-1-

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SERGEY ZHELYATDINOV, :

Petitioner :

:

v. : No. 02-CV-04318-MMB

:

JOHN ASHCROFT, :

UNITED STATES ATTORNEY :

GENERAL, :

Respondent : 

:

GOVERNMENT’S RESPONSE TO PETITION

 FOR WRIT OF HABEAS CORPUS 

I. BACKGROUND

This is an alien habeas corpus case. Petitioner

Sergey Zhelyatdinov (“Zhelyatdinov”) is a 22-year old native

of Kazakhstan, in the former Soviet Union. He entered the

United States at New York as a refugee on September 9, 1993

at the age of 13. His status was adjusted to lawful

permanent resident on August 16, 1995; 8 U.S.C. § 1255. 

On Zhelyatdinov was convicted of “conspiracy-theft

by unlawful taking” in the Court of Common Pleas for Erie

County, Pennsylvania on August 3, 2000. Zhelyatdinov was

sentenced to an indeterminate term of 12 months to 48 months

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 1 of 18
1 The precise offense of conviction was for

conspiracy to commit theft, in violation of

18 Pa.Cons.Stat.Ann. § 903 as it relates to

§ 3921. Three other counts were dismissed a

nolle prosequi. The facts were that on June

17, 1999 Zhelyatdinov and other Russians

attempted to steal a new Hertz rental car

from a motel parking lot. The fairly stiff

sentence, and the fact that Zhelyatdinov was

designated to serve it at the State

Correctional Institution at Western rather

than a county jail, suggest that the

Commonwealth (and the judge) believed this

attempted theft to be more than a one-time

incident. The government’s supposition makes

no difference to his habeas case.

-2-

imprisonment.1 

On April 2, 2001, the Immigration & Naturalization

Service (INS) commenced removal proceedings against

Zhelyatdinov, by issuing a “Notice to Appear” or “NTA.” The

NTA charged that the petitioner was subject to deportation

because his conviction was for an “aggravated felony” as

defined by the Immigration & Nationality Act (INA) at 8

U.S.C. § 1101(a)(43)(G)(certain theft offenses are

“aggravated felonies”), and (a)(43)(U) (conspiracies and

attempts to commit aggravated felonies are aggravated

felonies). See 8 U.S.C. § 1227(a)(2)(A)(iii) (alien

convicted of “aggravated felony” is deportable); 8 U.S.C.

§ 1228(c)(aggravated felons are “conclusively presumed” to

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 2 of 18
-3-

be deportable). 

In a hearing before Immigration Judge Walter

Durling on November 7, 2001, the alien applied for

Withholding Of Removal, and “deferral” of removal under the

terms of the United Nations Convention Against Torture.

Judge Durling denied the applications, and ordered

Zhelyatdinov removed. 

Through his present counsel, Zhelyatdinov appealed

his removal order to the Board Of Immigration Appeals (BIA).

The BIA sustained Judge Durling, and dismissed the appeal in

a written order dated February 13, 2002. This constituted a

final order of removal.

On February 26, 2002 Zhelyatdinov filed a petition

for review with the Third Circuit Court of Appeals. In May

the Circuit dismissed the appeal for lack of jurisdiction, 

because removal orders against criminal aliens are not

directly reviewable; 8 U.S.C. § 1252(a)(2)(C). 

Zhelyatdinov filed the instant habeas petition on

June 28, 2002. In it he argues that (a) his offense of

conviction was not an ”aggravated felony” and thus he is not

deportable; (b) if he is deportable, the Immigration Judge

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 3 of 18
-4-

should have granted him the waiver of deportability known as

“withholding of removal;” and (c) the Immigration Judge

should have granted relief from deportation under the

Convention Against Torture (CAT).

This Court has jurisdiction to review “final

orders of removal” against criminal aliens under the habeas

statute; 28 U.S.C. § 2241(c)(3); Calcano-Martinez v. INS,

533 U.S. 348, 121 S.Ct. 2268, 2270, 150 L.Ed.2d 392 (2001).

The standard of review is legality. Because the petition

establishes no illegality in the alien’s removal order, it

must be dismissed.

