UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

HOPETON GOODEN, :

:

Petitioner : No. 4:CV-05-0309

:

vs. : Petition Filed 02/11/05

:

TOM RIDGE, Secretary of Department : (Judge Muir)

of Homeland Security, et al., :

Respondents :

ORDER

April 21, 2005

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 11, 2005, Petitioner Hopeton Gooden, a native

of Jamaica, filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2241. On February 14, 2005, we issued a rule to

show cause in which we, inter alia, established a briefing

schedule on Gooden’s petition. The government filed its

responsive brief on March 14, 2005. Gooden’s reply brief was

filed on April 18, 2005, thereby ripening his petition for

disposition.

Gooden asserts the following three claims in his petition:

1) he has improperly been denied relief pursuant to 8 U.S.C. §

1182(c) of the Immigration and Nationality Act; 2) the

Immigration and Naturalization Service incorrectly concluded

that Gooden’s New York state criminal conviction of possessing a

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weapon in the second degree constitutes an “aggravated felony”

as that phrase is defined and used in the immigration laws; and

3) the Immigration and Naturalization Service never served upon

Gooden a proper notice of the charges which subjected Gooden to

deportation. (Petition, p. 7) Before considering the merits of

those claims, we will set forth the material factual and

procedural history of this case.

Gooden entered the United States as an immigrant on or

about July 2, 1963. On April 15, 1975, he was convicted of

robbery in the Bronx County Superior Court in Bronx, New York. 

On April 3, 1981, he was convicted of conspiracy to commit bank

robbery in the United States District Court for the Eastern

District of New York. On March 1, 1985 Gooden was convicted of

reckless endangerment in the first degree in the Suffolk County

Superior Court in Riverhead, New York.

Based on those convictions, on June 2, 1987, the

Immigration and Naturalization Service commenced removal

proceedings against Gooden by issuing an order to show cause. 

That order listed the offenses upon which the Immigration and

Naturalization Service was relying to deport Gooden. According

to that order, Gooden was removable because he had committed a

crime of moral turpitude. During those proceedings Gooden

conceded that he was subject to deportation, but argued that he

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was entitled to a discretionary waiver of deportation pursuant

to 8 U.S.C. § 1182(c) of the Immigration and Nationality Act. 

That provision is commonly referred to as “§ 212(c),” and we

will hereinafter refer to it as such. 

An administrative hearing was held and by order dated

October 11, 1994, the Immigration Judge concluded that Gooden

failed to establish his entitlement to any relief pursuant to §

212(c), and that Gooden should therefore be deported. Gooden

successfully appealed that order. On April 3, 1996, the Board

of Immigration Appeals remanded the case to the Immigration

Judge to allow Gooden’s daughter to testify as to the hardship

she would suffer if Gooden were deported. The hardship suffered

by family members is a factor to consider in determining whether

an immigrant was eligible for § 212(c) relief. At that point

the progress in Gooden’s administrative proceedings before the

Immigration and Naturalization Service essentially stopped. The

next ruling in Gooden’s case was not issued until more than five

years later, on December 11, 2001. The various developments

detailed below caused that delay.

On June 18, 1997, Gooden was convicted of reckless

endangerment in the first degree and of criminal possession of a

weapon in the second degree in the Suffolk County Superior Court

in New York. On June 9, 1998, the Immigration and

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Naturalization Service filed a document entitled “Additional

Charges of Deportability,” in which it alleged that Gooden was

now subject to deportation because he had been convicted of 1)

an aggravated felony, and 2) possession of a firearm. In that

same document the Immigration and Naturalization Service amended

the order to show cause which had been issued on June 2, 1987,

because that order contained an inaccurate citation to the

robbery offense of which Gooden had been convicted in 1975.

The hearing to obtain the testimony of Gooden’s daughter

was apparently scheduled for October 26, 1998. (Petition, p. 5)

For reasons which have not been presented to us by either party,

Gooden failed to appear at that proceeding. On February 16,

1999, the Immigration Judge “administratively closed [Gooden’s]

file.” (Government’s response to petition, p. 4) On January 19,

2001, the Immigration and Naturalization Service filed a “Motion

to Reopen/Recalendar and Change Venue.” Such a motion was

necessary because at that time Gooden was incarcerated at the

Sing Sing Correctional Facility in Ossining, New York, as a

result of the June 18, 1997, conviction of criminal possession

of a weapon.

