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