II. ARGUMENT

A. Petitioner’s Offense Of

Conviction Is An Aggravated

Felony And He Is Subject To

Removal Therefor 

The petition makes a conclusory assertion that

Zhelyatdinov somehow has not been convicted of an aggravated

felony, despite a theft conviction resulting in an

indeterminate sentence of 12 to 48 months. Section

1101(a)(43)(G) of Title 8 includes as an aggravated felony a

conviction for a “theft offense” for which the sentence

imposed is a year or more. In the context of removal

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 4 of 18
2 Zhelyatdinov asserts that he “is not subject

to removal...because he is a refugee and a

Legal Permanent resident of the United

States.” Petition, page 1, second para.

Evidently Zhelyatdinov does not grasp that

-5-

proceedings, a sentence of 12 to 48 months is a sentence

of 48 months. See United States v. Galicia-Delgado, 130 F.3d

518, 519 (2d Cir. 1997) (holding that indeterminate sentence

is for “maximum imposed” and setting out history of term).

Because Zhelyatdinov’s sentence was greater than 12 months,

his offense of conviction is an aggravated felony and he was

properly ordered removed; See 8 U.S.C. § 1227(a)(2)(A)(iii)

(alien convicted of aggravated felon is deportable). 

B. The Attorney General’s

Determination That Zhelyatdinov

Is Not Likely To Suffer

Persecution Upon His Return To

Kazakhstan is Factual And Not

Subject To Review On Habeas 

 An aggravated felon like Zhelyatdinov is

“conclusively presumed” to be deportable; 8 U.S.C.

§ 1228(c). In the 1996 amendments to the Immigration &

Nationality Act (INA), Congress took particular care to

eliminate most forms of “relief” from removal for aggravated

felon aliens, including former lawful permanent residents

like Zhelyatdinov.2 Cf. 8 U.S.C. § 1229b(a) (no

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 5 of 18
the final order of removal in his case

extinguished his permanent resident status.

Katsis v. INS, 997 F.2d 1067, 174 (3d Cir.

1993); Matter of Lok, 18 I. & N. Dec. 101,

107 (BIA 1981). 

3 A grant of asylum results in the alien being

accorded permanent residence. “Withholding”

-6-

“cancellation” of removal for former permanent resident

aliens convicted of aggravated felonies); 8 U.S.C § 1182(h)

(no “hardship waiver” for permanent resident convicted of

aggravated felony); 8 U.S.C. § 1158(b)(2)(A)(ii) (no

“asylum” for aliens convicted of aggravated felony); 8

U.S.C. § 1229c(a)(1) (no “voluntary departure” for

aggravated felon aliens). 

Nonetheless, in restricting deportation waivers

and other relief, Congress left open the prospect of a

waiver for criminal aliens claiming refugee status.

Generally, alien refugees may obtain two forms of relief

under the INA: “asylum” under 8 U.S.C. § 1158(a) and

“withholding” of removal under 8 U.S.C. § 1231(b)(3). To

qualify for asylum, an alien need establish only a “wellfounded fear” of persecution, but as noted above the relief

is not available to aggravated felons like Zhelyatdinov; 8

U.S.C. § 1158(b)(2)(a).3

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 6 of 18
(and Torture Convention relief) result in a

prohibition from expelling an alien to a

particular country; in theory, the alien

granted withholding is still liable to

expulsion to another country.

-7-

The other relief for refugees is available to some

criminal aliens, including Zhelyatdinov. “Withholding” of

removal is authorized at 8 U.S.C. § 1231(b)(3)(A) for

deportable aliens whose “life or freedom would be

threatened” in the country of removal based on race,

religion, nationality or political opinion. It differs from

asylum in that the standard is essentially objective; the

alien’s fears, however sincere, are not dispositive. It

differs from asylum in another aspect as well; a grant of

asylum (and with it permanent residence) is discretionary to

the Attorney General even if the alien establishes a “wellfounded fear.” On the other hand, the Attorney General must

“withhold” removal if an applicant establishes that there is

a clear probability that his life or freedom would be

threatened in his country on account of one of the protected

grounds at 8 U.S.C. § 1101(a)(42)(A). See Li Wu Lin v. INS,

238 F.3d 239, 244 (3d Cir. 2001) (“To qualify for mandatory

relief under withholding of deportation, ... [the applicant]

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 7 of 18
-8-

must show that it is more likely than not that he will face

persecution if he is deported")(emphasis added); and see INS

v. Aguirre-Aguirre, 526 U.S. 415, 119 S.Ct. 1439, 1443, 143

L.Ed.2d 590 (1999).

