The opinion of the court was delivered by: Jan E. DuBOIS, District Judge.
Petitioner, Dan Sulaiman, is a Nigerian alien currently detained in the
Berks County Prison, Leesport, Pennsylvania. He is subject to a
deportation order as a result of a 1996 conviction for bank fraud in the
Eastern District of New York and an Immigration & Naturalization Service
("INS") determination that he entered the United States illegally.
Although petitioner is not eligible for asylum because of his conviction
of an "aggravated felony," he seeks relief from deportation to Nigeria
under the United Nations Convention
Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, Dec.10, 1984, 23 I.L.M.
1027 (1984), as modified, 24 I.L.M. 535 (1985) ("Convention Against
Torture"). Currently before the Court are petitioner's pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a number
of related filings.
Upon consideration of the factual record and applicable law, the
Court concludes that petitioner's legal claims are without merit
and dismisses his petition for writ of habeas corpus.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 1996 petitioner was convicted in the Eastern District
of New York for bank fraud in violation of 18 U.S.C. § 1344,
sentenced to twelve months of incarceration with five years of supervised
release and ordered to pay $176,911.92 in restitution. In re Sulaiman,
Bureau of Immigration Appeals, A73 663 971 (December 10, 2001) (Appended
to petition for writ of habeas corpus) ("BIA Decision") at 1. The INS
detained him upon completion of his sentence in June 2000,*fn1
Government's Response at 1, and sought to remove him from the United
States on two grounds: his criminal conviction, pursuant to
8 U.S.C. § 1182(a)(2)(A)(i)(I), and the INS determination that he
entered the country illegally, pursuant to
8 U.S.C. § 1182(a)(6)(A)(i).*fn2 Id.
In August 2001 petitioner filed a request with an Immigration Judge
seeking political asylum and protection under Article III of the
Convention Against Torture. He claimed that he would be arrested and
tortured upon arrival in Nigeria because of his membership in a
privileged family, political affiliations and status as a criminal
deportee from the United States. In re Sulaiman, Oral Decision of the
Immigration Judge, A73 663 971 (August 10, 2001) (appended to petition
for writ of habeas corpus) ("Oral Decision of Immigration Judge") at 25.
At a hearing on August 10, 2001 the Immigration Judge found petitioner
ineligible for asylum as an aggravated felon, but granted him "deferral
of removal"*fn3 based on his contention that he would be subjected to
torture as a deported criminal who "tarnish[ed] the name of Nigeria"
abroad.*fn4 Id. at 28. Petitioner
appealed to the Bureau of Immigration
Appeals seeking a "withholding" of removal, which would grant him lawful
status in the United States, on the ground that bank fraud was not an
aggravated felony. BIA Decision at 2. The INS cross-appealed arguing that
petitioner's testimony about the prospect of being tortured in Nigeria was
insufficient. Id. On December 10, 2001 the Bureau of Immigration Appeals
("BIA") upheld the Immigration Judge's finding that petitioner was
convicted of an aggravated felony and consequently not eligible for
asylum, but overturned the part of the decision granting Convention
Against Torture protection on the grounds that petitioner failed to meet
his burden of proving that it was "more likely than not" that he would be
tortured. BIA Decision at 2-3. Pursuant to that decision, petitioner was
ordered removed to Nigeria. Id. at 3.
On December 21, 2001 petitioner filed the pending petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. As will be explained
below, infra § III.B., this Court does not have jurisdiction over
petitioner's challenge to the Bureau of Immigration Appeals' factual
determinations regarding the likelihood of torture upon his return to
Nigeria. It does, however, have jurisdiction to address any claims that
his deportation process violated the Constitution or federal law. The
Court construes petitioner's argument as containing four such claims: (1)
BIA illegally failed to consider evidence of the possibility of future
torture, (2) Convention Against Torture protection is mandatory as a
matter of law, (3) BIA applied an erroneous legal standard and (4) INS
has violated petitioner's procedural and substantive due process rights.
After submitting a number of filings relating to the habeas corpus
proceeding, petitioner filed a Motion for Appointment of Counsel.
Thereafter, based upon his allegation that he was "almost deported,"
petitioner filed an "Emergency Request" seeking the Court's intervention
to prevent his deportation before the resolution of the pending habeas
corpus petition. The Court granted petitioner's Emergency Request in an
Order dated May 28, 2002 and directed that any deportation of petitioner
be stayed pending further order of the Court. Finally, petitioner filed a
document asserting that his detention was unconstitutional and requesting
a bail hearing.
As discussed below, the Court concludes that none of petitioner's
substantive claims for relief are meritorious. Accordingly, the Court
denies the petition for habeas corpus, the request for a bail hearing,
and the motion for appointment of counsel.
A. SUBSTANTIVE IMMIGRATION LAW
If the immigration judge determines that the alien is
more likely than not to be tortured in the country of
removal, the alien is entitled to protection under the
Convention Against Torture. Protection . . . will be
granted either in the form of withholding of removal
or in the form of deferral of removal. An alien
entitled to such protection shall be granted
withholding of removal unless the alien is subject to
mandatory denial of withholding of removal. . . . If
an alien entitled to ...