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IN RE ESPINOSA

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.

I. Background

  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 1990.*fn2

  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and Nationality Act ("INA"), and she applied for a waiver pursuant to § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).*fn3 The waiver was denied by the IJ on December 18, 1997.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

 II. Analysis

  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. 10, 2004).

  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.


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