Opinion
Civil Action No. 3:01-CV-1409-P
April 11, 2002
ORDER
Presently before the Court are (1) Petitioner's Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus, filed July 23, 2001, and (2) Federal Respondent's Response in Opposition to Petitioner's Complaint and Respondent's Motion to Dismiss and Brief in Support, filed December 5, 2001. Petitioner asks the Court to issue an injunction enjoining Respondent from deporting Petitioner to Mexico. For the reasons set forth below, the Court is of the opinion that Petitioner's requested relief should be DENIED and Respondent's Motion to Dismiss should be GRANTED.
BACKGROUND
Petitioner is a forty-one-year-old female who is a native and citizen of Mexico. Resp't's Resp. at 2. She first entered the United States without inspection ("EWI") on or before May 5, 1988. Pet'r's Pet. at 2. On January 18, 1988, Petitioner married her husband who had first entered the United States in 1981 as an EWI. Id. at 3. In 1990, Petitioner's husband adjusted his status to that of permanent resident, and by 1991 filed Form I-130 to have Petitioner classified as the spouse of a permanent resident. Id. However, no second preference visas were available from Mexico at that time; and, according to Respondent, even if a visa had been immediately available in 1991, Petitioner would not have been eligible to adjust status since she entered without inspection. Resp't's Resp. at 2.
On April 15, 1993, after going to the INS office in Dallas to try to obtain work authorization, Petitioner was placed in deportation proceedings. Pet'r's Pet. at 4. On April 29, 1994, by order of an Immigration Judge, Petitioner was granted voluntary departure, which was later extended to July 30, 1995. Resp't's Resp. at 2. When Petitioner failed to voluntarily depart, the Immigration Judge's alternative order of final deportation was entered. Id. at 2-3. Later in August of 1996, another notice was sent for Petitioner to deport, but it was returned as undeliverable as Petitioner had moved and no forwarding address was left. Id. at 3.
In June of 1997, a visa became available for Petitioner and she applied for adjustment of status and for a motion to reopen her deportation case. Id.; Pet'r's Pet. at 5. Her motion was denied, however, as untimely and since she failed to comply with the earlier order for voluntary departure. Resp't's Resp. at 3. Petitioner then appealed to the Board of Immigration Appeals, which dismissed her appeal on July 17, 1998. Id.
Thereafter, in August of 1998, Petitioner was served with another surrender notice to report for deportation on September 30, 1998. Id. Petitioner then filed an application under the Family Unity Program, along with an application for employment authorization. Pet'r's Pet. at 5. On September 30, 1998 (the same day she was supposed to appear for deportation), she filed a complaint with this Court wherein she requested a preliminary and permanent injunction of the pending deportation order. Id. at 6; Resp't's Resp. at 3. This Court, in a decision issued by Judge Fitzwater, dismissed the September30 Complaint and granted the Government's motion to dismiss for lack of subject matter jurisdiction pursuant to 8 U.S.C. § 1252(g), 1252(f)(2). Resp't's Resp. at 4. The Fifth Circuit affirmed the District Court dismissal for lack of subject matter jurisdiction on February 1, 2000. Id.
Following this, another notice to surrender was sent to Petitioner for deportation on July 23, 2001. Id. Petitioner did not comply with the order, but instead filed this current complaint on July 23, 2001, requesting habeas corpus, declaratory and injunctive relief based upon her application for adjustment of status through the Family Unity Program. Id.
DISCUSSION
1. Jurisdiction
As a threshold matter, the Court must examine the issue ofjurisdiction. In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), containing a provision, 8 U.S.C. § 1252(g), severely limiting judicial review over immigration matters. See Rena v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 475-76 (1999). Under the amended 8 U.S.C. § 1252(g), Congress provided that "notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g)(1999).
Although very expansive, the Supreme Court interpreted Section 1252(g) to apply only to three discrete actions that the Attorney General may take: "her `decision or action' to ` commence proceedings, adjudicate cases, or execute removal orders.' There are of course many other decisions that may be a part of the deportation process — such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order that is the product of the adjudication, and to refuse reconsideration of that order." American Arab Anti-Discrimination Comm., 525 U.S. at 482. Nevertheless, the Fifth Circuit explained that where a plaintiff "seeks an injunction commanding the Attorney General to adjust her immigration status and precluding the Attorney General from executing pending removal orders," Section 1252(g) strictly precludes the court from addressing such a claim. Cardoso v. Rena, 216 F.3d 512 (5th Cir. 2000). Petitioner's Complaint is well within the realm of the Attorney General's authority to execute removal orders and therefore, under the mandate of Section 1252(g), this Court lacks jurisdiction to hear Petitioner's Complaint.
