Opinion
Civil Action No. 3:04-CV-1236-G.
October 25, 2004
MEMORANDUM ORDER
Before the court is the motion of Tom Ridge, Secretary of the Department of Homeland Security, Nuria Prendes, Field Office Director, Detention and Removal Operations, United States Immigration and Customs Enforcement, and John Ashcroft, Attorney General of the United States (collectively "ICE" or the "Federal Respondents"), to dismiss, pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P. 12(b)(6), the petition for a writ of habeas corpus declaratory judgment, for injunctive relief and brief in support thereof ("Petition") of James McAlpine ("McAlpine" or "Petitioner"). For the reasons discussed below, McAlpine's petition is dismissed as moot. Accordingly, the Federal Respondents' Rule 12(b)(1) and 12(b)(6) motions are denied as moot.
I. BACKGROUND
This case arises out of McAlpine's petition for a writ of habeas corpus and injunctive relief, in which McAlpine argues that he is being detained by ICE in violation of his constitutional right to due process. See generally Petition. McAlpine, a native and citizen of South Africa, entered the United States as a lawful permanent resident ("LPR") in 1979. Petition ¶¶ 1, 8; Respondents' Motion at 2. On February 19, 1993, in Arapahoe County, Colorado, he pleaded guilty to the felony offense of menacing. Petition ¶ 11; Respondents' Motion at 2. However, McAlpine fled to his home country of South Africa prior to sentencing, and only recently returned to Colorado to face justice. Petition ¶ 11; Respondents' Motion at 2-3. McAlpine was arrested again on April 20, 2003, this time for assaulting his wife and both of her parents in Tarrant County, Texas. Petition ¶ 12; Respondents' Motion at 3. McAlpine pleaded guilty to a charge of "assault by threat," as defined in Texas Penal Code § 22.01(a)(2). Petition ¶ 12.
McAlpine claims that he entered the United States in 1979, Petition ¶ 8, and that he "is" an LPR. Id. ¶ 1. In contrast, the Federal Respondents assert that McAlpine entered the United States in 1981, Federal Respondents' Motion at 2, and that he abandoned his status as an LPR. Federal Respondents' Motion at 6-7. For the purpose of this motion, the court will assume, without deciding, that McAlpine entered the United States in 1979, and that he "is" an LPR.
Menacing is an assaultive offense comparable to aggravated assault under the Texas Penal Code. Petition ¶ 11; Respondents' Motion at 2.
Texas Penal Code § 22.01(a)(2) provides that "A person commits an offense if the person . . . intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse."
While McAlpine was in police custody at the Tarrant County Jail, ICE filed a detainer with the county authorities to ensure that McAlpine was transferred to ICE custody at the completion of the state criminal proceedings. Petition ¶ 13; Respondents' Motion at 3. McAlpine was transferred to ICE custody on May 23, 2003, see Petition ¶ 13; Respondents' Motion at 3, and he was placed in removal proceedings that same day. Petition ¶ 13; Respondents' Motion at 3.
McAlpine was placed "in removal proceedings by the issuance of a Notice to Appear ("NTA"), charging him as being subject to removal as an `alien who at any time after admission is convicted under any law of . . . using, owning, possessing, or carrying . . . a firearm,' pursuant to section 237(a)(2)(C) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1227(a)(2)(C)." Respondents' Motion at 3.
After a series of continuances, hearings, and the recusal of the first Immigration Judge, a hearing was set for March 3, 2004 for consideration of the merits of McAlpine's application for cancellation of the removal proceedings. Petition ¶¶ 16-17; Respondents' Motion at 9-10. During the hearing, McAlpine, who was still in custody, moved for a bond redetermination. Petition ¶ 17; Respondents' Motion at 11. The Immigration Judge granted the motion and established bond at $25,000. Petition ¶ 17; Respondent's Motion at 11. ICE immediately filed a Notice of INS Intent to Appeal Custody Redetermination, pursuant to 8 C.F.R. § 1003.19(i)(2), Petition ¶ 18; Respondents' Motion at 11, thus staying the Immigration Judge's bond order during ICE's appeal to the Board of Immigration Appeals ("BIA"). Petition ¶ 18; Respondents' Motion at 11. Due to the late hour, and without having reached the merits of McAlpine's application for cancellation of his removal proceedings, the Immigration Judge continued the hearing until March 9, 2004. Petition ¶ 19; Respondents' Motion at 11-12.
