Opinion
Civil No. 04-1375 (JRT/SRN)
April 23, 2004
Alan Goldfarb, BLACKWELL IGBANUGO, Minneapolis, MN for petitioner
Joan D. Humes, Minneapolis, MN, for respondents
ORDER
Madiarta Rantesalu petitioned the Court for a writ of habeas corpus and also moved for a Temporary Restraining Order to prevent his removal. The government opposes the motion, arguing that because petitioner filed this motion after he had been deported, this Court lacks jurisdiction. Since being deported, petitioner has added a request that the Court order him returned from Jakarta, Indonesia. The Court held a telephone conference on Friday, March 25, 2004 at which time, the Court requested additional briefing. The Court held another hearing on this matter on April 1, 2004. For the reasons discussed below, the Court finds that it does have habeas corpus jurisdiction, and finds that petitioner has raised a meritorious argument that his due process rights to a fair deportation hearing were violated. The Court therefore grants petitioner's request for return, to the extent it requests that respondents allow petitioner to re-enter the United States. Respondent is further ordered to refrain from deporting petitioner again, absent a court order permitting deportation.
BACKGROUND
Petitioner is a devout Christian, who fled his native country of Indonesia for fear of religious persecution by extremist groups. Petitioner has not been convicted of any crimes in the United States, and, prior to his deportation, he had been in this country since October of 2000. Petitioner arrived in the United States with a B-2 visa. He applied for asylum with the Nebraska Service Center on January 6, 2003, and listed his address as "c/o Sara Karel, 7400 Highway 7, Apartment 104, St. Louis Park, Minnesota 55426." It is the Court's understanding that Sara Karel is his aunt. Petitioner's asylum petition was under consideration by the Chicago office. He received no interview notice from that office and did not receive a notice stating that his application had been referred to an immigration judge.
On April 11, 2003, petitioner appeared for special registration required of males from certain nations, who were born on or before February 24, 1987, and had been admitted to the United States on or before September 30, 2002, who did not have asylum applications pending on January 16, 2003. Petitioner was actually exempt from the special registration, since he had an asylum application pending as of January 16, 2003. Nonetheless, he appeared in the Bloomington District Office for the special registration. While at the Bloomington District Office, petitioner was given a Notice to Appear, and an AR-11 Special Registration Aliens' Change of Address Card. He was not given a hearing date or time, however. On the second page, the notice indicated, 'Failure to appear: You are required to provide the INS, in writing, with your full mailing address and telephone number. You must notify the Immigration Court immediately by using Form EOIR-33 whenever you change your address or telephone number during the course of these proceedings." ( See Exhibit B to Petitioner's Exhibits in Support of Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Complaint for Declaratory and Injunctive Relief ("Habeas Exhibits")). Also provided to special registrants was a "Group 4 Extension Notice — 2/19/03." This form indicates that "If you change your address, employment, or educational institution, you must notify us in writing within 10 days of the change, using Form AR-11 SR." (Habeas Exhibits at B.)
The Court notes that the forms are similarly titled, and that the Court was able to find the "form number" on each only after scouring the forms. On the AR-11 form, the notation "AR-11" is located on the middle of the form, in approximately 8-point font. The OMB number, however, is located on the top of the form. The "EOIR-33/IC" form indicates the number only at the bottom of the form, again in approximately 6-8-point font. There is no indication on the EOIR-33/IC form that use of that particular form is the only permissible way to notify the authorities of an address change.
In May of 2003, petitioner moved to a new address, and provided timely notice to the Department of Homeland Security ("DHS") by completing and submitting the change of address form (AR-11 SR) that he had received when he appeared for Special Registration in April of 2003. His new address was listed as "P.O. Box 29714, Brooklyn Center, MN 55429." Two months later, in July of 2003, petitioner applied for employment authorization based on a pending asylum application of more than 180 days. His new address (P.O. Box 29714) was included on this application, and that same address has been used on other correspondence with the United States Citizenship and Immigration Services ("USCIS"). There is no dispute that petitioner provided notice of his new address to the Nebraska Service Center, the Chicago Asylum Office, and the DHS registry in London, Kentucky. Further, there is some indication that the letter to the Asylum Office provided notice to the Bloomington District, because there is a handwritten note on the letter, presumably made by an asylum officer, which stated, "Please file SPM — case admin closed before IJ." ( See Habeas Petition Exhibits at B, App. 14.) The letter to the Chicago office was dated August 11, 2003, and postmarked August 12, 2003; there is not a "date received" stamp on the letter.
