Opinion
Civil Action No. 04-1001.
December 30, 2004
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed under § 2254/2241, by an individual who is being detained by the Department of Homeland Security at York County Prison. In this petition, Mr. McKenzie seeks, inter alia, immediate release from custody and an award of damages. For the reasons which follow, it is recommended that the instant habeas petition be deemed a § 2241 petition, and be denied and dismissed without an evidentiary hearing.
See "Petitioner's Response In Opposition To I.N.S./I.C.E. Response" [Docket Entry No. 9] at p. 1, and Petitioner's "Addendum In Support of Damages" [Docket Entry No. 12] at p. 1.
I. BACKGROUND
In preparing this Report and Recommendation I have reviewed the following documents: Mr. McKenzie's original and revised habeas petitions [Docket Entry Nos. 1 and 3], the Government's response [Docket Entry No. 8], Petitioner's response in opposition [Docket Entry No. 9], and a variety of additional letters and pleading submitted by Petitioner.
As explained in the text below, Petitioner has two habeas petitions, the above-captioned matter, in which Petitioner is proceeding pro se, and a counseled § 2254 habeas petition challenging his state conviction of aggravated assault and related offenses. The § 2254 has been sent, by the Honorable John R. Padova, to the Third Circuit as it is a successive petition under 28 U.S.C. § 2244(b). Petitioner's two habeas actions are related and overlapping. When citing to a pleading, I will identify, by civil action number, the habeas action in which it has been filed.
Petitioner, Dean McKenzie, is a native and citizen of Jamaica. He entered the United States legally on October 23, 1980.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 4.
On September 30, 1991, following a jury trial before the Honorable Samuel Lehrer of the Philadelphia Court of Common Pleas, Petitioner was convicted of three counts of aggravated assault and one count of possession of an instrument of crime. He was sentenced to an eleven to twenty-five year term of imprisonment.
Civil Action No. 03-6638, Commonwealth's Response to Habeas Petition [Docket Entry No. 23]: Exhibit "C" (April 15, 1992 Opinion). The October 1991 trial was Petitioner's second trial on these charges. An earlier conviction on the same charges was reversed. On direct appeal, the Superior Court found that the trial court had erred at Petitioner's first trial in failing to allow Petitioner to call Robin Watkins, Jr. as a defense witness. Id.: Exhibit "B" ( Commonwealth v. McKenzie, 581 A.2d 655 (Pa.Super. 1990)).
Petitioner was released on parole in September 2001.
Civil Action No. 03-6638, Petitioner's Amended Habeas Petition [Docket Entry No. 9] at p. 2.
On September 15, 2003, the Executive Office of Immigration Review issued a Notice to Appear in Removal Proceedings ["NTA"] to Petitioner. The NTA charged Mr. McKenzie with being subject to removal from the United States under §§ 237(a)(2)(A)(iii) and 237(a)(2)©) of the Immigration and Nationality Act, based upon his 1991 state convictions.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 6.
On December 11, 2003, following a removal hearing before Immigration Judge Grace A. Sease, Petitioner's application for asylum and his application for withholding of removal were denied, and an order of removal to Jamaica was issued. When Petitioner waived his right of appeal at the December 11, 2003 hearing, the order of removal became administratively final.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8]:Exhibit 7.
See 8 C.F.R. § 1003.39, which reads: "Except when certified to the Board, the decision of the Immigration Judge becomes final upon waiver of appeal or upon expiration of the time to appeal if no appeal is taken whichever occurs first."
Petitioner is currently being detained in the custody of the Department of Homeland Security at the York County Prison.
On December 10, 2003, Petitioner filed the a habeas petition under § 2241 against the Commonwealth of Pennsylvania. In his pro se petition, Mr. McKenzie requested that his underlying state conviction be vacated.
Civil Action No. 03-6638, Original Habeas Petition (entitled "Emergency Request for Writ of Habeas Corpus Relief")[Docket Entry No. 1].
By Order dated December 11, 2003, the Honorable John R. Padova appointed counsel, Stephen J. Britt, Esq., to represent Petitioner in Civil Action No. 03-6638. At that time, Judge Padova enjoined the United States from deporting Mr. McKenzie during the pendency of his habeas litigation, and until further notice of the court.
Civil Action No. 03-6638 [Docket Entry Nos. 2 and 3].
On March 8, 2004, Petitioner filed a second habeas petition against the INS. At the direction of Judge Padova, Petitioner refiled his second habeas petition on a current § 2254 form. In this habeas petition, Mr. McKenzie asserts that he is entitled to bail and/or to be released R.O.R.
