Opinion
No. 4:00 CV 1182 RWS, DDN.
February 27, 2001.
Dorothy J. Harper, St. Louis, Mo., for Petitioner.
Timothy E. Wichmer, BERNHARDT AND WICHMER, P.C., St. Louis, Mo., for Petitioner.
Jane Rund, OFFICE OF U.S. ATTORNEY GENERAL, St. Louis, Mo., for Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the court upon the petition of Roberto Basillo Castro-Pu for a writ of habeas corpus under 28 U.S.C. § 2241 and upon the motion of defendants to dismiss (Doc. No. 7). This action was referred to the undersigned United States Magistrate Judge for review and a recommended disposition in accordance with 28 U.S.C. § 636(b).
Petitioner, an alien from Guatemala, brought this action under 28 U.S.C. § 2241 alleging that he is in custody of the District Director of the Immigration and Naturalization Service in violation of his right to due process under the Fifth Amendment. More specifically, petitioner alleges that the Immigration Judge wrongly decided that petitioner did not qualify for political asylum and that the Board of Immigration Appeals dismissed his appeal after taking administrative notice of the facts of changed conditions in Guatemala set forth in a written State Department report, which arose after the hearing before the Immigration Judge.
Petitioner seeks the following relief:
1. An order staying and vacating the order of deportation.
2. An order that requires respondent to grant petitioner an opportunity to address, explain and rebut the evidence used by the Board of Immigration Appeals in its decision.
Respondents have moved for dismissal, arguing that this court does not have jurisdiction to hear the case, and in the alternative, that petitioner has not shown that he is entitled to relief under § 2241.
On June 11, 1991, petitioner entered the United States without inspection. He was served with an order to show cause and a warrant for his arrest on June 13, 1991 by the Immigration and Naturalization Service ("INS"). Petitioner applied for political asylum shortly thereafter, claiming fear of persecution because he is a member of the Quiche Indian group and because his political opinions opposed the Guatemalan government. On December 11, 1991, after a hearing, the Immigration Judge denied petitioner's application for political asylum and the withholding of deportation.
Petitioner timely appealed to the Board of Immigration Appeals ("BIA"). Eight years later, on December 8, 1999, the BIA affirmed the decision of the Immigration Judge ("IJ"), with one dissent out of a three member panel, and ordered that petitioner depart the United States voluntarily within 30 days. In determining whether petitioner had a well-founded fear of persecution, without notice to petitioner, the BIA panel took administrative notice of changed conditions in Guatemala, as evidenced in a 1999 State Department Report.
Petitioner alleges he did not receive actual notice of the BIA's ruling. In July 2000, when he arrived at the INS office in St. Louis to renew his work authorization document, which he did every year, he was taken into custody, where he remains pending deportation. He filed this petition for a writ of habeas corpus on July 24, 2000.
Respondents first argue that the court does not have jurisdiction to hear this case because habeas corpus jurisdiction to review deportation orders was repealed in 1996 and because § 242(g) of the Immigration and Naturalization Act ("INA") and relevant Supreme Court and Eighth Circuit decisions deprive this court of jurisdiction. Respondents argue in the alternative that petitioner has not stated a claim under 28 U.S.C. § 2241. The court will first consider respondents' jurisdictional argument.
A. Jurisdiction
Prior to 1996, judicial review of deportation orders was governed by § 106 of the Immigration and Nationality Act, which provided for judicial review of an order of deportation by habeas corpus proceedings. See former 8 U.S.C. § 1105a(a)(10) (repealed). Habeas corpus review in the district court was also available under 28 U.S.C. § 2241. The system changed drastically in April 1996, when Congress passed the Anti-Terrorist and Effective Death Penalty Act ("AEDPA"), Public Law 104-132 (effective April 24, 1996) and again in September 1996, when Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Public Law 104-208 (effective Sept. 30, 1996).
AEDPA § 401(e) explicitly repealed § 1105a(a)(10) and the IIRIRA now governs judicial review of removal orders. See 8 U.S.C. § 1252. If petitioner's immigration proceedings had arisen after April 1, 1997, this court would be without jurisdiction to consider petitioner's case. See Anic v. Reno, 114 F. Supp.2d 871 (E.D. Mo. 2000) (permanent rules of the IIRIRA divest district courts of jurisdiction to review final removal orders in habeas corpus proceedings).
