Silva v. Immigration & Naturalization Service, 02-CV-8903 (E.D. Pa. 5/__/2003), 02-CV-8903.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtAnita B. Brody
PartiesMANUEL DA ROSA SILVA, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, KENNETH ELWOOD, & JOHN ASHCROFT, Respondents.
Docket Number02-CV-8903.
Decision Date01 May 2003

Page 1

MANUEL DA ROSA SILVA, Petitioner,
v.
IMMIGRATION & NATURALIZATION SERVICE, KENNETH ELWOOD, & JOHN ASHCROFT, Respondents.
02-CV-8903.
United States District Court, E.D. Pennsylvania.
May __, 2003.
MEMORANDUM & ORDER

ANITA B. BRODY, District Judge.


I. Factual and Procedural History

A native and citizen of Cape Verde, Manuel Da Rosa Silva ("Silva"), was admitted to the United States as a lawful permanent resident on August 28, 1980, at the age of sixteen. On July 17, 1995, Silva pleaded guilty in the New Jersey Superior Court, Union County, to the offense of burglary and, on January 12, 1996, was sentenced to three years of probation. Two months later, on March 26, 1996, Silva was arrested for burglary of a motor vehicle in Elizabeth, New Jersey. On June 26, 1996, Silva was sentenced to three years probation. On June 27, 1997, the Court found that Silva "wilfully violated conditions of his probation," vacated Silva's prior sentence of three years probation and sentenced him to four years imprisonment for the 1995 burglary indictment. Gov't Resp. to Pet. Ex. 2. After his release, on November 4, 1999, Silva was convicted of shoplifting in New Jersey, for which he served 180 days in prison.

On September 14, 2001, the Immigration and Naturalization Service (the "INS") issued a Notice to Appear, advising Silva that he was removable from the United States based on his 1995 burglary conviction, an aggravated felony as defined in 8 U.S.C. § 1227(a)(2)(A)(iii). on November 28, 2001, he was placed in INS custody. On May 7, 2002, at Berks County Prison, the INS served Silva with Additional Charges of Deportability that advised him that he was also removable from the United States pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) because he had been convicted of two separate crimes of moral turpitude, specifically, his 1995 burglary offense and his 1999 shoplifting offense.1

Silva sought to be released on bond while his removal proceedings were pending. On February 20, 2002, Immigration Judge Walter Durling (the "IJ") held a bond hearing and declined to release Silva while the removal proceedings were pending, finding that Silva presented a "threat to the community or a significant flight risk and should be detained in the custody of Immigration and Naturalization Service without bond." Gov't Resp. to Pet. Ex. 4 (emphasis in original).

At a March 12, 2002 hearing on the merits of Silva's removal, the IJ found that Silva's 1995 burglary conviction, for which he ultimately served four years in prison, was an aggravated felony as defined by the Immigration and Nationality Act ("INA"). On April 15, 2002, at a subsequent hearing to determine whether Silva was eligible for a waiver of his 1995 burglary conviction,2 the IJ discovered that Silva had two additional criminal convictions, one from 1997 and one from 1999.3 As a result, the IJ concluded that Silva was unable to receive any relief from removal, including waiver of his 1995 burglary conviction. Additionally, the IJ found that he could not grant Silva a waiver for his 1999 conviction because of Silva's 1995 aggravated felony conviction of burglary. Finally, the IJ ordered Silva removed to his native country of Cape Verde based on the charges set forth in the Notice to Appear. Gov't Resp. to Pet. Ex. 8. Silva appealed the IJ's decision to the Board of Immigration Appeals, which denied his appeal on October 31, 2002.

On November 29, 2002, Silva filed this habeas petition challenging the removal order that has been entered against him. Silva contends that: (1) his 1995 burglary conviction is not an aggravated felony and therefore he cannot be removed as an aggravated felon; (2) his conviction for shoplifting is not a crime of moral turpitude and therefore he cannot be removed because he has been convicted of only once, not twice, of a crime of moral turpitude; (3) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1182(h) and the denial of a § 1229b waiver is a violation of his equal protection rights; (4) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1229b; (5) he is statutorily eligible for waiver of deportation under 8 U.S.C. § 1182(c); (6) his due process rights were violated by the IJ's failure to inform him of the availability of counsel and the subsequent lack of counsel at Silva's removal hearings; and (7) his detention is unlawful.4

