Opinion
No. C 03-0439 CRB
March 12, 2003
MEMORANDUM AND ORDER
Now before the Court is respondents' motion to dismiss this habeas corpus petition. Petitioner did not appear at oral argument. After carefully considering the papers filed by the parties, the Court concludes that oral argument is unnecessary and DENIES in part and GRANTS in part the motion.
BACKGROUND
Petitioner Rajinder Singh ("Singh") illegally entered the United States on April 27, 1996. Soon thereafter he was placed in removal proceedings and on February 11, 1998 an immigration judge denied Singh's asylum application and ordered his removal. Singh subsequently retained attorney Milton Kramer to represent him before the Board of Immigration Appeals ("BIA"). On March 22, 2002 the BIA summarily dismissed Singh's appeal on the ground, among others, that he had not filed a brief in support of his appeal after indicating on his notice of appeal that he would do so. The BIA served the decision on Singh's counsel, Kramer, but Kramer did not notify Singh of the decision. Unbeknownst to Singh, the BIA had previously disbarred Kramer.
Singh learned of the BIA's decision denying his appeal on June 3, 2002 when he received notice of his imminent deportment. He retained a new attorney, Michael Schoenleber, to reopen his deportation proceedings to allow him to apply for an "adjustment of status" based on his April 16, 2001 marriage to a United States citizen. The BIA denied the motion to reopen on the ground that Singh had failed to present clear and convincing evidence indicating a strong likelihood that his marriage was bona fide. The BIA also stated that, to the extent Singh raised an ineffective assistance of counsel claim, he had failed to comply with the requirements of Matter of Lozada, 191 N Dec. 637 (BIA 1988).
Singh, represented by new counsel, filed this habeas petition on January 31, 2003. Singh makes three claims: (1) his former attorney Kramer provided ineffective assistance of counsel by failing to submit a brief in support of his notice of appeal (resulting in summary dismissal of his appeal) and failing to notify Singh of the issuance of the BIA's March 22, 2002 dismissal of his appeal; (2) the BIA deprived him of due process of law by sending its March 22, 2002 decision to Kramer whom the BIA had placed on indefinite suspension since August 2000; and (3) he is being held in custody in violation of Zadvydas. Davis, 533 U.S. 678 (2001).
Respondents move to dismiss the first two claims on the ground that the Court lacks jurisdiction to entertain them. They contend that the third claim lacks merit and should be denied.
DISCUSSION
I. Jurisdiction of the First Two Claims
Respondents contend that this Court does not have habeas jurisdiction of petitioner's due process claims because petitioner did not exhaust all of his available remedies. A claim of ineffective assistance of counsel occurring during or after a matter pending before the BIA may be raised before the BIA in a motion to re-open which follows the procedures set forth in Lozada. See Lata v. INS, 204 F.3d 1241, 1245-46 (9th Cir. 2000). If the motion is denied, it may be appealed to the Ninth Circuit Court of Appeals. See Castillo-Perez v. INS, 212 F.3d 518, 524 (9th Cir. 2000) (reviewing BIA's denial of motion to re-open based on ineffective assistance of counsel).
Respondents assert that petitioner raised his ineffective assistance of counsel claim in his motion to re-open before the BIA, but then failed to appeal the denial of the motion to re-open to the Ninth Circuit. Therefore, petitioner has not exhausted his remedies and this Court does not have habeas jurisdiction.
In Dearinger v. Reno, 232 F.3d 1042 (9th Cir. 2000), the Ninth Circuit held that the district court had habeas jurisdiction of the petitioner's claim that his counsel engaged in ineffective assistance of counsel by filing the petitioner's appeal one day late. Id. at 1044. The court held that the fact that the petitioner had not pursued his ineffective assistance claim before the BIA (that is, had not exhausted his remedies), did not deprive the court of jurisdiction. Id. at n. 4. To support this proposition the Dearinger court cited Lata. Lata, however, did not address whether a district court has habeas jurisdiction of unexhausted ineffective assistance of counsel claims; instead, the court noted that the petitioner had not exhausted her remedies but held that regardless of that failure, her appeal was doomed because she could not show harm. 204 F.3d at 1246. In other words, the Lata court disposed of her claim on prejudice grounds without actually deciding the exhaustion issue.
Dearinger nonetheless stands for the proposition (binding on this Court) that a failure to file a motion to re-open based on ineffective assistance of counsel does not deprive a district court of habeas jurisdiction of the same claim. Respondents argue that Dearinger was decided before the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289 (2001), which established that habeas jurisdiction exists only where all of the avenues of judicial review are foreclosed. Id. at 314.
In St. Cyr, the Supreme Court held that Congress had not stripped the federal courts of habeas jurisdiction. The Court's decision was based in part on its concern that the petitioners in that case had no forum — other than a habeas court — to bring their claims. The Supreme Court's interpretation of the new immigration statute as not repealing habeas jurisdiction eliminated serious constitutional concerns and was consistent with the rule of statutory construction that courts should interpret statutes so as to avoid constitutional problems. The Court did not hold that exhaustion of remedies is a prerequisite to jurisdiction of habeas claims. Therefore, this Court concludes that St. Cyr did not overrule Dearinger and respondents have not cited any cases that suggest that it did.
II. The Zadvydas claim
In Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court held that the INS is not authorized to detain removable aliens past the presumptive six-month period once removal is no longer reasonably foreseeable. Id. at 699-701. In Doan v. INS, 311 F.3d 1160 (9th Cir. 2002), for example, the INS had ordered Doan removed to Vietnam, but Vietnam would not accept him. In accordance with Zadvydas, the INS released Doan on bond since in light of Vietnam's refusal Doan's removal was not reasonably foreseeable. Id. at 1161.
Petitioner has been in INS custody since June 27, 2002. He claims the INS has violated Zadvydas by not affording him the custody review required by the INS regulations. "His continued detention after the 90-day post-order-removal period was not reasonable where INS was aware that a travel document would not be available for six months and did not provide Singh with the custody review to which he was entitled." Petitioner's Response at 7.
Petitioner does not state a claim under Zadvydas. The Supreme Court held that after an alien is ordered removed and then held for more than six months the burden is on the alien to provide good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future. If the alien comes forward with such evidence, the government must respond with evidence sufficient to rebut that showing.Id. at 701. The Court concluded: "This 6-month presumption . . . does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id.
As respondents point out, Singh was scheduled to be removed on February 5, 2003 until — at petitioner's request — this Court stayed his removal. Thus, petitioner has not shown that his removal is not reasonably foreseeable; indeed, should this Court lift the stay, it is imminent.
CONCLUSION
Respondents' motion to dismiss the Zadvydas claim is GRANTED. Petitioner has not shown that his removal is not reasonably foreseeable.
Respondents' motion to dismiss the petition's first two claims for lack of subject matter jurisdiction is DENIED.