Opinion
CV 02-2815 (RR)
August 16, 2002
Enrique Solis, Alpine, TX, Petitioner, Pro Se
Honorable Alan Vinegrad, United States Attorney, Eastern District of New York, Dione M. Enea, Special Assistant U.S. Attorney, Brooklyn, NY, Attorney for Respondents
Memorandum and ORDER
Enrique Solis, proceeding pro se, challenges an order of deportation against him by petitioning this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondents urge dismissal of the petition on the ground, inter alia, that the court lacks subject matter jurisdiction. Having reviewed the parties' submission, this court agrees that the case must be dismissed for lack of jurisdiction.
Solis was in custody at the time he filed his petition. Apparently, he was deported on July 23, 2002 and has since attempted unlawfully to reenter this country. As a rule, a petitioner may only seek § 2241 relief while in custody, see Ofusu v. McElroy, 98 F.3d 694, 703 (2d Cir. 1996). and a subsequent deportation deprives the court of jurisdiction, see Duran v. Reno, 197 F.3d 63 (2d Cir. 1999). This court will not, however, dismiss Solis's petition as moot, since the lawfulness of his deportation may become an issue in his criminal case. See 8 U.S.C. § 1326(d).
Solis is a 45-year old Mexican national who became a permanent resident alien of the United States in 1990. Convicted in 1995 in New York State court of Attempted Criminal Sale of a Controlled Substance in the Third Degree, N.Y. Penal Law §§ 110.00, 220.39 (McKinney 1998, 2001). Solis was subsequently ordered deported by the Immigration and Naturalization Service on May 4, 2001 based on his state conviction. On administrative appeal of this order, Solis's case was remanded to allow him to apply for a waiver of inadmissibility under former § 212(c) of the Immigration and Nationality Act of 1952, 8 U.S.C. § 1182(c) (1994), repealed by Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208. § 304(b). 110 Stat. 3009 (Sept. 30, 1996).
Evidence adduced at the § 212(c) hearing revealed that Solis had lived and worked in the United States for twenty-one years. Although he was married to a United States citizen who was financially dependent on him, the remainder of his immediate family, i.e., his mother, father, and three siblings, still lived in Mexico. Solis admitted that for approximately eight years, he had been addicted to drugs and, indeed, sold drugs to support his habit. Sentenced to probation for his New York State drug conviction, Solis violated the conditions of his release by unlawfully possessing drugs. Nothing in the hearing record evidenced petitioner's rehabilitation. Neither was there any evidence of income tax payment. property ownership, or public or military service in the United States. Solis did, however, claim that he was working toward his GED. He also expressed remorse for his conduct and asked the court to give him a chance to rebuild his life in the United States.
Weighing these factors, the Immigration Judge concluded that Solis was not deserving of a § 212(c) waiver, particularly in light of the seriousness and recency of his drug crime and the lack of evidence demonstrating rehabilitation. This decision was upheld on administrative appeal.
In Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001), the Court of Appeals ruled that where, as in this case, a petitioner seeks review of the discretionary decision of the INS to deny him a waiver of deportation, federal courts lack subject matter jurisdiction to hear the claim. While federal habeas is certainly available to hear statutory or constitutional challenges to deportation orders, no such claims are raised in Solis's petition.
Accordingly, the court hereby grants respondents' motion and dismisses Solis's petition for lack of subject matter jurisdiction. The Clerk of the Court is to mark this case closed.