Summary
relying on Lee and other cases to support statement that, after St. Cyr, "non-criminal aliens, who have a statutory right to direct judicial review, may not also challenge their removal orders on collateral review in federal district court"
Summary of this case from Noorani v. AshcroftOpinion
No. 3:03-CV-0019-L
January 28, 2004
FINDINGS. CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an Order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. Factual background
Petitioner filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. At the time he filed this petition, Petitioner was a detainee in the custody of the Immigration and Naturalization Service ("INS"). On February 12, 2003, Petitioner was deported to Nigeria.
Petitioner is a forty year-old male citizen of Nigeria, who entered the United States as a visitor in 1988. (Resp. Ex. 1). He was authorized to stay in the United States for six months. Id. He unlawfully remained in the United States beyond the six-month period. Id. On December 15, 1989, Petitioner purportedly married a United States citizen, Jo Ann Burkley. (Resp. Ex. 2). On February 2, 1990, Burkley filed a Petition for Alien Relative (Form 1-130), seeking to establish a valid marriage with Petitioner, as the first step in the process of obtaining permanent resident ("green card") status for him. Id.
The INS investigated the marriage and determined that it was not valid due to Petitioner's prior marriage to a woman in Nigeria named Olaide Mulikaat. The INS found this marriage was not terminated. (Resp. Ex. 3). Although Burkley submitted a Nigerian document entitled "Dissolution of Marriage," the INS forensics examiner found that an authentic document should have been titled "Certificate of Divorce." The INS also determined an authentic document would have contained information regarding testimony of the defendant and return of the full dowry. The INS further determined that a report from the American Embassy in Lagos, Nigeria, showed that Petitioner was married to another Nigerian woman named Afusat Bola Sanusi in an Islam ceremony and that Petitioner had a child with Afusat Bola Sanusi. The INS stated that Burkley submitted no information as to this marriage. (Resp. Ex. 3).
On February 20, 1991, the INS sent Burkley a Notice of Intent to Deny the 1-130 petition. Id. The notice stated that Burkley could submit additional information within fifteen days to support her application. Id. Burkley submitted no additional information and, on May 3, 1991, the INS denied the I-130 petition. (Resp. Ex. 4).
On May 17, 1991, Petitioner and Burkley appealed the INS decision to the Board of Immigration Appeals ("BIA"). (Resp. Ex. 5). On October 24, 1991, the BIA dismissed the appeal finding that Burkley failed to establish a valid marriage to Petitioner because she had not shown his prior marriages had been dissolved. (Resp. Ex. 6).
On February 26, 1992, Burkley and Petitioner filed a second I-130 petition to establish validity of the marriage, Petitioner also filed an Application for Permanent Residence (Form I-485). (Resp. Ex. 7-8). At that time, Petitioner and Burkley were represented by their attorney, Alan Chen. Id. On June 17, 1993, the INS sent Burkley and her attorney another Notice of Intent to Deny the 1-130, again finding that Burkley failed to establish a valid marriage to Petitioner. (Resp. Ex. 9). The Notice stated that Burkley and Petitioner could submit additional evidence to rebut the reasons for denial within fifteen days. On September 10, 1993, the INS noted that no additional evidence was submitted by Burkley or her attorney and the INS issued a Notice of Denial of the 1-130 petition. (Resp. Ex. 10). The notice explained the procedures for filing an appeal. Additionally, Petitioner was sent a separate notice of denial of his Application for Permanent Residence on the basis that the 1-130 had been denied, and he therefore was ineligible to adjust his status. (Resp. Ex. 11).
On October 8, 1993, the INS issued a show cause order charging Petitioner as an alien who remained in the United States beyond the period of his authorized stay. (Resp. Ex.1). Petitioner was therefore placed into deportation proceedings.
On February 1, 1994, the Immigration Judge ordered Petitioner deported to Nigeria. (Resp. Ex. 12). On February 2, 1994, Petitioner's attorney filed an appeal of the deportation order to the BIA. (Resp. Ex. 13).
