Opinion
02 CV 1745 (SJ)
April 29, 2003
Scott Dunn, Esq., ROSLYNN R. MAUSKOPF, Brooklyn, New York, for Respondent
MEMORANDUM ORDER
Presently before the Court is the application of Petitioner Jorge Eduardo Torres-Nevas ("Petitioner") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging both his final order of removal and his continued detention pending removal For the reasons stated herein, the petition is dismissed.
BACKGROUND
Petitioner is a native and citizen of Columbia who was admitted to the United States as a lawful permanent resident on November 7, 1974. (Declaration of Scott Dunn, dated June 20, 2002 ("Dunn Decl.").) Prior to his arrest, he resided in Queens, New York with his family. He is the father of two United States citizens, and also provides support for other United States citizen family members. (Petition for writ of habeas corpus, dated March 15, 2002 ("Pet."), ¶ 110.) On July 15, 1988, he was convicted by a jury in the United States District Court for the District of Maryland of possession with intent to distribute cocaine and other charges. On these convictions, he was sentenced to a total period of imprisonment of 25 years. (Dunn Decl., Ex. 1, Judgment in a Criminal Case.) On or about July 5, 2001, the Immigration and Naturalization Service ("INS") issued him a Notice to Appear, charging him with removability pursuant to Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("IN A"), as an alien convicted of an aggravated felony. (Pet., Ex. 2, Notice to Appear.) The INS transferred him to its facility in Oakdale, Louisiana, and commenced removal proceedings against him. Petitioner appeared before an Immigration Judge ("the U"), who found that Petitioner was not eligible for any relief from removal, and ordered him removed. (Dunn Decl. ¶ 5; Pet. ¶ 15.) Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), which affirmed on September 25, 2001. (Dunn Decl., Ex. 2, Decision of the BIA.) Petitioner filed the instant petition on March 20, 2002.
DISCUSSION
I. Jurisdiction
Federal courts retain jurisdiction to review orders of removal through petitions for habeas corpus relief under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289, 314 (2001) (rejecting the government's argument that sections of AEDPA and IIRIRA stripped courts of jurisdiction over § 2241 habeas corpus petitions). However, the scope of jurisdiction is limited to consideration of pure questions of law and constitutional questions; it does not extend to the review of the factual findings or the discretionary decisions made by the Attorney General or the agencies under his control. See Calcano-Martinez v. INS. 232 F.3d 328, 342 (2d Cir. 2000) (holding that federal courts retain jurisdiction to review "purely legal statutory and constitutional claims"). Such discretionary decisions may only be reviewed for violations of the Constitution or laws and treaties of the United States. See 28 U.S.C. § 2241(c)(3). Here Petitioner alleges that Sections 212(c) ("§ 212(c)") and 212(h) ("§ 212(h)") of the INA, 8 U.S.C. § 1182(c) 1182(h), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1268, 1269, 1277) ("AEDPA"), were unconstitutionally and retroactively applied to him. (Pet. at 15.) This Court does have jurisdiction to hear these claims. Further, Petitioner contends that Section 236(c) ("§ 236(c)") of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), as amended by the Illegal Immigration Reform and Responsibility Act of 1996 (Pub.L. No. 104-208, §§ 303(a), 371(b)(5), 110 Stat. 3009-585, 3009-645) ("IIRIRA")), is unconstitutional as applied to him. Although AEDPA and IIRIRA restricted judicial review of INS decisions made under § 236, those restrictions apply to "challenges to operational decisions, rather than to the legislation establishing the framework for those decisions." Parry v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999).
