Tulloch v. I.N.S., 00 CIV 6943(DAB).
| Decision Date | 24 September 2001 |
| Docket Number | No. 00 CIV 6943(DAB).,00 CIV 6943(DAB). |
| Citation | 175 F.Supp.2d 644 |
| Parties | Albert Leslie TULLOCH, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Albert Leslie Tulloch, Fallsburg, NY, pro se.
James Loprest, Sp. Asst. U.S. Atty., S.D.N.Y., New York, NY, for respondent.
ADOPTION OF REPORT AND RECOMMENDATION
On June 22, 2001, Magistrate Judge James Francis IV issued a Report and Recommendation recommending that Petitioner's habeas corpus petition be denied. See 28 U.S.C. § 636(b)(1)(C); Local Civil Rule 72.1(d). Petitioner has filed objections to the Report and Recommendation, to which Respondent has responded.
28 U.S.C. § 636(b)(1)(c) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).
Petitioner contests his order of deportation following his conviction for murder in the second degree. The facts in this matter are sufficiently set forth in Judge Francis' Report and Recommendation and will not be reiterated here. Judge Francis assessed Petitioner's claim that his due process rights were denied by INS counsel's withholding of crucial evidence at the removal proceeding and the selective reliance on evidence by the Immigration Judge, and that AEDFA and IIRIRA were impermissibly applied to him to deprive him of his opportunity to seek discretionary relief from removal.
Respondent objects that the Report and Recommendation failed to appreciate that the IJ "improperly allowed the passport of someone else into evidence even though it was not clear that the passport belonged to petitioner." Pet. Obj. at 2. Judge Francis, however, found the record indicates that the IJ specifically accorded that passport little weight precisely because its ownership was ambiguous. See R & R at 6-7; R. at 57-58. As such, the record belies Petitioner's claim and no prejudice has been established.
Petitioner also objects on the basis of the Second Circuit's holding that a section 212(c) waiver remains available to lawful permanent resident aliens who prior to the 1996 enactment of the IIRIRA, entered a guilty or nolo contendre plea to crimes that made them removable.1 See St. Cyr v. INS, 229 F.3d 406 (2d Cir.2000), aff'd, 533 U.S. 289 at ___, n. 52, 121 S.Ct. at 2287 n. 52, 150 L.Ed.2d 347 (2001). Petitioner's objection is unfounded, as any benefit bestowed by St. Cyr does not apply to this case. Even assuming the applicability of pre-AEDPA or IIRIRA standards, Petitioner, as Judge Francis correctly found, was ineligible for such waiver because he was never a lawful permanent resident and he had served more than five years of his prison sentence for murder.2 See R & R at 9-10.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. See United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.1997); Lozada v. United States, 107 F.3d 1011 (2d Cir.1997).
Accordingly, after conducting an independent de novo review of the Report and Recommendation, and reviewing the record herein, it is
ORDERED AND ADJUDGED as follows:
1. The Report and Recommendation of United States Magistrate Judge James Francis IV dated June 22, 2001, is approved, adopted, and ratified by the Court;
2. The petition for a writ of habeas corpus is hereby DENIED;
3. The Clerk of the Court is directed to dismiss the petition.
SO ORDERED.
REPORT AND RECOMMENDATION
Albert Leslie Tulloch brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging an order that he be removed from the United States following his conviction for murder in the second degree. The petitioner argues that he was denied his Fifth Amendment right to due process of law when counsel for the Immigration and Naturalization Service ("INS") withheld crucial evidence at the removal proceeding, and that the Immigration Judge ("IJ") abused his discretion by selectively relying only on evidence supporting the petitioner's removal. Mr. Tulloch also claims that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-546, as applied in this case, unconstitutionally deprived him of the opportunity to seek discretionary relief from removal. The respondent contends that Mr. Tulloch's claims are without merit. For the reasons that follow, I recommend that the petition be denied.
Mr. Tulloch was born in Jamaica on August 1, 1946. (R. at 65, 70).1 In 1969, while serving as a crewman aboard a Greek vessel, he illegally entered the United States by deserting the ship, which was then docked at a port in the state of Georgia. (R. at 71-72). Mr. Tulloch married Alethia Tulloch,2 a United States citizen, in 1972, and she submitted a visa application on her husband's behalf sometime in August 1974, seeking to adjust his status to that of a legal permanent resident. (R. at 29-30). The application was subsequently denied because of Mrs. Tulloch's death. (R. at 29).