However, when Congress passed the IIRIRA, it created a set of transitional rules, which apply to aliens who were placed in proceedings before April 1, 1997, but whose final orders of deportation or exclusion were entered on or after October 1, 1996. See IIRIRA § 309(a), (c) (note following 8 U.S.C.A. § 1101, at p. 83) The Eighth Circuit has interpreted these two provisions as follows:
§ 309(a) provides that "this subtitle and the amendments made by this subtitle . . . shall take effect on the first day of the first month beginning more than 180 days after the date of the enactment of this act [Sept. 30, 1996] (in this title referred to as the `title III-A effective date.'" IIRIRA § 309(a). § 309(c) provides that "[s]ubject to the succeeding provisions of this subsection, in the case of an alien who is in exclusion or deportation proceedings before the title III-A effective date . . ." § 309(c).
If deportation proceedings were commenced before April 1, 1997, and a final order of deportation entered on or after October 1, 1996, both of which conditions Mr. Shah satisfies, the new rules enacted by IIRIRA . . . have no application. Instead, judicial review is governed by IIRIRA Section 309(c)(4)(G) . . . .Shah v. Reno, 184 F.3d 719, 722 (8th Cir. 1999) (§ 309(c)(4)(G) refers to a specific section of the transitional rules). See also, Anic, 114 F. Supp.2d at 873 ("The transitional rules, found in the uncodified provisions of IIRIRA § 309(c)(4), 110 Stat. 3009-626, apply to removal proceedings commenced before April 1, 1997, in which a final order of deportation was entered on or after October 1, 1996."). Because petitioner's proceedings occurred in 1991 and a final determination by the BIA was not issued until 1999, his case is governed by the transitional rules set forth in § 309.
The significance of petitioner's case being governed by the transitional rules is not what those rules specifically provide, but rather that Shah held that AEDPA did not repeal the general habeas jurisdiction found in 28 U.S.C. § 2241. Id. at 723-24. The court specifically limited its holding to those aliens who fall within the transitional rules. Id. at 725.
The transitional rules essentially modify § 106 of the INA, former 8 U.S.C. § 1105a, to provide for review in the Court of Appeals.
Respondents argue that Shah is distinguishable in that it only applies to aliens who are deportable because they have committed a crime. Their reasoning is that under the transitional rules, criminal aliens have no recourse to an appeal but that noncriminal aliens, like the petitioner in the case at bar, still have recourse in the court of appeals. Therefore, the argument continues, because criminal aliens have no other recourse in the courts, § 2241 remains, but because noncriminal aliens like petitioner have recourse in the court of appeals, they have no right to § 2241 review.
The undersigned disagrees. The Eighth Circuit's reasoning for its holding was that, because Congress did not explicitly repeal 28 U.S.C. § 2241 when it enacted AEDPA, § 2241 jurisdiction still exists for aliens falling under the transitional rules. Id. at 723-24. See also, Reyes-Lechuga v. Reno, 183 F.3d 867, 868 (8th Cir. 1999) ("Furthermore, this Court has recently held that habeas jurisdiction under 28 U.S.C. § 2241 has survived the enactment of IIRIRA and the Anti-Terrorism and Effective Death Penalty Act with respect to aliens governed by the transitional rules of IIRIRA."). While Shah concerned an alien who was deportable because he had committed a crime, the court made no distinction between aliens who are deportable because of crimes committed and noncriminal aliens who are deportable because they do not qualify for asylum or a withholding of deportation.
Respondents also argue that a provision of the permanent rules of the IIRIRA, 8 U.S.C. § 1252, applies to the case at bar and that this court does not have jurisdiction. § 1252(g) provides as follows:
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.8 U.S.C. § 1252(g). The United States Supreme Court has noted that "§ 306(c)(1) of IIRIRA directs that a single provision, § 1252(g), shall apply `without limitation to claims arising from all past, pending, or future exclusion, deportation, or removal proceedings.'" Reno v. American-Arab Anti-Discrimination Committee, et al., 525 U.S. 471, 477 (1999) (quoting IIRIRA § 306(c)(1) (note following 8 U.S.C.A. § 1252, at p. 444)). Analyzing 8 U.S.C. § 1252(g) in conjunction with § 306(c)(1) of the IIRIRA, the Court concluded that "only § 1252(g) . . . applies to what § 309(c)(1) calls `transitional cases,' that is, cases pending on the effective date of IIRIRA." AADC, 525 U.S. at 483.
