Opinion
C.A. Nos. 01-216-ML, 01-507-ML
June 5, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Petitioner Odon Pereira Do Vale has filed a petition pursuant to 28 U.S.C § 2241. Petitioner is a non-immigrant alien and seeks to forestall his removal from this country. The Petitioner commenced the instant action by filing a "Motion for Stay of Deportation and Release from the INS Illegal Mandatary Detention and Injunctive Reliefs" [sic] and a Memorandum in Support of that motion. The named Respondents include the Immigration and Naturalization Service ("INS"); John Ashcroft, United States Attorney General, Stephen J. Farquharson, INS Boston District Director, Warden Cudworth, ACI-ISC Detention Center, A.T. Wall, Director, ACI-ISC Detention Center, and INS Officers Peter DelRosso and Anthony Gural, in their official and individual capacities, both of whom are based in the INS Newark District Office.
Petitioner initially filed an action in the Eastern District of Pennsylvania, which asserts essentially the same claims as does the instant action. That action was subsequently transferred to this Court (C.A. No. 01-507-ML) and has been consolidated with the instant action.
The allegations against Respondents DelRusso and Gural concern only the civil rights and tort claims for mistreatment.
The motion and supporting papers seek three types of relief: (1) a review and vacating of a final order of removal issued by the INS with a remand to the INS for consideration of his application for adjustment of status; (2) release from detention pending completion of such review; and (3) claims seeking compensatory and punitive damages arising out of alleged beatings and mistreatment during his confinement. Because the thrust of Petitioner's claims for relief concern his request for review of his final order of removal and for release from detention, I shall treat the initial motion and supporting papers as a petition for writ of habeas corpus under 28 U.S.C. § 2241 (hereinafter referred to as the "Petition").
Specifically, the Petition requests the following relief:
1. stay Petitioner's deportation pending the outcome of his state court criminal appeal and proceedings in this Court; and in the meantime grant bail/supervised release [¶¶ 1-2];
2. issue a declaratory judgment on whether Petitioner overstayed his visa and otherwise adjudicate his immigration case [¶ 2-3];
3. issue a declaratory judgment that Petitioner may remain in the U.S. pending resolution of his criminal appeal and immigration status [¶ 3];
4. vacate the INS deportation order, because deportation proceedings violated due process and INS's own rules [¶ 4];
5. enjoin INS from further changing the location of Petitioner's incarceration to evade jurisdiction of the habeas court [¶ 5];
6. enjoin INS from confiscating legal materials and undermining prosecution of his case; blocking mail; beating Petitioner and coercing him to sign deportation papers [¶ 5];
7. order INS to permit Petitioner to leave U.S. voluntarily (without signing papers) [¶ 6];
8. declare that beatings of Petitioner by INS and corrections officers constituted cruel and unusual punishment under the Eighth Amendment and constitute assault battery under state law [¶ 7];
9. grant compensatory damages for physical and emotional injuries due to lengthy detention without due process, beatings and lack of proper medical attention [¶ 8]; and
10. grant such other relief as the Court deems just [¶ 9].
Petitioner claims that a "working permit" (No. A76-961-144) was issued to him on that date as well, but this is unclear, as he was in state custody at the time. Contrary to Petitioner's assertions, a family visa was never issued.
The Respondents have moved to dismiss the Petition and for an order compelling Petitioner to sign travel documents to effectuate his removal. Petitioner filed an Answer to the Opposition and the motions contained therein on or about August 27, 2001, and both parties have subsequently filed briefs and memoranda on the issues raised in the Petition and in Respondents' motions. The Petition and those motions have been referred to me for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, I recommend that Respondents' Motion to Dismiss Writ of Habeas Corpus and for an Order Signing Travel Documents be granted and that the Petition be dismissed.
Other motions which were referred to the undersigned in this action — (1) Petitioner's Motion To Reverse Court's Decision for Enlargement of Time and for Summary Judgment; (2) Petitioner's Motion to Compel Defendants to Release Petitioner's Legal Documents and [for] Leave to File Answer to Opposition to His Motion for Stay of Deportation; and (3) Petitioner's Motion for Leave to File Answer to Opposition to Petitioner's Motion for Stay of Deportation — have previously been denied as moot. See Order entered in this action on May 6, 2002.