On October 20, 1988, the petitioner was convicted of second degree murder pursuant to N.Y. Penal Law § 125.25(1) for the death of his wife, and he subsequently received a sentence of twenty-five years to life imprisonment. (R. at 69). Mr. Tulloch appealed, and the Appellate Division, Second Department, upheld his conviction on January 21, 1992. People v. Tulloch, 179 A.D.2d 794, 579 N.Y.S.2d 442 (2d Dep't 1992). The petitioner's application for leave to appeal was denied on April 4, 1992. People v. Tulloch, 79 N.Y.2d 1008, 584 N.Y.S.2d 463, 594 N.E.2d 957 (1992).
On July 19, 1999, the INS initiated removal proceedings against Mr. Tulloch based on his murder conviction and status as an undocumented alien, pursuant to Sections 212(a)(2)(A)(i)(I) and 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(2)(A)(i)(I), (a)(6)(A)(i).3 (R. at 85-87). An administrative hearing was held before Immigration Judge Mitchell Levinsky at the Downstate Correctional Facility in Fishkill, New York, where the petitioner was incarcerated at the time. On the first day of the proceeding, Judge Levinsky informed the petitioner of the charges against him and apprised Mr. Tulloch of his rights, including the right to counsel. (R. at 46). The IJ provided the petitioner with a list of pro bono attorneys and adjourned the hearing so that Mr. Tulloch could secure counsel. (R. at 47). The IJ indicated, however, that if Mr. Tulloch were to appear without an attorney on the next date, the hearing would nevertheless continue. (R. at 47).
When the proceedings resumed, the petitioner did appear without an attorney and declined the IJ's offer of a further adjournment to obtain one. (R. at 51-52). To establish Mr. Tulloch's status as an alien, the INS introduced (1) pages from a Jamaican passport, which, according to the agency, belonged to the petitioner; (2) a sworn statement Mr. Tulloch gave INS officers on July 5, 1974, in which he had acknowledged having been born in Jamaica and having entered the United States unlawfully; and (3) the visa petition filed by Alethia Tulloch. (R. at 55, 58, 60-62, 71-72). Mr. Tulloch denied that the passport produced by the INS belonged to him, but he did admit that the signature on the 1974 statement was his. (R. at 57, 60). He refused to answer the judge's questions regarding his alienage and submitted no evidence to rebut the charges brought by the INS. (R. at 53-54).
Judge Levinsky subsequently issued an oral decision in which he found that the INS had met its burden of demonstrating that Mr. Tulloch was neither a citizen of the United States nor a legal permanent resident. The IJ also determined that the petitioner's murder conviction made him ineligible (a) for adjustment of status to that of legal permanent resident pursuant to the waiver provision of Section 212(h) of the INA, 8 U.S.C. § 1182(h), or (b) for cancellation of removal under Section 240A(b) of the Act, 8 U.S.C. § 1229b(b). (R. at 40-41). Accordingly, the judge ordered that Mr. Tulloch be removed from the United States to Belize, a country designated by the petitioner, or alternatively to his native Jamaica. (R. at 40-41).
On March 8, 2000, Mr. Tulloch appealed the IJ's decision to the Board of Immigration Appeals ("BIA") (R. at 23-24), and the removal order became final when the BIA, in a per curiam opinion, upheld the ruling below. (R. at 2-4).
The petitioner first argues that the IJ abused his discretion during the administrative hearing by choosing to credit only the evidence that supported the petitioner's removal. (Petition for Writ of Habeas Corpus dated Sept. 1, 2000 ("Petition"), at 5).
It is well established that the Fifth Amendment entitles an alien to due process of law in a removal proceeding.4 See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); see also Felzcerek v. Immigration and Naturalization Service, 75 F.3d 112, 115 (2d Cir.1996). While "a [removal] hearing is a civil matter, and the heightened procedural protections of a criminal trial are not necessarily constitutionally required," id. (internal quotations and citation omitted), such a hearing must nevertheless be fundamentally fair. See Iavorski v. United States Immigration and Naturalization Service, 232 F.3d 124, 128 (2d Cir.2000) (); Felzcerek, 75 F.3d at 115 (...
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...to legal permanent resident. Thus he has not sufficiently alleged that he would be eligible for this relief. See Tulloch v. INS, 175 F.Supp.2d 644, 649-50 (S.D.N.Y.2001) (denying habeas petition where petitioner was not entitled to be considered for § 212(c) relief because he had not been a......