The opinion of the court was delivered by: Martin C. Carlson United States Magistrate Judge
(Magistrate Judge Carlson)
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case involves a habeas corpus petition filed on March 2, 2011, by Miguel Cabrera, a Dominican national who was a federal prisoner serving an aggregate sentence of 216 months imprisonment for participating in a drug trafficking conspiracy and attempting to bribe a federal official. In his habeas corpus petition Cabrera invited us to act favorably upon a request for citizenship which he had unsuccessfully presented both to immigration officials and to the United States Court of Appeals for the Third Circuit.
The respondents addressed this petition in July of 2012, moving to dismiss this petition, arguing: (1) that the doctrine of res judicata precludes relief for Cabrera; and (2) that the claim of citizenship which Cabrera is endeavoring to advance falls beyond the proper scope of this court's habeas corpus jurisdiction. (Doc. 22.) The respondents lodged this fully articulated motion with the court on July 5, 2012, and Cabrera has elected not to contest this motion to dismiss in any fashion in the intervening six months. Since the deadline for opposing this motion to dismiss has long passed, we will, therefore, deem the motion to be ripe for resolution. For the reasons set forth below, it is recommenced that the petition be dismissed.
With respect to this petition the pertinent facts can be simply stated: The petitioner, Miguel Cabrera is a native and citizen of the Dominican Republic who was admitted to the United States on April 4, 1978, as a lawful permanent resident. (Doc. 22, Ex. 1 at 3.) On January 22, 2003, Cabrera pleaded guilty in the United States District Court for the District of Massachusetts to conspiring to distribute controlled substances, and was sentenced to 216 months imprisonment. While in prison, on March 14, 2008, Cabrera also pleaded guilty in the United States District Court for the Eastern District of Virginia to a 2006 bribery of a public official, and was sentenced to a concurrent 24 month prison term. (Id., Ex. 3 at 1.)
Following these two convictions, Cabrera filed from prison an Application for Naturalization (N-400), on October 27, 2009, based on his military service. (Id., Ex. 4 at 1.) On June 15, 2010, United States Citizenship and Immigration Services (USCIS) issued a Notice of Intent to deny this naturalization application, which noted that Cabrera had been convicted of a controlled substance offense which amounted to an aggravated felony. Due to this conviction, immigration officials concluded that Cabrera lacked good moral character and was ineligible for naturalization. (Id.)
Cabrera contested this finding, filing a Request for a Hearing on a Decision in Naturalization Proceedings (N-336), on September 27, 2010. (Id., Ex. 8 at 2.) On November 1, 2010, immigration officials rejected this request finding that it was both untimely and holding that Cabrera's controlled substance conviction was an aggravated felony which precluded Cabrera from showing good moral character. (Id.)
Immigration officials also placed Cabrera in removal proceedings while he sought naturalization. Thus, on July 30, 2009, the Department of Homeland Security issued a Notice to Appear, charging that Cabrera was subject to removal from the United States. (Id., Ex. 1 at 3.) On September 15, 2010, the Immigration Judge ordered Cabrera, finding that his controlled substance conviction was an aggravated felony. (Id., at 5-6.) Thus, the Immigration Judge found Cabrera subject to removal and ineligible for any relief from removal.
Cabrera appealed this decision to the Board of Immigration Appeals (Board), (Id., Ex. 10), which dismissed Cabrera's appeal on December 21, 2010. (Id., Ex. 11 at 1.) In reaching this conclusion, the Board rejected Cabrera's claim that he naturalized through military service; instead, it found that he was statutorily ineligible from naturalizing based on his criminal conviction for an aggravated felony. (Id. at 3-4.)
Dissatisfied with this outcome, Cabrera then appealed the Board's decision to the United States Court of Appeals for the Third Circuit, arguing that the Board had misapplied the law by finding that his conviction was an aggravated felony, and insisting that he naturalized through his military service. (Id. Ex. 12 at 14-15.) On July 8, 2011, the court of appeals denied this petition, holding that:
We are not persuaded by Cabrera--Ozoria's argument [in opposition to his removal]. Conspiracy to commit an aggravated felony is itself an aggravated felony. 8 U.S.C. § 1101(a)(43)(U). We therefore must consider whether the substantive crime that was the object of the conspiracy qualifies as an aggravated felony under § 1101(a)(43). See Tran v. Gonzales, 414 F.3d 464, 468 n. 3 (3d Cir.2005); see also Kamagate v. Ashcroft, 385 F.3d 144, 152--53 (2d Cir.2004). And to identify the object of the conspiracy, we may look to the indictment. See Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Conteh v. Gonzales, 461 F.3d 45, 59 (1st Cir.2006). Here, the indictment charged Cabrera--Ozoria with conspiracy to possess and distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 846. This substantive offense-possession and distribution of more than five kilograms of cocaine-unquestionably qualifies as an aggravated felony. Section 1101(a)(43)(B) defines "aggravated felony" to include "a drug trafficking crime (as defined in section 924(c) of Title 18)." Section 924(c)(2), in turn, defines a "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)." Moreover, the Controlled Substances Act (CSA) "defines as, felonies' ... those crimes to which it assigns a punishment exceeding one year's imprisonment." See Lopez v. Gonzales, 549 U.S. 47, 56 n. 7, 127
S.Ct. 625, 166 L.Ed.2d 462 (2006). Thus, a conviction will qualify as an aggravated felony under § 1101(a)(43)(B) if it is for a crime that is punishable under the CSA and for which more than one year's imprisonment may be imposed. The object of Cabrera--Ozoria's conspiracy meets these requirements: § 841 is part of the CSA and prescribes a maximum penalty of life imprisonment, see § 842(b)(1)(A). Accordingly, we agree with the BIA that Cabrera--Ozoria was convicted of an aggravated felony. We observe that on appeal, Cabrera--Ozoria has not renewed his argument that he became a citizen on account of his service in the military. He does argue that he is eligible to apply for naturalization. However, even assuming that Cabrera--Ozoria is correct on this legal issue (which is questionable, given his aggravated-felony conviction, see, e.g., O'Sullivan v. U.S. Citizenship & ...