Opinion
00 CIV. 7979 (DLC)
August 7, 2001
Dominga Concepcion, Pro Se, New York, N.Y.
James A. O'Brien III, New York, N.Y.
AMENDED OPINION AND ORDER
On October 19, 2000, Dominga Concepcion ("Concepcion") applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 requesting, among other things, that the Court (1) instruct the Bureau of Immigration Appeals ("BIA") to remand petitioner's case for a determination of whether she is entitled to discretionary relief pursuant to 212(c); (2) vacate the BIA's deportation order; or (3) issue a stay of deportation. On May 4, 2001, in a carefully researched opinion, Magistrate Judge Katz issued a Report and Recommendation ("Report") that this petition be dismissed without prejudice. Based on the analysis which follows, this petition is dismissed.
The petition was received by the Court's Pro Se Office on October 6, 2000, but was not filed until October 19, 2000.
BACKGROUND
Concepcion is a native and citizen of the Dominican Republic and entered the United States in 1981. On May 14, 1990, petitioner obtained permanent resident status. In 1992, petitioner was convicted following trial of trafficking in cocaine, conspiracy to traffic cocaine, and aggravated forgery, and was sentenced to a term of imprisonment of five years and two concurrent terms of imprisonment of three years.
On December 29, 1994, while Concepcion was incarcerated at the York County Prison in Pennsylvania, the Immigration and Naturalization Service ("INS") began deportation proceedings by serving Concepcion with an Order to Show Cause and Notice of Hearing. The INS charged that because of her criminal convictions, petitioner was deportable from the United States pursuant to the Immigration and Natutalization Act ("INA") § 241(a)(2)(A)(iii), 8 U.S.C. § 1251 (a)(2)(A)(iii) (aggravated felony conviction), and INA § 241(a)(2)(B)(i), 8 U.S.C. § 1251 (a)(2)(B)(i) (controlled substance conviction). The Notice informed Concepcion that if she failed to appear at a scheduled deportation hearing after receiving notice of the hearing, she would be ordered deported in absentia.
This provision has been renumbered as INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
This provision has been renumbered as INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i).
On May 16, 1995, Kerry Bretz informed the INS that his office would be representing Concepcion in her deportation
proceedings. On May 31, 1995, petitioner and her counsel appeared for a Master Calendar Hearing. At that hearing, petitioner conceded she was deportable on the grounds charged in the Order to Show Cause, but stated that she would be applying for a discretionary waiver of deportation pursuant to former INA § 212(c) ("Section 212(c)"), 8 U.S.C. § 1182(c).
Section 212(c) was repealed by the Illegal Immigration Report and Immigrant Responsibility Act of 1996, Pub.L. No. 104- 132, 110 Stat. 1214 (1996).
The INS rescheduled petitioner's Individual Hearing several times at petitioner's request, and sent each notice of the rescheduled hearing dates to her counsel. By Notice of Hearing dated July 16, 1996, the INS rescheduled Concepcion's Individual Hearing for March 13, 1997, at 9 a.m. This Notice was sent to petitioner's counsel. Each of these notices advised Concepcion that an order of deportation could be entered in absentiaif she failed to appear at the scheduled hearing after receiving proper notice.
According to counsel for petitioner, he met with petitioner approximately one month before the March 13, 1997 hearing date, and at that time called the immigration court's "800" number to verify the hearing date. Petitioner's counsel stated that the immigration court's 800 system reported that there was no hearing scheduled for petitioner. Petitioner's counsel said he informed petitioner of this and told her he would contact her when he heard something further from the INS. Counsel for Concepcion claimed he called the 800 system again on or about March 3, 1997,
and received the same message that no hearing was scheduled. On March 10, 1997, counsel for petitioner called the Clerk of Court, who stated that Concepcion's Individual Hearing was still scheduled for March 13 1997. Counsel for Concepcion tried to contact Concepcion by telephone, but was unsuccessful because her telephone service had been disconnected. He sent Concepcion a letter that same day, informing her that the hearing was scheduled for March 13, 1997 at 9 a.m.
