Opinion
Civil Action No. 04-CV-72214-DT.
July 2, 2004
REPORT AND RECOMMENDATION
RECOMMENDATION : This Court recommends that Petitioner's Motion For Writ of Habeas Corpus be GRANTED as Petitioner is being held contrary to the laws of the United States.
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Before the Court is Petitioner's Motion For Writ of Habeas Corpus arising from his current detention. The facts giving rise to Petitioner's detention are set forth as follows. On January 5, 1998, an Order of Deportation, in absentia, was entered against Petitioner. On January 8, 1998, the Order of Deportation was vacated by the Board of Immigration Appeals. On January 14, 1998, a Notice of Hearing was sent advising Petitioner of a second hearing scheduled for August 21, 1998. A second Order of Deportation, in absentia, was entered against Petitioner after neither Petitioner nor his counsel appeared at the August 21, 2002 hearing. Petitioner alleges that between January 8, 2002, and June 8, 2004, he "periodically met with immigration to update his immigration status and passport. During this period of time, no notice was ever given regarding the August 21, 2002, order" (Petitioner's Motion, pg. 2). Petitioner was arrested on June 8, 2004, for the purpose of effecting the Order of Deportation entered on August 21, 2002. Petitioner is currently housed at the Calhoun Country Jail.
On June 15, 2004, Petitioner filed the instant Motion For Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 contending that his detention is pursuant to an "illegal order of deportation which was entered on August 21, 2002" (Petitioner's Motion, pg. 1). Respondent, Department of Homeland Security, was ordered to respond within seven days of Petitioner's motion. The Respondent argues that Petitioner's Motion should be denied based on this Court's lack of jurisdiction, Petitioner's failure to exhaust his administrative remedies, and because his claims are without merit. Petitioner filed a Reply to Respondent's Response and argues that the government failed to provide him with notice of the deportation hearing that resulted in the Order of Deportation entered against him on August 21, 2002. For the following reasons, this Court concludes that it has jurisdiction to consider the instant motion for habeas relief under § 2241 and recommends that the writ be granted.
JURISDICTION
As a preliminary matter, this Court must determine if it has jurisdiction to consider Petitioner's Motion For Writ of Habeas Corpus. Prior to 1996, an alien had three avenues to obtain judicial review of an INS decision: (1) statutory appeal to the Court of Appeals, (2) INS statutory habeas relief, and (3) general habeas relief under 28 U.S.C. § 2241. Petitioner's instant motion is brought under 28 U.S.C. § 2241. Specifically, § 2241(c)(3) provides that "[t]he writ of habeas corpus shall not extend to a prisoner unless [h]e is in custody in violation of the Constitution or laws or treaties of the United States." In 1996, Congress passed several amendments to the immigration laws which changed the outlook of jurisdiction for the federal courts. After 1996, federal courts had to consider the effects of the amendments on the courts' general habeas jurisdiction under § 2241.
The first of the amendments, the Antiterrorism and Effective Death Penalty Act (AEDPA), 110 Stat. 1214 (April 24, 1996) changed the Immigration and Nationality Act, or INA. The second amendment to the INA was the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009 (Sept. 30, 1996).
The most significant provision of the IIRIRA amendment affecting this Court's jurisdiction is 8 U.S.C. § 1252(g) which reads:
(g) Exclusive jurisdiction
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.8 U.S.C. § 1252(g). Despite this seemingly broad language exempting from judicial review all matters brought pursuant to orders of deportation or removal, courts have consistently held that the general habeas review of § 2241 is not entirely foreclosed. See, e.g., Henderson v. INS, 157 F.3d 106, 118-22 (2d Cir. 1998); Cornelio v. Reno, 1998 U.S. Dist. LEXIS 17721 (S.D.N.Y. 1998); Billett v. Reno, 2F. Supp.2d 368, 371-72 (W.D.N.Y. 1998); Goncalves v. Reno, 144 F.3d 110, 113, 123 (1st Cir. 1998); Ramallo v. Reno, 114 F.3d 1210, 1214 (D.C. Cir. 1997), cert. denied, 526 U.S. 1003 (1999); Zisimopoulos v. Reno, 1998 U.S. Dist. LEXIS 11581 (E.D. Pa. 1998) ("constitutional habeas remains intact after IIRIRA); Barrett v. INS, 997 F. Supp. 896, 900 (N.D. Ohio 1998).