At the hearing on March 9, the Immigration Judge held that McAlpine was statutorily ineligible for the cancellation of his removal proceedings. Petition ¶ 20; Respondents' Motion at 12. The Immigration Judge also denied McAlpine's application for cancellation and ordered that McAlpine be removed to South Africa. Petition ¶ 20; Respondents' Motion at 12. The Immigration Judge did not issue a new bond order at the hearing. Respondents' Motion at 12.
The Immigration Judge issued a bond order on May 3, 2004 that set McAlpine's bond at $25,000. Petition ¶ 20; Respondents' Motion at 14. The next day, ICE filed another Notice of INS Intent to Appeal Custody Redetermination, pursuant to 8 C.F.R. § 1003.19(i)(2). Petition ¶ 24; Respondents' Motion at 15. ICE then filed an appeal of the Immigration Judge's bond order within ten days of the notice, thereby precluding McAlpine's release on bond until the BIA issued an order affirming the Immigration Judge's determination. Petition ¶ 24; Respondent's Motion at 15.
McAlpine filed his petition for writ of habeas corpus in this court on June 7, 2004, in which he argues that the automatic stay provision contained in 8 C.F.R. § 1003.19(i)(2) "violate[s] McAlpine's constitutional right to post bail consistent with the due process afforded him by statute in general and Immigration Judge Copeland's bail order in particular." Petition ¶ 26 (emphasis omitted).
The Federal Respondents filed the instant motion to dismiss on June 14, 2004, arguing that the court does not have subject matter jurisdiction over McAlpine's claim, or in the alternative, that his petition does not state a claim upon which relief can be granted. See generally Respondents' Motion.
On September 8, 2004, the BIA dismissed McAlpine's appeal from the immigration judge's decision, declaring McAlpine to be removable. In re McAlpine, No. A37-396-989 (BIA Sep. 8, 2004) [hereinafter "BIA Decision"]. The BIA found McAlpine to be removable under 8 U.S.C. § 1227(a)(2)(E)(i) as an alien convicted of a crime of domestic violence. See generally BIA Decision.
II. ANALYSIS
Federal Respondents move to dismiss McAlpine's Petition, pursuant to FED. R. CIV. P. 12(b)(1), for lack of subject matter jurisdiction, and, pursuant to FED. R. CIV. P. 12(b)(6), for failure to state a claim. Where a Rule 12(b)(1) motion is filed in conjunction with a Rule 12(b)(6) motion, the court should first rule on whether it has subject matter jurisdiction before reaching the sufficiency of the pleadings. Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977); see also Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) ("[T]he court must find jurisdiction before determining the validity of a claim.") (internal citation omitted). Accordingly, the court will first address the issue of subject matter jurisdiction.
A. Subject Matter Jurisdiction in General 1. The Legal Standard
Federal courts are courts of limited jurisdiction. See Kokkonen v. Guardian Life Insurance Company of America, 511 U.S. 375, 377 (1994); Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374 (1978). A federal court may exercise jurisdiction over cases only as expressly provided by the Constitution and laws of the United States. See U.S. CONST. Art. III §§ 1-2; see also Kokkonen, 511 U.S. at 377. Federal law gives the district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Moreover, a party seeking relief in a federal district court bears the burden of establishing the subject matter jurisdiction of that court. United States v. Hays, 515 U.S. 737, 743 (1995); McNutt v. General Motors Acceptance Corporation of Indiana, Inc., 298 U.S. 178, 189 (1936); Langley v. Jackson State University, 14 F.3d 1070, 1073 (5th Cir.), cert. denied, 513 U.S. 811 (1994).
