Verissimo v. Immigration & Naturalization Service , 71 F. App'x 859 ( 2003 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-2151
MANUEL VERISSIMO,
Petitioner, Appellant,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.
Manuel Verissimo on brief pro se.
Ethan B. Kanter, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice,
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, and Michael P. Lindemann, Assistant Director, on brief
for appellee.
June 26, 2003
Per Curiam. Petitioner Manuel Verissimo appeals pro se
from the district court's dismissal of his 28 U.S.C. § 2241petition. We have reviewed the parties' briefs and the record on
appeal. We affirm, substantially for the reasons stated in the
magistrate judge's August 7, 2002, report and recommendation, which
the district court accepted on August 28, 2002. We add only the
following comments.
The government argues that this court lacks jurisdiction
over Petitioner's claims because Petitioner failed to exhaust these
claims before the administrative agency pursuant to Immigration and
Nationality Act ("INA") § 242(d)(1), 8 U.S.C. § 1252(d)(1). We
have not yet decided whether the exhaustion requirement in INA §
242(d)(1) applies to § 2241 habeas petitions. We certainly have
jurisdiction over purely constitutional issues. See Ravindran v.
INS, 976 F.2d 754, 762 (1st Cir. 1992).
Assuming, without deciding, that this court has
jurisdiction over all of Petitioner's claims, we agree with the
lower court that these claims are meritless. With respect to
Petitioner's equal protection challenge, to the extent Petitioner
continues to pursue it, the lower court correctly determined that
Petitioner failed to state a claim because an alien convicted of
Petitioner's narcotics violation (possession with intent to
distribute heroin) is ineligible for a waiver under INA § 212(h),
8 U.S.C. § 1182(h), regardless of whether or not the alien is a
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lawful permanent resident. Because lawful permanent residents and
non-lawful residents in Petitioner's situation are treated the same
under INA § 212(h), there is no disparate treatment, and,
accordingly, no equal protection violation.
With respect to Petitioner's claimed rights under the
International Covenant of Civil and Political Rights ("ICCPR"), the
lower court correctly determined that INA § 212(h) trumps the
ICCPR. "[A]n Act of Congress . . . is on a full parity with a
treaty [and] when a statute which is subsequent in time is
inconsistent with a treaty, the statute to the extent of conflict
renders the treaty null." Breard v. Greene, 523 U.S. 371, 376
(1998). Congress amended INA § 212(h) in 1996 (disqualifying
aggravated felons like Petitioner from eligibility for
discretionary cancellation of removal), see Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L.
No. 104-208, 110 Stat. 3009-594, well after the ICCPR was signed in
1992. Taveras-Lopez v. Reno, 127 F. Supp.2d 598, 609 (M.D. Pa.
2000). The IIRIRA thus "displaces any obligation assumed by the
United States as a 1992 signatory to the ICCPR." Id. Moreover,
"no enactment of Congress can be challenged on the ground that it
violates customary international law." Id. (quoting Committee of
U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 939
(D.C. Cir. 1988)). Thus, even assuming that Petitioner has
judicially enforceable rights under the ICCPR, an issue we do not
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decide, because Congress has precluded the possibility of a waiver
of removal for aliens in Petitioner's position, Petitioner cannot
rely on the ICCPR and customary international law to request a
hearing on why he should not be removed. Petitioner's request that
this court rewrite INA § 212(h) to accord with the ICCPR is beyond
our province. See, e.g., United States v. Charles George Trucking
Co., 823 F.2d 685, 689 (1st Cir. 1987) (noting that court has no
warrant to rewrite statute).
With respect to Petitioner's claimed rights under Article
36 of the Vienna Convention, we agree with the lower court that,
even assuming that Petitioner has actionable rights under the
Vienna Convention and that those rights were violated, Petitioner
is not entitled to have his prior conviction and subsequent removal
order vacated because there is no "express, or undeniably implied,
provision for such remedies in [the] treaty's text." United States
v. Li, 206 F.3d 56, 61 (1st Cir. 2000); see United States v.
Ademaj, 170 F.3d 58, 67 (1st Cir. 1999) (noting that "the Vienna
Convention itself prescribes no judicial remedy or other recourse
for its violation"). Accordingly, the lower court correctly
dismissed the petition.
The judgment of the district court is affirmed.
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