The undersigned concludes that respondents' argument is without merit because the Eighth Circuit has held as follows:
The words `commence proceedings, adjudicate cases, or execute removal orders' refer to separate and discrete actions in the deportation process. The Section has nothing to do with petitions for review of final orders of deportation, or indeed with any sort of review of such orders. Section 242(g) therefore has nothing to do with the present case, in which review is sought of a final order of deportation.Shah, 184 F.3d at 722 (citing AADC, 525 U.S. at 943). Petitioner is seeking judicial review of a final order of deportation. He alleges that his due process rights were violated when the BIA relied on the written State Department report which he was not given a chance to rebut.
The undersigned concludes that this court has jurisdiction to consider petitioner's § 2241 petition for a writ of habeas corpus.
B. 28 U.S.C. § 2241
Having determined that this court has jurisdiction, § 2241 provides, in relevant part, that "[t]he writ of habeas corpus shall not extend to a prisoner unless . . . . (3) He is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3).
Petitioner is challenging the legality of the final order of deportation against him because he was denied his due process right to a full and fair hearing, when the BIA took administrative notice of changed country conditions in Guatemala when it considered the 1999 State Department report. Respondents argue that the provisions of the Code of Federal Regulations allowing for motions to reopen are sufficiently adequate to protect any due process interest an alien may have in rebutting a finding of changed country conditions. Respondents also note that during the eight years that petitioner's appeal was pending, he did not file a motion to reopen or attempt to offer any new evidence.
8 C.F.R. § 3.2 provides as follows:
(a) General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.
8 C.F.R. § 3.2.
The Due Process Clause of the Fifth Amendment requires that an alien receive notice and a fair hearing. See Landon v. Plasencia, 459 U.S. 21, 32 (1982); Afolayan v. I.N.S., 219 F.3d 784, 789 (8th Cir. 2000). At issue in the case at bar is whether the BIA denied petitioner due process when without notice to him it took administrative notice of the changed country conditions in Guatemala. Several circuits have considered this issue with varying results.
In its decision, the BIA relied on Rivera-Cruz v. I.N.S., 948 F.2d 962, 966 (5th Cir. 1991), for the proposition that the BIA is entitled to take notice of commonly known facts, such as changes in government, noting as follows:
In considering whether an applicant has a well-founded fear of persecution, it is important to consider the general conditions in the country from which the respondent has fled. In this case, while the record does contain background information from the Department of State regarding general country conditions in Guatemala, we note that the information dates from 1991 and earlier. Accordingly, we will consider the most recent State Department Report, dated February 26, 1999, entitled Guatemala Country Report on Human Rights Practices for 1998 (Report), as this report will provide a more accurate picture of the conditions which would now be faced by the respondent should he return to Guatemala, and we will take administrative notice of the contents described therein.
Decision of the Board of Immigration Appeals attached to Petition for a Writ of Habeas Corpus, filed July 24, 2000 (Doc. No. 1), at 2 (citations omitted). Rivera-Cruz noted the following:
While not explicitly referring to the taking of notice, 8 C.F.R. § 3.2 provides that an asylum applicant may move to reopen his case to present new evidence to the Board between the time the Board renders a decision and the time the applicant is ordered to depart the United States. Such motions will be granted if the evidence sought to be offered is material and was not available or discoverable at the earlier hearing. The motion to reopen provides asylum applicants, such as Rivera, with an opportunity to be heard regarding facts officially noticed and to present contrary evidence. Applicants may then appeal the Board's denial of a motion to reopen to the court of appeals.
948 at 968 (footnote and citations omitted)
The undersigned has found no Eighth Circuit case precedent that dealt with the due process claim made by petitioner in this case. In Wojcik v. I.N.S., 951 F.2d 172 (8th Cir. 1991) (per curiam), Wojcik, a Polish immigrant, requested asylum based upon his membership in the Solidarity union. The IJ denied asylum in May 1988 and Wojcik appealed. The BIA took administrative notice that on September 10, 1989, the Solidarity Organization entered the coalition government that ruled Poland at that time and affirmed on that basis. Id. at 173.
