The opinion of the court was delivered by: Irenas, District Judge.
Presently before the Court is the pro se application for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2241, of
petitioner Paul R. Julmiste ("Julmiste" or "Petitioner"). The
Petitioner challenges an order of removal, entered by an
Immigration Judge and affirmed by the Board of Immigration
Appeals, claiming that removal will violate his rights under the
U.S. Constitution, federal statutes and international human
rights law. For the reasons set forth below, Petitioner's
application for habeas corpus relief will be denied.
Facts and Procedural History
Petitioner and his family were lawfully admitted to the United
States as immigrants from Haiti in 1979. Petitioner is a twenty
five year old male who has lived continuously in the United
States for approximately 23 years. At the time of his
incarceration he was a resident of New Jersey. Neither Mr.
Julmiste nor the members of his family have returned to Haiti
since moving to the U.S. and none of Mr. Julmiste's family
members still reside in Haiti. However, Mr. Julmiste's parents
have maintained strong ties with a politically and socially
active Haitian refugee, named Alerte Noel. After surviving a
violent attack and being left for dead by a political/military
group in Haiti, Ms. Noel fled to the U.S. where she has
participated in humanitarian relief efforts and has also brought
suit against the group allegedly responsible for the attack.
On August 19, 1996, Petitioner entered a plea of guilty in the
State of New Jersey, Superior Court, Essex County for the
offense of Conspiracy to Possess with Intent to Distribute
Cocaine and was sentenced to probation. On September 29, 1997,
Petitioner was convicted in State of New Jersey, Superior Court,
Essex County for the offenses of Aggravated Manslaughter and
Unlawful Possession of a Weapon. Petitioner was sentenced to ten
years for the offense of aggravated manslaughter and an
additional five years for weapon possession.
On November 8, 1999, Petitioner received a Notice to Appear
("NTA") from the Immigration and Naturalization Service
("INS").*fn1 After serving approximately three years of his
sentence, Petitioner was transferred from prison in New Jersey
to a federal detention center in Oakdale, Louisiana. Removal
proceedings by the INS commenced on August 4, 2000. As a result
of his criminal convictions, Petitioner was charged removable
under the Immigration and Nationality Act ("INA") §§
237(a)(2)(B)(i), 237(a)(2)(iii), and 237(a)(2)(c), 8 U.S.C.A. §
1227(a)(2).*fn2 After numerous continuances, the hearing
resumed on November 16, 2000 and the Petitioner, through his
counsel, applied for
a deferral of removal under Article III of the Convention
Against Torture ("CAT")*fn3 claiming that he would be
tortured upon return to Haiti and that therefore, a deferral was
On September 13, 2001, Immigration Judge ("IJ") Charles A.
Weigland, III, denied Petitioner's application for deferral of
removal and ordered Petitioner to be removed from the United
States to Haiti. Petitioner appealed to the Board of Immigration
Appeals ("BIA"), but his appeal was dismissed on May 21, 2002.
While the BIA recognized the existence of "isolated acts of
torture" in Haitian prisons, the BIA denied Petitioner's request
because it concluded Petitioner failed to carry his burden of
demonstrating that it was "more likely than not" that he would
be subjected to torture upon returning to Haiti. Decision of the
Board of Immigration Appeals, In re: Paul Robert Julmiste,
File No. A36 470 829 — Oakdale (May 21, 2002). The BIA further
held "that neither indefinite detention nor inhuman prison
conditions . . . constitutes torture." Id.
On June 19, 2002, Petitioner filed in the United States
District Court for the District of New Jersey an emergency
petition for a writ of habeas corpus and a complaint requesting
declaratory and injunctive relief with a stay of deportation.
Petitioner alleges the BIA's ruling was arbitrary and capricious
and also makes a claim of ineffective assistance of counsel.