On August 1, 1994, while Petitioner's appeal was pending before the BIA, Petitioner's attorney filed a motion to reopen and reconsider the Application for Permanent Residence. (Resp. Ex. 14). On August 24, 1994, the INS District Director denied the motion to reopen and reconsider for lack of jurisdiction, finding the motion should have been filed with the Immigration Court. (Resp. Ex. 15).
On September 12, 1994, while Petitioner's appeal was still pending before the BIA, Petitioner's attorney filed a motion to reopen and reconsider the Application for Permanent Residence with the BIA. (Resp. Ex. 16).
On October 3, 1997, the BIA dismissed Petitioner's appeal. (Resp. Ex. 17). In the same order, the BIA also denied the motion to reopen. Id. Petitioner's deportation order thereby became administratively final.
On December 2, 1997, Petitioner's counsel filed another motion to reopen with the BIA. Petitioner claimed he was eligible for suspension of his deportation. (Resp. Ex. 18). On March 12, 2002, the BIA denied the second motion to reopen. (Resp. Ex. 19).
On November 15, 2002, the INS arrested Petitioner on the basis of his final order of deportation. (Resp. Ex. 20). Petitioner retained an attorney and on December 17, 2002, filed a third motion to reopen with the BIA. (Resp. Ex. 21).
On January 3, 2003, Petitioner filed this petition for habeas relief pursuant to 28 U.S.C. § 2241. Petitioner argues: (1) he was denied the opportunity to confront evidence in his deportation proceeding in violation of his Sixth Amendment rights; (2) after his visa was denied in 1993, he was not afforded the opportunity to rebut or appeal the denial because he did not receive notice of the denial; (3) he is eligible for a waiver of inadmissiblity because he married a United States citizen; and (4) he was unconstitutionally detained without bond and without the right to a bond hearing.
On February 7, 2003, the INS obtained travel documents from the Government of Nigeria to effect Petitioner's deportation. (Resp. Ex. 22). On February 12, 2003, Petitioner was deported to Nigeria. (Resp. Ex. 23). II. Discussion
Petitioner claims the INS improperly denied his petition for adjustment of status based on his marriage to a United States citizen. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") attempts to limit, or in some cases eliminate, judicial review of immigration cases. See Pub.L. 104-208, 110 Stat. 3009 (1996). This statute provides, in relevant part:
Although Petitioner has been deported, he was in custody at the time he filed this petition. A subsequent deportation does not moot the petition where Petitioner may suffer collateral consequences of the deportation order. See Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000) (remanded on other grounds).
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.8 U.S.C. § 1252(b)(9). Aliens who, like Petitioner, are not removable by reason of having committed a criminal offense, may obtain judicial review of a final order of removal by filing a petition for review with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. See id. § 1252(a) (b). Although criminal aliens have no right to direct judicial review, the Supreme Court has held that such aliens may collaterally attack their removal orders on constitutional grounds in an application for writ of habeas corpus. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (finding statutory changes under IIRIRA did not repeal habeas jurisdiction for criminal aliens who were precluded from challenging removal order in petition for review). After St. Cyr, therefore non-criminal aliens, who have a statutory right to direct judicial review, may not also challenge their removal orders on collateral review in federal district court. See Foroglou v. Reno, 241 F.3d 111, 114-15 (1th Cir. 2001) (holding that non-criminal aliens must challenge removal order in petition for review); Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003); Brathwaite v. Ashcroft, 2003 WL 22005871 at *5 (N.D. Tex. Aug, 22, 2003) (same); Lee v. Ashcroft, 2003 WL 21832237 at *3 (N.D. Tex. Aug. 5, 2003) (same), Arloo v. Ashcroft, 238 F. Supp.2d 381, 383 (D. Mass. 2003) (same); but see Liu v. INS, 293 F.3d 36, 39-41 (2d Cir. 2002) (suggesting that habeas relief remains available to non-criminal aliens who challenge removal orders on constitutional grounds); Ckmakov v. Blachnan, 266 F.3d 210, 215-16 (3d Cir. 2001) (same); Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002) (same).