The Court finds that it also has personal jurisdiction over Petitioner's custodians. Petitioner named the Attorney General of the United States as his custodian and a proper respondent in this case, in addition to the Commissioner of the INS and the New Orleans and New York District Directors of the INS. This Court hold that the Attorney General is a proper custodian of an alien detained in any INS facility. See e.g. Alcaide-Zelaya v. McElroy Nos. 99 Civ. 5102, 99 Civ. 9999, 2000 WL 1616981, at *4-*5 (S.D.N.Y. Oct. 27, 2000) (citing and comparing the conflicting cases in the Eastern and Southern Districts of New York, which have split on the issue of whether the Attorney General is a proper custodian for such cases); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (Attorney General is proper respondent: but see Guerrero-Musla v. Reno, No. 97 Civ. 2779, 1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (Attorney General is not proper respondent); see also Henderson v. INS, 157 F.3d 106, 122-28 (2d Cir. 1998) (offering a thorough analysis of the issue, but declining to resolve this "difficult question"). The Attorney General has the power to produce, detain, or release such individuals and is the ultimate decision-maker on discretionary matters concerning the INS and removable aliens. See 8 U.S.C. § 1103(a)(1) ("The Attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens.");see also Henderson, 157 F.3d at 126 ("[T]he Attorney General has the power to produce the petitioners, remains the ultimate decisionmaker as to matters concerning the INS, and is commonly designated a respondent in these cases, even when personal jurisdiction over the immediate custodian clearly lies."). Congress has specifically designated the Attorney General as the legal custodian of aliens. See 8 U.S.C. § 1222(a) [1226(c)(1)] ("The Attorney General shall take into custody any alien who [is deportable or inadmissible for having committed a crime].").
Moreover, the location of custody and the identity of the day-to-day custodian frequently change when detainees are transferred among INS facilities, all of which are under the control of the Attorney General.See Arias-Agramonte v. Comm'r of INS, No. 00 Civ. 2412, 2000 WL 1617999, at *8 (S.D.N.Y. Oct. 30, 2000). Petitioner, like many other aliens in removal proceedings, was involuntarily transferred to the INS detention facility in Oakdale, Louisiana. If the local INS district director or the warden of the federal facility were to be considered the only custodian for jurisdiction purposes, the government would be able to forum-shop at will, merely by transferring prisoners or detainees to the location of its choice. "[T]here is a compelling practical concern that the government can seriously undermine the remedy of habeas corpus by detaining so large a number of aliens in one facility that the local district court is overwhelmed by a flood of habeas petitions."Alcaide-Zelaya 2000 WL 1616981, at *4 (internal quotations and citations omitted). This Court has personal jurisdiction over the Attorney General. See Arias-Agramonte, 2000 WL 1617999, at *9.
II. Venue
Initially, this Court directed the parties to show cause why the petition should not be transferred to the Western District of Louisiana. "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a). The Court has broad discretion in deciding venue; such determinations are based "upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoya Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citations omitted). Traditional venue considerations include 1) the location where the material events took place, 2) where records and witnesses pertinent to the claim are likely to be found, 3) the convenience of the forum for the respondent and petitioner, and 4) the familiarity of the court with the applicable laws.See Henderson 157 F.3d at 128, n. 25; Alcaide-Zelava, 2000 WL 1616981, at *5; Arias-Agramonte, 2000 WL 1059678, at *9; Mojica v. Reno, 970 F. Supp. 130, 165 (E.D.N.Y. 1997). In the instant case, these considerations favor venue in the Eastern District of New York. Petitioner had no ties to Louisiana, prior to his involuntary transfer by the government to its facility in Oakdale. Although Petitioner was convicted in Maryland, he asserts that he was not arrested there and has no other connection to the State of Maryland, but was transported there for trial for the convenience of the government. (Pet's Resp. to the Order to Show Cause, at 4.) Petitioner asserts that he and his family are residents of New York and that his family continues to live in New York. (Pet. ¶ 10.)
II. Eligibility for Relief under Sections 212(c) and 212(h) of the INA
Petitioner urges this Court to remand his case to the Immigration Court in order for it to consider his claims for relief under former § 212(c) and § 212(h) of the INA. Petitioner argues that the IJ retroactively applied AEDPA and IIRIRA to bar relief from deportation, in violation of his right to substantive due process. (Pet. ¶ 28.) The Court finds that the Immigration Court did not abuse its discretion in denying Petitioner relief, because Petitioner was statutorily ineligible for relief under either provision, and thus the IJ had no discretion to exercise.