II. FACTUAL BACKGROUND AND TRAVEL
The factual background of this matter is as follows:
1. Petitioner is a native and citizen of Brazil. He entered the United States in January 1995 on a temporary business visa, which initially expired in May 1995 but was extended to November 1995. He claims to have filed an application for a permanent working visa in late October 1995 that was not acted on.
2. In March 1996 Petitioner was charged by Massachusetts state authorities with fraud in connection with the sale of securities. He was held in pretrial custody until he was granted conditional release in December 1997. On May 18, 1998 Petitioner was convicted in Massachusetts state court of a felony involving financial fraud and was sentenced to 24 to 30 months. He has appealed the state court conviction, and the appeal is still pending.
3. On February 14, 1998, while on pretrial release, Petitioner married a United States citizen, Maria Serano Do Vale, in Massachusetts. On April 30, 1998 Petitioner's wife filed a Form I-130 Petition for Alien Relative ("family visa petition" or "Form I-130") on behalf of Petitioner. The Form I-130 was initially rejected, but finally accepted for consideration by the INS on July 24, 1998. Separately, Petitioner sought an adjustment of his status based on the family visa petition.
4. The INS commenced removal proceedings against Petitioner on June 22, 1998, charging him with overstaying his visa, and took custody of Petitioner at the conclusion of his state sentence on June 23, 1999. He has been held in INS custody since that time.
5. Extensive removal proceedings were held in the Immigration Court and the Board of Immigration Appeals ("BIA"). Petitioner's initial removal hearing was continued several times pending a determination on the family visa petition. On April 9, 1999 the Immigration Judge ("IJ") denied a further continuance of removal proceedings and found Petitioner removable as an overstay, based on Petitioner's admission at the hearing that his initial visa had expired. Petitioner appealed to the BIA, arguing inter alia that the IJ erred in denying a further continuance of proceedings based on the unadjudicated application for family visa.
6. While the appeal was pending, the family visa petition was denied by the District Director on September 2, 1999, based on the failure of Petitioner's wife to attend an interview scheduled on September 1, 1999 in connection with that application.
7. The BIA affirmed the IJ's decision as to both the denial of a further continuance and the order of removal and remanded the matter for consideration of any relief to which Petitioner might be entitled. See BIA Decision dated October 26, 1999. In the course of its decision the BIA noted that it did not have jurisdiction to review the denial of the family visa petition. Id. at p. 2. In view of its decision, the BIA remanded the case for consideration of whether Petitioner was entitled to any further relief.
8. On remand the IJ found that Petitioner was not entitled to voluntary departure based on his failure to establish "good moral character" in view of his state fraud conviction and certain misstatements made in connection with his Massachusetts marriage, and ordered Petitioner deported to either Brazil or Portugal. See Immigration Judge's Decision dated January 20, 2000. On appeal the BIA affirmed. See BIA Decision dated June 15, 2000. In its affirmance, the BIA noted, in addition to the factors cited by the IJ, that the respondent could not establish good moral character for the time period required, "since he had been confined, as a result of a conviction, to a penal institution for more than 180 days," citing 8 U.S.C. § 1101(f)(7). Id. at p. 2.
9. Petitioner did not file a timely request for direct review of the BIA's decision with the U.S. Court of Appeals for the First Circuit. He claims that due to his frequent prison transfers he did not receive notice of the BIA's June 15, 2000 decision until August 15, 2000 — well after the 30-day time for appeal had expired. See 8 U.S.C. § 1252(a). Instead, he filed an action seeking his release in the U.S. District Court for the Eastern District of Pennsylvania on May 4, 2000 (C.A. No. 00-Civ.-2297) and the instant action on April 30, 2001 in this Court.
10. Since June 23, 1999 Petitioner has been held in INS custody at various prison locations. He asserts that after each transfer his legal papers were confiscated, legal notices were not delivered and his efforts to prosecute his actions were disrupted. He also complains of various mistreatment and conditions of confinement while being in custody.
