Opinion
9:99-CV-0226 (NAM)(GLS)
December 27, 2000
Riel Charleswell, FCI Ray Brook, Ray Brook, NY, Petitioner, Pro Se.
James W. Grable, Esq., Papu Sandhu, Esq., Buffalo, NY, for Respondent I.N.S. District Counsel Buffalo District.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Riel Charleswell ("Charleswell" or "petitioner") commenced this action pursuant to 28 U.S.C. § 2241 on February 18, 1999. Docket No. 1. In response to an Order of the Hon. Norman A. Mordue, U.S. District Judge, filed April 6, 1999, petitioner filed an amended petition. Docket No. 5. In his amended petition, Charleswell claims that he was ordered deported after a hearing before Immigration Judge Bruce Michael Barrett. Charleswell states that he did not appeal this decision because of error committed both by the Immigration Judge and Charleswell's counsel. Id. at 2. After his deportation, petitioner re-entered the country and was "arrested as an 'alien' who was deported and re-entered the country without permission." Id. Charleswell states that he is incarcerated to this day as a result of his arrest. Id.
The respondent has moved to dismiss the amended petition. Docket No. 12. The respondent argues, inter alia, that this court does not have subject matter jurisdiction over petitioner's claims, and, in any event, that his claims are without merit. Docket No. 13. Charleswell filed a letter in response to the motion in which he re-states his belief that he was wrongfully deported and requests that this court vacate the deportation order. Docket No. 15.
II. Discussion
A. Prior Proceedings
On November 7, 1991, Charleswell appeared before Immigration Judge Barrett seeking discretionary relief under Section 212(c) of the INA. See Docket No. 13 at Ex. C (transcript of hearing). Subsequent to this hearing, Judge Barrett issued a decision in which he denied Charleswell's application for a waiver under § 212(c) and ordered him deported. Id. at Ex. B. Charleswell did not appeal this decision to the Board of Immigration Appeals ("BIA") and he was subsequently deported. On March 20, 1997, law enforcement officers discovered that Charleswell had re-entered the country and arrested him. He was indicted on the charge of re-entry into the country by a deported felon, and on August 29, 1997, Charleswell entered a plea of guilty and was sentenced to 49 months in prison. See United States v. Charleswell, 173 F.3d 425 (4th Cir. 1999) (unreported).
Although this section, and other sections of the Immigration and Nationality Act ("INA") have been repealed, see Pub.L. 104-208, Div. C, Title III, § 304(b), because the subject proceedings occurred prior to April 1, 1997, the former provisions of the INA govern. Mello v. Commissioner of I.N.S., 1999 WL 959354, at *2 (S.D.N Y Oct. 20, 1999).
This relief would have allowed Charleswell to remain in the country due to the equities of his case.
Citation of that court's unpublished disposition is proper for the purpose of establishing res judicata, estoppel, or the law of the case. See U.S.Ct. of App.4th Cir. Rule 36(c).
In his petition, Charleswell claims that the Immigration Judge erred in denying Charleswell's application for discretionary relief under Section 212(c). As to his failure to appeal the order of deportation, he contends that: (i) the Immigration Judge informed Charleswell that the order was not appealable; and, (ii) his attorney advised Charleswell that he could not appeal the order. Docket No. 5 at P. 2.
B. Merits of the Petition
Respondent contends that, inter alia, because petitioner was deported, this court lacks subject matter jurisdiction over this action. Docket No. 13 at 9-14. "[A] challenge to subject matter jurisdiction cannot be waived." Alliance of Am. Insurers v. Cuomo, 854 F.2d 591, 605 (2d Cir. 1988). "Where jurisdiction is lacking, . . . dismissal is mandatory." United Food Commercial Workers Union Local 919 v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Thus, prior to considering the substance of petitioner's claims, this court must determine whether it has subject matter jurisdiction.
8 U.S.C. § 1105a(c), the governing statute for purposes of this action, provided that "[a]n order of deportation . . . shall not be reviewed by any court if the alien . . . has departed from the United States after the issuance of the order." Id.; Edwards v. I.N.S., 59 F.3d 5, 6 (2nd Cir. 1995) (citation omitted). In Roldan v. Racette, 984 F.2d 85 (2nd Cir. 1993), the court stated: "The pertinent language of § 1105a(c) constitutes a clear jurisdictional bar, and admits of no exceptions." Roldan, 984 F.2d at 90 (citation omitted). In its holding, the Roldan court specifically rejected the Ninth Circuit's interpretation of this statute, finding that such an approach would allow the "clear intent of Congress expressed in § 1105a(c) . . . to be so easily circumvented [so as] to render the statute virtually without effect." Id., 984 F.2d at 90.