The Eighth Circuit affirmed the BIA, noting the following:
The BIA's use of administrative notice of the changed political conditions in Poland has been approved by two circuits. See Kapcia v. I.N.S., 944 F.2d 702, 707 (10th Cir. 1991); Kaczmarczyk v. I.N.S., 933 F.2d 588 593-95 (7th Cir.), cert. denied, 502 U.S. 981 (1991). We agree with those decisions.Id.
The Tenth Circuit case which the Eighth Circuit cited, Kapcia v. I.N.S., 944 F.2d 702 (10th Cir. 1991), is not analogous to the case at bar. In that case, administrative notice of the changed conditions in Poland was first taken during the proceedings before the IJ. 944 F.2d at 706. The court noted that the petitioners were able to present extensive expert witness testimony that despite the new coalition government, they would still face persecution if deported to Poland. Id. Therefore, the court held that the petitioners had a full and fair opportunity to rebut the inference that they would not be persecuted under the new coalition government. Id.
The Seventh Circuit adopted the view that respondents espouse in this case:
[T]his court made clear that due process does not require the Board to give an asylum applicant the opportunity to rebut noticed facts prior to reaching a decision. Rather, we found that the mechanism of the motion to reopen, which "allows asylum petitioners an opportunity to introduce evidence rebutting officially noticed facts," provides a sufficient opportunity to be heard to satisfy the requirements of due process.Rhoa-Zamora v. I.N.S., 971 F.2d 26, 34 (7th Cir. 1992) (quotingKaczmarczyk v. I.N.S., 933 F.2d 588, 597 (7th Cir.), cert. denied, 502 U.S. 981 (1991)), cert. denied 507 U.S. 1050 (1993). As noted above, the Eighth Circuit cited Kaczmarczyk with approval. However, those cases also emphasized that "in order for the motion to reopen procedure to satisfy the requirements of due process it must provide a `meaningful opportunity to be heard.'"Id. at n. 8 (quoting Kaczmarczyk, 933 F.2d at 595).
After careful consideration, the undersigned concludes thatWojcik is distinguishable from the case at bar because it did not consider and rule the Fifth Amendment due process claim made by petitioner about the BIA's taking judicial notice without notice to petitioner. The court merely cited two cases that had approved the BIA's use of administrative notice of changed conditions in Poland. Wojcik, 951 F.2d at 173. The court concluded its analysis by noting that "[i]n addition, we have carefully reviewed the entire record, and conclude there is substantial evidence to support the BIA's finding that Wojcik no longer has a well-founded fear of persecution by the Polish government on account of his Solidarity activities." Id.
Furthermore, in Wojcik, the sequence of events occurred in a much shorter time frame than in the case at bar. In that case, the IJ denied the petitioner's request for asylum and withholding of deportation in May of 1988. The court does not state when the BIA issued its ruling, but because Wojcik was decided in 1991, the BIA's ruling was necessarily made during or before 1991. In the case at bar, the BIA took eight years to rule. Those "sweeping changes" to which the BIA referred in its ruling, the Decision of the Board of Immigration Appeals attached to Petition for a Writ of Habeas Corpus, filed July 24, 2000 (Doc. No. 1), at 2, did not happen until five years after petitioner's application for asylum was denied by the IJ in 1991. Therefore, the circumstances of this case are distinguishable from Wojcik as well.
After review of the relevant case law, the undersigned concludes that in the circumstances of this case a motion to reopen a BIA final decision does not satisfy the requirements of due process. It does not provide a "meaningful opportunity to be heard." See Kaczmarczyk, 933 F.2d at 595 (quoting Mathews v. Eldridge, 424 U.S. 319 (1976)).
The Ninth Circuit has disparaged the idea that motions to reopen constitute adequate due process, because the INS could moot such a motion by deporting the applicant before the motion is ruled. Castillo-Villagra v. I.N.S., 972 F.2d 1017, 1030 (9th Cir. 1992). That court acknowledged that Kaczmarczyk expressed the presumption that the Board would exercise its discretion to stay deportation until it could rule on the motion to reopen, but noted that "[w]e are not satisfied that we can make this presumption, in view of the `broad discretion' the agency has to deny motions for rehearing, which are `disfavored.'" Id. (quotingI.N.S. v. Doherty, 502 U.S. 314, 323 (1992)).