11. While in INS custody Petitioner has had at least two custody reviews, the most recent on March 20, 2001, both of which concluded against release. Petitioner continues to refuse to sign his travel papers to effectuate his removal to Brazil, and thus his custody has continued.
Petitioner claims that a "working permit" (No. A76-961-144) was issued to him on that date as well, but this is unclear, as he was in state custody at the time. Contrary to Petitioner's assertions, a family visa was never issued.
Petitioner claims that neither he nor his wife had notice of the September 1 interview and that in any event he was in custody and unable to attend.
Throughout the deportation proceedings, the INS has contended that Petitioner's Massachusetts marriage was a sham, in view of (a) his previous marriage to an English citizen in England; and (b) the lack of any record of the Massachusetts marriage in the public records of the Commonwealth of Massachusetts. (See Govt's Brief Exhibit 9.) In response, Petitioner has submitted various documents evidencing: (1) the annulment of his marriage in England; and (2) a copy of a marriage certificate for the Massachusetts marriage. Both the IJ and the BIA appear to have considered this marriage validity issue to some extent in their decisions.
On January 31, 2002 Petitioner filed a belated appeal of the BIA's decision with the First Circuit, which was dismissed for lack of jurisdiction on March 4, 2002. See Judgment entered on March 4, 2002 in Do Vale v. I.N.S., Dkt. No. 02-1150.
Petitioner claims that a "working permit" (No. A76-961-144) was issued to him on that date as well, but this is unclear, as he was in state custody at the time. Contrary to Petitioner's assertions, a family visa was never issued.
Petitioner claims that neither he nor his wife had notice of the September 1 interview and that in any event he was in custody and unable to attend.
Throughout the deportation proceedings, the INS has contended that Petitioner's Massachusetts marriage was a sham, in view of (a) his previous marriage to an English citizen in England; and (b) the lack of any record of the Massachusetts marriage in the public records of the Commonwealth of Massachusetts. (See Govt's Brief Exhibit 9.) In response, Petitioner has submitted various documents evidencing: (1) the annulment of his marriage in England; and (2) a copy of a marriage certificate for the Massachusetts marriage. Both the IJ and the BIA appear to have considered this marriage validity issue to some extent in their decisions.
On January 31, 2002 Petitioner filed a belated appeal of the BIA's decision with the First Circuit, which was dismissed for lack of jurisdiction on March 4, 2002. See Judgment entered on March 4, 2002 in Do Vale v. I.N.S., Dkt. No. 02-1150.
Petitioner has appeared this court on several occasions in connection with various aspects of his Petition. On January 24, 2002 a status conference was held at which Petitioner appeared pro se, after which this court appointed counsel on Petitioner's behalf. Further hearings were held on March 12, 2002 (on Petitioner's motion for conditional release) and May 2, 2002 (on the instant motions), at which Petitioner was represented by counsel.
III. DISCUSSION
A. Jurisdiction
Respondents argue that the court lacks jurisdiction to consider Petitioner's claims, citing 8 U.S.C. § 1252(g). Added by Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 1252(g) provides that no court shall have jurisdiction to review any claim arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases or execute removal orders against any alien.
Respondents point out that the 30-day time limit set forth in § 1252(g) for seeking direct review of a BIA's decision by the Circuit is jurisdictional, and contend that because Petitioner failed to file within the pertinent time period, this Court is without jurisdiction to review the Order of Removal.