On a Rule 12(b)(1) motion, which "concerns the court's `very power to hear the case . . . [,] the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" MDPhysicians Associates, Inc. v. State Board of Insurance, 957 F.2d 178, 181 (5th Cir.) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897 (1981)), cert. denied, 506 U.S. 861 (1992). The court may, in deciding a Rule 12(b)(1) motion to dismiss, rely on: "1) the complaint alone; 2) the complaint supplemented by undisputed facts; or 3) the complaint supplemented by undisputed facts and the court's resolution of disputed facts." MCG, Inc. v. Great Western Energy Corporation, 896 F.2d 170, 176 (5th Cir. 1990) (citing Williamson, 645 F.2d at 413). Additionally, at any time during the course of litigation, the court may raise the issue of its jurisdiction sua sponte. In re Bass, 171 F.3d 1016, 1021 (5th Cir. 1999) ("Federal courts must be assured of their subject matter jurisdiction at all times and may question it sua sponte at any stage of judicial proceedings.").
2. Habeas Jurisdiction
Federal courts have jurisdiction, pursuant to 28 U.S.C. § 2241, to review habeas petitions from prisoners claiming, inter alia, to be held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001) ("At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest."). Habeas petitions must be limited to the review of statutory or constitutional claims, as federal courts do not have jurisdiction to review discretionary actions. See Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir. 2003) (citing St. Cyr, 533 U.S. at 307); see also Bowrin v. U.S. Immigration Naturalization Service, 194 F.3d 483, 490 (4th Cir. 1999) ("Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited.").
Furthermore, federal courts can only be divested of their habeas jurisdiction to review the constitutionality of a statute if the statute at issue contains "a clear statement of congressional intent" to that effect. St. Cyr, 533 U.S. at 298; see also Ex parte Yerger, 75 U.S. 85, 102 (1868) ("We are not at liberty to except from [habeas corpus jurisdiction] any cases not plainly excepted by law."); Pisciotta v. Ashcroft, 311 F. Supp. 2d 445, 454 (D.N.J. 2004) ("[I]n the absence of a clear expression of congressional intent to deprive federal courts of habeas jurisdiction [in determining whether 8 C.F.R. § 1003.19(i)(2) is constitutional, the question] falls within the habeas jurisdiction of this Court.").
B. Subject Matter Jurisdiction over McAlpine's Petition 1. Habeas Jurisdiction over McAlpine's Petition
In this case, McAlpine argues that the automatic stay provision contained in 8 C.F.R. § 1003.19(i)(2) is unconstitutional. See generally Petition. Specifically, McAlpine asserts that the automatic stay provision violates his "constitutional right to post bail consistent with the due process afforded him" by the Constitution. Petition ¶ 26. McAlpine's claim falls squarely within the habeas jurisdiction of this court, as established by 28 U.S.C. § 2241(c)(3). See Pisciotta, 311 F.Supp.2d at 453-54 (finding habeas jurisdiction where petitioner was contesting the constitutionality of 8 C.F.R. § 1003.19(i)(2)); Zavala v. Ridge, 310 F.Supp. 2d 1071, 1074-80 (N.D.Cal. 2004) (finding habeas jurisdiction by necessary implication where the court proceeded to the merits of petitioner's constitutional challenge to 8 C.F.R. § 1003.19(i)(2)).
Further, the court's habeas jurisdiction over this case is not affected by 8 U.S.C. § 1226(e), which prohibits judicial "review" of a "discretionary judgment" or "decision" regarding the detention of aliens. See Denmore v. Hyung Joon Kim, 538 U.S. 510, 516-17 (2003) (holding that 8 U.S.C. § 1226(e) does not preclude habeas jurisdiction when the petitioner's sought after relief is judicial review of the statute that permits his detention). First, McAlpine's petition does not challenge a "discretionary judgment" or a "decision" that has been made regarding his detention or release. See id. Rather, McAlpine "challenges the statutory framework that permits his detention without bail." See id. at 517. Second, "[a]bsent a clear statement of congressional intent, . . . the divestment of judicial review does not preclude habeas corpus review." Bravo, 341 F.3d at 592 (citation and internal quotation marks omitted). Section 1226 does not contain such a clear statement of congressional intent. Pisciotta, 311 F.Supp.2d at 454. Therefore, when the Petition was filed, the court had jurisdiction over McAlpine's claim.