A second administrative hearing in Gooden’s case was held

in August of 2001. Gooden appeared at that proceeding. On

December 11, 2001, the Immigration Judge ruled that Gooden was

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“deportable for having been convicted of an aggravated felony,

as that term is defined in Sections 101(a)(43)(F) and (G) of the

[Immigration and Nationality] Act.” The specific offense cited

by the Immigration Judge in that portion of his decision was

Gooden’s robbery conviction. 

The Immigration Judge further held that Gooden was not

eligible for any relief pursuant to § 212(c) because as of

December 11, 2001, Gooden had been imprisoned for more than five

years in connection with the 1997 possession of a weapon

conviction. Gooden unsuccessfully appealed that decision and by

order dated March 28, 2002, the Board of Immigration Appeals

affirmed the Immigration Judge’s decision.

Based on those facts, in his pending habeas petition Gooden

initially contends that the delay in his original deportation

proceedings unlawfully precluded him from obtaining relief

pursuant to § 212(c). The statute in effect when Gooden sought

that relief provided as follows:

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 .... 

The first sentence of this subsection shall not apply to an

alien who has been convicted of one or more aggravated

felonies and has served for such felony or felonies a term

of imprisonment of at least 5 years.

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8 U.S.C. § 1182(c) (1995). Gooden argues that he would have

been eligible for the waiver set forth in § 212(c) in the course

of his original deportation proceedings because he had not

served more than five years’ imprisonment on any aggravated

felony during those proceedings. 

We first consider the reasons underlying the delay in his

deportation proceedings. Our research of the reported decisions

addressing this type of claim indicates that the period caused

solely by an Immigration Judge’s erroneous decision should not

be considered in determining whether an immigrant has spent five

years in custody for the purposes of applying § 212(c). See

Hartman v. Elwood, 255 F. Supp. 2d 510, 518 (E.D. Pa.

2003)(DuBois, J.)(where passage of five-year mark is caused

“only because of” an Immigration Judge’s error, the merits of a

§ 212(c) request should be considered).

There is no doubt that the Immigration Judge who conducted

Gooden’s initial administrative hearing erred when he disallowed

the testimony of Gooden’s daughter. Indeed, that was the single

justification for sustaining Gooden’s appeal and remanding the

case to the Immigration Judge. However, it is equally clear

that other factors contributed to prolonging Gooden’s case.

Most notably, Gooden was subsequently convicted in 1997 of

reckless endangerment in the first degree and of criminal

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possession of a weapon in the second degree. Those charges

significantly altered the complexion of Gooden’s case. Those

1997 convictions directly led to the filing on June 9, 1998, of

a form identified as an “I-261 Form” which is entitled

“Additional Charges of Deportability.” (Government’s response to

petition, Exhibit E) The filing of that document effectively

established new grounds to deport Gooden. 

It is an understatement to say that the 1997 convictions

materially contributed to the delay in processing Gooden’s case. 

Yet Gooden has not addressed the impact of those charges on his

case, and in the documents filed in this court he completely

fails to acknowledge those offenses in any manner.

In his first argument Gooden would have us believe that the

relevant sentence with respect to his request for § 212(c)

relief is one which had been imposed before his 1994 hearing

before the Immigration Judge. The information presented to us

establishes that the five-year sentence relied upon by the

Immigration Judge in the December 11, 2001, decision to deny

Gooden’s request for § 212(c) relief was that which Gooden had

been serving for the 1997 conviction of possessing a weapon. 

Gooden received a sentence of more than 10 years on that

offense. Gooden has not presented any reason why it was

improper for the Immigration Judge to rely on that sentence. 

