United States District Court, E.D. Pennsylvania
April 6, 2004.
IN RE: SUANER ACEVEDO ESPINOSA, Petitioner
The opinion of the court was delivered by: MARY A. McLAUGHLIN, District Judge
MEMORANDUM AND ORDER
On April 11, 2003, Suaner Acevedo Espinosa filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the
lawfulness of a final order of removal entered against her by the Board
of Immigration Appeals ("BIA").*fn1 The Court will deny the petition.
The following facts are taken from the Immigration Judges's ("IJ") and
the BIA's decisions. The petitioner is a native and citizen of Colombia.
She illegally entered the United States in January of 1985 and became a lawful permanent resident in
On March 12, 1995, the petitioner attempted to reenter the United
States after returning from Colombia. She was arrested at the
airport and charged with conspiracy to import heroin into the United
States. She pled guilty and was convicted on April 12, 1996, under
21 U.S.C. § 963. She was sentenced to 120 months in federal prison.
The petitioner was charged as excludable under the Immigration and
Nationality Act ("INA"), and she applied for a waiver pursuant to §
212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).*fn3 The
waiver was denied by the IJ on December 18, 1997. The petitioner appealed
to the BIA and argued that she was not afforded a fair hearing. The BIA
upheld the IJ's decision on January 13, 1999, finding that she had a full
and fair hearing and that the IJ properly denied the §
212(c) waiver. She then filed this petition for a writ of habeas
corpus. The petitioner was improperly removed from the United States to
Colombia on February 2, 2004.*fn4
Although the petitioner has been removed from the United States, her
petition survives the removal. See Chong v. Dist. Dir., INS,
264 F.3d 378, 382 (3d Cir. 2001) (holding that custody is measured at the
time the petitioner filed the habeas petition). The Court is limited in
its review under § 2241 to questions of law and may not review the
IJ's and BIA's discretionary determinations. See Bakhtriger v.
Elwood, No. 02-4134, 2004 U.S. App. LEXIS 4603, at *30 (3d Cir. Mar.
The petition challenges the IJ's denial of the § 212(c) waiver.
Under Bakhtriger, this Court cannot review the discretionary
denial of the waiver.
The petitioner also seems to make a very general due process
claim.*fn5 The IJ addressed the merits of her § 212(c) waiver
request. The BIA reviewed and affirmed the IJ's decision on appeal. The petition alleges that the IJ found the petitioner
statutorily ineligible for the waiver. The IJ, in fact,
determined that she was eligible for the waiver but denied it as a matter
of discretion. The petitioner makes no argument as to how she was
deprived of a full and fair hearing.
An appropriate Order follows. ORDER
AND NOW, this 6th day of April, 2004, upon consideration of the
petitioner's Petition for Writ of Habeas Corpus, and the Government's
response thereto, IT IS HEREBY ORDERED that the petition is DENIED for
the reasons stated in a memorandum of today's date.