990. Petitioner departed but sometime afterward unlawfully re-entered the country. On November 3, 1993, he was convicted of conspiracy to counterfeit obligations of the United States and of counterfeiting obligations of the United States ( 18 U.S.C. § 371, 471), for which he served 24 months in prison. Petitioner, whose wife and two children are all United States citizens, was issued warrants for deportation in 1993, 1995 and 1999 but did not surrender.
The BIA found that the Immigration Judge had properly determined the conviction of counterfeiting obligations of the United States was an aggravated felony because petitioner received a 27-month prison sentence for that offense. See 8 U.S.C. § 1 101(a)(43)(R).
On August 2, 1995, petitioner was charged with deportability under the Immigration and Nationality Act ("INA") for having been convicted of a crime of moral turpitude ( 8 U.S.C. § 1251 (a)(2)(A)(i) (1995)) and of an aggravated felony ( 8 U.S.C. § 1251 (a)(2)(A)(iii) (1995)). He applied for an adjustment of immigration status under § 245(a) of the INA and requested a waiver of inadmissibility under § 212(h) (codified then, as now, at 8 U.S.C. § 1255 and 1182(h), respectively). On June 26, 1998, an Immigration Judge ("IJ") found petitioner deportable under both charges but granted the status adjustment and the waiver. The INS appealed, and on July 16, 1999, the BIA vacated the IJ's decision and ordered petitioner deported, holding that he had failed to demonstrate "extreme hardship" to a qualifying family member and was thus ineligible for § 212(h) relief, and that petitioner, as an alien convicted of a crime of moral turpitude, was inadmissible to the United States and was therefore precluded from an adjustment of status. Inico argues that the BIA's decision was arbitrary, capricious and an abuse of discretion, and that the BIA "applied an incorrect legal standard" and improperly refused to defer to the IJ's ability to assess first-hand the credibility of the witnesses who testified on petitioner's behalf.
These provisions are now at 8 U.S.C. § 1227 (a)(2)(A)(i) and 1227(a)(2)(A)(iii), respectively.
"[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and the BIA." Sol v. Immigration Naturalization Service, 274 F.3d 648, 651 (2d Cir. 2001), cert. denied, 122 S.Ct. 2624 (2002). Immigration status adjustment is one such discretionary decision. Jain v. INS, 612 F.2d 683, 687 (2d Cir. 1979), cert. denied, 446 U.S. 937 (1980); see also Batista v. US INS, No. 99 Civ. 2847, 2000 WL 204535, at *3 (S.D.N.Y. 2000) ("Whether and when to grant an adjustment of status is a matter within the Attorney General's discretion."); Alomari v. Reno, No. 97 Civ. 6837, 1997 WL 724815, at *2 (S.D.N.Y. 1997) (holding that "by the very language of the statute [ 8 U.S.C. § 1255], the decision to adjust an applicant's status is discretionary"). So too is § 212(h) relief. The very language of the provision reveals its discretionary nature: "The Attorney General may, in his discretion, waive [certain grounds for inadmissibility] . . . if it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship[.]" 8 U.S.C. § 1182 (h) (emphasis added). Therefore, this court lacks jurisdiction to review the BIA's decision.
I do not treat this petition as raising a statutory claim because Inico provides no support for his assertion that the BIA erred in applying the appropriate legal standards.
Even if I had jurisdiction to consider this case, I would still deny relief. An alien is eligible for adjustment of status under INA § 245 only if
(1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed.8 U.S.C. § 1255; see Drax v. Ashcroft, 178 F. Supp.2d 296, 303 (E.D.N.Y. 2001). An alien who has committed a crime of moral turpitude, however, is not admissible and thus is ineligible for adjustment of status. 8 U.S.C. § 1182 (a)(2)(A)(i)(I). Inico's conviction for second-degree grand larceny is a crime of moral turpitude. See Chiaramonte v. INS, 626 F.2d 1093, 1097 (2d Cir. 1980) (theft crimes presumed to involve moral turpitude); Jankowski-Burczyk v. INS, 291 F.3d 172, 175 n.l (2d Cir. 2002) (holding that bank larceny is a "crime involving moral turpitude" under § 1182(a)(2)(A)(i)(I) and citing Chiaramonte). Therefore, petitioner is statutorily ineligible for an adjustment of status.
In addition, the BIA did not abuse its discretion in denying petitioner § 212(h) relief. The Attorney General is empowered to grant a waiver of inadmissibility if an alien establishes that his removal would result in "extreme hardship" to an immediate relative who is a United States citizen or lawful permanent resident. 8 U.S.C. § 1182 (h)(1)(B). Inico's prior conviction of counterfeiting, an aggravated felony, did not preclude his eligibility for § 212(h) relief because he has never been a lawful permanent resident. Cf. Jankowski, 291 F.3d at 175.
However, Inico simply has not demonstrated that the equities weigh in favor of granting him relief. A waiver of inadmissibility is considered an "exceptional" form of relief, and the concept of "extreme hardship" has been construed narrowly. United States v. Fernandez-Antonia, 278 F.3d 150, 161 (2d Cir. 2002). Factors to be considered in the waiver inquiry include the alien's family ties in the United States; the extent of the emotional support the alien provides his family; the impact of his removal on the preservation of family unity; and whether the alien has minor children. See id.; Chiaramonte, 626 F.2d at 1100; United States v. Arrieta, 224 F.3d 1076, 1082 (9th Cir. 2000). Taken alone, however, typical consequences of removal, such as financial hardship or relocation difficulties, do not constitute extreme hardship. Fernandez-Antonia, 278 F.3d at 161; Chiaramonte, 626 F.2d at 1101; Arrieta, 224 F.3d at 1082.
The BIA noted that petitioner had committed serious crimes during his stay in this country and had failed to attain lawful immigration status; that he had failed to present evidence that the conditions in Jamaica would prevent him or his wife from finding employment there; and that his wife would have the support of other family in the United States should she remain here. In addition, the BIA found that petitioner appeared to be in good health and that his mother, a lawful permanent United States resident, had chosen to spend her retirement years in Jamaica. Given all of these factors, the BIA did not abuse its discretion in denying petitioner § 212(h) relief.
For the reasons stated above, the petition for relief under 28 U.S.C. § 2241 is denied. As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.
SO ORDERED.