Further, even if this Court has jurisdiction to entertain Petitioner's § 2241 petition, he has failed to state a claim upon which relief may be granted. To the extent that Petitioner can bypass a direct appeal and obtain federal habeas review of his removal order, he must allege and prove that he is in custody in violation of the Constitution or laws or treaties of the United States. See 28 U.S.C. § 2241. Although Petitioner claims his Sixth Amendment rights have been violated, "[i]t is well settled that, because deportation hearings are considered civil in nature, there is no Sixth Amendment right to counsel." Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n. 2 (5th Cir. 2001) (citation omitted). Further, although aliens have a constitutionally protected right to due process when deportation proceedings are initiated against them, Id., Petitioner has made no showing of a denial of due process.
Due process is a flexible concept which calls for such protections as the particular situation demands. Morrissey v. Brewer, 408 U.S. 471 (1972). Petitioner argues he was denied the opportunity to confront evidence relied upon to deny him his green card in 1990, he was denied the opportunity to challenge evidence relied upon in his removal proceedings, and he was denied a visa request in 1993 without a timely opportunity to rebuff or appeal the denial letter because the notice of intent to deny the application was sent to an address where the Petitioner never lived.
Petitioner fails to state a due process claim. Petitioner first sought his green card on February 2, 1990, when Burkley filed a Form 1-130 to establish the validity of their marriage. On February 20, 1991, Burkley and Petitioner were notified that the INS intended to deny the application. They were given fifteen days to submit further evidence. No further evidence was submitted. The INS denied the application on May 3, 1991. On May 17, 1991, Burkley and Petitioner filed an appeal. On October 24, 1991, the appeal was denied. On February 26, 1992, Petitioner was represented by counsel and filed a second 1-130 application and an application for permanent residence. On June 17, 1993, the INS issued a notice of intent to deny the applications and provided Petitioner with fifteen days to submit further evidence. No further evidence was submitted and, on September 10, 1993, the petitions were denied. The INS informed Petitioner of the procedure to file an appeal. On October 8, 1993, Petitioner was placed in deportation proceedings and on February 1, 1994, Petitioner was ordered deported. On February 2, 1994, Petitioner's attorney filed an appeal of the deportation order. On August 1, 1994, Petitioner's attorney filed a motion to reopen and reconsider his application for permanent residence. On October 24, 1994, the application was denied for lack of jurisdiction because it was filed in the wrong court. On September 24, 1994, Petitioner's attorney filed his motion to reopen and reconsider with the BIA. On October 3, 1997, the BIA denied both Petitioner's appeal of his deportation order and it denied the motion to reopen or reconsider. Petitioner was provided ample opportunity to submit and challenge any evidence in these lengthy proceedings, which spanned over ten years. Further, although Petitioner states that the June 17, 1993, notice of intent to deny his second 1-130 application and his second application for permanent residence was sent to an incorrect address, Petitioner was represented by counsel during this time, and these notices were sent to counsel. (Resp. Ex. 16, p. 2). Further, Petitioner filed an appeal and four motions to reconsider/reopen after the June 17, 1993, notice of intent to deny his applications. Petitioner's procedural due process claims are wholly without merit.
Petitioner also argues the INS wrongfully failed to recognize his marriage to a United States citizen. This is nothing more than a challenge to the decision of the Immigration Judge which is not cognizable in a federal habeas proceeding. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (finding evidentiary ruling must implicate federal constitutional right to justify habeas relief); see also Toscano-Gil v. Trominski, 210 F.3d 470, 474 (5th Cir. 2000) (finding alleged factual errors do not constitute a due process violation).
Finally, to the extent that Petitioner argues he is being unlawfully detained, Petitioner has been deported. These claims are therefore moot.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition under 28 U.S.C. § 2241 be denied with prejudice.