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MEDINA v. ASHCROFT

April 10, 2003

SERGIO MANUEL MEDINA, PETITIONER
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT



The opinion of the court was delivered by: James M. Munley, United States District Court

MEMORANDUM

Before the court for disposition is the petition for a writ of habeas corpus filed by Sergio Manuel Medina (hereinafter "petitioner") who is being detained in the York County Prison, York, Pennsylvania, pursuant to the authority of the Immigration and Naturalization Service. The matter has been fully briefed and is ripe for disposition. For the reasons that follow, the petition for a writ of habeas corpus will be denied.

Background

Petitioner Medina is a citizen of the Dominican Republic. (Govt. Ex. A, Record of Deportable/Inadmissible Alien, Form I-213). He entered the United States on October 18, 1985 as an immigrant. Id. On March 12, 1999, petitioner was convicted in the Northampton County Pennsylvania Court of Common Pleas of possession with intent to deliver a controlled substance, cocaine, a felony in violation of 35 P.S. § 780-113(a)(30). (Govt. Ex. B, Record of Conviction). The court sentenced him to a minimum of one year to a maximum of two years imprisonment, a $200.00 fine and 500 hours of community service. (Govt. Ex. B, Record of Conviction).

On March 23, 1999, the INS filed a Notice To Appear (NTA) thus commencing removal proceedings against Medina. The NTA charges that Medina's drug conviction renders him removable from the United States pursuant to the following two sections of the immigration law: 8 U.S.C. § 1227(a)(2)(A)(iii); and 8 U.S.C. § 1227(a)(2)(B)(i). (Govt. Ex. C, Notice To Appear).

On January 30, 2002, an Immigration Judge found petitioner removable from the country as charged and ineligible for relief from removal. The judge ordered him removed from the United States to the Dominican Republic. (Govt. Ex. D, Order of Immigration Judge; Govt. Ex. E, Oral Decision of the Immigration Judge). Medina filed a timely Notice of Appeal with the Board of Immigration Appeals. (Govt. Ex. F, Notice of Appeal). The Board of Immigration Appeals affirmed the decision of the Immigration Judge and dismissed Medina's appeal. (Govt. Ex. G, Board of Immigration Appeals Decision).

Medina filed the instant petition for a writ of habeas corpus on November 19, 2002 along with a request that his deportation be stayed. This court granted a stay of deportation and ordered the INS to respond to the habeas corpus petition. The matter has now been fully briefed and is ripe for disposition.

Jurisdiction

We have jurisdiction over the instant matter pursuant to 2 8 U.S.C. § 2241. See Sandoval v. Reno, 166 F.3d 225, 235 (3d Cir. 1999) (holding that district courts have jurisdiction to hear petitions for habeas corpus following removal orders where the petitioner has been convicted of an aggravated felony).

Discussion

The Immigration Judge found the petitioner removable based upon 8 U.S.C. § 1227(a)(2)(A)(iii), which provides: "Any alien who is convicted of an aggravated felony at any time after admission is deportable" and 8 U.S.C. § 1227(a)(2)(B)(i) which provides: "Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . is deportable."

Petitioner claims that he has not been convicted of an "aggravated felony." If petitioner is not guilty of an aggravated felony then section 1227(a)(2)(B)(i) would be the only grounds for his removal from the country, and he could be eligible for relief from removal under 8 U.S.C. § 1229 b(a).*fn1

Accordingly, we must determine if the Immigration Judge and the Board of Immigration Appeals were correct in concluding that the petitioner has been convicted of an "aggravated felony."

"Aggravated felony" is defined by immigration law as: "[I]llicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section ...


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