The petition says that the alien’s testimony in

his removal hearing established that Zhelyatdinov was more

likely than not to be persecuted if returned to Kazakhstan,

and that the Immigration Judge got it wrong when the judge

concluded otherwise. “The Immigration judge was mistaken in

finding that country conditions in Kazakhstan has

changed....”(sic); Petition, page 7, § 3.

The Attorney General’s factual determinations

relating to a withholding claim are not reviewable on a

petition for habeas corpus. In this case the petitioner

concedes that there was conflicting evidence, the State

Department country reports relating to Kazakhstan on the

government’s side, and Zhelyatdinov’s essentially

uncorroborated testimony on the other; Petition, p. 8, third

full para. Stated another way, the Attorney General’s

decision to deny the withholding was based on weighing and

assessment of evidence presented, and that process is

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 8 of 18
-9-

immmune from a collateral attack by a habeas petition. 

Liang v. INS, 206 F.3d 308, 310 (3d Cir. 2000) (in

imigration context, district courts retain habeas

jurisdiction over Constitutional and statutory challenges

only), cert. denied, 533 U.S. 949, 121 S.Ct. 2590, 150

L.Ed.2d 749 (2001).

The habeas statute grants jurisdiction to district

judges to issue writs in their respective districts for

those in custody in violation of the Constitution or the

laws of the United States. 28 U.S.C. § 2241(c)(3). An alien

subject to a final order of removal is in “custody” for

purposes of habeas analysis. 

In 1996 Congress amended the INA to impose

substantial restraints on review of immigration cases by

federal courts; Reno v. American-Arab Anti-Discrimination

Committee, 525 U.S.471, 485, 119 S.Ct. 936, 944, 142 L.Ed.2d

940 (1999) (limiting judicial review of deportation cases

“can fairly be said to be the theme of [IIRIRA]”); Henderson

v. INS, 157 F.3d 106, 119, 120 n. 10 (2d Cir. 1998), (1996

amendments were meant to make immigration decisions

“nonreviewable to the fullest extent possible under the

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 9 of 18
4 See DeSousa v. Reno, 190 F.3d 175, 185 (3d

Cir. 1999)(one of Congress’ goals in passing

AEDPA was to enhance ability to deport

criminal aliens by eliminating waiver); Moore

v. Ashcroft, 251 F.3d 919, 925 (11th Cir.

2001)(one of Congress’ goals in IIRIRA was to

expedite the removal of criminal aliens);

Lukowski v. INS, 279 F.3d 644, 647 (8th Cir.

2002)(same). 

-10-

Constitution”), cert. denied, 526 U.S. 1004, 119 S.Ct. 1140,

143 L.Ed.2d 208 (1999).

4 The 1996 acts contained express

and unequivocal restraints on judicial review in the cases

of criminal aliens. See 8 U.S.C. § 1252(a)(2)(C);

§ 1252(g). Anon some federal courts purported to find an

exception to this unequivocal language, by positing that the

jurisdiction-stripping amendments in the amended INA did not

effect the statutory habeas provision at 28 U.S.C.

§ 2241(c)(3). 

Last June the Supreme Court resolved the question

in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d

347 (2001). The St. Cyr Court established that an alien

might petition the court for a habeas writ to test a

deportation order, but only for legality. 

In assessing the scope of review of habeas in a 

criminal alien case, the St. Cyr Court observed that the

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 10 of 18
-11-

“scope of review on habeas is considerably more limited than

on APA-style review;” 533 U.S. at 312, 121 S.Ct. at 2278. 

The “scope of review” in the Administrative Procedures Act

is “abuse of discretion;” 5 U.S.C. § 706. The Court noted

that the issue before it was a legal one, and not a question

of whether the alien warranted discretionary relief. 

