Opinion
NO. 3-03-CV-0066-H
April 18, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Louis Kendy, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be dismissed in part and denied in part.
I.
On March 1, 1996, petitioner, a citizen of Haiti, was denied political asylum by an immigration judge and ordered excluded and deported from the United States. (Resp. Ans., Exh. 2). Petitioner timely perfected an appeal to the Board of Immigration Appeals ("BIA"). ( Id., Exh. 3). While his appeal was pending, the Attorney General, at the direction of the President of the United States, implemented a program that deferred the enforced departure of certain Haitian nationals for one year. ( Id., Exh. 4). Based on this executive order, the BIA administratively closed the case pending a request for reinstatement by either party. The Immigration and Naturalization Service ("INS") filed such a request on January 3, 2001. ( Id., Exh. 5). Thereafter, the BIA reopened the case and summarily affirmed the deportation and exclusion order. ( Id., Exh. 6). Petitioner now challenges that decision and his continued detention without bond in an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
II.
In four grounds for relief, petitioner argues that: (1) his is eligible for a waiver of exclusion under section 212(c) of the Immigration and Nationality Act ("INA"); (2) he was not allowed to offer evidence in support of his asylum application; (3) he was not permitted to controvert evidence offered at the asylum hearing; and (4) he was never advised of the status of his green card. Petitioner also complains that his continued detention pending removal is unconstitutional under Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001).
Respondent counters that: (1) this court lacks jurisdiction to consider any challenge to the deportation and exclusion order because petitioner has failed to exhaust his administrative remedies with respect to those claims; and (2) Zadvydas does not apply because petitioner has been in INS custody for less than six months. The court will address the jurisdictional issue first.
A.
The federal habeas statute does not require a petitioner to exhaust administrative remedies. See Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001) (noting that section 2241 does not contain an exhaustion provision). However, when exhaustion is mandated by some other statute, the requirement is jurisdictional. Goonsuwan v. Ashcroft, 252 F.3d 383, 387 (5th Cir. 2001); Townsend v. INS, 799 F.2d 179, 181 (5th Cir. 1986). Under the law in effect at the time his deportation proceedings commenced and were concluded, petitioner was required to exhaust available administrative remedies before seeking judicial review. The relevant statute provided, in pertinent part:
An order of deportation or of exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations or if he has departed from the United States after the issuance of the order.
8 U.S.C. § 11105a(c) ( repealed 1996). Although petitioner appealed his deportation and exclusion order to the BIA, he did not appeal on any of the grounds raised in his habeas petition. ( Compare Resp. Ans., Exh. 3 and Hab. Pet. at 6-7). As a result, his claims were never presented to or considered by the BIA. The court therefore lacks subject matter jurisdiction to consider any of the claims raised by petitioner. See Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001) (failure to exhaust administrative remedies when required by statute serves as jurisdictional bar to judicial review); Goonsuwan, 252 F.3d at 388 (same); Nsangwa v. Ashcroft, 2002 WL 484677 (N.D. Tex. Mar. 26, 2002).
The proceedings against petitioner commenced on May 3, 1995 and concluded on August 28, 2002 when the BIA affirmed the deportation and exclusion order. Therefore, this case is governed by the transitional rules of the Illegal Immigrant Reform and Immigration Responsibility Act ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009. See Lerma de Garcia v. INS, 141 F.3d 215, 216 (5th Cir. 1989) (transitional rules of IIRIRA govern proceedings started prior to April 1, 1997 where the deportation order became administratively final after October 30, 1996).
B.
Petitioner also challenges his continued detention under Zadvydas. In that case, the Supreme Court held that aliens may be detained beyond the statutory 90-day post-removal period only for "a period reasonably necessary to bring about that aliens's removal from the United States." Zadvydas, 121 S.Ct. at 2498. Detention for up to six months after expiration of the 90-day period is "presumptively reasonable." Id., 121 S.Ct. at 2505. After that time:
The statute governing the time period for removal provides, in relevant part:
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").8 U.S.C. § 1231 (a)(1)(A).
[O]nce 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. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink.Id. Here, the removal period commenced on December 26, 2002 — the date petitioner was taken into INS custody following his release from jail on state misdemeanor charges. (Resp. Ans., Exh. 7). As of today, petitioner has been in INS custody for less than a month after the expiration of the 90-day post-removal period. Consequently, his request for habeas relief is premature. Petitioner may file another habeas petition if he has not been removed and is still in custody after this six-month post-removal period expires. But see Zadvydas, 121 S.Ct. at 2505 ("This 6-month presumption, of course, 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.").
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed in part and denied in part. All claims relating to the validity of petitioner's deportation and exclusion order should be dismissed for lack of subject matter jurisdiction. In all other respects, the application should be denied.