Opinion
No. 3:04-CV-2145-N.
October 18, 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. Petitioner also seeks declaratory and injunctive relief and a stay of deportation. Additionally, Petitioner filed a motion for temporary restraining order and/or preliminary injunction. At the time she filed this petition, Petitioner was in custody of the Bureau of Immigration and Customs Enforcement (BICE).
Petitioner is a citizen of Eritrea. She entered the United States as a visitor in 1999. She remained in the United States beyond her authorized six-month period. In June, 1991, Petitioner filed an application for political asylum. Petitioner failed to appear for her scheduled asylum interview on August 31, 2001. Thereafter, the INS charged Petitioner as an alien subject to removal for remaining in the United States beyond the authorized period of stay, pursuant to section 237(a) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B). The INS placed Petitioner in removal proceedings by issuing a Notice to Appear (NTA). Petitioner was not detained during the course of her removal proceedings.
At an immigration hearing on November 1, 2001, Petitioner, through her attorney, admitted that she was subject to removal for remaining in the United States unlawfully. (Respondent's Ex. 2, pp. 4-6). On April 17, 2002, an immigration judge conducted an evidentiary hearing on Petitioner's asylum claim. The immigration judge denied her application for asylum, finding that she was statutorily ineligible for relief because she failed to file her asylum application within one year of her arrival. (Respondent's Ex. 3).
Petitioner appealed the immigration judge's removal order to the Board of Immigration Appeals (BIA). On November 20, 2003, the BIA affirmed the immigration judge's decision and dismissed Petitioner's appeal. (Respondent's Ex. 4). On April 6, 2004, Petitioner was arrested by BICE agents. (Respondent's Ex. 5).
On or about May 19, 2004, Petitioner filed a motion to reopen her removal proceedings. (Respondent's Ex. 6). Petitioner argued that she relied upon a non-attorney to file her petition for asylum and that he did not timely file the petition. Petitioner also argued that the attorney she retained to file her appeal did not timely notify her that the appeal was dismissed. On June 22, 2004, the BIA denied Petitioner's motion to reopen. (Respondent's Ex. 7).
On October 4, 2004, Petitioner filed this petition for writ of habeas corpus, complaint for declaratory and injunctive relief, request for stay of removal and motion for temporary injunction and/or preliminary injunction. Petitioner argues that her removal order should be declared invalid, that her removal should be stayed and that she should be released from detention pending removal.
On October 12, 2004, the Court held a hearing on Petitioner's motion for injunctive relief. The Court now finds Petitioner's motion, and the petition, should be denied.
II. Discussion
1. Preliminary Injunction
To secure preliminary relief, the movant must show: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable injury if the preliminary relief is not granted; (3) that the threatened injury to the movant outweighs any damage preliminary relief might cause to the opponent; and (4) that the relief sought will not disserve the public interest. Enterprise International, Inc. v. Corporation Estatal Petrolera Ecuatoriana, 762 F.2d 464, 471 (5th Cir. 1985). If the movant does not succeed in carrying its burden on any one of the four prerequisites, preliminary relief may not be granted. Id. at 472. As discussed below, Petitioner fails to establish a substantial likelihood of success on the merits. Her motion for injunctive relief and/or temporary restraining order should therefore be denied.
The factors that govern an application for temporary restraining order are the same as those that govern a request for preliminary injunction.
2. Detention
Petitioner has been detained since April, 2004. Petitioner argues her continued detention violates due process.
The authority to detain aliens after the entry of a final order of removal is set forth in section 241(a) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1227(a)(1)(B). Pursuant to that provision, the Attorney General is afforded a ninety-day period to remove an alien from the United States following the entry of a final order of removal. 8 U.S.C. § 1231(a)(1). During the removal period, the Attorney General shall detain the alien. 8 U.S.C. § 1231(a)(2).
An alien may be detained beyond the removal period if: (1) he is inadmissable to the United States; (2) removable for a violation of his nonimmigrant status; (3) removable for the commission of certain criminal acts; (4) removable as a national security risk; or (5) one who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal. 8 U.S.C. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that section 241(a)(6) "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Id. at 689. The Court stated that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by the statute." Id. at 699.
The Zadvydas Court designated six months as a presumptively reasonable period of post-order detention. "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. at 701.
In this case, Respondent states Petitioner will be removed to Eritrea on or about October 20, 2004. Petitioner cannot show there is no significant likelihood of her removal in the foreseeable future. In fact, it is Petitioner who is seeking to delay that removal. Petitioner's claim that her continued detention violates due process should therefore be denied.