More recently, the United States Supreme Court affirmed federal habeas review for criminal aliens who were subject to orders of removal and deportation. In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court specifically considered if several provisions of IIRIRA amendments, including § 1252(g), stripped federal courts of their habeas jurisdiction under 28 U.S.C. § 2241. The Court's analysis in St. Cyr was not limited to habeas petitions brought by criminal aliens, but rather considered the broader question of whether district courts retained habeas jurisdiction following the 1996 amendments. Initially, the Supreme Court noted that Article I, § 9, cl. 2 of the Constitution provides: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion of Invasion the public Safety may require it." The Court further stated:
At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.
In England prior to 1789, in the Colonies, and in this Nation during the formative years of our Government, the writ of habeas corpus was available to nonenemy aliens as well as to citizens.
Moreover, to conclude that the writ is no longer available in this context would represent a departure from historical practice in immigration law. The writ of habeas corpus has always been available to review the legality of Executive detention. (internal citations omitted). Federal courts have been authorized to issue writs of habeas corpus since the enactment of the Judiciary Act of 1789, and § 2241 of the Judicial Code provides that federal judges may grant the writ of habeas corpus on the application of a prisoner held "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241.St. Cry, 533 U.S. at 301-02, 305 (internal footnotes and citations omitted). In St. Cyr, the government argued, just as it does here, that both §§ 1252(a)(1) and 1252(b)(9) act to preclude a federal court's habeas jurisdiction in certain immigration related cases. The Supreme Court responded to this argument by pointing out that [b]oth §§ 1252(a)(1) and (a)(2)(C) speak of `judicial review' — that is, full, nonhabeas review. Neither explicitly mentions habeas, or 28 U.S.C. § 2241. Accordingly, neither provision speaks with sufficient clarity to bar jurisdiction pursuant to the general habeas statute.
Subsection [1252](b)(9) simply provides for the consolidation of issues to be brought in petitions for `[j]udicial review,' which, as we note above, is a term historically distinct from habeas. See Mahadeo v. Reno, 226 F.3d 3, 12 (1st Cir. 2000); Flores-Miramontes v. INS, 212 F.3d 1133, 1140 (9th Cir. 2000). It follows that § 1252(b)(9) does not clearly apply to actions brought pursuant to the general habeas statute, and thus cannot repeal that statute either in part or in whole.St. Cyr, 533 U.S. at 312-13, 314. Therefore, St. Cyr supports the conclusion that federal courts retain habeas jurisdiction even following the 1996 amendments to the immigration laws. Furthermore, federal habeas jurisdiction is not limited to petitions brought by criminal aliens. See St. Cyr, 533 U.S. at 300 ("A construction of the amendments at issue that would entirely preclude review of a pure question of law by any court would give rise to substantial constitutional questions.). Accordingly, Respondents argument here that this Court is without habeas jurisdiction is unavailing.
Next, the Respondent argues that this Court is without jurisdiction based on Petitioner's failure to exhaust his administrative remedies. Title 8 U.S.C. § 1252(d) provides, "[a] court may review a final order of removal only if (1) the alien has exhausted all administrative remedies available to the alien as of right . . ." In fact, the regulations dictate that an alien subject to a final order of deportation, in absentia, may seek to rescind the order by filing a motion to reopen before the immigration judge who issued the order. 8 C.F.R. § 3.23(b)(4)(iii)(2003) ("An order entered in absentia in deportation proceedings may be rescinded only upon a motion to reopen . . ."). If dissatisfied with the Immigration Judge's (IJ) ruling on the motion to reopen, the alien may then seek judicial review by the Board of Immigration Appeals (BIA), 8 C.F.R. § 3.38(a). The decision of the BIA may be appealed to the Court of Appeals for the applicable circuit but only if the alien first exhausted his available administrative remedies before the IJ and BIA. 8 U.S.C. § 1252(d).
Motions to reopen immigration hearings are not authorized by statute, but by the Attorney General in a regulation promulgated pursuant to the INA, INS v. Doherty, 502 U.S. 314, 322 (1992). Given the fact that the Attorney General has such broad discretion to grant or deny an alien's motion to reopen, such a motion is not characterized as a remedy available as of right. Accordingly, an alien is not generally required to file such a motion before seeking further judicial review by the BIA. In other words, the failure to file a motion to reopen does not constitute a procedural bar under the exhaustion of administrative remedies requirement of § 1252(d).
