Opinion
01 Civ. 4192 (HB)
June 7, 2001
OPINION ORDER
Petitioner Rolando Gomez ("Gomez") filed a § 2241 habeas petition ("petition") in which he argued that he was improperly denied a "discretionary waiver hearing," to which he was entitled under § 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C.A. § 1182(c), the statute in effect at the time of his 1994 guilty pleas. Gomez requests that this Court: (1) stay deportation, (2) order the Immigration and Naturalization Service ("INS") to convene a discretionary waiver hearing and (3) exercise its inherent authority to order his "immediate release." The Government opposes the petition on various grounds, among them: (1) this Court lacks subject matter jurisdiction because Gomez failed to exhaust his administrative remedies, both with respect to the discretionary waiver hearing and "immediate release"; and (2) this Court lacks personal jurisdiction over Gomez. For the reasons set forth below, the petition is denied.
BACKGROUND
Gomez, a Cuban national and lawful U.S. permanent resident for the last 30 years, pleaded guilty to narcotics and weapons offenses in 1994 in the Southern District of New York. Gomez entered into a cooperation agreement and thereafter provided "substantial assistance" to the Government in connection with investigations of at least five violent narcotics trafficking organizations in the Bronx. As a direct or indirect result of Gomez's cooperation, 44 defendants were convicted. In 1997, in consideration of his substantial assistance the United States Attorney authorized a 5K1.1 letter to be written to the Court and Gomez was sentenced to 6 years in prison.
Upon the completion of his sentence, an immigration judge in Cleveland, Ohio ordered on April 22, 1999 that Gomez be deported to Cuba as a consequence of his 1994 convictions, and sent Gomez to Tanjitahoa Parish Jail in Amite Louisiana to await deportation, where he remains today. Gomez, who did not have a discretionary waiver hearing (whether he requested one or not is unclear), waived his right to appeal the decision to the Board of Immigration Appeals ("BIA").
Under § 212(c) of the INA in effect in 1994, a permanent resident alien convicted of a drug related crime, and therefore subject to deportation under the immigration laws, could apply to the Attorney General for a waiver of deportation. See 8 U.S.C.A. § 1182(c). Subsequent to Gomez's guilty pleas in 1994, Congress enacted the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA") which repealed § 212(c) and terminated the entitlement to a discretionary waiver hearing. The Attorney General and the INS have taken the position that the repeal of § 212(c) applies retroactively, such that aliens who pleaded guilty to deportable offenses prior to the 1996 enactment of the IIRIRA are nonetheless not entitled to discretionary waiver hearings. The Supreme Court has heard arguments on this issue and is expected to render a decision before the end of the term. See St. Cyr v. INS, 229 F.3d 406 (2nd Cir. 2000) (now on appeal).
There is nothing in the record to indicate that after he was ordered deported in 1999 Gomez applied for bail to the INS district director in New Orleans, as he is permitted to do under the governing regulations.See 8 C.F.R. § 236. On May 17, 2001, Gomez filed the instant petition and moved by order to show cause why the Court should not grant his requested relief A hearing was held on May 29, 2001.
DISCUSSION
I. Subject Matter Jurisdiction
In his petition, Gomez requested that the Court order the INS to convene a discretionary waiver hearing, and that the Court exercise its inherent power to order his release from INS custody.
a. discretionary waiver hearing
A federal court does not have subject matter jurisdiction over a § 2241 petition such as this unless the petitioner has exhausted his administrative remedies. See 8 U.S.C. § 1252 (d)(1); Herrera-Mesa v. McElroy, 2000 WL 109052 (S.D.N.Y. 2000); Alcaide-Zelaya v. McElroy, 2000 WL 1616981 (S.D.N.Y. 2000); Espinal v. Fihon, 2001 WL 395196 (S.D.N.Y.). An alien challenging removal fails to exhaust his remedies if he does not appeal the removal decision of the immigration judge ("IJ") to the BIA.See Mena-Ruiz v. INS, 51 F.3d 358 (2nd Cir. 1995); Carr v. INS 1998 WL 315475 (S.D.N.Y. 1998) (J. Koeltl). Here, it is undisputed that Gomez failed to appeal the removal decision of the IJ; and indeed, the "Order of the Immigration Judge" (an unofficial opinion) indicates that Gomez waived his appeal to the BIA. (Govt. Br., Exh. A). See Mena-Ruiz, 51 F.3d 358 (quoting a 9th Circuit case, "[a] waiver of the right to appeal is a failure to exhaust remedies"). Since Gomez never appealed the order of deportation, and there is no suggestion that Gomez's waiver was ineffective see U.S. v. Moura, 2001 WL 333005, *2-3 (S.D.N.Y. 2001), this Court does not have subject matter jurisdiction over Gomez's petition.
