Opinion
No. 3:01-CV-2131-L
July 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
Parties: Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2241. Respondent is the Immigration and Naturalization Service ("INS").
Factual Background: Petitioner is a native and citizen of Canada. He entered the United States on September 10, 1976. On November 11, 1996, he was convicted of Theft of Property of $750 or more but less than $20,000, in the 282nd Judicial District Court, Dallas County, Texas. Petitioner was sentenced to a three year suspended sentence, three years community supervision, a fine and $6,051.00 in restitution.
On April 9, 1997, The INS issued Petitioner a Notice to Appear charging Petitioner with removability for conviction of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii) as defined in 8 U.S.C. § 1101(a)(43)(G), relating to a theft offense for which the term of imprisonment is at least one year.
On April 24, 1997, Petitioner appeared before an Immigration Judge. Petitioner requested no relief from removal and was ordered removed to Canada. Petitioner waived appeal. On May 6, 1997, Petitioner was deported to Canada.
On August 28, 2001, Petitioner filed a motion to reopen with the INS. Petitioner argued that under the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), he was entitled to a waiver hearing under section 212(c) of the Immigration and Nationality Act. The INS denied this motion for lack of jurisdiction because Petitioner was already physically removed from the United States. Petitioner did not appeal this Order to the Board of Immigration Appeals.
On October 23, 2001, Petitioner filed this petition for writ of habeas corpus. Petitioner argues that the INS has unlawfully denied him a hearing under section 212(c). On November 27, 2001, Respondent filed a motion to dismiss. On December 26, 2001, Petitioner filed a reply to the motion to dismiss.
Discussion:
Petitioner argues that under the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), he is entitled to a waiver hearing under § 212(c) of the Immigration and Nationality Act. That section, which is now repealed, allowed any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years to apply to the INS for a discretionary waiver from deportation. If relief is granted, the deportation proceeding is terminated and the alien remains a permanent resident.
In St. Cyr, the Supreme Court found that district courts have jurisdiction under 28 U.S.C. § 2241 to determine whether a person is entitled to a waiver hearing under § 212(c). See, St. Cyr, 533 U.S. at 314. In St. Cyr, however, the Petitioner was in custody in the United States at the time he filed his habeas corpus petition. In this case, Petitioner was deported approximately four and half years before he filed this § 2241 petition.
The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." See 28 U.S.C. § 2241(c)(3) (emphasis added); Maleng v. Cook, 490 U.S. 488, 490 (1989); see also Santana v. Chandler, 961 F.2d 514, 516 (5th Cir. 1992) (finding pendency of INS detainer does not satisfy "in custody" requirement); Fernandez v. Immigration and Naturalization Service, 2001 WL 435065, 3:01-CV-317-P (N.D. Tex. April 20, 2001) (finding Petitioner must show more than an INS detainer and a final order of deportation to meet "in custody" requirement). Further, the United States Supreme Court has construed the "in custody" language to require that the petitioner be in custody at the time the petition is filed. Maleng, 490 U.S. at 490-91 (citing Carafas v. LaValle, 391 U.S. 234, 238 (1968)).
Petitioner is not "in custody" of the INS, nor was in "in custody" at the time he filed this petition. The petition should therefore be dismissed for want of subject matter jurisdiction.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2241 be dismissed for lack of subject matter jurisdiction.