On July 28, 2003, the immigration court ("IC") sent the specific notice of hearing, which included the hearing's date and time, to petitioner's old address. On August 8, 2003, the notice of hearing was returned as undeliverable with "ADDRESSEE UNKNOWN." Although the notice was returned over a month before the hearing date, the IC makes no suggestion that it attempted to verify petitioner's address in any way or made any attempt to resend the notice. Nonetheless, a hearing was held on September 19, 2004 at which the immigration judge determined, in an order dated that same day, that petitioner was subject to removal from the United States to Indonesia for failure to appear at the master calendar hearing on September 19, 2004.
Although the government attempts to argue that the change of address form petitioner provided was ineffective, there can be no question that the 1C was apprised of this address, because the IC sent petitioner's "bag and baggage letter" to the new address. Even this letter, however, was misdirected because it was addressed with the wrong zip code. In addition, someone (though perhaps a postal service employee) handwrote a "6" over the "9" in petitioner's PO BOX, resulting in an address of PO BOX 26714, as opposed to his correct PO BOX number of 29714. Petitioner did not receive this bag and baggage letter.
Despite the pending removal proceedings, and the in absentia order, when petitioner went in person to the District Office in Bloomington to obtain a temporary card (because his application for employment authorization had been pending for more than three months), he was not informed that he was in removal proceedings, that the IC had scheduled a hearing that he had missed, or that an in absentia order had been entered against him. Instead, the District Office issued the temporary card on November 15, 2003.
In January of 2004, petitioner went to the District Office to renew his interim employment authorization because he understood that his application was still pending at the Nebraska Service, and his first interim card was expiring. Petitioner was arrested without incident at the District Office. This was petitioner's first indication that he had been placed in removal proceedings, that a hearing had been scheduled, or that the Immigration Judge had entered an in absentia removal order for failure to appear.
After his arrest, petitioner retained counsel, and moved the IC to reopen and rescind the in absentia order for lack of notice. Counsel also filed a request to stay deportation. Counsel for petitioner notes that this initial motion to reopen was filed before counsel had an opportunity to file a request for information, and therefore did not contain all supporting evidence. Counsel obtained the requested information and notified the IC that he would file supplemental evidence in support of the motion to reopen. Despite this notice, the IC failed to await the requested information, and denied the motion to reopen.
Counsel then filed a motion to reconsider. The same immigration judge denied the motion to reconsider, because the immigration judge found that although petitioner had filed notice of his change of address with at least three DHS offices, he had not filed a change of address with the IC, and therefore the government had no obligation to send the notice of hearing date to the correct address.
Petitioner, through his counsel, filed a timely notice of appeal with the Board of Immigration Appeals ("BIA") with a request for a discretionary stay of deportation. Counsel called the Bureau of Immigration and Customs Enforcement office in Bloomington, Minnesota, on March 11, 2004 to request information regarding any pending deportation plans for petitioner. Counsel for petitioner reports that an Immigration Enforcement Agent informed him that travel plans had been made for petitioner, but that she could not release the specifics of those plans. Counsel emphasized that petitioner had an appeal and stay request pending before the BIA. The Agent repeated that travel arrangements had been made, but that details could not be released.
Counsel then called the BIA offices "stay hotline" on March 12, March 15, March 17, and March 19, 2004, to request that petitioner's stay request be reviewed, since petitioner faced imminent deportation. Counsel notes that each time, the BIA indicated that petitioner's case was not the most urgent appeal, and reassured counsel that deportation was not imminent because DHS was still waiting for petitioner's travel documents. However, the Bureau of Immigration and Customs Enforcement ("ICE") again informed counsel for petitioner, on March 19, that it had obtained petitioner's travel documents. Counsel for petitioner then sent a letter to the BIA, dated March 19, 2004, again requesting review of the application for a stay. On March 23, 2004, counsel for petitioner again called the Bureau, and was again informed that although travel plans had been made, the Bureau could not inform counsel of the specifics of the plan.
On March 23, 2004, petitioner was taken from the Sherburne County Jail, where he had been held since July 15, 2004, and escorted to the Minneapolis/St. Paul International Airport where he was placed on a commercial flight to Jakarta, via Amsterdam. The itinerary provided to the Court indicates that he arrived in Amsterdam approximately 6:30 a.m. central standard time, and then arrived in Jakarta on March 25, 2004 at 4:30 a.m. central standard time. His petition for a writ of habeas corpus was filed on his behalf on the morning of March 24, 2004. The government concedes that petitioner was not free to choose not to board the flight to Jakarta (in fact, ICE officials have averred that the plane's departure was personally observed). Although informed by counsel for petitioner that removal was imminent, the BIA did not act on petitioner's stay request.
