Kayrouz v. Ascroft

• Decision Date: 05 March 2003
• Docket Number: No. CIV.A.03-10-DLB.,CIV.A.03-10-DLB.
• Citation: 261 F.Supp.2d 760
• Parties: Walid KAYROUZ Plaintiff v. John ASHCROFT, et al Defendants
• Court: U.S. District Court — Eastern District of Kentucky

261 F.Supp.2d 760

Walid KAYROUZ Plaintiff v. John ASHCROFT, et al Defendants

No. CIV.A.03-10-DLB.

United States District Court, E.D. Kentucky, Covington.

March 5, 2003.

Douglas E. Weigle, Bartlett & Weigle, Cincinnati, OH, for Plaintiff.

Marianna Clay, Thomas Lee Gentry, U.S. Attorney's Office, Lexington, OH, for Defendants.

MEMORANDUM OPINION & ORDER

BUNNING, District Judge.

This matter is before the Court on Plaintiffs' Motion for a Temporary Restraining Order to stay his deportation. (Doc. # 2) The Plaintiff has also filed a petition and amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.¹ (Doc. # 1) The Defendants have filed responses to both the motion and petition (Doc. # 4, 5), to which the Plaintiff has filed a reply. (Doc. #8, 9). The Defendants filed a supplemental reply to Plaintiffs replies. (Doc. # 12).

On February 28, 2003, the Court heard oral argument on both the motion for temporary restraining order and petition for writ of habeas corpus. Douglas S. Weigle, Esq., appeared on behalf of the Plaintiff and Thomas Lee Gentry, Esq. and Marianna J. Clay, Esq. appeared on behalf of the Defendant. The proceedings were recorded by Official Court Reporter Amy Blosser. Having heard the arguments of counsel and considered the arguments raised on their respective memoranda, for the reasons stated herein, the motion for temporary restraining order is DENIED and the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE.

INTRODUCTION

Plaintiff is a native and citizen of Lebanon, having entered the United States at New York, New York, on or about September 16, 1988 as an unmarried child of an alien resident.

On July 3, 2001, the plaintiff entered a plea of guilty before United States District Judge Susan Dlott in the Southern District of Ohio to a One Count Information charging him with using a telephone to facilitate the possession of marijuana with the intent to distribute In violation of 21 U.S.C. § 843(b). At the time of the taking of the plea, the defendant waived indictment and entered a plea of guilty to a criminal information.²

On October 17, 2001, plaintiff was sentenced by Judge Dlott to a term of imprisonment of twelve months and one day. Plaintiff began service of his sentence on November 13, 2001.

On December 21, 2001, the Immigration and Naturalization Service (INS) served on plaintiff a notice to appear (NTA) charging him as removable pursuant to § 237(a)(2)(B)(i) of the Immigration and Naturalization Act, in that, he had been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance (as defined in § 102 of the Controlled Substances Act, 21 U.S.C. § 802), other than a single offense involving possession of one's own use or thirty (30) grams or less of marijuana.

On May 28, 2002, the INS served on plaintiff a notice of additional charge of deportability (Form 1-261), charging him as removable pursuant to § 237(a)(2)(A)(iii) of the Immigration and Naturalization Act, in that, he had been convicted of an aggravated felony as defined in § 101(a)(43)(B) of the Act. 8 U.S.C. § 1101(a)(43)(B). At his removal hearing on May 28, 2002, plaintiff, through counsel, admitted all four (4) of the factual allegations contained in the NTA and conceded the charge of removability brought pursuant to § 237(a)(2)(B)(i). However, plaintiff disputed the charge or removability alleged as a result of his aggravated felony conviction. Plaintiffs counsel requested an opportunity to submit a brief on the issue on whether plaintiffs 21 U.S.C. § 843(b) conviction constituted an aggravated felony as defined in the Act. The Immigration Judge permitted the issue to be briefed.

On July 16, 2002, the Immigration Judge ruled that plaintiffs conviction qualified as an aggravated felony, explaining that § 101(a)(43)(b) of the Immigration and Naturalization Act provides that an alien is deportable as an "aggravated felon" if he has been convicted of an offense related to illicit trafficking in a controlled substance as defined in § 102 of the Controlled Substances Act. This includes a "drug trafficking crime" as defined in 18 U.S.C. § 924(c). After making that determination, the Immigration Judge ordered plaintiff deported from the United States and designated the Country of Lebanon for removal. The plaintiff appealed that decision to the Board of Immigration Appeals.