Despite the gloss counsel attempts to put on it,

Zhelyatdinov’s case does not implicate either a legal or

Constitutional question. Mere gratuitous incantations that

the Immigration Judge was “mistaken as a matter of law”

(page 8) do not establish illegality; Zhelyatdinov’s

argument is nothing more than an assertion that his

testimony about country conditions in Kazakhstan (after a

nine-year absence) is entitled to more weight than the

Department of State’s most recent report on the subject.

Even if he were correct, the contention is not reviewable on

habeas. Bowrin v. U.S. I.N.S., 194 F.3d 483, 490 (4th Cir.

1999) ("Only questions of pure law will be considered on §

2241 habeas review. Review of factual or discretionary

issues is prohibited"); Sol v. INS, 274 F.3d 648, 651 (2d

Cir. 2001)(federal jurisdiction over § 2241 petitions does

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 11 of 18
-12-

not extend to review of factual or discretionary

determinations); Carranza v. INS, 277 F.3d 65 (1st Cir.

2002)(“Federal courts therefore retain subject matter

jurisdiction over habeas petitions brought by aliens facing

removal to the extent that those petitions are based on

colorable claims of legal error, that is, colorable claims

that an alien's statutory or constitutional rights have been

violated”); Finlay v. INS, 210 F.3d 556, 557 (5th Cir.

2000)(same); Lee v. Rogers, 243 F.3d 548 (9th Cir.

2000)(only questions of “pure law” reviewable on habeas, not

factual determinations by the BIA).

C. The Attorney General’s Conclusion

That Petitioner Is Not Likely To Be

Tortured By His Government Is A

Factual Determination Not Reviewable

On Habeas 

Zhelyatdinov also complains that his application

for relief under the Torture Convention was improperly

denied. Zhelyatdinov’s claim is premised on his conclusion

that he might be subject to military service, and “hazing”

in the army, if returned to his homeland. For the reasons

set out under the Withholding analysis above, that claim

must be dismissed as well. 

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 12 of 18
5 Convention against torture and other cruel,

inhuman or degrading treatment or punishment,

23 I.L.M. 1027 (1984), as modified 24 I.L.M.

535 (1985); adopted by the U.N. General

Assembly Dec. 10, 1984, entered into force

June 26, 1987, ratified by United States Oct.

21, 1994, 34 I.L.M. 590, 591 (1995), and

entered into force for the U.S. Nov. 20,

1994.

6 See Akhtar v. Reno, 123 F.Supp.2d 191, 196

(S.D.N.Y. 2000)(CAT not self-executing). 

-13-

Prior to the 1996 amendments to the INA, The

United States had ratified a treaty called the Convention

Against Torture (“Convention” or “CAT”).5 Article 3 of the

Convention said that “No State Party shall expel, return

(‘refouler’), or extradite a person to another State where

there are substantial grounds for believing that he would be

in danger of being subjected to torture." Congress had

ratified the Convention with the express stipulation that it

would not be “self-executing;” at the time of the

ratification in 1994, Congress was holding hearings on

immigration reform which culminated in the 1996 acts, and

possibly it had already decided to close down the

asylum/withholding loopholes for criminals.6 

The Torture Convention provisions are not part of

the INA. To integrate the CAT into American law, in 1998

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 13 of 18
7FARRA § 2242(a) says that “it is the policy of the United

States not to expel...any person to a country in which there are

substantial grounds for believing that the person would be in

danger of being subjected to torture.”

-14-

Congress enacted the Foreign Affairs Reform and

Restructuring Act of 1998 ("FARRA"), Pub.L. No. 105-277,

Div. G, 112 Stat. 2681, 2681-821 (Oct. 21, 1998). FARRA

§ 2242(a) adopted the Convention’s Article 3 essentially

verbatim.

7 Section 2242(d) made it clear that denials of

Torture Convention relief to aliens can be reviewed only in

conjunction with a final order of removal, and further makes

it clear that neither FARRA nor the Convention itself

provides jurisdiction to review the denial if the review is

otherwise forbidden by the INA. See 8 CFR § 208.18(e). The

provisions for Torture Convention relief are in the Attorney

General’s regulations appertaining to the immigration laws,

specifically the part relating to asylum and withholding of

removal. See 8 CFR, Part 208.

