Opinion
Civil No. 04-1815.
August 4, 2004
MEMORANDUM
Before the Court is petitioner Michael Emanuel Larose's request for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Larose is a Lawful Permanent Resident ("LPR") of the United States who faces an order of removal from the United States following a felony conviction. Mr. Larose raises three discernable claims. First, he alleges that his "mandatory indefinite detention" violates the Supreme Court's decision inZadvydas v. Davis, 533 U.S. 678, 150 L. Ed. 2d 653, 121 S. Ct. 2491 (2001) because he has allegedly been detained by the Bureau of Immigration and Customs Enforcement ("BICE") for more than six months. Second, Mr. Larose claims that the state court convictions, which gave rise to the deportation hearing, are not drug trafficking offenses and that, therefore, he did not commit an "aggravated felony." Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"). Finally, Mr. Larose claims that he is a citizen of the United States through derivative citizenship of his mother, a U.S. citizen since December 10, 1998. For the following reasons, Mr. Larose's request for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is dismissed as moot in part and denied in part.
In Mr. Larose's petition, he makes statements such as "[p]etitioner further argues that his fear of being prosecuted or even killed upon his arrival to Haiti, [h]e was informed that the conditions in Haiti, allows the government to apply a term of mandatory prison time as a deportee from the United States." To the extent Mr. Larose alleges that his deportation would violate the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"), he has failed to establish his unwillingness to return to Haiti is because of "prosecution or [his] . . . well-founded fear of prosecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Although, Section 1101 of Title 8 is a guideline for seeking asylum, the Third Circuit Court of Appeals has found that if a petitioner is unable to meet the guidelines necessary for asylum, it is presumed that the petitioner "cannot meet the higher standard for withholding of removal under the INA and the Torture Convention." Vertus v. Ashcroft, 94 Fed. Appx. 60, 62-63 (3d Cir. 2004). Therefore, Mr. Larose's claim under the Torture Convention fails.
I. FACTUAL BACKGROUND
Mr. Larose is a native and citizen of Haiti. He was born on June 21, 1979. Mr. Larose was admitted into the United States at Miami, Florida on July 6, 1990 as a non-immigrant for pleasure (B2 visa). On November 25, 1998, at the age of 19, Mr. Larose's status was adjusted to that of LPR under Section 245 of the INA. On December 10, 1998, Mr. Larose's mother became a naturalized citizen of the U.S.
Mr. Larose's LPR status was given under the classification of FX7. Under FX7, a child under 21 years of age, whose parent is a LPR, will also be given LPR status. INA Section 203(a)(2)(A); 8 U.S.C. § 1153(a)(2)(A). Mr. Larose was granted LPR status because his mother was a LPR.
On July 19, 2002, Mr. Larose was charged in the Philadelphia Court of Common Pleas with one felony count of manufacturing, delivering or possessing with the intent to deliver a controlled substance (cocaine) and one count of conspiracy to deliver a controlled substance. On October 30, 2002, Mr. Larose pleaded guilty to both charges. He was sentenced to a concurrent sentence of 9 to 23 months of house arrest to be followed by 3 years of probation.
As a result of his October 30, 2002 conviction, Mr. Larose was served on April 28, 2003 with a Notice to Appear by the Immigration and Naturalization Service ("INS"). Following a hearing, on January 29, 2004, the Immigration Judge ("IJ") entered an order for Mr. Larose's removal from the United States to Haiti. He was detained by the BICE. Mr. Larose reserved his right to appeal the IJ's order, which was due on March 1, 2004. However, Mr. Larose did not file an appeal to the Board of Immigration Appeals ("BIA") and instead, on April 27, 2004, filed with the Court his 28 U.S.C. § 2241 habeas petition.
II. ANALYSIS
A. Zadvydas Claim
By raising issues of "mandatory indefinite detention" and citing to Zadvydas, Mr. Larose appears to be challenging the length of his detention as violating his Fifth Amendment right to due process. In Zadvydas, the court addressed the constitutionality of the detention of a petitioner beyond the authorized period of detention as provided by Section 241(a) of the INA, 8 U.S.C. § 1231(a). The standard of continued detention set forth in Zadvydas is no longer applicable to Mr. Larose's claim because he has been released from BICE's detention; therefore, Mr. Larose's habeas petition claim of his detention violating Zadvydas is dismissed as moot. See also Derevianko v. John Ascroft, 78 Fed. App. 795, 796 (3d Cir. 2003) (Where the court held that "because [petitioner] is no longer being held . . . his appeal from the denial of his habeas petition by the District Court is dismissed as moot.");Izquierdo v. John Ashcroft, 2004 U.S. Dist. LEXIS 10210, at *1 (E.D. Pa. Jun. 2, 2004) (Kauffman, J.) (Where the court held that an alien's challenge of the legality of his extended detention "must be dismissed as moot because he has been released from custody.");Nguyen v. John Ashcroft, 2004 U.S. Dist. LEXIS 13576, at *1 (E.D. Pa. Jul. 13, 2004) (Rueter, J.) (In which the magistrate judge held that petitioner's release moots consideration of his habeas petition).