An attorney from the Office of the Chief Counsel (within the ICE bureau) indicated at oral argument that although the stay was not acted upon, the BIA has a method for "screening" requests for stays, and that screening process took place here. The Court cannot credit this suggestion, given the fact that after petitioner had been deported, counsel for petitioner telephoned the "stay hotline" and was again assured by the BIA that travel documents were not prepared. The representation of the attorney from the Office of the Chief Counsel does not appear to be true.
According to counsel for petitioner, he is now in hiding Jakarta, and is in fear of imminent harm. Counsel for petitioner bases this report on information from the minister of petitioner's St. Paul church, who apparently has had some contact with petitioner, or with petitioner's relatives. Counsel for petitioner reports that he has been unable to contact petitioner and notes that mail takes approximately two weeks to arrive.
ANALYSIS
I. Does This Court Have Jurisdiction?
It is settled that "[h]abeas jurisdiction remains available to deportees who raise questions of law and who have no other available judicial forum." Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003) (citing INS v. St. Cyr, 533 U.S. 289, 314 (2001)). The government argues that this Court does not have habeas jurisdiction because petitioner does not satisfy the "in custody" requirement of the habeas statute because this petition was filed after petitioner left the country. The Court disagrees.
Before filing, counsel for petitioner contacted officials at the DHS, who assured him that petitioner was still in custody.
Prior to 1996, the Immigration and Naturalization Act barred all post-removal review of deportation orders. INA § 106(c); 8 U.S.C. § 1105a(c) (1994) (repealed after 1996) ("An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order."). The Act also, however, created an automatic stay for aliens seeking judicial review of orders of removal. 8 U.S.C. § 1105a(a)(3) (repealed 1990) (providing that "service of the petition for review upon such official of the Service shall stay the deportation of the alien").
The ban on post-removal review no longer exists, and neither does the automatic stay. Since 1996, and the passage of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act, federal appellate courts have thus taken jurisdiction over petitions for review filed after the petitioner has been removed. Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001); Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001) (same). Federal district courts, for their part, have taken jurisdiction over habeas cases even when the petitioning alien was remove d from the United States after filing the habeas petition. Chong v. INS, 264 F.3d 378 (3d Cir. 2001); Steele v. Blackman, 236 F.3d 130 (3d Cir. 2001); Fuller v. INS, 144 F. Supp.2d 72 (D. Conn. 2000); Dennis v. INS, 301CV279 (SRU), 2002 WL 295100 (D. Conn. Feb. 19, 2002) (directing INS to return petitioner to the United States after INS deported petitioner without the 15-day notice the AUSA had agreed to provide the court). This Court's research has not, however, revealed a post-AEDPA case in which a district court has properly taken jurisdiction of a habeas petition filed after the petitioning alien had reached the destination country.
The Court need not address whether an alien who has reached the deportation destination country satisfies the "in custody" requirement, because petitioner was unquestionably en route to Jakarta, and therefore chargeable to the "custody" of the Attorney General, until he arrived in Jakarta. See, e.g., Mohammed v. Attorney General, 01-CV-583 (MJD/SRN), 2001 WL 1631436 *2 (D. Minn. Aug. 13, 2001) (finding "in custody" requirement satisfied where alien was aboard an airplane when petition was filed); see also Singh v. Waters, 87 F.3d 346 (9th Cir. 1996) (applying pre-AEDPA law and finding jurisdiction of habeas petition filed after alien had been removed and had reached his country of origin where deportation occurred despite judicial stay).
Petitioner was not free to choose not to board the airplane to Jakarta, and although there was a layover in Amsterdam, he was not free to leave the airport, or board another flight. Petitioner was required, by the respondents in this case, to take Northwest Airlines flight 56 from Minneapolis to Amsterdam, and continue on KLM Royal Dutch Airlines flight 837 from Amsterdam to Jakarta. He simply was not free to "wander the earth . . . on par with the billions of other non-U.S. citizens around the globe." United States' Response to Motion for Court Order Directing DHS to Return Petitioner to the United States at 7 (citing Samirah v. O'Connell, 335 F.3d 545, 549 (7th Cir. 2003)). It may be that upon his arrival in Jakarta petitioner was no longer in custody; until that point, however, petitioner was under the direction of the ICE, and was "in custody" — he was subject to "unique restraints" that were "not shared by the public generally." Samirah, 335 F.3d at 550. Therefore, it is the Court's view that when petitioner's habeas petition was filed, he remained "in the custody" of the DHS, at least for the purposes of habeas corpus review. See Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003) (noting that "the `in custody' requirement of the habeas statute is satisfied as long as the petitioner was in custody at the time he filed his habeas petition") (citing Carafas v. LaVallee, 391 U.S. 234, 238-40 (1968) (additional citation omitted)).