2. Mootness
"The `case or controversy' requirement of Article III of the United States Constitution prohibits federal courts from considering questions `that cannot affect the rights of litigants in the case before them.'" CH Nationwide, Inc. v. Norwest Bank Texas NA, 208 F.3d 490, 493 (5th Cir. 2000) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). "Federal courts are not in the business of rendering advisory opinions." Id. Under the doctrine of mootness, the case or controversy must exist not only at the commencement of the action, but throughout the existence of the litigation. Dailey v. Vought Aircraft Company, 141 F.3d 224, 227 (5th Cir. 1998). Therefore, an action must be dismissed for want of jurisdiction if, at any time in the course of litigation, the controversy ceases to exist. Id. Moreover, the district court is obligated to raise jurisdictional issues sua sponte "if the facts suggest mootness notwithstanding the silence of the parties with respect to the issue." Id.
In his petition, McAlpine is challenging the constitutionality of 8 C.F.R. § 1003.19(i)(2), and consequently the underlying statute 8 U.S.C. § 1226(c), which was the statutory ground for his custody when he filed the petition on June 7, 2004. See generally Petition. Subsequent to the filing of the petition, the BIA affirmed the immigration judge's decision declaring McAlpine removable. BIA Decision. The BIA decision constitutes a final removal order. See Akasike v. Fitzpatrick, 26 F.3d 510, 511 (5th Cir. 1994). Therefore, McAlpine is no longer being detained under 8 U.S.C. § 1226; rather, he is being detained under a wholly different statute, 8 U.S.C. § 1231(a)(2). Section 1231(a)(2) provides that "[d]uring the removal period, the Attorney General shall detain the alien. Under no circumstance during the removal period shall the Attorney General release an alien who has been found . . . deportable under section 1227(a)(2) or 1227(a)(4)(B) of this title." 8 U.S.C. § 1231(a)(2). Since the BIA affirmed the decision that McAlpine was removable under the authority of § 1227(a)(2)(E)(i), the Attorney General is required to detain him under § 1231(a)(2), not § 1226(c). Id. The only issue raised in McAlpine's petition is the constitutionality of his confinement pursuant to the automatic stay provision of 8 C.F.R. § 1003.19(i)(2), which is authorized by 8 U.SC. § 1226(c). The Attorney General is no longer acting under the authority of the challenged statute, § 1226(c); rather, he is detaining McAlpine pursuant to § 1231(a)(2), which McAlpine has not challenged. Since McAlpine is no longer being held under § 1226(c), it is unnecessary for the court to address McAlpine's claim that the automatic stay provision is unconstitutional on both substantive and procedural due process grounds. See De La Teja v. United States, 321 F.3d 1357, 1363 (11th Cir. 2003); Kayrouz v. Ashcroft, 261 F.Supp.2d 760, 765 (E.D. Ky. 2003). Any such decision would be advisory in nature. See id. Because there is no case or controversy before the court, McAlpine's claim has become moot; therefore, this court lacks jurisdiction over his petition.
The removal period begins on the latest of three events: (1) "the date the order of removal becomes administratively final;" (2) "if the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order;" or (3) "if the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement." 8 U.S.C. § 1231(a)(1)(B).
III. CONCLUSION
For the reasons stated above, the court lacks subject matter jurisdiction over McAlpine's petition; thus, McAlpine's petition is DISMISSED as moot. In view of this ruling, the Federal Respondents' motion to dismiss for lack under Rules 12(b)(1) and 12(b)(6) is DENIED as moot.
SO ORDERED.