Additionally, it is worth noting that a petitioner ordered deported following a conviction on a weapons charge is not entitled to a discretionary waiver hearing under former § 212(c). See Cato v. INS, 84 F.3d 597, 600-602 (2nd Cir. 1996). Here, Gomez pleaded guilty to three weapons offenses: possession of a weapon during and in relation to a drug offense, possession of a defaced firearm, and possession of a firearm by a convicted felon. Therefore, had this Court found subject matter jurisdiction and proceeded to the merits, it would have found that Gomez is precluded from a discretionary waiver hearing.
b. immediate release
In his petition, Gomez requested that he be "immediately released" from INS custody. At oral argument, Gomez urged that he be admitted to bail, and cited to Mapp v. Reno, a recent Second Circuit decision, for the proposition that habeas courts have the inherent authority to order the release of INS detainees awaiting deportation. 241 F.3d 221 (2nd Cir. 2001). Gomez further argued that whether or not he exhausted administrative remedies, this Court has subject matter jurisdiction over the petition for bail.
Indeed, in Mapp v. Reno the Court held that a habeas court could, in very limited circumstances, order the INS to release an alien detainee on bond pending disposition of his
Habeas courts should grant bail "only in unusual cases, or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." Mapp, 241 F.3d at 226. Neither in his papers nor at oral argument did Gomez articulate a reason why "immediate release" is necessary to make the habeas remedy effective. In Mapp, as here, the petitioner was denied a discretionary waiver hearing and challenged his custody on that basis. Although theMapp Court did not foreclose bail in such circumstances, it suggested that bail is not necessary to make effective a claim for a discretionary waiver hearing. "[t]he relief sought by petitioner guaranteed neither his release from detention nor a vacate of the INS's order of removal. The most Mapp could (and, as it turns out, did) secure by virtue of being granted habeas was an order from the district court requiring that the INS consider his eligibility for a waiver of deportation under INA § 212(c). But, and significantly, the effectiveness of this form of relief is wholly independent of the question of whether Mapp is incarcerated while the § 212(c) hearing is pending. Without findings that indicate why Mapp's release is needed to make the required § 212(c) hearing "effective." findings that are by no means obvious, we cannot say that a case for bail has been made out." Id. at 230-231 (emphasis added).
petition. Id. In Mapp, the Court also reaffirmed its prior holdings that "federal courts have inherent authority to admit to bail individualsproperly within their jurisdiction," id. at 226 (emphasis added), and that "[a] district court has inherent power to enter an order affecting the custody of a habeas petitioner who is properly before it contesting the legality of his custody." Id. (quoting Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2nd Cir. 1978)) (emphasis added). In other words, contrary to Gomez's argument, this Court cannot exercise its inherent authority to order his release in the absence of a cognizable challenge to his custody over which this Court has jurisdiction. Gomez's sole basis for challenging his custody is the failure of the INS to provide him with a discretionary waiver hearing. Because this Court does not have subject matter jurisdiction over that challenge, for the reasons discussed above, this Court cannot entertain Gomez's request for "immediate release."
Moreover, even if Gomez had asserted that his continued detention itself violated a federal right — a difficult row to hoe in any event — he would still have to exhaust his administrative remedies with respect to that claim before coming to this Court. See Herrera-Mesa 2000 WL 109052. Under 8 C.F.R. § 236, the INS district director may release an alien from continued custody who demonstrates by clear and convincing evidence that the release would not pose a danger to the community or a significant flight risk. If the district director decides not to release the alien pending deportation, the alien may appeal the district director's decision to the BIA within 10 days. 8 C.F.R. § 2419d)(3)(iii). Gomez can't contest his continued detention through habeas review until his application to the INS Director is denied and that denial is upheld on appeal. See Alcaide-Zelaya, 2000 WL 161698;Diaz v. McElroy, 134 F. Supp.2d 315 (S.D.N.Y. 2001).
This Circuit has held that the indefinite detention of excludable aliens is not unconstitutional. Guzman v. Tippy, 130 F.3d 64, 65 (2d Cir. 1997).
The governing regulation lists nine nonexciusive factors for the district director to consider in determining whether to continue to detain an alien beyond the 90-day removal period.
Thus, Gomez may apply to the INS district director for a release from custody pending deportation. However, the forthcoming decision of the INS district director in connection with Gomez's recent custody review under the criminal alien provisions may obviate the need for him to apply for a release. At oral argument, the Government represented that Gomez's interview took place on April 30, or thereabouts, and that the review is now before the district director. While I am confident that the district director is familiar with Gomez's file, let me underscore 4 factors that to me at least warrant consideration: (1) Gomez's extraordinary cooperation with the Government (the benefit of which he has been deprived due to his prolonged INS detention), (2) the possibility of indefinite detention, in effect a life sentence in a facility far removed from his state of residence, (3) his close connection with his family in the Bronx (evidenced by the 50 or so family members who attended the oral argument) and (4) the fact that he has already been in detention for more than a year. If there are significant countervailing reasons for continuing his detention, I am unaware of them.
II. Personal Jurisdiction
Because this Court lacks subject matter jurisdiction over Gomez's claims, I need not reach the issue of personal jurisdiction.
CONCLUSION
For the foregoing reasons, the petition is denied and the Clerk of the Court is directed to close the case.