Failing to adhere to the statutorily imposed duty to exhaust under § 1252(d) serves as a jurisdictional bar to review by the circuit court of appeals. Therefore, where an alien seeks judicial review of an order of deportation, but has failed to exhaust his available administrative remedies, the circuit court must dismiss the action based on lack of jurisdiction. Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001). Under the § 2241 habeas statute, however, there is no such exhaustion requirement. Absent a statutorily imposed duty to exhaust under § 2241, the failure to exhaust as required under § 1252(d) is not a jurisdictional bar to federal habeas review. Rather, exhaustion is more properly characterized as a discretionary prerequisite to habeas relief under § 2241 instead of a jurisdictional requirement. Accordingly, it is within the sound discretion of a federal habeas court to consider unexhausted claims relating to the merits of an order of deportation. See Castro-Cortez, 239 F.3d at 1047 (9th Cir. 2001) (explaining that the exhaustion requirement in § 2241 cases is subject to waiver because it is not a jurisdictional prerequisite). Notwithstanding a federal habeas court's discretionary review of an unexhausted claim challenging an order of deportation, relief under § 2241 remains available for constitutional challenges based on a question of law. St. Cyr, 533 U.S. at 314 (finding that habeas review under § 2241 is proper based on a question of law); see also Farah v. INS, 2003 U.S. Dist. LEXIS 1814 (D. Mn 2003) ("[p]etitioner Farah's habeas petition is not a typical request for review of the merits of a removal order. Rather, this Court has been asked to review the INS's statutory interpretation that allowed for the execution of Petitioner's deportation, a pure question of law."). Similarly in this case, the Court must consider whether Petitioner's detention is proper under 8 U.S.C. § 1231. Respondent answers this question in the affirmative.
8 U.S.C. § 1231; Detention and removal of aliens ordered removed
In its brief, Respondent argues that "petitioner is properly detained pursuant to 8 U.S.C. § 1231(a), which provides for mandatory detention during a 90 day `removal period,' after entry of a final order of removal, for the purposes of removal." (Respondent's Brief in Response, pg. 2). The statute reads:
(a) Detention, release, and removal of aliens ordered removed
(1) Removal period
(A) In general
Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the "removal period").
(B) Beginning of period
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.8 U.S.C. § 1231(a)(1)(A),(B). The removal period may also be extended beyond the 90-day period "if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal." 8 U.S.C. § 1231(a)(1)(C). " During the removal period, the Attorney General shall detain the alien." 8 U.S.C. § 1231(a)(2) (emphasis added). If for some reason an alien is not removed during the removal period, the alien "shall be subject to supervision under regulations prescribed by the Attorney General." 8 U.S.C. § 1231(a)(3).
An order of deportation becomes final "upon expiration of the time allotted for an appeal." 8 C.F.R. § 241.1. The time allotted for Petitioner's appeal of the Order of Deportation was 30 days thereby making his Order of Deportation administratively final on or about September 20, 2002.
Courts that have extended the 90-day removal period have done so based on an alien's bad faith in effectuating his departure. See, e.g., Powell v. Ashcroft, 194 F. Supp.2d 209 (E.D.N.Y. 2002) (extending the 90 day removal period based on the alien's repeated false and conflicting representations to INS which frustrated their ability to obtain travel documents); Seretse-Khama v. Ashcroft, 215 F. Supp.2d 37, 52 (D.D.C. 2002) (holding that alien's statement of a lack of desire to return to his country of origin does not amount to bad faith under section (a)(1)(C); Riley v. Greene, 149 F. Supp.2d 1256, 1262 (D. Colo. 2001) (holding that alien who admitted he refused to complete travel arrangements and refused to name any country for deportation could be held beyond the 90-day period under subsection (a)(1)(C)); Sango-Dema v. District Director, 122 F. Supp.2d 213, 221 (D.Mass. 2000) (holding that alien who refused to provide passport and birth certificate and refused to communicate with embassy officials or complete application for documents could be held beyond 90-day period under subsection (a)(1)(C).