Prior to 1996, certain classes of removable aliens had the ability to seek a discretionary waiver of deportation under § 212(c) of the INA. See 8 U.S.C. § 1182(c) (repealed) (1994). However, after the Immigration Act of 1990, this relief was not available to individuals who were convicted of aggravated felonies for which they served more than five years of imprisonment. Pub.L. 101-649, 104 Stat 4978 (November 29, 1990), Sec. 511 (amending Section 212(c) so that it "shall not apply to an alien who has been convicted of an aggravated felony and has served a term of imprisonment of at least 5 years."); see also Buitrago-Cuesta v. INS, 7 F.3d 291, 295 (2d Cir. 1993) (finding that § 511 applied retroactively to individuals who were convicted prior to the 1990 enactment). Thus, Petitioner became ineligible for discretionary relief under § 212(c) at the point at which he had served five years imprisonment. In 1996, § 440(d) of AEDPA limited the availability of discretionary waivers of deportation for aliens convicted of aggravated felonies, and § 304 of IIRIRA eliminated this relief altogether for this class of aliens. However, Petitioner was already ineligible for such relief, and thus was not subject to the retroactive application of the 1996 amendments of AEDPA and IIRIRA.
Even if AEDPA and IIRIRA had been applied retroactively to Petitioner to bar § 212(c) relief, this may not have violated the Constitution. The Supreme Court recently limited the retroactive application of these provisions, and granted discretionary waiver hearings to aliens who pleaded guilty to their aggravated felony convictions before the passage of the statutes. St. Cyr v. INS. 533 U.S. 289 (2001). Considering the frequency with which these waiver hearings were held in the past, and the fact that aliens were often successful in receiving waivers of deportation at these hearings, the Supreme Court imputed reliance on the availability of this waiver to an alien who made an agreement with prosecutors prior to the enactment of IIRIRA. Thus, a criminal alien's decision to plead guilty may be seen as a surrender of rights in exchange for the availability of relief. Id., 533 U.S. at 323. However, Petitioner in the instant case did not surrender his rights by pleading guilty, and thus this exception and the availability of relief under former § 212(c) are not available to him.
Section 212(h) of the INA provides for the availability of a waiver of deportation for certain classes of aliens who have been convicted of a single offense of simple possession of 30 grams or less of marijuana. 8 U.S.C § 1182(h) (Supp. V 1999). Because Petitioner was convicted of charges related to the possession and sale of cocaine, he is statutorily barred from relief under § 212(h). The amendments of the 1996 Acts did not substantially change this avenue of relief. Accordingly, Petitioner could not have been harmed by the retroactive application of any laws. This Court finds that Petitioner was not entitled to relief under either § 212(c) or § 212(h). Thus, he has no protectable interest in such relief, and any due process claim must fail
III. Petitioner is not Detained Pursuant to Section 236(c) of the INA
In addition to relief from removal, Petitioner also asks this Court to grant bond pending the disposition of his removal proceedings. He contends that he is being detained pursuant to § 236(c), and that this section is unconstitutional as applied to him, because it mandates his detention without giving him an opportunity to demonstrate that he is not a danger to society or a risk of flight. Section 236(c) of the INA provides that "The Attorney General shall take into custody [certain removable or inadmissible aliens] . . . when the alien is released." 8 U.S.C. § 1226(c)(1). Thus, § 236(c) prohibits bail for aliens during the pendency of their removal proceedings.
The Court does not consider Petitioner's "as applied" challenge because he is not being held pursuant to § 236(c). At the time that Petitioner filed this petition, a final order of removal had already been entered against him. Thereafter, he was held pursuant to § 241(a)(2) of the INA, 8 U.S.C. § 1231(a)(2), which mandates detention during the 90-day "removal period" following the entry of a final order of removal. The removal period may be extended and detention continued if removal is delayed through actions or inactions by the alien, 8 U.S.C. § 1231(a)(1)(C). Petitioner has remained in detention while his petition for habeas corpus was pending. Now that his petition is decided, the stay of removal will be lifted and the removal period may recommence. There is no indication that the likelihood of removal is too removed to justify continued detention. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001) (After a reasonable post-removal period, if "the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing."). Petitioner's claim regarding § 236(c) is dismissed as moot.
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied. The stay of deportation issued by this Court is hereby lifted. As Petitioner has failed to show the denial of a constitutional right, a certificate of appealability will not be issued. The Clerk of the Court is directed that this Order closes this case.SO ORDERED.
JUDGMENT
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on April 28, 2003, denying petitioner's application for a writ of" habeas corpus; lifting the stay of deportation issued by this Court: and declining to issue a Certificate of Appealability; it isORDERED and ADJUDGED that petitioner take nothing of the respondents, that petitioner's application for a writ of habeas corpus is denied; that the stay of deportation issued by this Court is lifted; and that a Certificate of Appealability shall not issue.