Opinion
EP-03-CA-0383 (KC)
December 3, 2003
ORDER
On September 22, 2003, petitioner, a lawful permanent resident and native of Thailand, filed a petition for writ of habeas corpus contesting the propriety of her continued detention and seeking to enjoin the Department of Homeland Security from carrying out her removal from the United States.
Documents provided by the Department of Homeland Security disclose the following procedural history. Petitioner entered the United States at New Jersey in 1977. On July 17, 1990, she was convicted of using a communications facility to facilitate commission of drug offenses in violation of 21 U.S.C. § 843(b). Removal proceedings were initiated. The transcript of the proceedings before the Immigration Judge reveals that proceedings were continued for purposes of discovery on the question of derivative citizenship, and her counsel noted that "through my investigation . . . she does not qualify for derivative citizenship." August 3, 1992 Immigration Hrg. Trans at 16. By decision dated February 4, 1993, the Immigration Judge found her removable and denied her waiver request pursuant to section 212(c) of the Immigration and Nationality Act. The order was ultimately affirmed by the Board of Immigration Appeals on July 7, 1998. Although affirmed, the order was not acted upon by the Immigration and Naturalization Service until petitioner was taken into custody on April, 2003.
Petitioner applied for, and was denied, a certificate of citizenship on two other occasions in May 15, 2000, and most recently on October 1, 2003. An appeal is presently pending before the Administrative Appeals Unit ("AAU").
On November 21, 2003, this Court held a hearing to clarify the positions of the parties and ascertain the nature of relief sought. Having heard the positions of the parties, and considering the petitioner's response to an October 7, 2003 Order to Show Cause as to why the petition should not be dismissed for lack of jurisdiction, the following order issues.
While the record at present has not been sufficiently developed to ascertain precisely what transpired in the immigration proceedings, it appears the proceedings at issue involve two separate proceedings: the first an order of removal dating back to 1993 not executed until recently and the other a denial of an application for a certificate of citizenship from June of 2003.
The Government carries the burden of establishing by clear and convincing evidence that an alien is removable. Zadvydas v. Davis, 533 U.S. 678, 718 (2001); Berenyi v. District Director, INS, 385 U.S. 630, 636 (1967) ("When the Government seeks to . . . deport a resident alien and send him from our shores, it carries the heavy burden of proving its case by clear, unequivocal, and convincing evidence"); 8 U.S.C. § 1229a(c)(3)(A). That burden entails establishing alienage. Woodby v. INS, 385 U.S. 276, 285 (1966). Howard v. INS, 930 F.2d 432, 434(5th Cir. 1991).
The present petition for writ of habeas corpus is brought pursuant to 28 U.S.C. § 2241. Section 2241 serves as a vehicle for remedying violations of federal statutory or constitutional violations arising in the course of removal proceedings. Bravo v. Ashcroft, 341 F.3d 590, 592 (5th Cir. 2003) (discussing the scope of habeas jurisdiction after INS v. St. Cyr, 533 U.S. 289 (2001)). Petitioner apparently seeks to use her petition as a vehicle for conducting discovery into a claim of derivative citizenship. Such is not within the scope of this Court's authority pursuant to Section 2241. Although the Supreme Court in St. Cyr ensured the continued availability of the writ of habeas corpus in immigration proceedings, it does not establish an entitlement to a separate proceeding absent an identifiable violation of either a federal law or a guarantee of the Constitution of the United States.
In light of the foregoing, if petitioner wishes to pursue the present action, a number of concerns are evident. If petitioner in fact claims that the Government has failed to comply with procedures in the course of her removal proceedings or failed to carry its burden of establishing either that she is an alien and had committed a removable offense, such would constitute the sort of claim within this Court's jurisdiction to resolve. However, the issue raised at present, her claim of derivative citizenship, was apparently waived by her counsel in the 1993 proceedings and arose only recently by virtue of alleged newly discovered evidence.
There is presently no indication that petitioner filed a motion to reopen the removal proceedings pursuant to 8 C.F.R. § 1003.2 or 8 C.F.R. § 103.5 as a result of newly discovered evidence. Petitioner appears to allege that her father has the evidence she requires to establish her claim of derivative citizenship but has been unwilling to produce such evidence, thus indicating not that she has evidence but rather that she may be able to obtain evidence from her father if permitted to engage in discovery. Nor has she alleged that the any representative within respondent's organization has improperly refused a request to reopen removal proceedings based on newly discovered evidence.
The present petition may also be construed as contesting the sufficiency of the proceedings on her application for a certificate of citizenship. Specifically, petitioner appears to argue that she could establish derivative citizenship if her father were ordered to produce the requested information. If such is the case, 8 C.F.R. § 287.4 vests subpoena power in a number of officers other than the presiding immigration court judge to obtain documents or other evidence for use in either civil or criminal proceedings. It presently is unclear whether petitioner ever sought a subpoena from any officer identified in § 287.4. It is, however, clear that the decision denying her application was appealed to the AAU and no decision has been rendered on the appeal.