In addition, as Judge Fitzwater noted in his January 1999 decision, the Court also lacks jurisdiction to issue the injunctive relief requested by Petitioner pursuant to 8 U.S.C. § 1252(f)(2). Section 1252(f)(2) provides:
Notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.
Here, Petitioner failed to respond to the voluntary departure and then subsequent removal orders until the 90-day window to reopen her deportation case had passed. Accordingly, Petitioner has not shown that this order is prohibited as a matter of law and Section 1252(f)(2) bars the Court from enjoining the INS from removing Petitioner.
2. Writ of Habeas Corpus
Petitioner also requests a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, Power to Grant Writ. Both the Petitioner and Respondent refer to the recent decision of INS v. St. Cyr, 121 S.Ct. 2271 (2001). St. Cyr discussed the authority of the Attorney General to grant discretionary relief in relation to INA § 212, which "excluded from the United States several classes of aliens, including those convicted of offenses involving moral turpitude or the illicit traffic in narcotics." St. Cyr, 121 S.Ct. at 2276. If the Attorney General were to grant such discretionary relief under Section 212(c), then the deportation proceeding would be terminated and the alien would be classified a permanent resident. Id. In 1996 with Congress passing the Antiterrorism and Effective i)cath Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (LIRIRA), Section 212(c) was repealed and Congress replaced it with a new provision that barred the Attorney General from granting discretionary relief for anyone convicted of an aggravated felony. Id. at 2277. Thus, the issue was whether the court would have jurisdiction under the habeas corpus statute to address St. Cyr's (plead guilty to an aggravated felony) request for review. Id. at 2278. The Supreme Court concluded that the IIRIRA sections speak of judicial review when addressing its limitations, which is full, nonhabeas review. Id. at 2286. "Neither explicitly mentions habeas, or 28 U.S.C. § 2241. Accordingly, neither provision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Id. Therefore, the Court found that "habeas jurisdiction under § 2241 was not repealed by AEDPA and IIRIRA." Id. at 2287.
Thus, from the holding in St. Cyr, it would appear this Court does have habeas jurisdiction to entertain Petitioner's Petition for Writ of Habeas Corpus. Other courts have found that "an alien subject to an order of deportation may challenge his detention under 28 U.S.C. § 2241." Afrasiabi v. Ashcroft, No. C01-4680 MMC, 2002 WL 433613, 2 (N.D. Cal. 2002). Moreover, although Petitioner is only under a final order of deportation and not physically detained, "`[i]t is well settled that actual physical custody is no longer an absolute necessity for habeas corpus jurisdiction generally.'" Sibanda v. Dist. Dir. U.S INS., 881 F. Supp. 1494, 1495 (D.Colo. 1995) (quoting Ajurulloski v. United States INS, 688 F. Supp. 1272, 1276 (N.D. Ill. 1988)).
"A necessary predicate for the granting of federal habeas relief to respondents is a determination by the federal court that their custody violates the Constitution, laws or treaties of the United States." Rose v. Hodges, 423 U.S. 19, 21 (1975). Petitioner argues that her due process rights were violated when the INS agent placed her in deportation proceedings when she attempted to obtain work authorization at the INS offices in April of 1993. Pet'r's Pet. at 12. Petitioner states that it was beyond the Agent's authority to issue her an OSC (Order to Show Cause) since she was a beneficiaiy of the Family Unity Act. Id. However, Petitioner did not even file an application under the Family Unity Act until September of 1998. Id. at 5. Moreover, Petitioner appeared before the Immigration Judge in April of 1994 and there is no record in the Complaint that she mentioned the Family Unity Program to the Immigration Judge. Id. at 4. She then proceeded to ignore the order for voluntary departure in July of 1995 and thus, a final order of deportation was issued. Id. It was not until 1997, when Petitioner's second preference visa became available and she applied for adjustment of status under 8 U.S.C. § 1255(i), that she tried to reopen her deportation case. When the BIA affirmed the denial of the reopening her case and the INS issued a "bag and baggage" letter for deportation in 1998, then she filed an application under the Family Unity Act. Therefore, it is evident from the facts that there has not been a violation of the Constitution or laws by subjecting Petitioner to this final order of removal and thus, the writ of habeas corpus is denied.
CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner's requests for declaratory and injunctive relief, and petition for writ of habeas corpus, and GRANTS Respondent's Motion to Dismiss Petitioner's Complaint.