Opinion
Civil Action No. 02-10488-GAO
January 3, 2003
MEMORANDUM AND ORDER
Jude Eugene seeks to set aside a decision by the Immigration and Naturalization Service ("INS") to remove him from the United States. He bases his claim that he should be permitted to remain in this country on the United Nations Convention Against Torture (the "CAT"). The INS has moved to dismiss this action, arguing first that this Court has no jurisdiction over the matter, and further that even if there is limited habeas jurisdiction, Eugene has failed to state any "colorable claims of legal error" by the Board of Immigration Appeals (the "BIA"). For the reasons discussed below, the INS's motion to dismiss is granted.
A. Summary of Facts
In February 2001, the INS initiated removal proceedings against Eugene. The INS charged that he was removable on three separate grounds: (1) as an alien convicted of an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43)(B); (2) as an alien convicted of a controlled substance violation as defined by 8 U.S.C. § 1227(a)(2)(B)(i); and (3) as an alien remaining in the United States longer than authorized under 8 U.S.C. § 1227(a)(1)(B). Eugene filed an application for asylum and for withholding of removal; because of his criminal record, he could only seek deferral of removal under the CAT. See 8 U.S.C. § 1158(b)(2) (alien convicted of a serious crime is not eligible for asylum; an aggravated felony is a serious crime).
In July 2001, the immigration judge (the "IJ") presiding over Eugene's removal proceedings determined that although Eugene was removable as charged, it was more likely than not that he would be tortured upon his return to Haiti. The IJ found that the Haitian government imprisons criminal deportees and routinely subjects them to beating, torture, and other mistreatment. The IJ therefore granted Eugene's request for a deferral of removal under the CAT.
In February 2002, the BIA reversed the IJ's grant of a deferral. The BIA determined that Eugene's evidence of the deplorable conditions that criminal deportees face upon return to Haiti did not rise to the level of "torture" against which the CAT afforded relief. Accordingly, the BIA held that Eugene should be removed from the United States.
In response to the adverse decision by the BIA, Eugene filed in this Court a "Notice of Intent to Appeal Pursuant to Fed.R.App.P.," a "Memorandum of Law in Support for a Petition or Writ of Habeas Corpus," and a "Motion to Allow Petitioner to Proceed in Forma Pauperis." Since it was unclear whether Eugene intended to file a petition for a writ of habeas corpus or an appeal of the BIA's decision, his filings were forwarded by this Court to the First Circuit Court of Appeals to ensure that Eugene did not miss his opportunity to prosecute a direct appeal. After review of the papers, the First Circuit transferred the case back to this Court, ruling that it lacked jurisdiction to review an appeal of a removal order by an alien who is an aggravated felon. See 8 U.S.C. § 1252(a)(2)(C).
Recently, Eugene filed a motion for an "Emergency Bond Hearing" claiming that he is being unconstitutionally held by the United States government.
In light of the foregoing procedural history, this Court construes Eugene's claims as a petition for a writ of habeas corpus brought under the authority of 28 U.S.C. § 2241.
B. Discussion
As an initial matter, the INS argues that this Court lacks jurisdiction to review the BIA's decision because determinations concerning the availability of relief under the CAT normally must be reviewed on direct appeal to a federal circuit court. See, e.g., Fahim v. U.S. Att'y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002). The regulations implementing the CAT state that "there shall be no judicial appeal or review of any action, decision, or claim raised under the Convention . . . except as part of the review of a final order of removal pursuant to section 242 of the [Immigration and Naturalization] Act." 8 C.F.R. § 208.18(e)(1). Section 242 of the Immigration and Naturalization Act, in turn, provides, "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien" who is removable because he has committed an aggravated felony. 8 U.S.C. § 1252(a)(2)(C). It was because of this latter provision that the First Circuit refused to review Eugene's filings and returned them to this Court. (Docket No. 4). See also Balogun v. Ashcroft, 270 F.3d 274 (5th Cir. 2001) (dismissing direct appeal from BIA determinations under the CAT for lack of jurisdiction because alien was being removed because of an aggravated felony). Thus, Eugene's only possibility for judicial review of the BIA's determination is by means of habeas review. See INS v. St. Cyr, 533 U.S. 289, 314 (2001).
The scope of such habeas review is much narrower than the judicial review normally available on direct appeal from an agency decision. See id. at 314 n. 38. The First Circuit has held that the District Court's review must be limited to the enforcement of due process requirements and to claims of statutory right. See Goncalves v. Reno, 144 F.3d 110, 125 (1st Cir. 1998). The district court does not have authority to review discretionary decisions by the INS. Id. Other circuits have similarly limited the scope of the district court's review of an alien's habeas petition to "pure" questions of federal law. See, e.g., Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001) (holding that "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations of the IJ and BIA"); Bowrin v. INS, 194 F.3d 483, 490 (4th Cir. 1999) ("Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited."). Whether the conditions under which prisoners are held in custody by the Haitian government are sufficiently severe and purposeful to constitute "torture" within the definition of the CAT is not a pure question of law, and the avenue of review countenanced by the foregoing cases is not available to Eugene.
To the extent that the Due Process Clause of the Fifth Amendment to the Constitution permits this Court to examine whether the INS's factual determinations were supported by "some evidence," U.S. ex rel Vajtauer v. Comm'r of Immigration of New York, 273 U.S. 103, 106 (1927), review of the record indicates the BIA's decision was supported by substantial evidence. The BIA's memorandum demonstrates that the Board examined a variety of evidence and gave Eugene an adequate opportunity to present arguments and evidence in his favor. See also Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (BIA not required to "address explicitly each type of evidence" enumerated in the CAT regulations). The BIA's determination that Eugene should be removed did not violate the Constitution's Due Process Clause in either substance or procedure.
Conclusion
For the foregoing reasons, the INS's motion to dismiss (docket no. 8) is GRANTED, and Eugene's motion for a bond hearing (docket no. 14) is DENIED.