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CHINCHILLA-JIMENEZ v. I.N.S.

October 3, 2002

ROGER E. CHINCHILLA-JIMENEZ,
V.
IMMIGRATION AND NATURALIZATION SERVICE.



The opinion of the court was delivered by: Baylson, District Judge.

MEMORANDUM

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 However, in August 1998, Petitioner's supervised release was revoked due to violations of his parole, and Petitioner returned to prison for an additional 24 months.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 ...


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