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May 11, 2005.

MILTON ASHLEY, Petitioner-Plaintiff
THOMAS RIDGE, Secretary, Department of Homeland Security; MICHAEL J. GARCIA, Assistant Secretary (designee), U.S. Immigration and Customs Enforcement; MATTHEW JACK, Interim Newark District Director for Interior Enforcement, U.S. Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY; U.S. IMMIGRATION and CUSTOMS ENFORCEMENT, Respondent-Defendants.

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 deportable.

  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. ¶¶ 105-118.)

  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.


  I. Applicable Law

  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 considered.

  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 ...

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