See n. 1, supra.
A limited exception to this rule which is inapplicable to this case, appears to exist "in the exceptional case of a 'knowingly unlawful deportation by the I.N.S. for the specific purpose of shortstopping an alien's right to review.'" Mejia-Ruiz v. I.N.S., 51 F.3d 358 (2nd Cir. 1995) (quoting Baez v. I.N.S., 41 F.3d 19, 25 (1st Cir. 1994), cert. denied, 515 U.S. 1158 (1995)).
In Mendez v. I.N.S., 563 F.2d 956 (9th Cir. 1977), the court held that "'departure' in the context of 8 U.S.C. § 1105a cannot mean 'departure in contravention of procedural due process.'" Id. at 958.
The Roldan court cited with approval other courts that viewed the Ninth Circuit's interpretation as creating "a sinkhole that has swallowed the rule of § 1105a(c)." Id., 984 F.2d at 90 (citing Joehar v. I.N.S., 957 F.2d 887, 890 (D.C. Cir. 1992)).
Petitioner's claims that both the Immigration Judge and Charleswell's assigned counsel advised him that he could not appeal the deportation decision does not create an exception to the mandatory language of this statute.
As to Charleswell's claim that his attorney's errors at the deportation hearing warrant an exception, in Roldan, the court specifically rejected the theory that a challenge to the effectiveness of counsel is as an exception to the plain language of § 1105a(c). The court held:
[I]n Thorsteinsson [v. I.N.S., 724 F.2d 1365 (9th Cir.), cert. denied, 467 U.S. 1205 (1984), the Ninth Circuit] allowed an allegation of ineffective assistance of counsel to open the door to at least a partial review of the petitioner's deportation hearing. Id. [at 1367.] Although the petitioner's claim was ultimately found to be without merit, Id., the decision nonetheless establishes that an alien need only allege a defective deportation hearing to obtain review of that hearing. To allow the clear intent of Congress expressed in § 1105a(c) — that "[a]n order of deportation . . . shall not be reviewed" once the alien has departed — to be so easily circumvented is to render the statute virtually without effect, clearly validating Umanzor [v. Lambert, 782 F.2d 1299 (5th Cir. 1986)]'s "sinkhole" assessment.
Roldan, 984 F.2d at 90 (emphasis added). Thus, Charleswell's claim that error on the part of his assigned attorney warrants judicial review of the deportation order by this court is without merit.
The other theory offered by petitioner — the Immigration Judge's conduct affords this court an opportunity to review the deportation order — is also unavailing. In affirming Charleswell's conviction on the charge of re-entry by a deported alien, the Fourth Circuit considered, inter alia, Charleswell's claim that the Immigration Judge advised Charleswell that the decision that he be deported could not be appealed. In affirming the district court's rejection of that argument, the Circuit noted that, contrary to Charleswell's contention, "the immigration judge told appellant that he had the right to appeal." Charleswell, 173 F.3d at 425 (citing transcript of immigration hearing at 35). In light of the court's ruling in Charleswell, this claim is barred by the doctrine of collateral estoppel.
In considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), this court may properly consider matters of public record such as case law. Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998); Friedman v. Salomon/Smith Barney, Inc., 2000 WL 1804719, at *3 (S.D.N.Y. Dec. 8, 2000).
The Charleswell court continued by noting that, at the hearing held by the district court on this issue, Charleswell "testified that he knew he could have hired another attorney to pursue an appeal, but chose not to do so." Id.
A court may consider the fact that an issue is barred by the doctrine of collateral estoppel on a motion to dismiss. Wright v. Town Bd. of Ticonderoga, 800 F. Supp. 1072, 1074 (N.D.N.Y. 1992) (McCurn, C.J.).
In conclusion, the court finds that Charleswell's deportation has divested this court of jurisdiction to consider petitioner's challenges to the deportation order. Petitioner's arguments that the conduct of the Immigration Judge and Charleswell's assigned counsel require review of the deportation order are without merit. Accordingly, the court recommends that the respondent's motion to dismiss be granted and the petition be dismissed.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that respondent's motion to dismiss (Docket No. 12) be granted, and Charleswell's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order on the parties by regular mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court.
FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.