However, the U.S. Supreme Court has held that the 1996 IIRIRA amendments to the INA may not be construed to deprive federal courts of habeas jurisdiction without raising "serious constitutional questions" and that federal district courts continue to have habeas jurisdiction to grant relief to review claims brought by aliens facing removal, to the extent such claims are based on legal grounds, either constitutional or statutory. I.N.S. v. StCyr, 533 U.S. 289, 121 S.Ct. 2271, 2286 (2001) (concluding that restrictions on judicial review of immigration proceedings imposed by IIRIRA did not operate to repeal habeas jurisdiction under § 2241). The First Circuit has held accordingly. See Carranza v. I.N.S., 277 F.3d 65, 71 (1st Cir. 2001)("Federal courts retain subject matter jurisdiction over habeas petitions brought by aliens facing removal to the extent that those petitions are based on colorable claims of legal error, that is, colorable claims that an alien's statutory or constitutional rights have been violated."). This applies to defeat Respondents' contention that 8 U.S.C. § 1252(g) precludes review here. See Carranza, supra at 71 ("INS's principal argument — that section 1252(g) forecloses the exercise of habeas jurisdiction over cases in which an alien charge challenges his imminent deportation — is a dead letter.").
The fact that the Petitioner's removal order is not based on his criminal conviction does not deprive this court of habeas jurisdiction. See Lui v. I.N.S., 2002 WL 1174385 (2d Cir. June 4, 2002) (federal courts retain jurisdiction under 28 U.S.C. § 2241 to entertain habeas petitions from both non-criminal and criminal aliens); Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir. 2001)(same).
Additionally, 28 U.S.C. § 2241 authorizes federal courts to entertain petitions for habeas corpus by any person who is "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). In addition, the Suspension Clause of the United States Constitution provides independent authority for this court to entertain habeas petitions. 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.").
Thus, this Court has jurisdiction to entertain the instant habeas Petition, which purports to raise constitutional and legal issues. I now turn to the issues raised by that Petition.
B. Validity of Order of Removal
In considering the instant habeas Petition, this Court does not review the merits of discretionary decisions made by the IJ or the Attorney General but rather examines the record as to the constitutionality or legality of the BIA's decisions. See Lui v. I.N.S., 2002 WL 1174385 at *4 (court on habeas does not review discretionary decisions but only pure questions of law raised by legal or constitutional challenges to BIA decisions); Chmakov v. Blackman, 266 F.3d at 215 (same).
Petitioner challenges several actions taken and decisions issued in the course of the proceedings before the INS and the BIA. In essence, he contends that both the IJ and the BIA erred in finding him removable and in refusing to continue his removal hearing pending a determination of the family visa petition and his application for adjustment of status; that the failure of the INS to enable him to attend the interview in connection with his wife's family visa petition and the denial of that application on the basis of his failure to attend violated due process; and that the denial of his request for voluntary departure violated due process. He contends (1) that the removal order was entered in violation of his due process rights; and (2) that the INS should otherwise be enjoined from enforcing the order. These arguments are without merit.
The IJ's finding that Petitioner was removable pursuant to INA § 237(a)(1)(B) cannot be questioned in light of Petitioner's own concession at his removal hearing that he overstayed his business visa. The determination that Petitioner was removable was based on his overstay of his visa, and not on his state criminal conviction, which was on appeal. See BIA's October 26, 1999 Decision at 2.
Although Petitioner's pro se submissions allude to the Equal Protection Clause, he makes no substantive arguments in this regard, and I do not address any such issue herein.
Petitioner first contends that the IJ's refusal — and the BIA's affirmance of that refusal — to grant a further continuance of his removal hearing based on his wife' spending family visa petition was a denial of due process. This contention is flawed in several respects.
As noted in the BIA's October 26, 1999 decision, the grant or denial of a continuance of removal proceedings is a matter within the IJ's discretion. While removal hearings may be continued where a prima facie approvable family visa petition and application for adjustment of status is pending, See Matter of Garcia, 16 IN Dec. 653 (BIA 1978), an IJ is not mandated to do so. Matter of Arthur, 20 IN Dec. 475 (BIA 1992). From a review of the record here this Court cannot say that the denial of a further continuance deprived Petitioner of due process. First, the proceedings had previously been continued at least four times, and the IJ was not required to grant further continuances. A full removal hearing was held. Further, the IJ could have found that the pending family visa petition was not prima facie approvable in light of the failure of Petitioner's wife to appear for an initial INS interview and Petitioners's conviction (albeit not final) for an aggravated felony. See BIA's October 26, 1999 decision at pp. 2-3.
