The opinion of the court was delivered by: JOSE LINARES, District Judge
This matter is before the Court on the petition for a writ of
habeas corpus by petitionerplaintiff Milton Ashley. The Court has
considered the submissions in support of and in opposition to the
Petition. There was no oral argument. See Fed.R.Civ.P. 78.
For the reasons set forth below, Counts Two and Three of the
Petition are dismissed for want of jurisdiction under Bakhtriger
v. Elwood, 360 F.3d 414 (3d Cir. 2004), and Counts One and Four
are denied on the merits. BACKGROUND
Petitioner Milton Ashley is a casualty of "Operation Predator,"
the highly publicized effort by the Department of Homeland
Security ("DHS") to round up and deport criminal alien sex
offenders pursuant to Section 237(a)(2)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1227(a)(2)(A). On August 6,
2003, petitioner was arrested at his home in Montclair, New
Jersey and thereafter detained at the Hudson County Correctional
Facility in Kearny, New Jersey. Petitioner's arrest was effected
on the basis of a 1995 felony conviction for sexual assault upon
a minor, his twelve-year-old niece. That conviction rendered him
The Immigration and Naturalization Service ("INS")*fn1
served petitioner with a Notice to Appear ("NTA"), which
indicated the commencement of removal proceedings against him. In
a hearing before an Immigration Judge ("IJ"), petitioner conceded
his deportability but sought a waiver under Section 212(c) of the
INA. (In the Matter of Ashley, No. A90-579-180, Garcy, I.J., Op.
of 11/3/03, at 2 ("IJ Op.").) The IJ granted such relief,
reasoning that, because petitioner's family ties were strong, he
was a responsible person and excellent worker, he supported his
wife and children financially, he was a "steady taxpayer," and he
had little family outside the United States, petitioner had
demonstrated "unusual or outstanding equities" sufficient to
overcome his admittedly "vile and depraved" crime several years
earlier. (IJ Op. at 5-11.) The IJ moreover found that petitioner
had exhibited "true rehabilitation." (Id. at 11.) Although the
IJ expressed confusion over the fact that "the sentencing
documents state[d] that [petitioner] was supposed to have gone to
psychological counseling," which petitioner did not do, the IJ
ultimately believed petitioner's representation that no such counseling was in fact
required, reasoning that petitioner never apparently violated the
terms of his probation. (Id. at 14.)
The Board of Immigration Appeals ("BIA" or "Board") reversed.
(In the Matter of Ashley, No. A90-579-180, Hess Op. of 3/18/04
("BIA Op.").) Without expressly overruling the IJ's factual
determinations, the BIA arrived at the opposite conclusion
concerning the balancing of the equities with the seriousness of
the crime. (BIA Op. at 3.) It determined that the nature of a
sexual offense against a child ultimately weighed too heavily
against petitioner's admittedly "noteworthy" equities. (Id. at
2-3.) The BIA further noted that petitioner's failure to undergo
rehabilitative therapy, even though counseling appeared to be an
intended part of his sentence, was "worrisome." (Id. at 3.)
Petitioner was ordered removed to his native Jamaica.
On or about April 6, 2004, petitioner filed this action, which
he fashions a "Verified Petition for a Writ of Habeas Corpus
and Complaint for Declaratory and Injunctive Relief."*fn2
The Petition contains four counts. Count One alleges that the
BIA's use of de novo review deprived petitioner of due
process, because the Board supposedly overturned the IJ's factual
finding that petitioner was rehabilitated. (Pet. ¶¶ 60-77.) Count
Two also alleges that the BIA's use of de novo review
violated his due process rights, on the grounds that such review
rendered the IJ's decision meaningless. (Pet. ¶¶ 78-87.) Count
Three alleges that the BIA violated due process, because it
failed to follow precedent, and, contrary to its ruling on
petitioner's bail appeal, where it supposedly held that petitioner was rehabilitated,*fn3
the BIA irrationally held the opposite when overturning the IJ.
(Pet. ¶¶ 88-104.) Count Four alleges that the BIA was a biased
adjudicatory body, because the Attorney General reduced its size
from twenty-three to eleven members, eliminating those members he
disagreed with, and because the Attorney General has placed undue
pressure on the Board to deny relief to aliens. (Pet. ¶¶
Respondents oppose the Petition on the grounds that this Court
lacks subject matter jurisdiction to review BIA determinations,
and that, in the alternative, the Petition is meritless. The
Court will first set forth the applicable law and then apply that
law to each Count in the Petition.
A. The Statutory Framework
As discussed, petitioner pled guilty in 1995 to Endangering the
Welfare of a Child in the Third Degree, N.J.S.A. § 2C:24-4(a).
This conviction rendered him deportable.
8 U.S.C. § 1227(a)(2)(A)(iii).
Under former INA Section 212(c), deportable aliens could seek a
waiver of deportation from the Attorney General. That statute
provided: "Aliens lawfully admitted for permanent residence who
temporarily proceeded abroad voluntarily and not under an order
of deportation, and who are returning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the discretion of the
Attorney General. . . ." 8 U.S.C. § 1182(c) (repealed 1996).
While the plain language of Section 212(c) applied only to aliens
seeking readmission into the United States, it was construed to
apply also to aliens fighting deportation. See, e.g.,
Gonzalez v. INS, 996 F.2d 804, 806 (6th Cir. 1993). Section
304(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), 110 Stat. 3009-597,
repealed INA Section 212(c). Nevertheless, because petitioner's
guilty plea preceded IIRIRA, he remained eligible for
discretionary waiver under Section 212(c). See INS v. St.
Cyr, 533 U.S. 289, 314-16 (2001). His application was thus
Once the Board denied petitioner's Section 212(c) application
and ordered him deported, however, petitioner's available sources
of relief in federal court were quite limited. Specifically, as a
criminal alien convicted of an aggravated felony, petitioner had
no entitlement to appeal the BIA's ruling to the Third
Circuit.*fn4 See 8 U.S.C. § 1252(a)(2)(C). To the
contrary, his sole avenue of relief was under the traditional
habeas statute. Bakhtriger v. Elwood, 360 F.3d 414, 418 (3d
Cir. 2004). That statute, 28 U.S.C. § 2241(c), provides in
relevant part: "The writ of habeas ...