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For the reasons discussed above, Gooden has not established

that the only cause of the delay in ruling on his request for

relief pursuant to § 212(c) was the Immigration Judge’s error at

that initial hearing held in this case. Moreover, Gooden has

also failed to show that he was prejudiced in any manner by the

delay. The information presented to us indicates that the

sentence imposed for 1997 conviction of possessing a firearm,

and not any delay in his deportation proceedings, rendered

Gooden ineligible for § 212(c) relief. Consequently, Gooden is

not entitled to any relief based on his first claim.

Gooden next argues that the Immigration Judge erred in

concluding that possession of a weapon in the second degree was

an aggravated felony for the purposes of 8 U.S.C. §

1101(a)(43)(F). That statute defines an “aggravated felony” as,

inter alia, a “crime of violence” as defined in 18 U.S.C. § 16.

A “crime of violence” is defined in 18 U.S.C. § 16 as

(a) an offense that has an element of use, attempted use,

or threatened use of physical force against the person or

property of another, or 

(b) any other offense that is a felony, and that, by its

nature, involves a substantial risk that physical force

against a person or property of another may be used in the

course of committing the offense.

18 U.S.C. § 16. 

The Immigration Judge determined that Gooden’s New York

offense of criminal possession of a weapon met the definition of

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a “crime of violence” set forth in § 16(b). We are authorized

to review that determination de novo. See Francis v. Reno, 269

F.3d 162, 168 (3d Cir. 2001). The Court of Appeals for the

Third Circuit has held that in considering whether a state

offense is within the scope of § 16(b) we should employ a

“categorical approach.” Id., at 171. That approach “generally

limits a court’s inquiry to the statutory definitions of an

offense, and not to the facts underlying a conviction for that

offense.” Oyebanji v. Ashcroft, ___ F. Supp. 2d ___, 2003 WL

22466214 (D.N.J. Sept. 25, 2003)(Simandle, J.). 

The New York law states that “[a] person is guilty of

criminal possession of a weapon in the second degree when he

possesses a machine gun or loaded firearm with intent to use the

same unlawfully against another.” New York State Penal Law §

265.03. We agree with the Immigration Judge’s conclusion that

the possession of a weapon with the intent to unlawfully use the

weapon “involves a substantial risk that physical force against

a person ... may be used in the course of committing the

offense.” 18 U.S.C. § 16. Consequently, Gooden’s second

argument is meritless.

Gooden’s third and final argument is that the Immigration

Judge improperly relied upon charges not cited in “the Form I261" to deport him. Gooden contends that “[t]he Immigration

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Judge relied upon charges not specified upon the Form I-261 (for

additional charges of deportability) to sustain grounds of

deportability,” and that Gooden consequently did not have

adequate notice of the specific reasons for which he was to be

deported. (Petition, p. 8) This argument is based on a

misreading of the Immigration Judge’s December 11, 2001,

decision.

In that decision the Immigration Judge clearly states that

the offense for which Gooden was to be deported was Gooden’s

robbery conviction. (Government’s response to petition, Exhibit

F, p. 4) That offense was listed in the original order to show

cause issued in 1987, and the citation to the specific New York

state law was clarified in the Form I-261 filed on June 9, 1998.

Gooden correctly notes that it may have been inappropriate

to deport him based solely on the 1997 conviction of possessing

a firearm because that offense was not listed in the order to

show cause. However, the Immigration Judge did not reference

that offense as a basis to deport Gooden. The Immigration Judge

cited the 1997 weapon offense only in the context of Gooden’s

request for § 212(c) relief. As noted above, the Immigration

Judge held that the sentence imposed upon Gooden for that

offense rendered Gooden ineligible for § 212(c) relief. Gooden

has not presented any authority demonstrating that the

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Immigration Judge’s reliance upon the 1997 conviction for that

limited purpose was improper. 

The information presented to us indicates that Gooden had

adequate notice of the charges for which he was to be deported. 

Gooden’s third claim is without merit. 

We will deny Gooden’s petition for writ of habeas corpus.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Gooden’s petition for writ of habeas corpus (Document

1) is denied.

2. The Clerk of Court shall close this case.

s/Malcolm Muir 

MUIR, U. S. District Judge

MM:ga

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