Opinion
CIVIL ACTION NO. 01-3640, SECTION "T" (4)
May 21, 2002
Before the Court is a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 by Petitioner, Kin Ming Chow. Having studied the memoranda filed on behalf of the parties, the Court record, the law and applicable jurisprudence, the Court is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
Petitioner, Kin Ming Chow, is a native of Hong Kong and a citizen of the United Kingdom. He entered the United States as a lawful permanent resident on June 9th, 1988. On July 18th, 1995, he was convicted in the Superior Court of the State of New York, County of New York, for criminal sale of a controlled substance in the second degree. He was sentenced to an indeterminate term of imprisonment of 6 years to life. He spent 116 days in custody prior to August 4th, 1995, the date in which he began serving his sentence. The petitioner has been in custody since that date; however, it is unclear whether his confinement after September 8th, 2000, was part of his sentence or simply due to a warrant of detainer that the Immigration and Naturalization Service ("INS") lodged against him. Regardless, he has been in custody for over 5 years as a result of being convicted for an aggravated felony (116 days plus the time between August 4, 1995 to September 8, 2000).
On September 1st, 2000, the INS placed the petitioner in removal proceedings on the basis of his crime. The Immigration Judge found that the petitioner "was statutorily ineligible" for relief under former Section 212(c) of the Immigration and Nationality Act, "because he had served a term of imprisonment of at least 5 years for an aggravated felony" (Court Doc #2, pg 2). Therefore, the petitioner's application for a Section 212(c) waiver was denied and he was ordered to be removed to the People's Republic of China. The petitioner appealed the Immigration Judge's decision, which was dismissed by the Board of Immigration Appeals (BIA) making the order of removal final.
In August 2001, petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the Southern District of New York, wherein the petitioner sought to vacate an order of removal or deportation issued by the INS. Finding that petitioner was not presently a resident of or detainee in New York, but rather was being detained at the Tangipahoa Parish Prison in Amite, Louisiana, Chief Judge Michael B. Mukasey transferred said petition to this Court and stayed petitioner's removal or deportation pending further order by this Court. (Court Doc # 1). On March 19, 2002, this Court denied the Government's Motion to Vacate Stay and ordered the Government to file a response to the plaintiff's petition. (Court Doc # 10). That response was filed by the Government on April 10, 2002. (Court Doc # 14).
II. ARGUMENTS OF THE RESPECTIVE PARTIES
A. Arguments of the Petitioner, Kin Ming Chow, in support of his Petition for Writ of Habeas Corpus
Petitioner argues that he should not be deported as ordered by the Immigration Judge in New York because he is eligible for a Section 212(c) waiver. He contends that he is entitled to apply for relief from deportation pursuant to § 212(c) because his guilty plea was prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Additionally, it is asserted that the denial of his § 212(c) application was in error as the term of his work release program was included in calculating his incarceration period. Petitioner argues that his time on work release does not constitute "imprisonment" for the purposes of Section 212(c), and he argues that when this period is excluded from the time he has served, the time falls short of the 5 years required by Section 212(c).
Former section 212(c) of the Immigration and Naturalization Act granted the Attorney General the authority to waive removal of aliens provided they were not convicted of an aggravated felony nor had served a term of imprisonment of at least five years for such felony. 8 U.S.C. § 1182 (c) (1995).
Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 (April 24 1996).
Furthermore, petitioner contends that he is being unlawfully held by INS during the stay imposed by the Court in November of 2001, and requests that the Court set a reasonable bail or supervised release based on the fact that he is a lawful permanent resident and has no criminal charges pending. (Court Doc #1).
B. Arguments of the Defendants, U.S. Department of Justice, Immigration And Naturalization Service; John Ashcroft, Attorney General
Defendants argue that the Immigration Judge was correct in denying petitioner's application for a Section 212(c) waiver and ordering him removed from the United States to the People's Republic of China, and therefore, petitioner's application should be denied.
Defendants contend that petitioner was not entitled to apply for relief from deportation pursuant to Section 212(c) because he would not have been eligible for such relief prior to the date of enactment of the AEDPA. They argue that he was convicted of an aggravated felony and he did serve a term of imprisonment of at least 5 years, which bars him from relief under former Section 212(c).
Defendants refute petitioner's argument that the participation in a temporary work release program does not constitute "imprisonment" because he was not physically in prison for all of those five years. Defendants argue that the work release program was imprisonment for the purposes of Section 212(c). There was a high degree of restraint on the petitioner's personal liberty during his participation in the work release program, hence the program satisfied the Black's Law Dictionary's definition of "imprisonment" according to the defendants (Court Doc. #14).
III. LEGAL ANALYSIS
A. Law on Motion for Habeas Corpus Pursuant to 28 U.S.C.A. § 2241
The sole function of writ of habeas corpus is to grant relief from unlawful imprisonment or custody. Hill v. Johnson, 539 F.2d 439, (5th Cir., 1976). Habeas corpus proceedings are available to test the validity of the deprivation of an individual's liberty. Lake v. Cameron, 364 F.2d 657, 124 U.S.App.D.C. 264 (D.C. Cir. 1966). The purpose of habeas corpus is to test legality of detention. U.S. v. Tootle, 65 F.3d 381 (4th Cir. 1995), certiorari denied 116 S.Ct. 1360, 517 U.S. 1123, 134 L.Ed.2d 527 (1996). In accordance with 28 U.S.C.A. § 2241, a prisoner must be "in custody" in order to be granted a writ of habeas corpus. The "in custody" language of the habeas corpus statute allows the district court to grant habeas petitions to persons who are "in custody in violation of the constitution or laws of the United States." 28 U.S.C.A. § 2241(c)(3).