The Court notes that Samirah involved a habeas petition filed after the petitioner left the country. The Seventh Circuit characterized Mr. Samirah's predicament not as the inability to leave, but the inability to return. Id. at 550. In this case, in contrast, petitioner was not free to leave the airplane, and was not free to leave the airport at Amsterdam. The Samirah case would be useful only if petitioner's application had been filed after petitioner arrived in Jakarta.
II. Is This The "Wrong Action in the Wrong Federal Court"?
In cases in which an alien has an adequate remedy by way of petition for review in the Court of Appeal, district courts do not have jurisdiction to entertain habeas petitions. Lopez, 332 F.3d at 510. On the other hand, "habeas jurisdiction remains available to deportees who raise questions of law and who have no other available judicial forum." Id. (citing INS v. St. Cyr, 533 U.S. 289, 314 (2001)). After considering the briefing and the parties' arguments, the Court is satisfied that, given the procedural posture of this matter, petitioner does not have another available judicial forum. Further, this petition raises only a question of law, namely, the scope of an alien's duty under § 1229(a)(1)(F). See 8 U.S.C. § 1229(a)(1)(F) (requiring "that the alien must immediately provide (or have provided) the Attorney General with a written record of an address and telephone number (if any) at which the alien may be contacted respecting proceedings.").
The government appears to concede that when an alien departs the country while an appeal is pending before the BIA, the BIA considers the pending appeal withdrawn. Petitioner argues that because his appeal will be considered withdrawn, he will not have a final action from which to appeal to the Eighth Circuit. The government appears to take somewhat inconsistent positions on this admittedly difficult question. In its motion papers, the government notes that "Presumably, Petitioner's pending appeal before the BIA will be dismissed, which would arguably permit him to file an appeal with the Eighth Circuit." At oral argument, the government retreated from this position, and seemed to agree with petitioner that judicial review in the Eighth Circuit would not be available, but suggested that there are many instances in the immigration context in which judicial review is not available. Therefore it appears that there is no judicial review available in the Eighth Circuit.
If the removal itself constitutes adequate final action from which an appeal lies, the proper course would be for this Court to transfer this case to the Eighth Circuit. 28 U.S.C. § 1631; Lopez v. Heinauer, 332 F.3d 507, 511 (8th Cir. 2003); see also Paul v. I.N.S., 348 F.3d 43 (2d Cir. 2003) (invoking § 1631 to assert jurisdiction over an appeal from a BIA determination that had been erroneously filed in the district court and finding district court had abused its discretion by failing to transfer the appeal).
The parties represent that the BIA issued a briefing schedule on this matter after petitioner was deported. If, before petitioner is returned to this country, the BIA reaches the merits of the appeal, plaintiff will have a final decision which would then be appealable to the Eighth Circuit. Reinstatement of his BIA appeal seemingly would divest this Court of jurisdiction. Nonetheless, absent the unusual step of the BIA disregarding its own policies, this Court has habeas jurisdiction at this time.
By this Order, the government will be required to return petitioner to the United States and the Court will stay another deportation unless there is a conclusion of petitioner's legal appeal(s). Presumably, the BIA will then act on petitioner's appeal, and address his due process/notice arguments. The BIA's final determination will be appealable to the appropriate United States Court of Appeals.
III. Merits of Petitioner's Due Process Claim
"It is well-settled that . . . aliens . . . are entitled to the Fifth Amendment's guarantee of due process of law in deportation proceedings." Al Khouri v. Ashcroft, Slip Op. 03-2063, 2004 WL 635397 (8th Cir. April 1, 2004) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)); see also Plyler v. Doe, 457 U.S. 202, 210 (1982) ("Aliens, even aliens whose presence in this country is unlawful, have long been recognized as `persons' guaranteed due process of law by the Fifth and Fourteenth Amendments."). Aliens facing deportation hearings are entitled to notice of the hearing. U.S. Const., amend. V (guaranteeing due process of law to all persons); Nose v. Attorney General of the United States, 993 F.2d 75, 78 (5th Cir. 1993) (noting that due process requires notice and an opportunity to be heard); 8 U.S.C. § 1229(a)(1) (requiring written notice of removal proceedings in person, or through service by mail).
