The opinion of the court was delivered by: Lechner, District Judge.
This is an action brought by pro se. petitioner, Simon B. Then
("Then"), a detainee at the Detention Center of the Immigration
and Naturalization Service (the "INS"), in Newton, New Jersey,
against respondent, the INS.*fn1 Presently pending is the
petition (the "Petition") of Then for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 ("Section 2241"). Then specifically
seeks relief from a final order of deportation (the "Final Order
For the reasons set forth below, the Petition is dismissed with
Then is a native and citizen of the Dominican Republic. See
Petition at ¶ 5. He entered the United States in 1983. See id.
at ¶ 7.
In October 1993, a State grand jury indicted Then in a
four-count indictment (the "Indictment"). The first two counts of
the Indictment charged Then with possession of a controlled
dangerous substance with intent to distribute, in violation of
N.J.S.A. 2C:35-10a(1), 2C:35-5a(1) and 2C:35-5b(3). See
Judgment of Conviction and Order of Commitment (the "Judgment and
Order"). Count three ("Count Three") of the Indictment charged
Then with possession of a controlled dangerous substance with
intent to distribute within 1,000 feet of school property, in
violation of N.J.S.A. 2C:35-7 and 2C:35-5a. See id. The fourth
count charged Then with violating N.J.S.A. 2C:28-4a for writing
false reports. See id.
On 15 March 1995, Then pleaded guilty to Count Three of the
Indictment (the "Guilty Plea"). See Then Aff. at ¶ 4. A
judgment of conviction (the "Judgment of Conviction") was issued
by the New Jersey Superior Court, Law Division, Passaic County
(the "Superior Court") on 30 June 1995. See Judgment and Order.
Then was sentenced to a minimum prison term of fourteen months.
See Then Aff. at ¶ 5; Judgment and Order.
The Guilty Plea rendered Then deportable pursuant to Section
241(a)(2)(B)(i) ("Section 241") of the Immigration and
Nationality Act (the "INA"), 8 U.S.C. § 1227(a)(2)(B)(i)
(formerly 8 U.S.C. § 1251).*fn3 Consequently, upon his
completion of the fourteen month prison term, Then was placed by
the INS in deportation proceedings. See Then Aff. at ¶ 3.
Deportation proceedings were commenced on or about 12 August 1996
when the Government issued a Notice of Hearing and an Order to
Show Cause requiring Then to show cause why he should not be
deported.*fn4 See Amended Answer at 1. After appearing without
counsel before immigration judge John A. Duck, Jr. (the
"Immigration Judge") on 29 October 1996, see Then Aff. at ¶ 6;
Amended Answer at 2, Then was permitted to hire an attorney and
was released upon posting bond. See id. at ¶ 7. Then thereafter
consented to having his new attorney, Jose W. Vega, Esq. ("Vega")
conduct the subsequent deportation proceedings and appear on his
behalf. See Then Aff. at ¶ 7; Amended Answer at 2.
On 7 March 1997, a deportation hearing (the "7 March 1997
Deportation Hearing") was held before the Immigration Judge.
According to the Government, at that time, Vega, on behalf of
Then, requested a waiver of deportation (the "212(c)
Application"), pursuant to Section 212(c) ("Section 212(c)") of
the INA, 8 U.S.C. § 1182(c).*fn5 See 7 March 1997 Deportation
Hearing Transcript (the "Deportation Hearing Tr.") at
In an oral decision, dated 7 March 1997, (the "7 March 1997
Decision"), the Immigration Judge refused to grant the 212(c)
Application. In so doing, the Immigration Judge stated:
[Then] has asked to apply, through counsel, for a
212(c) waiver. However, I note that the respondent
[Then] has been convicted for the crime of possession
of cocaine and heroine with intent to distribute
within 1,000 feet of a school. I find, therefore,
that that [sic] crime is an aggravated felon [sic],
making him ineligible for that 212(c) waiver sought
by the respondent. There is not [sic] other relief
sought nor is there any known by the government or
this Court. . . . Therefore, it is the order of the
Court that the respondent be deported from the United
States to the Dominican Republic. . . .
7 March 1997 Decision at 1-2.
It appears the Immigration Judge, in refusing to grant the
212(c) Application, placed reliance upon Section 241(a)(2)(B)(i)
of the INA. See 8 U.S.C. § 1227(a)(2)(B)(i); see also supra
n. 3. It further appears the Immigration Judge took into account
§ 440(d) ("Section 440(d)") of the Antiterrorism and Effective
Death Penalty Act of 1996, Pub.L. No. 104-132, tit. I, § 105(2),
110 Stat. 1214 (24 April 1996) (the "AEDPA"). Section 440(d)
added the following language to Section 212(c):
Also during the 7 March 1997 Deportation Hearing, Vega, on
behalf of Then, admitted the five allegations contained in the
Order to Show Cause and conceded Then's deportability. See
Deportation Hearing Tr. at 3-4; Amended Answer at 2.
Vega appealed the 7 March 1997 Decision to the Board of
Immigration Appeals (the "BIA") on 10 April 1997 (the "Appeal").
See Then Aff. at ¶ 10. In support of the Appeal, Vega, on
behalf of Then, argued:
The Respondent [Then] should be eligible for a 212(c)
waiver. He was convicted prior to the enactment of
the Antiterrorism and Effective Death Penalty Act.
This Act should not be applied retroactively.
Furthermore, the Respondent is being denied equal
protection of the laws by not being allowed an
opportunity to apply for a 212(c) waiver because if
he was in exclusion proceedings he would be eligible
for this waiver. See Matter of Silva, 16 I & N Dec
26 (BIA 1996)[sic].
By order, dated 28 January 1998, (the "28 January 1998 Order"),
the BIA deemed the Appeal untimely because it was not filed
within thirty calendar days of the 7 March 1997 Decision. See
28 January 1998 Order. The BIA stated: "The Immigration Judge's
decision is accordingly now final[.]" Id.; See Then Aff. at ¶
Following the denial of the Appeal by the BIA, Vega indicated
to Then's family, via facsimile transmittal (the "Vega
Facsimile"), that even if timely filed, the Appeal would have
been denied because the AEDPA is applied retroactively to all
cases by the BIA. See Then Aff. at ¶ 11; Vega Facsimile
In support of the instant Petition, Then alleges (1) his
constitutional right to due process was violated when the
Immigration Judge retroactively applied AEDPA Section 440(d) to
bar his 212(c) Application, see Petition at ¶¶ 2, 3, 16-17, and
(2) he was denied effective assistance of counsel. Then
specifically alleges Vega waived his rights to a fair hearing
before the Immigration Judge by admitting all the charges lodged
against him by the INS without his permission. See id. at ¶ 3;
Then Aff. at ¶ 8. He further alleges Vega, despite knowing an
appeal not ...