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July 23, 2002


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 mandated.

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.").

Standard of Review

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 ...

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