Petitioner further contends that the INS's failure to notify him of, and permit him to attend, the September 1, 1999 interview scheduled in connection with his wife's family visa petition also amounted to a denial of due process. This contention confuses the two separate and distinct steps involved in an alien's attempt to adjust his status based upon marriage to a U.S. citizen. INS statutes and regulations require that a family visa petition be made by a citizen or permanent resident spouse on behalf of the alien. See, e.g., 8 U.S.C. § 1154(a)(1), 1255(a). An application for adjustment of status, on the other hand, is initiated by the alien but must be based on the approved family visa petition. See 8 C.F.R. Part 204 (outlining procedures for considerations of family visa petitions by district director). While the denial of the family visa petition may have been prejudicial to Petitioner's wife, it was not prejudicial to the Petitioner. Put another way, there was no duty of notice and hearing owed by the INS to the Petitioner in connection with the family visa petition. Rather, the duty was owed to the visa applicant, Petitioner's spouse.
In Oluyemi v. I.N.S., 902 F.2d 1032 (1st Cir. 1990), the First Circuit upheld an immigration judge's denial of a continuance of deportation proceedings decision denial of an alien's request to remain in the country pending the adjudication of his wife's visa request on his behalf. The court noted that the rule established by Matter of Garcia, supra — that an IJ should continue a deportation hearing where an alien has submitted a prima facie approvable visa petition — was not an inflexible principle requiring immigration judges to grant continuances in all cases in which an alien is the beneficiary of a pending visa petition. Id. at 1034. The court found that the IJ did not abuse "the broad discretion that Garcia confers upon him in refusing to delay [a removal] hearing because he believed that the adjustment petition eventually would be denied." Id. The court also upheld the immigration judge's decision not to permit the alien to remain in this country pending the outcome of the visa request, noting that the likelihood that the Attorney General would exercise his discretion to grant that request was small and that the family visa request could be granted only in the Attorney General's discretion. Id. at 1033. In view of this precedent, this court cannot find that the IJ's denial of a further continuance here was improper.
Moreover, to the extent that Petitioner contends that the IJ should have granted Petitioner's application for adjustment of status, this contention must likewise fail. The pertinent statute and regulations provide that an otherwise eligible alien may apply for adjustment of status only if, inter alia, "the applicant is eligible to receive an immigrant visa and an immigrant visa is immediately available at the time of the filing of the application." 8 C.F.R. § 245.1(a). Here, the IJ could have reasonably concluded that a visa was not immediately available to Petitioner, as noted above, and therefore no adjustment of status could have been granted in those circumstances. See Oluyemi, supra.
Furthermore, the denial of the family visa petition filed by his spouse specifically provided that the applicant could submit a motion to reopen or file a new petition or application altogether. However, the record is devoid of any complaint or further action taken by Petitioner's wife, as a result of the denial of her family visa petition.
The fact that Petitioner himself sent a letter to the INS District Director attempting to seek review of the denial of the family visa petition does not obviate his wife's need to seek review. In any event, the record is silent as to any response to his letter.
Finally, the BIA's determination that it did not have jurisdiction to review the denial of the family visa petition by the INS District Director was correct. See 8 U.S.C. § 1154(b); Oluyemi v. I.N.S., 902 F.2d 1032, 1034 (1st Cir. 1990) ("[T]he decision about whether or not to grant a visa [on behalf of an alien spouse], under the relevant statutes and regulations, belongs to the district director, not to the immigration judge.").
Thus, Petitioner had no standing to apply for a family visa and had no legal right to an adjustment of status absent such family visa being granted or "immediately available." Thus, I find that there was no denial of due process with respect to those proceedings.
2. Estoppel Argument
Petitioner's contention that the INS is estopped from denying Petitioner's spouse a family visa also falls short. He asserts that the INS's failure to produce him for the interview scheduled on September 1, 1999 in connection with the family visa petition amounts to "affirmative government misconduct." As the First Circuit has noted, however, "[a]sserting an estoppel claim against the government is more easily said than done. The proponent must demonstrate that the traditional elements of an estoppel are present," namely "(1) the occurrence of affirmative government misconduct; (2) engendering a reasonable (though erroneous) belief that a certain state of affairs exists; and (3) upon which the private party relies to his detriment." Costa v. I.N.S., 233 F.3d 31, 38 (1st Cir. 2000) (internal quotation marks omitted).