According to petitioner, she did not receive this letter until the morning of March 13. Although she states she went directly to the immigration court upon receiving the letter, she did not arrive at the court until around noon. Counsel for petitioner had already appeared before IJ William F. Jankun. According to IJ Jankun, Concepcion's counsel informed him that his office had received notice of the hearing and that he had notified Concepcion of the hearing by letter. Counsel for petitioner told IJ Jankun that he knew of no reason why petitioner was not present. Based on counsel's representations and at the INS's request, IJ Jankun held the hearing in absentia. IJ Jankun found that Concepcion was deportable and had failed to establish that she was eligible for discretionary relief. IJ Jankun ordered Concepcion deported to the Dominican Republic. At approximately 1:10 p.m. that same day, Concepcion appeared before IJ Jankun and informed the court that she had only received her counsel's letter informing her of the hearing date and time that morning. Concepcion was informed that a deportation order was already entered against her.
On April 7, 1997, petitioner, through counsel, submitted a motion to reopen the deportation proceedings. IJ Jankun denied the motion by written decision dated February 24, 2000. IJ Jankun found that Concepcion had failed to establish "exceptional circumstances" as required under then-existing INA § 242B(c)(3). On March 6, 2000. petitioner, through counsel, appealed the denial of her motion to reopen to the Bureau of Immigration Appeals ("BIA"). That appeal is currently pending.
Concepcion filed her petition in this Court on October 19, 2000. On March 6, 2001, respondents moved to dismiss the petition on the ground that petitioner had failed to exhaust her administrative remedies, and that the Court therefore lacked subject matter jurisdiction over the petition. On March 12. 2001, petitioner replied to respondent's motion and, in the reply, asked the Court to hold her petition in abeyance pending the Supreme Court's decisions in Calcano-Martimez v. INS, 232 F.3d 328 (2d Cir. 2000), cert. granted, 121 S.Ct. 849 (2001), andSt. Cyr v. INS, 229 F.3d 406, cert. granted, 121 S.Ct. 848 (2001). On May 4, 2001, Magistrate Judge Katz issued the Report recommending that the petition be dismissed without prejudice. Concepcion has submitted timely objections to the Report.
DISCUSSION
A. Standard of Review
In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C) (1993). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v.. Smith, 618 F. Supp. 1186, 1189 (S.D.N Y 1985)-(citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)
Petitioner raises several objections to the Report. First, she argues that the Court should stay the instant action in light of several Supreme Court cases, which were pending when the Report was issued. Petitioner also argues that the Court has subject matter jurisdiction, and that the Court should stay petitioner's deportation pending the BIA's decision regarding her appeal.
B. Request for a Stay of the Instant Action
Petitioner has requested that the Court hold her petition in abeyance pending the Supreme Court's decisions in Calcano-Martinez v. Immigration and Naturalization Serv., 232 F.3d 328, and St. Cyr v. Immigration and Naturalization Serv., 229 F.3d 406. The Report found both of these cases irrelevant to the instant petition and thus recommended that the Court not hold the petition in abeyance pending the Supreme Court's decisions in these two cases. Since the time the Court received the Report and petitioner's objections, however, the Supreme Court issued decisions in each of these cases. See Calcano-Martinez v. Immigration and Naturalization Serv., 122. S.Ct. 2268, 2001 WL 703943 (June 25, 2001);Immigration and Naturalization Serv. v. St. Cyr., 121 S.Ct. 2271, 2001 WL 703922 (June 25, 2001). The Court will therefore consider these cases as they relate to the instant petition.
As the Report points out, these cases do not affect the outcome of the instant petition. In Calcano-Martinez and St. Cyr. the Supreme Court held that, under the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, (the "IIRIRA"), federal district courts retain habeas corpus jurisdiction over challenges to final removal orders. Calcano-Martinez, 121 S.Ct. 2268, 2001 WL 703943; St. Cyr., 121 S.Ct. 2271, 2001 WL 703922. This Court lacks subject matter jurisdiction over this petition for an entirely separate reason, that is, petitioner's failure to exhaust her administrative remedies.
In St. Cyr., the Supreme Court also held that Section 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") (which expands the categories of criminal convictions that render an alien ineligible for discretionary relief under former Section 212(c)), and Section 304 of the IIRIRA (which repeals Section 212(c)), do not apply retroactively to aliens who were placed in deportation proceedings after AEDPA and IIRIRA became effective, but who pled guilty prior to the effective date of those statutes. St. Cyr., 121 S.Ct. 2271, 2001 WL 703922. Here, petitioner was convicted by a jury before AEDPA and IIRIRA became effective.