The permanent judicial review amendments ("permanent rules")
to the Illegal Immigration Reform and Immigrant Responsibility
Act ("IIRIRA") govern deportation proceedings initiated after
April 1, 1997.*fn4 See IIRIRA § 309(c). The permanent
rules, which revised the previous rules governing jurisdiction
and judicial review, tightly limit federal review of immigration
cases. IIRIRA § 306(a), 8 U.S.C.A. § 1252(g). See generally
Merisier v. INS, No. 00 CIV 0393 GBD AJP, 2000 WL 1281243, at
*5-6 (S.D.N.Y. Sept. 12, 2000) (discussing the 1996 Amendments
and their effects on federal court jurisdiction). The passage of
the Antiterrorism and Effective Death Penalty Act ("AEDPA") also
limited judicial review with respect to removal orders for
certain criminal aliens by repealing and revising sections of
the INA.*fn5 See generally id. Following the passage of the
IIRIRA and the AEDPA,*fn6 federal courts are no longer able
to provide direct judicial review of denials of discretionary
relief to criminal aliens. See 8 U.S.C.A. §§ 1252(a)(2)(C)
("Orders Against Criminal Aliens"
provides in relevant part that, "Notwithstanding any other
provision of law, no court shall have jurisdiction to review any
final order of removal against an alien who is removable by
reason of having committed a criminal offense . . ."), 1252(g)
(dictates exclusive jurisdiction); Liang v. INS, 206 F.3d 308,
313-14 (3d Cir. 2000).
However, the Third Circuit has consistently maintained its
federal jurisdiction over habeas cases involving criminal
aliens, even though it may no longer engage in "judicial
review." Liang, 206 F.3d at 317 (Finding there is no express
intent by Congress to preclude jurisdiction, and holding "a
repeal of habeas jurisdiction will not be found by
implication."). The Third Circuit was clear in holding "any
challenge by a criminal alien to the BIA's interpretation of the
immigration laws or to the constitutionality of those laws, even
a claim involving substantial constitutional issues, must be
made through a habeas petition rather than through a petition
for review." Liang, 206 F.3d at 315 (referring to its decision
in Catney v. INS, 178 F.3d 190, 195 (3d Cir. 1999)).
The Supreme Court recently resolved a split in the circuits
and affirmed the continued vitality of federal jurisdiction of
habeas petitions by criminal aliens. INS v. St. Cyr,
533 U.S. 289, 297-314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Specifically, the Supreme Court held in St. Cyr that the 1996
Amendments did not divest federal courts of jurisdiction under
28 U.S.C. § 2241 to hear challenges from criminal aliens
regarding pure questions of law. Id. The Supreme Court found
the "lack of a clear, unambiguous, and express statement of
congressional intent" to preclude habeas review, in addition to
the great potential for constitutional problems arising from the
preclusion of such review, to be compelling considerations
supporting its decision. Id. at 314, 121 S.Ct. 2271.
Therefore, this Court may review Petitioner's claim under the
CAT insofar as Mr. Julmiste argues that his removal to Haiti
would, as a matter of law, violate his rights under federal law
and international human rights law. See Calcano-Martinez v.
INS, 232 F.3d 328, 342 (2d Cir. 2000) ("Although not all
challenges that an alien may launch against his removal are
cognizable under habeas, purely legal statutory and
constitutional claims are within § 2241's scope.").
In general, agency actions should be reviewed with a great
degree of deference when the agency is interpreting the statutes
and regulations which it administers. Chevron U.S.A. Inc. v.
Natural Resources Defense Council, 467 U.S. 837, 865-66, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984). In this context, Congress has
dictated through IIRIRA the intended standard for review
regarding findings of facts supporting final orders of
removal.*fn7 IIRIRA calls for a determination whether "any
reasonable adjudicator would be compelled to
conclude to the contrary."*fn8 U.S.C. § 1252(b)(4)(B). While
there may remain some confusion regarding "the exact scope of §
2241 habeas review of INS factual determinations after
IIRIRA . . . the standard of review must be at least as deferential as
it was before the 1996 Amendments, when the courts applied the
substantial evidence test to asylum applications and accorded
`substantial deference' to the BIA's findings of fact." Soto v.
Ashcroft, No. 00 CV 5986 AJP, 2001 WL 1029130, at *7 (S.D.N.Y.
Sept. 7, 2001) (citations and quotations omitted). The Supreme
Court has spoken on this issue and held that an alien seeking
judicial reversal of an immigration agency's administrative
decision must show that the evidence was "so compelling ...