Civil Action No. 04-1001 [Docket Entry No. 1].
Civil Action No. 04-1001 [Docket Entry No. 3].
Id.
In additional pleadings submitted by Petitioner, he argues that he believes INS custody is premature, since he has a legitimate claim to attack his state conviction, which is the only basis for INS detention. Petitioner also seeks his immediate release citing, inter alia, medical conditions and family hardship.
Civil Action No. 04-1001, "Resubmitted Motion for Release" [Docket Entry No. 6] at p. 1. In a "Motion for Emergency Relief Pendente Lite," filed in Civil Action No. 03-6638, Petitioner sought an order directing the Department of Homeland Security to "afford Petitioner adequate medical care to avoid Petitioner's loss of vision." By Order dated September 29, 2004, I denied the motion for emergency relief without an evidentiary hearing, based upon the conclusion that this court has no jurisdiction in either of Mr. McKenzie's habeas petition to grant the relief requested. Civil Action No. 03-6638, September 29, 2004 Order [Docket Entry No. 27].
Mr. McKenzie filed a 52-page objection to the September 29, 2004 Order. While much of the objection is rambling and unrelated to the issues before the court, Mr. McKenzie argues that I erred in "dismiss[ing] his claims in totality," and again requests immediate release from INS custody. Civil Action No. 04-1001, "Objection To Dismissal Of Suit Pursuant to Sec. 1983 28 U.S.C. Sec. 2680" [Docket Entry No. 14] at p. 51.
On July 1, 2004, the Government responded to Petitioner's challenge to his continued detention by the Department of Homeland Security. The Government has moved to dismiss Petitioner's § 2241 petition, arguing that his immigration-related allegations are meritless.
Civil Action No. 04-1001, Government's Response to Habeas Petition [Docket Entry No. 8] at pp. 1-3.
Mr. McKenzie has responded to the Government's response, asserting that the "INS and ICE have not met their burden, and had not answer correctly issues presented for petitioner[']s release and, therefore, petitioner should be release immediately. [sic]" According to Petitioner, this court has the discretion to "simply" release him, for a variety of reasons, including a strong likelihood of success on his challenge to his state conviction, and for medical reasons.
Civil Action No. 04-1001, "Petitioner's Response In Opposition To I.N.S./I.C.E. Response" [Docket Entry No. 9].
Petitioner has also filed an "Addendum In Support of Damages." In this pleading, he seeks "$160,000,000.00" for alleged failure to provide surgery to correct damage to his left eye.
Civil Action No. 04-1001, "Addendum In Support Of Damages" [Docket Entry No. 12] at p. 5.
II. DISCUSSION.
This court has jurisdiction to review a habeas petition filed by an alien subject to an order of removal pursuant to 28 U.S.C. § 2241. However, the scope of review is limited to questions of Constitutional and statutory law. Bakhtriger v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004). Therefore proper inquiry in this matter is limited to whether the government denied Petitioner a constitutional or nondiscretionary statutory right of citizenship, rather than the sufficiency of evidence supporting the Government's exercise of its discretion. Id. at pp. 420, 424.A. Petitioner's Due Process Claim.
Petitioner argues that his detention by the INS has exceeded the presumably reasonable six month period articulated by the Supreme Court in Zadvydas v. Davis. 533 U.S. 678 (2001). Therefore, he argues that his continued detention violates his due process rights and that he should be released immediately.
Once an alien is ordered removed from the United States, the Attorney General must remove the alien within ninety (90) days after the order for removal becomes "administratively final." 8 U.S.C. § 1231(a)(1)(B)(I)(2004). During this ninety day removal period, detention of the alien is mandatory. Id. at § 1231(a)(2). After the removal period has elapsed without the alien's removal, the Attorney General may continue to detain any alien who is inadmissible under 8 U.S.C. § 1182, who has violated criminal laws, who threatens national security, or who is deemed by the Attorney General to be a "risk to the community or unlikely to comply with the order of removal." 8 U.S.C. § 1231(a)(6). Petitioner falls within the class of aliens that the INS may detain beyond the 90-day removal period.
In Zadvydas, the Supreme Court held that the INA's post-removal period detention provision, as set forth in 8 U.S.C. § 1231, contained implicit reasonableness limitations. 533 U.S. 678 (2001). The Court further found that the presumptive limit of reasonable detention is six months. Id. at 701. Beyond the six month period, an alien raising a reasonableness claim must establish that there is "no significant likelihood of removal in the reasonably foreseeable future." Until this burden is met, the alien may be detained. Id.
The INS does not dispute that it has detained Petitioner beyond the ninety day removal period. Petitioner's removal order became administratively final on December 11, 2003 when Petitioner waived his appeal. However, on that same day, Judge Padova entered an order enjoining the Department of Homeland Security from removing Petitioner during the pendency of Civil Action No. 03-6638. The Government argues that the time during which the Department of Homeland Security was enjoined from effecting Petitioner's removal should not be included in the determination of whether the six months have expired. 8 U.S.C. § 1231 (a)(1)©); see also Hamlet v. INS, CA No. 02-3821, 2002 WL 1958799 at *2 (E.D. Pa. August 26, 2002) (tolling the removal period while two judicial stays were in effect).
I agree. Judge Padova's December 11, 2003 Order tolls the removal period, and the presumptively reasonable detention period has not yet expired.
Furthermore, even if the presumptively reasonable time period had lapsed, it remains Petitioner's burden to demonstrate that removal in unlikely to occur in the reasonably foreseeable future. Petitioner has not met that burden.
In NMA v. Ridge, 286 F.Supp.2d 469 (E.D. Pa. 2003), the court articulated four types of cases where courts have found "no significant likelihood of removal":
1. Where no country will accept the detainee;
2. Where the detainee's country of origin refuses to issue a travel document for the detainee;
3. Where there is no removal agreement between the detainee's country of origin and the United States; and
4. Where there was no definitive answer from the target country after several months as to whether it would issue travel papers for a detainee.Id. at 475.
Mr. McKenzie believes that his § 2254 habeas petition (Civil Action No. 03-6638) will result in his state criminal conviction being overturned, and as a result, he will, therefore, no longer be eligible for removal. Petitioner's claim does not fall within the scope of the class of cases where "no significant likelihood of removal" has been found. The Government represents that the United States has a repatriation agreement with Jamaica, and that, once Judge Padova's order enjoining the Department of Homeland Security from removing Petitioner is lifted, an application to Jamaica for travel documents for Petitioner will likely be approved.
Petitioner's continued detention in the presence of an order enjoining the Department of Homeland Security from removing him to Jamaica, does not violate the due process protections afforded to aliens subject to administratively final orders of removal.
B. Petitioner's Request For Release On Bond.
Mr. McKenzie has repeatedly asked to be released immediately, and be permitted to remain on bail while he challenges his state convictions.
The authority to make custody determinations is statutorily conferred on the Attorney General. This authority may be delegated by the Attorney General in accordance with 8 CFR § 241.4©). The Department of Homeland Security follows specific procedures with respect to review of an alien's custody status. The regulations pertaining to the Immigration and Nationality Act ["INA"] state:
Before making any recommendation or decision to release a detainee, a majority of the Review Panel members, or Director of the HQPDU in the case of a record review, must conclude that: (1) travel documents for the alien are not available or. . . . immediate removal, while proper is not practicable or not in the public interest; (2) the detainee is presently a nonviolent person; (3) the detainee is likely to remain nonviolent if released; (4) the detainee is not likely to pose a threat to the community following release; (5) the detainee is not likely to violate the conditions for release; and (6) the detainee does not pose a significant flight risk.8 CFR § 241.4(e).
Headquarters Post-Order Detention Unit.
In reviewing an alien's case for continued detention or release, the following factors are considered:
(1) The nature and number of disciplinary infractions or incident reports when incarcerated or in Service custody; (2) The detainee's criminal conduct and criminal convictions, including consideration of the severity of alien's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism and other criminal history; (3) Any available psychiatric and psychological reports pertaining to the detainee's mental health; (4) Evidence of rehabilitation including institutional progress relating to participation in work, educational, and vocational programs, where available; (5) Favorable factors, including ties to the United States such as the number of close relatives residing here lawfully; (6) Prior immigration violations and history, (7) The likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes, failures to appear for immigration or other proceedings, absences without leave from any halfway house or sponsorship program, and other defaults; and (8) Any other information that is probative of whether the alien is likely to — (I) Adjust to life in the community, (ii) Engage in future acts of violence, (iii) Engage in future criminal activity, (iv) Pose a danger to the safety of himself or herself or to other persons or to property, or (v) Violate the conditions of his or her release from immigration custody pending removal from the United States.8 CFR § 241.4(f)
If Petitioner's detention continues for an extended period of time while awaiting removal, he is entitled to custody reviews by the Department of Homeland Security Bureau of Immigration and Customs Enforcement (ICE) on a regular basis. 8 CFR § 241.4(k). During the file custody review, Petitioner may present evidence of circumstances that would justify his supervised release or evidence that would establish that the Department of Homeland Security will not be able to carry out his removal in the reasonably foreseeable future. See 8 CFR § 241.13. As stated previously, there is no reason to believe that the ICE will be unable to carry out Petitioner's removal within the reasonably foreseeable future. Although reviews of his custody must be conducted on a regular basis while he awaits removal, at present, Petitioner's detention is lawful.