C. Subject Matter Jurisdiction
"It is well-settled that an appellant must exhaust his administrative remedies before seeking habeas corpus relief in the federal courts."Gonzalez v. Perrill, 919 F.2d 1, 1 (2d Cir.
1990) (citation omitted). Where a party has failed to exhaust all available adminiatrative remedies, dismissal of the action lack of subject matter jurisdiction is appropriate. Howell v. Immigration and Naturalization Serv., 72 F.3d 288, 291 (2d Cir. 1995). The limited exceptions to the exhaustion requirement, for example where the BIA does not have the authority to address the claim, do not apply here. See Marrero v. Immigration and Naturalization Serv., 990 F.2d 772, 778 (3d Cir. 1993).
Here, Concepcion has failed to exhaust her administrative remedies because her appeal is still pending before the BIA. In her petition, Concepcion seeks the rescission of the March 13, 1997 order deportation and the reopening of her application for Section 212(c) relief. The BIA has the power to grant petitioner relief in her pending appeal. See, e.g., In re Gustavo Alonzo Grijalva-Barrera, 21 I. N. Dec. 472, 1996 WL 413571 (BIA June 14, 1996) (interim decision) (granting alien's appeal from IJ's denial of motion to reopen following in absentia order of deportation on the grounds that ineffective assistance of counsel constituted "exceptional circumstances" and remanding the case). Accordingly, the petition is dismissed.
D. Stay of Deportation
Finally, petitioner has requested that the Court stay her deportation pending the resolution of her administrative proceedings. As an initial matter, this Court lacks jurisdiction over petitioner's request for a stay because it lacks jurisdiction over her habeas petition.
In any event, petitioner has not shown that a stay from this Court is necessary. In considering whether to grant a discretionary stay of deportation, courts consider whether:
(1) [petitioner] will suffer irreparable injury absent a stay; (2) the INS will suffer substantial injury if the stay is issued; (3) [petitioner] has. demonstrated a substantial possibility, though less than a likelihood, of success on appeal; and whether (4) the public interest may be affected.Michael v. Immigration and Naturalization Serv., 48 F.3d 657, 664 (2d Cir. 1995).
Petitioner's conviction for cocaine trafficking is considered an "aggravated felony." INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii). "In the event that an alien has been convicted of an aggravated felony, he or she may still seek a stay of deportation from the reviewing court, but such relief is discretionary."Michael, 48 F.3d at 661; 8 U.S.C. § 1105a(a)(3).
Here, Concepcion has not shown that she will suffer "irreparable injury" because her deportation has been automatically stayed pending the BIA's disposition of her appeal. The BIA has held that "[t]here is an automatic stay of deportation during the pendency of an appeal from the denial of a motion to reopen an in absentia hearing under section 242B of the [INA]." In re Cecilia Rivera-Claros, 21 I N. Dec. 232, 1996 WL 101984 (BIA Feb. 26, 1996) (interim decision) , appeal dismissed, 21 I N. Dec. 599, 1996 WL 580694 (BIA Oct. 3, 1996), aff'd, 122 F.3d 1062 (4th Cir. 1997).
While petitioner argues that the INS office in New York has not indicated that Rivera-Claros is controlling in her case, counsel for the INS has represented that Rivera-Claros is controlling. Further, as the Fifth Circuit has observed, "8
C.F.R. § 3.6 provides that, while an appeal is pending before the BIA, in cases where the deportation order was entered in absentia pursuant to the provisions of 8 C.F.R. § 3.23(b)(4)(iii), an automatic stay of the deportation applies." Foster v. Townsley, 243 F.3d 210, 213 (5th Cir. 2001). Thus, according to counsel for the INS, BIA precedent, and recent case law, petitioner's deportation is automatically stayed pending the BIA's resolution of her appeal. A stay from this Court is therefore not necessary. Petitioner's request for a stay is denied.
Moreover, as the Report points out, even if the BIA were to deny petitioner's appeal, there is another administrative to deny petitioner's appeal, there is another administrative remedy that petitioner must exhaust before applying for a discretionary stay from this Court. She must apply to the INS District Director to seek a continuation of the administrative stay that is in effect now. See 8 C.F.R. § 241.6.
CONCLUSION
For the reasons stated, the petition is dismissed without prejudice. The Clerk of Court shall close the case.
SO ORDERED: