The opinion of the court was delivered by: Vanaskie, Chief Judge.
This is a habeas corpus proceeding under 28 U.S.C. § 2241. At
issue is the validity of an order of an Immigration Judge
directing the removal of petitioner Yohani Antonio Taveras-Lopez
from the United States based upon his 1998 plea of guilty to a
cocaine trafficking charge. Taveras-Lopez, a long-term lawful
permanent resident of the United States, claims that the
underlying conviction is invalid because he was not warned of the
deportation consequences of his guilty plea before he entered it.
In addition to assailing the underlying conviction, Taveras-Lopez
challenges the order of removal on the ground that the failure to
accord lawful permanent resident aliens, such as Taveras-Lopez,
eligibility for a discretionary waiver of removal through §
212(h) of the Immigration and Naturalization Act ("INA"),
8 U.S.C. § 1182(h), while granting such eligibility to illegal
aliens, denied him equal protection of the law. Finally,
Taveras-Lopez asserts that the failure to accord him an
opportunity to seek a discretionary waiver of removal contravenes
an international treaty to which the United States is a signatory
and principles of international law.*fn1
This Court has jurisdiction to consider the claims asserted by
Taveras-Lopez in his habeas corpus petition filed under § 2241.
See Liang v. INS, 206 F.3d 308 (3d Cir. 2000); Ngo, 192 F.3d
at 393; Catney v. INS, 178 F.3d 190, 195 (3d Cir. 1999);
Sandoval v. Reno, 166 F.3d 225, 237 (3d Cir. 1999); Steele,
supra, Slip op. at 5-6. Having carefully considered the
contentions of the parties in the context of the facts of this
case and the applicable law, I find that Taveras-Lopez has not
satisfied the exhaustion of state court remedies doctrine so that
his § 2241 petition may not be used to mount a collateral
challenge to the validity of the state court conviction on which
the order of removal depends. Even if a deportable alien could
challenge the deportation-causing conviction in a § 2241
proceeding brought after a final deportation order has been
entered without exhausting state court remedies, Taveras-Lopez'
alleged unawareness of the deportation consequences of a drug
trafficking conviction does not provide a basis for invalidating
his conviction. Taveras-Lopez' equal protection claim is without
merit because both an illegal alien and a lawful permanent
resident are treated the same with respect to the deportation
consequences of a cocaine drug trafficking conviction — neither
is eligible for discretionary relief from removal. Finally, the
existence of provisions in an international treaty or principles
of international law that arguably conflict with a removal order
authorized by legislation passed by Congress does not afford a
basis for invalidating the removal order. Accordingly, the habeas
corpus petition will be denied and the stay of removal effected
by this Court's Order of February 8, 2000 will be vacated.
Taveras-Lopez is a citizen of the Dominican Republic. He
obtained lawful permanent residence status in 1981. He claims to
reside in the United States with his family, which includes his
mother, who is also a lawful permanent resident, his brother and
sister, who are United States citizens, and his common law wife
and daughter, also United States citizens.
In 1998, Taveras-Lopez was convicted in New York state court of
the attempted criminal sale of a controlled substance in the
third degree, to wit, cocaine, in violation of sections 110 and
220.39 of the New York Penal Code. New York law classifies
criminal sale of a controlled substance in the third degree as a
class B felony. N.Y.Penal Law § 220.39 (McKinney 1999).
Taveras-Lopez was sentenced to a one year term of imprisonment.
On January 27, 2000, Taveras-Lopez filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2241 in the United States
District Court for the Eastern District of Pennsylvania. The case
was transferred to this Court by order entered February 4, 2000.
By order dated February 8, 2000, removal of Taveras-Lopez was
stayed and a response to the habeas corpus petition was required.
On March 13, 2000, the government responded to the habeas corpus
petition. Taveras-Lopez filed a reply to the response on March
22, 2000. This matter is ripe for disposition.
A. The Validity Of The Underlying Conviction
Contending that he was not advised that deportation was a
consequence of a drug trafficking conviction, Taveras-Lopez
challenges the validity of his conviction on the grounds that his
plea was not entered knowingly and voluntarily and that he did
not receive effective assistance of counsel. Respondents assert
that, while this Court may have jurisdiction under § 2241 to
entertain a challenge to the validity of the removal order,
"jurisdiction does not extend to collateral review of the
validity of [the] state conviction that is the predicate for the
order." (Response to Habeas Corpus Petition (Dkt. Entry 6) at 2.)
In support of their position, respondents rely upon Contreras
v. Schiltgen, 151 F.3d 906 (9th Cir. 1998). In Contreras, the
petitioner contended that the state court conviction that formed
the premise for a removal order was invalid because counsel had
been ineffective in advising him to plead guilty. Relying upon
Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128
L.Ed.2d 517 (1994), which held that a defendant could not obtain
collateral review of state convictions during federal court
sentencing proceedings even though the state convictions would
enhance the federal sentence, the Ninth Circuit held that "[w]hen
the federal proceeding is governed by statutes that limit inquiry
to the fact of conviction, there can be no collateral review of
the validity of the underlying conviction except for Gideon
claims." Contreras, 151 F.3d at 908.*fn4
In Kopilchak v. INS, No. 98 Civ. 7931, 2000 WL 278074
(S.D.N.Y. March 14, 2000), the court addressed a fact scenario
similar to that presented in Contreras and here. In
Kopilchak, the petitioner was subject to a removal order based
upon a conviction obtained by guilty plea. Contending that she
had plead guilty only because she believed the police to be
corrupt and that she was innocent of the crime charged, the
petitioner sought to avoid the removal order. As in Contreras,
the court held that it did not have the authority "to review the
alleged factual innocence of a defendant who voluntarily pled
guilty to the crime for which the defendant is being deported."
Id. at *1.
Independent research has not disclosed any case that allowed a
petitioner to contest deportation on the theory that the
conviction that formed the predicate for the deportation order
was invalid. The Third Circuit apparently has not addressed the
justiciability of a collateral attack to the validity of a ...