To obtain relief under the Torture Convention, the

alien must establish a clear probability (or “more likely

than not”) that he would be subject to torture by his

government or its officials upon repatriation. Emruloski v.

Ashcroft, No. 01-4083, 2002 WL 1768996, *4 (3d Cir. Aug. 1,

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 14 of 18
-15-

2002)(unpublished). And see Julmiste v. INS, - F.Supp.2d -, 

2002 WL 1733273, *4 (D.N.J. Jul. 23, 2002) (“Under CAT, the

IJ must first determine if the petitioner has shown that it

is more likely than not that he will be tortured upon return

to the country of removal. If the petitioner has satisfied

his burden of proof, then the IJ may grant either a

Withholding of Removal or a Deferral of Removal”). Because

the objective standard is the same and the relief granted

similar, a Torture Convention claim is analytically similar

to a withholding claim, the difference being an objective

probability of “persecution” as opposed to an objective

probability of “torture.” Cf. Johnson v. Ashcroft, 286 F.3d

696 (3rd Cir. 2002)(“The INS itself has recognized the

similarity of these types of claims in general: in the

interim rule establishing procedures for CAT claims, it

noted that the same application form is used for asylum,

withholding of removal, and relief under CAT because in many

cases ‘the underlying facts supporting these claims will be

the same.’ Regulations Concerning the Convention Against

Torture, 64 Fed. Reg. 8478, 8485 (Feb. 19, 1999)”) with

Sulaiman v. Ashcroft, - F.Supp.2d -, 2002 WL 1752207, *5

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 15 of 18
-16-

(E.D.Pa. Jul. 30, 2002)(DuBois, S.J.)(holding that “claims

for relief under CAT are analytically separate ...and not

merely a subset of claims” for withholding, criticizing the

government’s argument to the contrary as “flawed”). 

Whatever the burden the criminal alien faces in

persuading the Attorney General that he will be tortured on

his return, the standard of review is the same on habeas. In

this case, Zhelyatdinov says that the government of

Kazakhstan will torture him by inducting him into the army

and “hazing” him. Petition, page 14. It is very unlikely

that any hazing incident to induction into military service,

even in a former U.S.S.R. republic, is sufficiently

pernicious to meet the Torture Convention definition of

“torture.” Moreover, many aliens (and some immigration

lawyers) do not understand that, in the United States,

compulsory military service is not synonymous with

persecution. Cf. Nenadovic v. INS, 108 F.3d 124 (7th Cir.

1997); Gonzalez v. INS, 82 F.3d 903, 908 (9th Cir. 1996);

Umanzor-Alvarado v. INS, 896 F.2d 14 (1st Cir. 1990). 

Zhelyatdinov attempted to bolster his CAT claim by some

testimony about hazing, but his evidence was considered and

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 16 of 18
-17-

rejected by the Immigration Judge as a matter of fact. The

Immigration judge’s determination leaves no room for review

on a habeas petition, and the petition must be dismissed.

See Sulaiman v. Ashcroft, supra (district court lacks

jurisdiction to review factual determination that Torture

Convention relief is not warranted).

III. CONCLUSION

For the foregoing reasons the petition must be

dismissed. 

Respectfully,

PATRICK L. MEEHAN

United States Attorney 

 

JAMES G. SHEEHAN

Assistant United States Attorney

Chief, Civil Division

________________________________

STEPHEN J. BRITT

Assistant United States Attorney

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 17 of 18
-18-

Certificate of Service

I certify hereby that on the 22nd Day of August, 2002, I personally

served or caused to be served a copy of the attached Governme nt’s Response To

Habeas Petition, addressed to:

Tatiana Aristova, Esq.

Law Offices of John J. Gallagher

1760 Market Street, Suite 1100

Philadelphia, PA 19103-4104

Attorney for petitioner,

by first class mail service upon counsel.

__________________________________

STEPHEN J. BRITT

Assistant United States Attorney

Suite 1250, 615 Chestnut Street

Philadelphia, PA 19106-4476

(215) 861-8443

(215) 861-8642 telecopier

Case 2:02-cv-04318-MMB Document 8 Filed 08/22/2002 Page 18 of 18