3. General Jurisdiction
Petitioner argues this Court has jurisdiction to review her removal order under the Administrative Procedures Act, 5 U.S.C. 701, et seq.; the general federal question jurisdictional provision at 28 U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201; the All Writs Act, 28 U.S.C. § 1651; the mandamus provision, 28 U.S.C. § 1361; the Suspense Clause of the United States Constitution, Art. 1, § 9, Cl.2; and the common law. None of these provisions provide jurisdiction in this case. See Renteria-Gonzalez v. INS, 322 F.3d 804, 811 (5th Cir. 2002) ("[T]he All Writs Act does not confer an independent basis for subject matter jurisdiction."); TTEA v. Ysleta del Sur Pueblo, 181 F.3d 676, 681 (5th Cir. 1999) (finding Declaratory Judgment Act is not independent basis for jurisdiction); Renteria-Gonzalez, 322 F.3d at 811 (finding that § 1331 is a general jurisdictional statute and provides no independent basis for jurisdiction). The APA does not apply where "statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Title 8 U.S.C. § 1252 precludes such review. Petitioner cannot establish jurisdiction under the mandamus provision because, as discussed below, she has not shown that she has a "clear right to relief" or a "clear duty" on the part of Respondent to perform the requested act. See Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998). Finally, Petitioner has cited no authority for jurisdiction under the common law. Petitioner has therefore failed to establish jurisdiction under any of these provisions.
4. Habeas Corpus Jurisdiction
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:
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 (1st 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. Blackman, 266 F.3d 210, 215-16 (3d Cir, 2001) (same); Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002) (same). Petitioner therefore cannot establish jurisdiction under § 2241.
5. Petitioner's Claims
Even assuming that Petitioner could establish habeas jurisdiction, her petition fails on the merits.
Petitioner argues the removal order violates her rights to due process. Petitioner's due process argument is unclear. The petition appears to argue that Petitioner was denied the effective assistance of counsel during her removal proceedings. At the hearing, however, Petitioner's counsel clarified that Petitioner is not arguing that she received ineffective assistance of counsel. Petitioner's ineffective assistance of counsel argument is therefore waived.
It is well-settled that there is no Sixth Amendment right to counsel in removal proceedings. See Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n. 2 (5th Cir. 2001). The Fifth Circuit has yet to decide whether a Fifth Amendment right to counsel exists in removal proceedings. See Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004).
Petitioner also argues her removal violates the Convention Against Torture ("CAT"). Under the CAT, an applicant must show "that it is more likely than not that he or she would be tortured if removed to the proposed country of removal." Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002) (citing 8 C.F.R. § 208.16(c)(2)).
Petitioner argues she was a member of the Eritrean Liberation Front Revolutionary Council ("ELF-RC") from March, 1995 until August, 1999. (Petitioner's Ex. 2). She submits a letter from the ELF-RC stating that the organization believes her membership would cause her life to be in danger if she returned to Eritrea. (Petitioner's Ex. 3). Petitioner raised this claim before the Board of Immigration Appeals ("Board"). The Board found:
While there is background evidence of growing repression of vocal government critics in Eritrea (Exhs. 4.12-4.13), the respondent has not presented sufficient evidence that there was a pattern or practice of persecuting individuals on account of their mere membership in ELF. Moreover, the respondent has not established that anyone in Eritrea has a current interest in her on account of her ELF membership, actual or imputed political opinion, or on account of any other protected ground.
(Respondent's Ex. 4). The petition and Petitioner's ELF-RC letter fail to present sufficient evidence that it is more likely than not that she would be tortured because of her ELF-RC membership.
Petitioner also argues she would be subject to torture because she evaded conscription into the Eritrean army. She submits an October, 2002, press release from Amnesty International stating that all Eritrean men and women ages 18 to 40 are subject to conscription. The article states that the punishment for evading conscription may be imprisonment or death. (Petitioner's Ex. 4). Petitioner raised this claim before the Board. The Board found:
While Ethiopians of Eritrean origin may be detained and subject to harassment while the government investigates to determine whether such returnees are draft dodgers, the background evidence does not reflect that such individuals are tortured or subject to harm that rises to the level of persecution.
(Respondent's Ex. 4).
Petitioner's Amnesty International article is two years old. She submits no evidence regarding current conditions in Eritrea, or whether she is more likely than not to be tortured for evading conscription. Petitioner's claims under the Convention Against Torture should therefore be denied. RECOMMENDATION
For the foregoing reasons, the Court recommends that the petition and motion for injunctive relief and/or temporary restraining order be denied.