In Costa the court held that the INS was not estopped from conducting removal proceedings against an alien under its new rules, effective April 1, 1997.
Here, there was no affirmative government misconduct. The INS had no affirmative duty to transport Petitioner to the interview, since, as noted above, it was not Petitioner's application but his wife's. For the same reason, Petitioner did not suffer prejudice as a result of his failure to attend, since it was his wife who was required to attend. See 8 C.F.R. § 103.2(b)(13). The fact that Petitioner may have suffered prejudice (as to his own adjustment of status application) as a result of his wife's failure to attend does not give rise to any ground for relief against the respondents.
As noted supra at p. 12, there is no indication that Petitioner's wife took any further action after the initial denial of her family visa petition.
Finally, there is no detrimental reliance, since Petitioner had no right to a family visa or adjustment of status, but merely "at most, a hope of obtaining discretionary relief." See Costa, supra at 38, n. 7 (noting alien had no right to suspension of deportation but only a hope of obtaining discretionary relief). Thus, Petitioner's estoppel argument must fail.
3. Voluntary Departure
Petitioner further argues that the BIAs decision of June 15, 2000 affirming the denial of his application for voluntary departure deprived him of due process.
Under the INA, the Attorney General "`may in its discretion' permit an alien to depart voluntarily if `he is, and has been, a person of good moral character for at least five years.'" See Oluyemi, 902 F.2d at 1034, quoting 8 U.S.C. § 1254(e). (Emphasis in original). Here, there was no deprivation of any legal or constitutional right in the denial of voluntary departure. In his determination regarding "good moral character", the IJ noted Petitioner's state court conviction for financial fraud (although acknowledging that the conviction was on appeal) and that Petitioner had apparently made misstatements in connection with his purported Massachusetts marriage. On review, the BIA noted that Petitioner's confinement to a penal institution for more than 180 days during the previous five years in connection with his conviction precluded a finding of good moral character. The consideration of these factors does not amount to a denial of due process. It follows that there was no legal or constitutional error in the denial of voluntary departure. See Oluyemi, supra at 1034.
The fact that the information considered by the BIA questioning Petitioner's Massachusetts marriage may have been inaccurate is not dispositive, if the BIA's reliance on that information was reasonable at the time. First, it is not this court's duty in the instant habeas proceeding to pass on the correctness of the denial or voluntary departure, which is a discretionary decision on the part of the immigration court. See Lui v. I.N.S., 2002 WL 1174385 at *4 (noting that § 1252(g) precludes review of any discretionary decision by the Attorney General). Compare Oluyemi, supra at 1034 (involving a direct review of immigration proceedings). Furthermore, Petitioner has made no showing that the clarifying information which Petitioner has submitted to this court was not available to him during the immigration proceedings below.
4. Belated Notice of BIA Decision
Finally, the fact that Petitioner did not receive notice of the BIA's June 15, 2000 decision until August 15, 2000 — well outside of the 30-day time limit for requesting direct judicial review — likewise does not amount to a denial of due process. Compliance with the time limit for filing a petition to review the BIAs final order is a strict jurisdictional prerequisite, which courts have no discretion to enlarge. See Malvoisin v. INS., 268 F.3d 74 (2d Cir. 2001) (refusing to accept a petition for judicial review that was one day late). Petitioner has presented no facts suggesting that the delay in his notification of the BIA decision was attributable to the actions of any of the respondents in this action. Given the absence of any violation of either a legal or constitutional right on this issue, Petitioner's due process claims cannot stand.
In short, Petitioner's claims concerning the validity of the order of removal are without merit. I find no constitutional or legal deficiencies in either the order of removal or in the proceedings leading up to such order. Therefore, Petitioner's claims for relief in connection with the order of removal must be denied.
