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LA CRUZ-ESCOBOZA v. BUR.

United States District Court, E.D. Pennsylvania


January 08, 2004.

THURMAN DE LA CRUZ-ESCOBOZA
v.
BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT

The opinion of the court was delivered by: LEGROME DAVIS, District Judge

MEMORANDUM

Presently before this Court is the Petition of Thurman De La Cruz-Escoboza ("Petitioner") for Writ of Habeas Corpus. (Dkt. No. 1). For the reasons discussed below, the Petition is DENIED.

I. Factual Background and Procedural History

  Petitioner is a citizen and native of the Dominican Republic. See Petition for Writ of Habeas Corpus ("Pet") 1; Respondent's Brief in Opposition to Petition for Writ of Habeas Corpus ("Resp't Br."), Ex. A. He arrived in the United States on or about January 10, 1998, as a lawful permanent resident. See Resp't Br., Ex. A.

  On May 17, 2000, Petitioner was convicted in Supreme Court of the State of New York of attempted criminal sale of a controlled substance in the third degree in violation of Section 220.39 of the New York State Penal Law. N.Y. Penal Law § 220.39 (McKinney 2000). Petitioner's conviction arose from his attempting to sell crack cocaine to an informant. See Resp't Br., Ex. E.

  On April 6, 2001, the Immigration and Naturalization Service ("INS")*fn1 issued a Notice to Appear to Petitioner charging him with violating Sections 237(a)(1)(A)(iii) and Page 2 237(a)(2)(B)(I) of the Immigration and Nationality Act ("INA") for an aggravated felony conviction and a conviction related to possession of a controlled substance, respectively. See Resp't Br., Ex. A. On December 18, 2001, the Immigration Judge found that Petitioner's conviction for attempted sale of crack cocaine constituted an "aggravated felony," thereby mandating his deportation. Resp't Br., Ex. B; Resp't Br., Ex. C at 8.*fn2

  In the instant petition for writ of habeas corpus, Petitioner argues that he is not an aggravated felon and, therefore, eligible for cancellation of removal pursuant to Section 240A of the INA. See 8 U.S.C. § 1229b(a). We disagree.

  II. Standard of Review

  The Court has jurisdiction to review this habeas corpus petition pursuant to 28 U.S.C. § 2241(c). See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir. 2001) (citing Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 2497 (2001)). The scope of our review, however, is limited to questions of law. See Sulaiman v. Attorney General, 212 F. Supp.2d 413, 416 (E.D. Pa. 2002) (citing Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001). "[F]ederal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and BIA." Sol, 274 F.3d at 651.

  III. Analysis

  Aliens who have been convicted of an "aggravated felony" are not eligible for cancellation of removal. See Gerbier v. Holmes, 280 F.3d 297, 298 (3d Cir. 2002). A state drug Page 3 conviction qualifies as an "aggravated felony" under either of "two routes." See id. "Under the first route, a felony state drug conviction is an `aggravated felony' under § 924(c)(2) if it contains a trafficking element. Under the second route, a state drug conviction, either a felony or a misdemeanor, is an `aggravated felony' if it would be punishable as a felony under the Controlled Substances Act." Id. Petitioner is an aggravated felon under either route.

  A conviction falls within the first route if (1) the conviction constitutes a felony under the law of the convicting state and (2) the offense involves the "unlawful trading or dealing of any controlled substance." See Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001) (citing Matter of Davis, 20 I. & N. Dec. 536, 541, 1992 WL 443920 (BIA 1992). "Essential to the concept of `trading or dealing' is activity of a `business or merchant nature,' thus excluding simple possession or transfer without consideration." Id.

  Petitioner's conviction for attempted sale of crack cocaine is a class C felony under New York law.*fn3 See United States v. Aquino-Ramirez, Nos. 98 CR 933, 00 Civ. 7130, 2001 WL 210363, at *2 (S.D.N.Y. Mar. 2, 2001). His conviction also contains a "trafficking element." Petitioner was charged with the attempted sale of crack cocaine to an informant in violation of Section 220.39, not mere possession. Indeed, Section 220.39 is not a "possession" statute, it criminalizes the sale of controlled substances. Moreover, the record demonstrates that Petitioner's attempted sale of crack cocaine was an activity of a business or merchant nature: The "informant handed [Petitioner] a sum of United States Currency pre-recorded buy money and in exchange [Petitioner] handed to informant two (2) orange ziplocks containing white rock-like Page 4 substance." Resp't Br., Ex. E at 7. Therefore, Petitioner's conviction falls within the first route.

  Petitioner's conviction also falls within the second route. His attempted sale of crack cocaine would have been punishable under the Controlled Substances Act, 21 U.S.C. § 841(a). See Aquino-Ramirez. 2001 WL 210363. at *2.

  IV. Conclusion

  Accordingly, Petitioner's state drug conviction constitutes an "aggravated felony" and, therefore, his habeas petition is denied. An appropriate order follows. Page 5

  ORDER

  AND NOW, this day of January, 2004, upon consideration of the Petition of Thurman De La Cruz-Escoboza for Writ of Habeas Corpus (Dkt. No. 1), and the response of the Government thereto, consistent with the accompanying memorandum, it is hereby ORDERED that said Petition is DENIED.


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