B. Law on the Immigration and Nationality Act
In accordance with the Immigration and Nationality Act, upon the order of the Attorney General "any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C.A § 1227(a)(2)(iii). Section 1228(c) of Title 8 states that "an alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the US." The Attorney General shall take into custody any alien who "is deportable under section 1227(a)(2)(A)(iii) of this title . . . when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation . . ." 8 U.S.C.A 1226(c)(1)(B). Once the alien is in custody, the Attorney General "shall provide for the availability of special removal proceedings . . . for aliens convicted of any criminal offense covered in section 1227(a)(2)(A)(iii) of this title." 8 U.S.C.A. § 1228(a)(1). The procedures created for such removal proceedings are set out in 8 U.S.C.A. § 1229a. In general, "an immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C.A. § 1229a(a)(1). If an alien is deemed to be removable and is ordered to be removed by the Immigration Judge, the judge "shall inform the alien of the right to appeal that decision." 8 U.S.C.A. § 1229a(c)(4). "The decision of the judge after a removal hearing may be appealed by either the alien or the Attorney General to the United States Court of Appeals for the District of Columbia Circuit by notice of appeal filed not later than 20 days after the date on which the order is issued." 8 U.S.C.A. § 1535(c)(1). During the appeal of an order of removal, "the alien "shall be detained pending the outcome of any appeal." 8 U.S.C.A. § 1537(1); See 8 U.S.C.A. § 1231(a)(2). The decision made by the Board of Immigration Appeals (BIA) renders the order final. Once the final decision is made by the BIA, "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)." 8 USCA § 1252(a)(C).
C. Petitioner's complaint does not comply with the purpose of a Writ of Habeas Corpus
Petitioner has asked the Court to do a series of things under the guise of a § 2241 writ of habeas corpus. He has asked the Court to review the findings of the Immigration Judge and the denial of his appeal by the BIA ordering his removal. Furthermore, petitioner asserts that he is being unlawfully held and treated unfairly by INS during the stay of his deportation.
Where it is proper for this Court to have jurisdiction over petitions for writs of habeas corpus in immigration cases, it is not the purpose of this Court, nor the purpose of a writ of habeas corpus, to reexamine final judgments made, such as the one ordering petitioner's removal. The purpose of a writ is not to examine the validity of any judgment, but merely to inquire into the legality of detention. Fain v. Duff, 488 F.2d 218 (5th Cir. 1973) certiorari denied 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975). Therefore, it is not the place of this Court to review the final order of removal by the BIA in January of 2001, pursuant to a petition for a writ of habeas corpus.
Furthermore, while the petitioner's latter claims do fall more into the parameters of the purpose of a writ of habeas corpus than his former, he is still incorrect in his assertions that he is being unlawfully detained by INS. In accordance with Title 8 of the Immigration and Nationality Act, Section 1231(a)(2) states that "during the removal period, the Attorney General shall detain the alien. Under no circumstances during the removal period shall the Attorney General release an alien who has been found . . . deportable under Section 1227(a)(2)." The petitioner has been properly "found deportable under Section 1227(a)(2)" because he is an alien convicted of an aggravated felony after admission into the United States. The only reason that he has not yet been deported is because of the stay placed on deportation by the Court. Therefore, INS is lawfully detaining him pending his removal.
D. Petitioner's order of removal is final in accordance with the Immigration and Nationality Act leaving the Court without jurisdiction to adjudicate the matter
The petitioner was convicted of an aggravated felony in 1995, seven years after he was legally admitted into the United States in 1988. As an alien "convicted of an aggravated felony . . . after admission", he is "deportable" under 8 U.S.C. § 1227(a)(2)(iii). Furthermore, he is presumed to be deportable under 8 U.S.C.A. § 1228(c). INS legally took the petitioner into custody on or about August 9, 2000, pursuant to an arrest warrant and Section 1226(c)(1)(C) of Title 8 of the Immigration and Nationality Act. Removal proceedings began before an Immigration Judge on November 28, 2000. Petitioner, with counsel, admitted all of the allegations on the Notice to Appear (NTA) and conceded removal. (See Government Exhibit 8, pgs. 3-4 and Exhibit 9, pg. 2). On January 24, 2001, the Judge ordered the removal. Petitioner reserved appeal to the Board of Immigration Appeals (BIA). On June 19, 2001, the BIA dismissed petitioner's appeal, making the order of removal final. In accordance with the Immigration and Nationality Act, "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)." 8 USCA § 1252(a)(C). In reliance on this Act, this Court does not have the authority to provide the petitioner with the remedy that he is attempting to seek through his petition for writ of habeas corpus. Furthermore, in accordance with 8 U.S.C.A. § 1535(c)(1), the proper place for petitioner's appeal is to the United States Court of Appeals for the District of Columbia Circuit within 20 days of the decision by the Immigration Judge. Therefore, in reliance on the Immigration and Nationality Act, the Court believes that it should not determine this matter addressed by the petitioner and denies the request.
Accordingly,
IT IS ORDERED that the stay in effect is hereby VACATED.
IT IS FURTHER ORDERED that the Petition of Kin Ming Chow for federal habeas corpus relief be DISMISSED WITH PREJUDICE.