The opinion of the court was delivered by: Baylson, District Judge.
Presently before this Court is a pro se Petition for Writ of
Habeas Corpus ("Pet.") pursuant to 28 U.S.C. § 2241(c). The
Petitioner has also filed a Motion Requesting Stay of
Deportation ("Mot."). For reasons which follow, the petition and
motion will be denied.
I. Background and Procedural History
Roger E. Chinchilla-Jimenez ("Petitioner"), a citizen of
Honduras, first entered the United States in 1986 as a tourist.
See Pet., Ex. 1, Chinchilla, A73 130 532, Decision at 2 (BIA
Sept. 17, 2001) (herein "First BIA Dec."). He visited Honduras
in 1991 and returned to this country in April 1992. Id. On
December 18, 1995, Petitioner pled guilty, in the United States
District Court for the Eastern District of New York, to the
charge of conspiracy to import cocaine, in violation of
21 U.S.C. § 960. See Pet. at 2; Gov. Resp. to Pet. for Writ of
Habeas Corpus at 1 ("Resp."); id. The amount of cocaine
involved in Petitioner's case was approximately 400 kilograms.
See First BIA Dec. at 2; Resp. at 2. Petitioner was sentenced
to twenty-seven months imprisonment, much of which he had
already served, as well as five years probation. See First BIA
Dec. at 2.
In March 1996, the INS, in return for Petitioner's past and
future testimony against his drug conspirators, granted
Petitioner an "S visa," see Pet. at 6; First BIA Dec. at 2,
which permitted him to remain in the country temporarily. See
8 U.S.C. § 1101(a)(15)(S). However, in August 1998, Petitioner's
supervised release was revoked due to violations of his parole,
and Petitioner returned to prison for an additional 24 months.
See First BIA Dec. at 2; Resp. at 2. Following Petitioner's
prison term, he was taken into INS custody. Petitioner's "S
visa" expired on January 22, 1999, see Pet. at 6; First BIA
Dec. at 2, and, on July 21, 2000, the INS issued an order for
Petitioner's removal, based on his conviction for an aggravated
felony. See Mot., Ex. B, Chinchilla, A73 130 532, Final Admin.
Removal Order (INS July 21, 2000).
Petitioner applied for withholding of removal pursuant to the
Convention Against Torture. See United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 24 I.L.M. 535 (1985) ("CAT").
Petitioner asserted that, if he were returned to Honduras, he
would be persecuted and possibly tortured by members of the drug
cartel and that the Honduran government would not help him.
See Pet. at 3-4; First BIA Dec. at 1. Petitioner further
claimed that his political activities in Honduras in the 1980s
angered government officials, who might now seek to harm him.
See First BIA Dec. at 2. An Immigration Judge ("IJ")
determined that Petitioner was not eligible for withholding of
removal because he had not shown it to be more likely than not
that he would face torture if returned to his homeland. See
First BIA Dec. at 1; Resp. at 4.
Petitioner appealed to the Board of Immigration Appeals
("BIA"), which, on September 17, 2001, upheld the IJ's denial of
withholding of removal, but granted Petitioner deferral of
removal pursuant to the CAT.*fn1 First BIA Dec. at 5. The
panel reasoned that, as a result of having testified in federal
court against high-level drug offenders, Petitioner would "be
exposed to danger" if returned to Honduras. Id. at 4.
Specifically, the panel believed that the Honduran government
"would not be able or inclined to protect" Petitioner from such
harm, due to "rampant" corruption. Id. The Board found it more
likely than not that, if deported to Honduras, Petitioner would
face torture "with the consent or acquiescence" of governments
officials. Id. (quoting 8 C.F.R. § 208.18(a)(1)).
Notwithstanding the BIA's grant of deferral, the INS continued
to detain Petitioner at an Allenwood, Pennsylvania facility.
Thereafter, Petitioner was transferred to the Berks County
Prison. Pet. at 2. Petitioner filed the instant habeas
petition*fn2 on January 18, 2002, in the Middle District of
Pennsylvania, claiming that his continued detention was illegal.
See Pet., Attachment (looseleaf). Because Petitioner was no
longer at Allenwood, the Middle District court transferred the
matter to this Court. See Chinchilla-Jimenez v.
INS, No. 3:02-cv-99, Order (M.D. Pa. April 8, 2002).
On April 24, 2002, the INS sought reconsideration of
Petitioner's case before the BIA, contending that a recent
decision of the Attorney General*fn3 warranted withdrawal of
the previously granted deferral. See Mot., Ex. A, Chinchilla,
A73 130 532, Decision at 1 (BIA June 28, 2002) ("Second BIA
Dec."). On June 28, 2002, the BIA vacated its prior decision and
withdrew Petitioner's deferral of removal. Id. at 2. In its
decision, the panel considered a State Department report
regarding human rights abuses in Honduras, but found that this
report was insufficient to meet Petitioner's burden of proof.
Id. Further, the BIA found insufficient evidence to establish
that Petitioner would face retribution for his 1980s political
activities. The Board noted that no threats or actions were
taken against Petitioner when he visited Honduras in 1991. Id.
Accordingly, the BIA determined that Petitioner had "failed to
meet his burden of establishing that it is more likely than not
that he will be tortured by, or with the consent or acquiescence
of, government officials" if returned to Honduras. Id.
On August 30, 2002, Petitioner filed a Motion Requesting Stay
of Deportation, pending resolution of the instant petition.
II. Legal Standard and Jurisdiction
This Court has jurisdiction to decide habeas corpus
petitions filed by aliens subject to deportation. See
28 U.S.C. § 2241; Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct.
2491, 150 L.Ed.2d 653 (2001) (concluding "§ 2241 habeas corpus
proceedings remain available as a forum for statutory and
constitutional challenges to post-removal-period detention");
INS v. St. Cyr., 533 U.S. 289, 314, 121 S.Ct. 2271, 150
L.Ed.2d 347 (2001) (holding "habeas jurisdiction under § 2241
was not repealed" by Antiterrorism and Effective Death Penalty
Act of 1996 or Illegal Immigration Reform and Immigrant
Responsibility Act of 1996); Chmakov v. Blackman,
266 F.3d 210, 216 (3d Cir. 2001).
However, this Court's review of administrative immigration
decisions is limited to purely legal determinations, and does
not encompass the BIA's factual findings. See Sulaiman v. AG,
212 F. Supp.2d 413, 416 (E.D.Pa. 2002) (DuBois, J.) (stating
standard of review in criminal-alien habeas cases is "limited
to questions of law"); Bradshaw v. INS, 2002 WL 1160832, at
*1, No. 01-cv-5221, 2002 U.S. Dist. LEXIS 9722, at *4 (E.D. Pa.
June 3, 2002) (same). The Third Circuit has yet to rule on the
proper standard of review in such cases, but the majority of
circuits have permitted review of purely legal questions only.
See Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (holding
habeas statute provides for review of only "statutory or
constitutional errors"); Bowrin ...