The Government has represented to the Court that Mr. Larose was released from BICE custody.
B. Aggravated Felon Claim
Mr. Larose claims that despite his guilty plea in the Philadelphia Court of Common Pleas to both criminal counts, those convictions do not constitute "drug trafficking crimes," and that therefore the IJ erred in classifying him as having committed an aggravated felony. Mr. Larose raises this claim for the first time in this Court.
The Third Circuit has required that an alien exhaust all of the administrative remedies available to him before the district court may exercise jurisdiction over his request for habeas corpus relief. Duvall v. Ellwood, 336 F.3d 228, 230 (3d Cir. 2003). In addition, the Court can only review an order of removal if "the alien has exhausted all administrative remedies available to the alien as of right." INA § 242(d)(1); 8 U.S.C. § 1252(d)(1). Because Mr. Larose has failed to exhaust his administrative remedies on the issue, the Court lacks jurisdiction to adjudicate Mr. Larose's claim that he is not an aggravated felon; therefore, this claim fails.
C. Derivative of Citizenship Claim
Finally, Mr. Larose claims U.S. citizenship under the former Section 321 of the Immigration and Naturalization Act ("INA") by virtue of the naturalization of his mother in 1998. Mr. Larose can not claim the benefits of Section 321 because he does not meet the age requirement of subsection (4). Mr. Larose's mother became a naturalized citizen on December 10, 1998. Mr. Larose was born on June 21, 1979. At the time of Mr. Larose's mother's naturalization, Mr. Larose was 19 years old. Therefore, Mr. Larose cannot claim the benefits of section 321 of the INA and his derivative citizenship claim fails.
At the time Mr. Larose's mother became a naturalized U.S. citizen, the statute in effect provided in pertinent part that:
(a) A child born outside the United States of an alien parent and a citizen parent who has subsequently lost citizenship of the United States, becomes a citizen of the United States upon fulfillment of the following conditions:
(1) The naturalization of both parents; or
(2) The naturalization of the surviving parent if one of the parents is deceased; or
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents or the naturalization of the mother if the child was born out of wedlock and the paternity of the child has not been established by legitimation; and if
(4) Such naturalization takes place while such child is under the age of eighteen years; and
(5) Such child is residing in the United States pursuant to a lawful admission for permanent residence at the time of the naturalization of the parent last naturalized under clause (1) of this subsection, or the parent naturalized under clause (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of eighteen years.8 U.S.C. § 1432 (1998) (repealed 2000).
The current Child Citizenship Act ("CCA"), Section 1431 of Title 8, replaced the repealed section 321 of the INA. Section 1431 of Title 8 provides in pertinent part that:
(a) A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:
(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.
(2) The child is under the age of eighteen years.
(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.8 U.S.C. § 1431 (2000).
Mr. Larose's claim for derivative citizenship also fails under the CCA because as stated in Lawal v. Ashcroft, 89 Fed. Appx. 774, 776 (3d Cir. 2004), "the [Child Citizenship Act] does not apply retroactively to grant derivative citizenship to [petitioner]. The CCA applies only to individuals born outside the United States who satisfy several conditions, including the requirement that the individual be "under the age of eighteen years" on the statute's effective date, February 27, 2001." Id. citing, 8 U.S.C. § 1431(a); Child Citizenship Act of 2000, Pub.L. No. 106-395, § 104, 114 Stat. 1631, 1633 (2000). Mr. Larose was born on June 21, 1979 and was 22 years old when the CCA became effective. Therefore, Mr. Larose cannot claim the benefits of the CCA.
III. CONCLUSION
For the foregoing reasons, Mr. Larose's request for writ of habeas corpus pursuant to 28 U.S.C. § 2241 is dismissed as moot in regards to the Zadvydas claim and denied in regards to the aggravated felon and derivative citizenship claims.