C. Petitioner's Derivative Citizenship Claim.
Petitioner, through a letter dated June 13, 2004, contends that he is a derivative citizen of the United States. He argues, therefore, that the Department of Homeland Security may not lawfully remove him to Jamaica. Petitioner has neither presented his claims in the proper forum nor provided any evidence of record to support his claim.
Prior to presenting a claim for derivative citizenship in this forum, Petitioner must present his claim to the Department of Homeland Security ["DHS"]. 8 CFR § 322.5. Such a claim may be presented to the DHS through an — 600 application for Certificate of Citizenship. Id. If Petitioner's claim of derivative citizenship is denied after he has fully exhausted his administrative remedies, he may then seek judicial review of his claim in federal court. Henriquez v. Ashcroft, 269 F.Supp. 2d 106, 108 (E.D.N.Y. 2003). Since Petitioner has failed to exhaust his administrative remedies with respect to his claim of derivative citizenship, this court lacks jurisdiction to review such a claim in a petition for habeas corpus relief. Duvall v. Elwood, 336 F.3d. 228, 232 (3d Cir. 2003).
Even if Petitioner had exhausted his administrative remedies prior to filing the instant petition, his derivative citizenship claim is without merit. The Child Citizenship Act, ("CCA"), currently governs claims of derivative citizenship. 8 U.S.C. § 1431 (a) Child Citizenship Act of 2000, Pub.L. No. 106-395, 104, 114 Stat. 1631, 1633 (2000). The CCA applies only to individuals born outside of the United States who satisfy several conditions, including a requirement that the individual be "under the age of eighteen years" on the statute's effective date, February 27, 2001. See 8 U.S.C. § 1431(a); Drakes v. Ashcroft, 323 F.3d 189, 191 (2d Cir. 2003). Petitioner, who was born on March 25, 1967, was twenty-three years old when the CCA became effective. Accordingly, the CCA's automatic citizenship provisions do not apply to him.
When Congress enacted the CCA in 2000, it also repealed section 321(a) of the INA, codified at 8 U.S.C. § 1432 (repealed). Prior to its repeal in 2000, Section 321(a) governed claims of derivative citizenship raised by persons born outside of the United States. 8 USC 1432(a).
Although repealed in 2000, various district courts have found that a petitioner's claim for citizenship is governed by repealed section 321(a), if the repealed section was in when the petitioner was born. See e.g. Tullius v. Albright, 240 F.3d 1317, 1320 (11th Cir.), Drozd v. I.N.S. 155 F.3d 81, 86 (2d Cir. 1998), Runnet v. Shultz, 901 F.2d 782, 783 (9th Cir. 1990). Since Section 321(a) was in effect at the time of Petitioner's birth, it may indeed govern his derivative citizenship claim. Id.
Assuming that Section 321(a) governs Petitioner's derivative citizenship claim, he still cannot derive citizenship under the INA.
Section 321(a) states in relevant part:
(a) A child born outside of the United States of alien parents, or 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 said 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 (2) or (3) of this subsection, or thereafter begins to reside permanently in the United States while under the age of 18 years.8 U.S.C. § 1432(a) (repealed).
Petitioner has not provided the Court with any factual or legal basis for his derivative citizenship claim. Moreover, the administrative records related to Petitioner's immigration status show that he may not derive citizenship from his biological parents. In fact, Petitioner's administrative file provides no facts upon which his derivative citizenship claim may be established. See Civil Action No. 04-1001, Government's Response: Exhibit 4 at p 2.
Petitioner's claim of derivative citizenship is prematurely presented to this court. Thus, this court lacks subject matter jurisdiction to review such a claim and it must be dismissed. Furthermore, even if the Court has jurisdiction to review Petitioner's claim of derivative citizenship, such a claim is unsupported by any evidence in the record.
RECOMMENDATION
Consistent with the above, it is recommended that Mr. McKenzie's § 2241 habeas petition be DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING. It is further recommended a finding be made that there is no probable cause to issue a certificate of appealability