Thus, while it is true that § 1231 authorizes the detention of an alien subject to a final order of deportation, it does so only for the removal period which is generally 90 days from the date the order of removal becomes administratively final. Here, Petitioner never appealed than absentia Order of Deportation such that the order became administratively final on or about September 20, 2002, when his allotted time for appeal expired, and the government would have had 90 days from that date during which to detain Petitioner. During the removal period, the government failed to take any action to effectuate Petitioner's removal from the country. On June 8, 2004, almost 18 months after the expiration of the removal period, the government detained Petitioner when he appeared at INS for the purpose of "updat[ing] his immigration status and passport" (Petitioner's Motion, pg. 2). Clearly, Petitioner was detained well after the expiration of the removal period.
Respondent contends, however, that the removal period should not begin to run until an alien is taken into custody. This contention is entirely unsupported by the plain language of the statute which indicates that the removal period begins "the date the order of removal becomes administratively final" 8 U.S.C. § 1231(a)(1)(B)(i). Moreover, Respondent offers no support for its assertion that the period does not begin to run until an alien is detained. The only remaining question is whether the 90-day removal period should be tolled. However, as discussed in note 4, supra, courts that have considered tolling the start of the removal period have done so where an alien acted in bad faith or was otherwise uncooperative with an order of removal or deportation. There are no facts presented here that support the tolling of the 90-day removal period during which Petitioner can be lawfully detained. The fact that Respondent took no action toward effectuating Petitioner's removal until 18 months after entry of the order weighs strongly against an equitable tolling of the 90-day removal period.
Additionally, Petitioner's own actions also weigh against the tolling of the 90-day removal period. Petitioner reported periodically to INS to "update his immigration status and passport" (Petitioner's Motion, pg. 2). It defies all logic that an individual subject to a final order of deportation would report to INS if his purpose was to evade detention and deportation. Based on both the actions of Respondent and Petitioner, the Court is convinced that equitable tolling of the 90-day removal period is unequivocally unwarranted. Petitioner's detention, effected 18 months after the expiration of the removal period, is contrary to and wholly unsupported by the plain language of U.S.C. § 1231. Accordingly, this Court concludes that Petitioner is being held contrary to the laws of the United States and therefore recommends that Petitioner's Writ of Habeas Corpus be GRANTED and that the Petitioner be released from detention immediately.
DUE PROCESS CLAIM; NOTICE REQUIREMENT UNDER § 1252
Finally, the Court examines Petitioner's habeas claim based on lack of notice. Petitioner argues that he never received notice of the deportation hearing scheduled for August 21, 2002, which resulted in the in absentia Order of Deportation issued on that same date. Petitioner contends that his alleged lack of notice violates the Due Process clause of the Constitution and serves as a basis for habeas relief under § 2241. As already noted above, most challenges to orders of deportation must be raised before an Immigration Judge, then the BIA, and finally before the circuit court of appeals before seeking federal habeas review under § 2241. Although this Court has the discretion to consider Petitioner's lack of notice claim under § 2241, it declines to do so in this case.
Petitioner concedes that he has the option of presenting his lack of notice claim in a motion to reopen before the immigration court and the BIA. The immigration court is better suited to apply the laws of those agencies specifically charged with the duties of immigration policy and enforcement. Accordingly, this Court declines to consider the merits of Petitioner's unexhausted claim based on lack of notice in this petition for habeas relief. See Kurfees v. INS, 275 F.3d 332, 337 (4th cir. 2001) (declining to exempt from the exhaustion requirement an alien's constitutional challenges to her deportation order where the challenges were procedural in nature and could have been addressed by the BIA). Given this Court's recommendation that Petitioner's Writ of Habeas Corpus be GRANTED, Petitioner is free to present his lack of notice claim before an Immigration Judge.
Under INA § 242B(c)(3), an alien may obtain rescission [of an in absentia order of deportation] at any time by showing that he did not receive `notice in accordance with [§ 242B(a)(2)].'
NOTICE TO PARTIES REGARDING OBJECTIONS:
The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n Of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.
Any objections must be labeled as "Objection #1," "Objection #2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than ten days after service of an objection, the opposing party must file a concise response proportionate to the objections in length and complexity. The response must specifically address each issue raised in the objections, in the same order and labeled as "Response to Objection #1," "Response to Objection #2," etc.