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December 8, 2000


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.

In January of 1999, Taveras-Lopez was served by the INS with a Notice to Appear, charging that he was subject to removal under sections 237(a)(2)(A)(iii) and 237(a)(2)(B)(i) of the INA, 8 U.S.C. § 1227(a)(2)(A)(iii) and (a)(2)(B)(i).*fn2 On August 26, 1999, an Immigration Judge found that there existed grounds for the removal of Taveras-Lopez and ordered that he be deported to the Dominican Republic. On January 7, 2000, the Board of Immigration Appeals affirmed the Immigration Judge's ruling. In sustaining the removal order, the BIA held that it did not have authority to consider Taveras-Lopez' challenge to the voluntariness of his guilty plea and that Taveras-Lopez was ineligible for a waiver of inadmissability under § 212(h) of the INA, 8 U.S.C. § 1182(h).*fn3

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 ...

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