The scope of relief sought raises an additional concern. If petitioner seeks an order from this Court premised on a factual finding that she satisfies the requirements for derivative citizenship, such an independent factual determination finds no place in orders on petitions for writ of habeas corpus. Sol v. INS, 274 F.3d 648, 651 (2d Cir. 2001), ("fact-intensive review is vastly different from what the habeas statute plainly provides: review for statutory or constitutional errors"). The appropriate resolution of such a claim would be available statutory mechanisms.
There are two procedures by which questions of nationality may be resolved. The first, a declaratory judgment pursuant to 8 U.S.C. § 1503, is unavailable as "no such action may be instituted . . . if the issue of such person's status as a national of the United States . . . arose by reason of, or in connection with any removal proceeding under the provisions of this chapter or any other act, or . . . is in issue in any such removal proceeding." Petitioner allegedly was taken into custody pursuant to an order of removal in April, 2003 and she subsequently filed an application for a certificate of citizenship on June 10, 2003, which is presently pending before the AAU.
The second procedure, pursuant to 8 U.S.C. § 1252(b)(5), encompasses nationality questions raised in connection with a removal proceeding. The Court of Appeals has original jurisdiction to resolve such questions, see id. § 1252(b)(5)(A), but may transfer the case to a District Court if it concludes that factual determinations are necessary, id. § 1252(b)(5)(B). By statute, questions of nationality raised in connection with removal proceedings are resolved through the procedures set forth in § 1252. As this Court may resolve questions of fact pertaining to nationality only pursuant to a transfer order by the Court of Appeals, the appeal, could not be filed in this Court.
Notwithstanding the express statutory provisions above, petitioner argues that she is entitled to a hearing determining the question of her citizenship pursuant to a petition for writ of habeas corpus, implicating concerns raised in Calcano-Martinez v. INS, 533 U.S. 348, 351-52 (2001), and INS v. St. Cyr, 533 U.S. 289, 314 (2001). Such is not the case. Those decisions addressed the jurisdiction stripping provision of § 1252(a)(2)(C) ("[m]atters not subject to judicial review"), which, if construed as encompassing habeas petitions, would "leav aliens without a forum for adjudicating claims such as those raised in this case [and] would raise serious constitutional questions." Calcano-Martinez, 533 U.S. at 351; see also 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.").
Unlike 8 U.S.C. § 1252(a)(2)(C), which had the potential of denying an opportunity for review questions of law arising in removal proceedings, the provision involved herein, § 1252(b)(5), prescribes a procedure and expressly limits the possibility of resolution to such procedure. Id. § 1252(b)(5)(C) ("The petitioner may have such nationality claim decided only as provided in this paragraph."). As such, § 1252(b)(5) provides, rather than denies, a forum for review of questions of nationality. See Taniguchi v. Schultz, 303 F.3d 950, 955 (9th Cir. 2002) (" 8 U.S.C. § 1252(b)(5) does not foreclose completely the writ of habeas corpus"). Nguyen v. INS, 208 F.3d 528, 532 (5th Cir. 2000).
Although the procedure described above would appear to be an appropriate measure, and this Court has contemplated the possibility of transferring the case to the Court of Appeals, see 28 U.S.C. § 1631 (permitting the transfer of an action to cure a lack of jurisdiction to "any other such court in which the action . . . could have been brought at the time it was filed"); Batista v. Ashcroft, 270 F.3d 8, 12 (1st Cir. 2001) (accepting jurisdiction over a habeas petition raising citizenship claims after it was improperly filed in the district court and transferred to the court of appeals pursuant to 28 U.S.C. § 1631), petitioner concedes that she has not exhausted available administrative remedies. Petitioner may thus face dismissal for failure to exhaust administrative remedies if the appeal before the AAU is construed as an administrative requirement. Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (providing that exhaustion of administrative remedies is a prerequisite to collateral attack on an order of removal).
Petitioner is the master of her claims. In light of the foregoing, she may elect to pursue the present petition for writ of habeas corpus with full knowledge that this Court will not act outside the bounds of its jurisdiction in habeas proceedings. Petitioner may also request that the action be transferred to the Court of Appeals. Finally, petitioner may request that the present action be dismissed, pursue her appeal with the AAU, then file an appeal with the Fifth Circuit Court of Appeals if the AAU decides the matter adversely. In any event, petitioner will notify this Court of her decision not later than December 17, 2003, at which time Respondent shall have ten days in which to reply to such response.
SO ORDERED.