Opinion
EP-00-CA-294-DB.
October, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court sua sponte considered the above-captioned cause, in which Petitioner Alonso Aguilar-Medina filed a "Petition for Writ of Habeas Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deprtation [sic]" ("Petition") on September 26, 2000.
The Government did not file a response.
After due consideration, the Court is of the opinion that the Petition must be dismissed for lack of subject matter jurisdiction.
BACKGROUND
Petitioner is a 46-year old native and citizen of the Republic of Mexico and has been residing in the United States for over sixteen years. Some time ago, the Immigration and Naturalization Service ("INS") commenced proceedings to remove Petitioner from the United States, and an immigration judge subsequently issued a final order of deportation pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) and (B) based on Defendant's conviction for an aggravated felony.
Here, the court simply echoes the scant facts set forth in the Petition. Neither the date of the commencement of INS proceedings, the date of the hearing before the immigration judge, nor the nature of the underlying "aggravated felony" is revealed in the Petition.
Petitioner appealed the final order of deportation to the Board of Immigration Appeals ("BIA"), which in turn dismissed the appeal and terminated the proceedings on June 12, 2000. Petitioner did not file a petition for review of the final removal order with the Fifth Circuit. See 8 U.S.C. § 1252(b)(9). Rather, he filed the instant petition in this Court based on 28 U.S.C. § 2241.
DISCUSSION
Notwithstanding the merits of his underlying immigration case, Petitioner cannot proceed in this Court without demonstrating the Court's jurisdiction, and he bears the burden of doing so. See B, Inc. v. Miller Brewing Co., 663 F.2d 594, 595 (5th Cir. 1981). Petitioner claims that the Court has habeas corpus jurisdiction under 28 U.S.C. § 2241 and under the Court's power to issue the "Great Writ." The Court disagrees and is of the opinion that the Petition must be dismissed.
See U.S. CONST. art. I, § 9, cl. 2. ("The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.")
Petitioner is well-advised to do his research before filing briefs replete with typographical errors and outdated caselaw. See FED. R. CIV. P. 11. Specifically, Petitioner should study the Fifth Circuit's recent opinions in Max-George v. Reno, 205 F.3d 194 (5th Cir. 2000) and Garnica-Vasquez v. Reno, 210 F.3d 558 (5th Cir. 2000). There, the Fifth Circuit examined the jurisdiction-stripping provisions Congress made to the Immigration and Nationality Act, via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA"). As it pertains to individuals whose deportation proceedings commenced after April 1, 1997, see Max-George, 205 F.3d at 197 n. 3, 8 U.S.C. § 1252(a)(2)(C) 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 by reason of having committed a criminal offense covered in section . . . 1227(a)(2)(A)(iii) . . . of this title. . . ." Based on its reading of that provision, the court in Max-George stated clearly, "[w]e hold that IIRIRA's permanent provisions eliminate § 2241 habeas corpus jurisdiction for those cases that fall within § 1252(a)(2)(C)." Max-George, 205 F.3d at 199 (emphasis added); see also Garnica-Vasquez, 210 F.3d at 559.
Again, since the Court is without the necessary factual background, it can only presume that proceedings against Defendant commenced after that date.
Here, Max-George and Garnica-Vasquez control the Court. Because Petitioner was convicted of an aggravated felony, which makes Petitioner removable under 8 U.S.C. § 1227(a)(2)(A)(iii), the Court finds that 8 U.S.C. § 1252(a)(2)(C) eliminates the Court's habeas corpus jurisdiction under 28 U.S.C. § 2241 in this cause.
Max-George also disposes of Petitioner's claim that the jurisdiction-stripping provisions of IIRIRA run afoul of the Suspension Clause. In so doing, Max-George notes that federal courts still retain limited jurisdiction to consider certain constitutional matters: "When faced with petitions for review from criminal aliens . . . which appear barred by § 1252(a)(2)(C), courts must make three specific inquiries. Only if all of them are answered affirmatively must the petition for review be dismissed for lack of jurisdiction." Max-George, 205 F.3d at 199.
Courts must consider (1) "whether the specific facts exist that bar review, such as whether the alien is an aggravated felon"; (2) "whether the conditions which bar review are being constitutionally applied (e.g., is the definition of `aggravated felon' being applied retroactively in an unconstitutional fashion)"; and (3) "whether the remaining level of judicial review comports with the Suspension Clause and due process." Garnica-Vasquez, 210 F.3d at 560 (citing Max-George, 205 F.3d at 199-201).
The Court will consider each question separately. Here, Petitioner was convicted of an aggravated felony and thereby rendered deportable under 8 U.S.C. § 1227(a)(2)(A)(iii).
The Court notes again that Petitioner has wholly failed to provide any information regarding the underlying aggravated felony that resulted in the commencement of deportation proceedings against him. Since the immigration court issued a final deportation order based on the Petitioner's aggravated felony, and since Petitioner has not challenged the immigration court's characterization of this conviction, this Court adopts the position that the facts which bar judicial review — i.e., that the petitioner is an aggravated felon — do in fact exist. Therefore, as to the first question, the answer is in the affirmative.
Second, Petitioner offers no facts for the record to indicate that § 1252(a)(2)(C) is being applied to Petitioner in an unconstitutional manner. Again, given the dearth of facts, the Court is unable to determine whether, for example, categorizing Defendant as an "aggravated felon" under § 1227(a)(2)(A)(iii) is unconstitutional. In light of the fact that Petitioner has failed to present any evidence indicating otherwise, the determination that Petitioner is an aggravated felon must be deemed constitutional.
Finally, the Court must consider if "the level of judicial review remaining satisfies the Constitution." Max-George, 205 F.3d at 200. The Court notes that Petitioner has not availed himself of his final recourse for judicial review by filing a petition in the Fifth Circuit for review of the BIA decision affirming the final deportation order. Petitioner therefore still retains an avenue for judicial review, albeit greatly limited by IIRIRA. As to the larger question, whether the level of judicial review remaining once IIRIRA's jurisdiction-stripping provisions are applied still satisfies the Constitution, the Fifth Circuit, in Max-George, responds in the affirmative. See Max-George, 205 F.3d at 200-02. This Court, therefore, concludes that the level of judicial review remaining indeed satisfies the Constitution.
Accordingly, the Court is of the opinion that, because all three of the Max-George inquiries yield an affirmative answer, the "Great Writ" does not supply jurisdiction and the Petition must be dismissed for lack of jurisdiction.
Accordingly, IT IS HEREBY ORDERED that Petitioner Alonso Aguilar-Medina's "Petition for Writ of Habeas Corpus[,] Complaint for Declaratory and Injunctive Relief, and Request for Stay of Deprtation [sic]" is DISMISSED FOR LACK OF SUBJECT