Opinion
Civil Action No. 1:03-CV-239-C.
June 22, 2004
ORDER
Petitioners, Chris Atwooki Baguma and Juliet Kyoshabire, filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 and a motion for stay of removal. Respondents filed an answer and motion to dismiss, together with relevant records, and Petitioners filed a reply.
Petitioner Chris Atwooki Baguma was incarcerated in the Rolling Plains Detention Center in Haskell at the time he filed his petition. Haskell is located within the jurisdiction of this Court.
Petitioner Juliet Kyoshabire was not in custody at the time the § 2241 petition was filed.
Petitioners, who are purportedly husband and wife, are natives and citizens of Uganda. They entered the United States with non-immigrant visitor's visas and both remained beyond the period authorized. Petitioners were placed in removal proceedings based on their visa violations. Both Petitioners remained non-detained during the course of their removal proceedings.
During removal proceedings, both Petitioners admitted factual allegations and conceded removability as visa overstays. Petitioners applied for political asylum and withholding of removal under 8 U.S.C. § 1231(b)(3)(A) and the United Nations Convention Against Torture (CAT). The immigration judge conducted an evidentiary hearing and denied Petitioners' application for asylum and withholding of removal under both the Immigration and Nationality Act and CAT. The immigration judge granted Petitioner Baguma's request for voluntary departure, subject to posting a $1000 departure bond. Petitioner Kyoshabire was ordered removed to Uganda based upon a finding that she was ineligible for voluntary departure. The immigration judge found that Petitioner Kyoshabire had engaged in marriage fraud.
Both Petitioners filed a timely notice of appeal to the Board of Immigration Appeals (BIA). By order dated December 10, 2002, the BIA affirmed the immigration judge's decision as to each Petitioner. Thereafter, Petitioners filed a joint petition for review of the BIA decision in the United States Court of Appeals for the Fifth Circuit. They also sought an emergency stay of removal.
Petitioner Baguma failed to voluntarily depart the United States. He was subsequently apprehended by United States Border Patrol agents after he was observed working illegally. After his apprehension, Petitioner Baguma obstructed efforts to effect his removal by refusing to complete an application for a Ugandan travel document. He was indicted in the United States District Court for the Northern District of Texas, Dallas Division, on March 4, 2003, for False Claim to United States Citizenship under 18 U.S.C. § 911 and Failure to Depart from the United States pursuant to 8 U.S.C. § 1253(a)(1)(B). Petitioner Baguma was found guilty by a jury on both counts, and Petitioner was sentenced on September 26, 2003, to time served. Petitioner Baguma was transferred from the custody of the Federal Bureau of Prisons to the Bureau of Immigration and Customs Enforcement on October 2, 2003.
The United States Court of Appeals denied the joint petition for review and motion for emergency stay of removal on November 4, 2003. Mandate issued on January 16, 2004.
Petitioner Kyoshabire was not in custody at the time the § 2241 petition was filed; therefore, this Court lacks jurisdiction to consider Petitioner Kyoshabire's habeas petition. The mere existence of a detainer or a deportation order is insufficient to place an alien "in custody" for purposes of habeas relief. Zolicoffer v. United States Dep't of Justice, 315 F.3d 538, 541 (5th Cir. 2003) (INS detainer); United States ex. rel. Marcello v. District Director, I.N.S., 634 F.2d 964, 970 (5th Cir. 1981 (deportation order).
Petitioners sought and obtained judicial review by direct appeal in the United States Court of Appeals for the Fifth Circuit as to all claims now being pursued in this court.
Jurisdiction in this Court under 28 U.S.C. § 2241 is unavailable for claims "that can be considered on direct review" by the circuit court. Santos v. Reno, 228 F.3d 591, 597 (5th Cir. 2000); Rivera-Sanchez v. Reno, 198 F.3d 545, 547-48 (5th Cir. 2000); Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 305 (5th Cir. 1999).
This Court is without jurisdiction to consider Petitioner's habeas petition. 8 U.S.C. § 1252(g); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (§ 1252(g) deprives courts of jurisdiction to review "three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders.'"); Cardoso v. Reno, 216 F.3d 512 (5th Cir. 2000) (court lacks jurisdiction under § 1252(g) to issue an injunction "precluding the Attorney General from executing pending removal orders" or adjusting immigration status); Finley v. INS, 210 F.3d 556, 557 (5th Cir. 2000) (federal court retains jurisdiction to review statutory and constitutional claims, but lacks jurisdiction to review denials of discretionary relief); Alvidres-Reyes v. Reno, 180 F.3d 199, 206 (5th Cir. 1999) (§ 1252(g) precludes actions seeking mandamus, injunctive, and declaratory relief in relation to exclusion, deportation, or removal proceeding); Akasike v. Fitzpatrick, 26 F.3d 510 (5th Cir. 1994); Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002) (the circuit court has jurisdiction under CAT); INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999) ("the decision whether asylum should be granted to an eligible alien is committed to the Attorney General's discretion").
For the reasons set forth above and based upon the facts and law set forth in Respondents' answer, the Court finds that Respondents' motion to dismiss should be granted and Petitioners' § 2241 petition and motion for stay of removal should be dismissed for lack of jurisdiction.