II. Jurisdiction and Standard of Review

The district court has subject matter jurisdiction to entertain petitions for a writ of habeas corpus filed by aliens subject to a final order of removal under to 28 U.S.C. § 2241(c), which authorizes the district court to review an alien's removal order. See 28 U.S.C. § 2241(c); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491 (2001); INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2287 (2001); Liang v. INS, 206 F.3d 308, 317 (3d Cir. 2000), cert. denied, 533 U.S. 949, 121 S.Ct. 2590 (2001).5 Habeas review is limited to questions of statutory and constitutional law. See Bradshaw v. INS, 2002 WL 1160832, *1 (E.D.Pa. June 3, 2002); Marshall v. INS, 2002 WL 818865, *3 (E.D.Pa. April 29, 2002); Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001); Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir. 1998). Federal courts may not review purely factual or discretionary decisions of the Attorney General to execute removal orders. See Chmakov v. Blackmun, 266 F.3d 210, 215 (3d Cir. 2001) (citing 8 U.S.C. § 1252(g))6; Salaiman v. Attorney General, 212 F. Supp.2d 413, 416 (E.D.Pa. 2002) ("only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited."); see also, Sciglitano v. Ashcroft, 2002 WL 461987, *3 (E.D.Pa. March 25, 2002) (citing St. Cyr, 533 U.S. at 298, 308 (distinguishing between review of petitioner's eligibility for discretionary relief and favorable exercise of discretion by Attorney General).

III. Discussion

A. Silva's 1995 Burglary Conviction is an Aggravated Felony

The IJ properly ruled that Silva is deportable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1227(a)(2)(A)(iii) provides that "any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). An "aggravated felony" includes "a theft offense . . . or burglary offense for which the term of imprisonment [is] at least 1 year." 8 U.S.C. § 1101(a)(43)(G).7 Term of imprisonment is defined to include actual periods of incarceration or confinement. See 8 U.S.C. § 1101(a)(48)(B).8

On July 17, 1995, Silva pleaded guilty to a burglary offense in New Jersey. Silva was initially sentenced to three years of probation for this 1995 burglary offense. On June 27, 1997, however, Silva's probationary sentence was vacated because he violated the conditions of his probation. After vacating Silva's probationary sentence, the judge resentenced Silva to serve four years in prison for his 1995 burglary conviction.9

Silva incorrectly maintains that he is not deportable as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii) because he was initially sentenced to probation for his 1995 burglary offense. Under New Jersey law, probation is properly viewed as a conditional sentence in that the defendant remains subject to a prison term for failure to comply with the conditions imposed by the court. See N.J.S.A. 2C:45-3(a)(4) and ABA Standards, Probation s 1.1(b) and Commentary (Approved Draft, 1970). The New Jersey statute that addresses revocation of probation provides that:

[t]he court, if satisfied that the defendant has inexcusably failed to comply with a substantial requirement imposed as a condition of [probation] or if [the defendant] has been convicted of another offense, may revoke the suspension or probation and sentence or resentence the defendant . . . When the court revokes a suspension or probation, it may impose on the defendant any sentence that might have been imposed originally for the offense for which he was convicted.

N.J.S.A. 2C:45-3a(4),b (2003).

In this case, Silva was placed on probation as a conditional sentence. When he violated the terms of his probation, the court revoked his conditional sentence of probation and imposed a sentence of four years imprisonment. This four-year prison sentence related back to the 1995 burglary conviction. As a result, Silva is removable as an aggravated felon because his 1995 conviction was for a burglary offense for which the term of imprisonment was greater than one year. See 8 U.S.C. § 1101(a)(43)(G).

B. Silva Has Two Convictions for Crimes of Moral Turpitude

Silva is removable not only as a result of his commission of an aggravated felony, but also because he has committed two separate crimes of moral turpitude, namely, his 1995 burglary conviction and his 1999 shoplifting conviction.10 Under 8 U.S.C. § 1227(a)(2)(A)(II)(ii), conviction of two crimes of moral turpitude is grounds for removal.11 Silva does not contest that his 1995 burglary conviction is for a crime of moral turpitude. He does contend, however, that his 1999 shoplifting conviction is not a conviction for a crime involving moral turpitude.

The immigration statute does not define "crime of moral turpitude." The term "moral turpitude" defies a precise definition. 6 Charles Gordon, et al. Immigration Law and Procedure § 71.05(1)(d)(i). Black's Law Dictionary notes an "honesty" component in its definition, which includes: "[c]onduct that is contrary to justice, honesty, or morality." Black's Law Dictionary 1026 (7th ed. 1999); see also, De Leon-Reynoso v. Ashcroft, 293 F.3d 633, 636 (3d Cir. 2002) (citing 37 Op. Att'y Gen. 293, 294 (1933) ("A good and comprehensive statement concerning `moral turpitude' [is] . . . anything done contrary to justice, honesty, principle, or good morals.")). Moral turpitude has been held to refer "to conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of...

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