In a per curiam opinion on January 6, 2003, the Board of Immigration Appeals affirmed the decision of the Immigration Judge to remove plaintiff from the United States to his native Lebanon.

ANALYSIS

During oral argument, the parties conceded that the Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 2241. In both INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) and Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001), the Supreme Court expressly held that district courts retain subject matter jurisdiction under 28 U.S.C. § 2241 to hear habeas petitions filed by permanent resident aliens subject to removal orders because they were convicted of aggravated felonies. Thus, there is no dispute that the Court has subject matter jurisdiction in this case.

In determining whether to issue a temporary restraining order, a district court must consider four factors, balancing each factor against the other: (1) the likelihood that the moving party will succeed on the merits of the claim; (2) the likelihood the moving party will suffer irreparable injury if injunctive relief is not granted; (3) whether granting the relief will cause substantial harm to others; and (4) whether granting the relief would serve the public interest. Suster v. Marshall, 149 F.3d 523, 528 (6th Cir.1998), cert. denied, 525 U.S. 1114, 119 S.Ct. 890, 142 L.Ed.2d 788 (1999); Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994). As the Sixth Circuit has held, however, the four considerations are factors to be balanced, not prerequisites that must be met. In re: DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985). Therefore, the degree of likelihood of success required to support a grant of injunctive relief may depend on the strength of the other factors considered. Id.

In an effort to satisfy the substantial likelihood of success on the merits prong, plaintiff argues that the Immigration Judge committed an error of law when he determined that his conviction for violating 21 U.S.C. § 843(b) was an aggravated felony. Plaintiff argues that the use of a telephone to facilitate the possession of marijuana with intent to distribute does not constitute "illicit drug trafficking" under the definition section contained in 8 U.S.C. § 101(a)(43)(B), nor does it fall under attempt or conspiracy to commit an offense as defined in 8 U.S.C. § 101(a)(43)(U). Plaintiff also argues that the crime is not mentioned at any point within the Controlled Substances Act and it is comparable to other crimes which have not been found to be aggravated felonies. Plaintiff also argues that because Title 8 and Title 18 are inconsistent, the determination that his underlying conviction qualified as a drug trafficking crime as defined in Title 18 was erroneous.

In support of his argument, plaintiff sites the Sixth Circuit's Opinion of Castaneda De Esper v. INS, 557 F.2d 79 (6th Cir.1977). Plaintiffs reliance on Castaneda De Esper is misplaced. Although cited by plaintiff for the proposition that conspiracy to possess narcotics was not sufficiently related to a controlled substance for purposes of an aggravated felony as defined in the Act, Castaneda De Esper case was actually a misprision of a felony case in violation of 18 U.S.C. § 4. For that reason, the Sixth Circuit found that the misprision of a felony was not itself a law relating to a narcotic drug. It is simply disingenuous for plaintiff to argue that his conviction for violating a specific section of the Controlled Substances Act, to wit, 21 U.S.C. § 843(b), does not qualify as an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B).

To the contrary, the conviction for which the defendant was sentenced in October, 2001, precisely fits the definition of an aggravated felony. Title 8, U.S.C. § 1101(a)(43)(B) defines the term "aggravated felony" as any "illicit trafficking in a controlled substance" (as defined in 21 U.S.C. § 802), including a drug trafficking crime (as defined in 18 U.S.C. § 924(c)). There is no dispute that marijuana is a controlled substance. During his guilty plea, plaintiff admitted to knowingly and intentionally using a telephone to facilitate the sale of marijuana. This satisfies the definition of "illicit trafficking." The term "drug trafficking crime" under § 924(c) means any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.).

In the case sub judice, there is no dispute that plaintiff was convicted of a felony violation of Title 21, which precisely meets the statutory definition. Moreover, the Court's comparison of the language of 18 U.S.C. § 924(c)(2) with 8 U.S.C. §§ 1227(a)(2)(B)(i) and 1227(a)(2)(A)(iii) fails to reveal any inconsistency. To the contrary, both statutes, when considered together, are consistent.

Not only is the conclusion that plaintiffs conviction qualified as an aggravated felony supported by the plain language of the statute itself, at least one appellate court has specifically held that a conviction under 21 U.S.C. § 843(b) is an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(B). See, e.g. Calcano-Martinez v. INS, 232 F.3d 328, 331 (2nd Cir. 2000), affirmed, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). In that case, one of the petitioners, Fazlla Kahn, was convicted of using a telephone to facilitate the distribution of heroin in violation of 21 U.S.C. § 843(b). The NTA charged that her conviction rendered her deportable as an alien...