Castillo-Villagra involved aliens from Nicaragua who claimed they had a well-founded fear of persecution by the Sandinistas because of their anti-Sandinista political opinions. Id. at 1020. They were denied asylum and while their appeal was pending with the BIA, a democratic president along with a democratic coalition defeated the Sandinistas in an election. Id. The BIA took administrative notice of the election and determined that petitioners no longer had anything to fear from the Sandinistas. Id. Petitioners were never given an opportunity to rebut the evidence and show that they still might be entitled to asylum. Id. The court held that "[t]o deny an opportunity to be heard in these circumstances was a denial of Due Process required by the Fifth Amendment." Id. at 1029.
The Ninth Circuit has further analyzed a petitioner's right to due process as follows: "The Board need not notify applicants before considering events that occurred before the deportation hearing and that were presented and argued before the IJ during the deportation hearing." Getachew v. I.N.S., 25 F.3d 841, 845 (9th Cir. 1994) (citing Acewicz v. I.N.S., 984 F.2d 1056, 1061 (9th Cir. 1993)). However, "the Board must at least warn the asylum applicant before taking notice of significant events that occurred after the deportation hearing." Id. at 846 (citingCastillo-Villagra, 972 F.2d at 1029). Getachew continued:
A warning is all that is required where the facts in question are "legislative, indisputable, and general," such as, for example, which party has won an election in the immigrant's home country. Other, more controversial or individualized facts, such as whether a particular group remains in power after an election, and whether the election has vitiated any previously well-founded fear of persecution, require more than mere notice. Such controversial or individualized facts require both notice and an opportunity to rebut the extra-record facts . . . Evidence of a change in government falls in this last category, requiring the Board to provide both notice and an opportunity to respond.Id.
The First Circuit has considered several cases similar to the case at bar and has held that it "agree[d] with the majority of those circuits which have addressed the question that the motion to reopen process can ordinarily satisfy the demands of due process." Gebremichael v. I.N.S., 10 F.3d 28, 38 (1st Cir. 1993). However, in a later case, the First Circuit noted the following:
We note, however, that the INS misinterprets Gebremichael, 10 F.3d at 39 . . . . Our holding was not, as the INS suggests, that a motion to reopen is always necessary and sufficient to protect a petitioner's rights. Rather, our ultimate determination was that "the demands of due process will, as always, ultimately depend on the circumstances."Fergiste v. I.N.S. 138 F.3d 14, 19 n. 4 (1st Cir. 1998) (quotingGebremichael, 10 F.3d at 39). See also Gailius v. I.N.S., 147 F.3d 34, 45 (1st Cir. 1998) ("Of course, asylum applicants are entitled to respond to claims of changed country conditions.")
The undersigned concludes that the reasoning of the Ninth and First Circuits is applicable to petitioner's case. As stated succinctly by Paul W. Schmidt, the dissenting member of petitioner's BIA panel:
This eight-year-old appeal is being dismissed solely on the basis of evidence of "changed conditions" in Guatemala that arose after the hearing. The respondent has not had an opportunity to address, explain, or rebut any of this evidence. This is a denial of due process.
Dissenting Opinion attached to Petition for a Writ of Habeas Corpus, filed July 24, 2000 (Doc. No. 1), at 1 (citation omitted)
In the circumstances of his case, petitioner was entitled to a "warning" or notice by the BIA that it intended to consider the State Department report and an opportunity to respond before the BIA rendered its final decision. Therefore, the undersigned will recommend remanding the action to the INS for a new hearing.
For these reasons,
IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (Doc. No. 7) be denied.
IT IS FURTHER RECOMMENDED that the petition of Roberto Basillo Castro-Pu for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 be granted. This action should be remanded to the Immigration and Naturalization Service for a new hearing so that petitioner may respond to the evidence of changed country conditions.
IT IS FURTHER RECOMMENDED that, while petitioner's matter is pending in the Immigration and Naturalization Service, his motion for a stay of deportation be granted.
The parties are advised that they have ten (10) days to file written objections to this Report and Recommendation. The failure to file written objections may result in a waiver of the right to appeal issues of fact.