Due process rights may be waived, such as by failure to appear for a hearing. See, e.g., Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971) (holding that "the hearing required by due process is subject to waiver"). Such a waiver must be made knowingly and voluntarily, and the Court must indulge every presumption against waiver. Brewer v. Williams, 430 U.S. 387, 404 (1977) (defining a waiver as "`an intentional relinquishment or abandonment of a known right or privilege'") (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
In Kamar v. INS, 149 F.3d 904 (8th Cir. 1998), the Eighth Circuit held that an alien's uncle provided sufficient written notice of the alien's change of address when the uncle averred that he had informed the INS office that the alien would be living with him at his Maryland address. Kamar, 149 F.3d at 907. The court noted that the change of address provided by the alien's uncle was not ideal, but was sufficient. Id. The court further held that the INS office was on notice of the address change, even though the alien had been personally served with a notice to appear. Id.
More recently in Beltran v. INS, 332 F.3d 407, 414 (6th Cir. 2003), the Court of Appeals reversed the decision of BIA in a similar case in which the BIA upheld an in absentia deportation order, even though the notice of the hearing time and date had not been sent to the alien's last reported address. In Beltran, the alien had been ordered deportable, but had appealed the decision to the BIA. The BIA reversed and remanded for another hearing. After the IC's original decision, the alien moved, and provided a notice of change of address via an EOIR-33 form. Id. at 409. He then filed another EOIR-33 form, listing the same address. Id. However, he moved from that address to his sister's house, and instead of filing a third EOIR-33, a law student, acting as the alien's representative, sent a letter to the INS indicating the new address. Id. at 409. After the change of address letter was provided, the notice of hearing on remand was sent to the outdated address.
The Sixth Circuit held that the notice by the personal representative was sufficient. In so holding, the court determined that 8 C.F.R. § 3.15 does not "represent a reasonable interpretation of the statute" and concluded, "the notice requirement of § 1229(a)(1)(F) is not meant to be an overly burdensome requirement. If the alien provides, or causes to be provided, notice of a change of address in writing, he has satisfied the statute." Id. at 413.
Petitioner's due process and notice arguments are colorable, to say the least. Petitioner provided notice of his address change to at least three DHS offices prior to the September 19, 2004 hearing. The Court will not reach the merits of the due process/notice argument, however, because the government has not briefed the issue. Although petitioner's challenge presents a legal issue, all interested parties would be better served if petitioner was available in the United States (preferably, in the District of Minnesota) when this issue is addressed. Petitioner remains in hiding in Indonesia; communication with his counsel thus far has been impossible, and he has therefore been unable to assist in this matter. Petitioner's presence is especially important in a case such as this one in which an important issue is the notice that petitioner himself provided to the government. It is obvious that petitioner's presence will foster a more efficient adjudication of these proceedings.
The government's briefing focused on the jurisdictional question.
IV. Conclusion
The Court sympathizes with the Sisyphusian task with which the DHS is charged. Nonetheless, aliens are entitled to due process, which includes adequate notice of deportation and removal hearings. Whether that process was provided is an issue available for judicial review, and petitioner is entitled to assist his counsel in pursuing this claim. He is therefore entitled to relief from this Court.
The Court orders the parties to make all reasonable efforts to notify petitioner of this Opinion and Order. Respondent is ordered to allow petitioner to re-enter the United States. The government shall provide any requisite travel documents, and the government shall bear the cost of his return. Petitioner shall be required to provide ICE officials with information as to his return flight, and is ordered to keep ICE appraised as to his whereabouts in this country.
If the government is unable to purchase a ticket on petitioner's behalf, the government shall provide funds to petitioner to cover the cost of a commercial airline ticket from Jakarta to Minnesota. If the government fails to provide either an airline ticket or funds in a reasonable time, counsel for petitioner may petition the Court for further relief.
ORDER
Based on the submissions of the parties, the arguments of counsel, and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. Petitioner's Motions for a Temporary Restraining Order [Docket No. 2] and Motion for Return [Docket No. 10] are GRANTED consistent with the above opinion.
2. Respondent is ordered to permit petitioner to re-enter the United States;
3. Upon petitioner's re-entry, respondent shall not remove or deport petitioner absent further order of a court of the United States.