C. Further Motion for Stay
Petitioner's Motion for Stay of Deportation, filed on or about April 2, 2002, should also be denied. First, the motion may be premature. In its Opposition to this motion the INS has represented that Petitioner will not — and cannot — be removed from the country until he signs his travel documents (see infra at Section III.D.) and that Petitioner has indicated his unwillingness to do so pending a final determination of his claims.
This motion has also been referred to the undersigned for findings, report and recommendation.
Secondly, Petitioner does not make the necessary showing entitling him to any stay. The pertinent provision of the Immigration and Naturalization Act ("INA"), as amended, states:
"notwithstanding any other provision of law, no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law."8 U.S.C. § 1252(f)(2) (Supp. V 1999) (Emphasis added.) Here, Petitioner has failed to show by clear and convincing evidence that the entry of his removal order was "prohibited as a matter of law." As noted above, the removal order and accompanying proceedings were free of legal or constitutional error requiring reversal.
Moreover, even under traditional standards, Petitioner is not entitled to the issuance of a stay. See, e.g., Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (en banc) (Petitioner seeking temporary stay of deportation pending appeal must demonstrate "(1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardships tips sharply in the Petitioner's favor"); Sofinet v. INS, 188 F.3d 703, 706 (7th Cir. 1999) (to merit a temporary stay of deportation pending appeal, Petitioner must demonstrate "(1) a likelihood of success on the merits; (2) that irreparable harm would occur if a stay is not granted; (3) that the potential harm to the movant outweighs the harm to the opposing party if a stay is not granted; and (4) that the granting of the stay would serve the public interest"); Bejjani v. INS, 271 F.3d 670, 687-89 (6th Cir. 2001) (same, citing Andreiu and Sofinet).
Here, Petitioner has not made a strong showing of likelihood of success on the merits of his claims; and while his removal from the country may prejudice him from prosecuting his other legal claims, there is a strong public interest in removing illegal aliens from the country, particularly those who have been deemed removable. Balancing these factors, I find that Petitioner is not entitled to a stay of deportation and recommend that the Motion for Stay of Deportation be denied.
D. Motion to Compel Signing of Travel Documents
The INS has moved for an order compelling Petitioner to sign his travel documents in order to effectuate his removal. In support of its motion, the INS notes that by law an alien who has been ordered removed must cooperate in effectuating his removal. See 8 U.S.C. § 1253 (providing criminal penalties for alien who willfully fails or refuses to effectuate removal, including failure to make timely application in good faith for travel or other documents necessary to alien's departure); 8 U.S.C. § 1324d (providing civil penalties for similar conduct). In view of the discussion above concerning the validity of Petitioner's order of removal, I recommend that Petitioner be ordered to sign all appropriate travel documents to effectuate that order.
E. The Validity of Continued Detention
Petitioner's arguments in support of his release questioning the validity of his continued detention have previously been addressed by the undersigned at the hearing on his Motion for Conditional Release held on March 12, 2002 and will not be extensively discussed here. Contrary to Petitioner's assertions, an individualized bail hearing was held by this court at that time, and this Court found that his continued detention was reasonable in light of: (1) the threat of flight by Petitioner should he be released; and (2) the fact that Petitioner holds the keys to his own freedom by his persistent refusal to sign travel documents effectuating his removal to Brazil. See Parra v. Perryman, 172 F.3d 954, 958 (7th Cir. 1999). At his bail hearing, Petitioner indicated to the court that he preferred to remain in custody pending adjudication of his claims, rather than sign travel documents effectuating his removal from the country and his release from custody.
Moreover, even under the standard enunciated in Zadvydas v. Davis, — U.S. — 121 S.Ct. 2491, 2494 (2001) (placing burden on government after alien has been confined for six months to rebut showing that there is no significant likelihood of removal), Petitioner's continued confinement is not unreasonable, where, as noted above, Petitioner has shown no basis for relief from the final order of removal and his country of origin (Brazil) has indicated its willingness to accept him with appropriate documentation.
F. Damages Claim
The instant Petition also contains claims concerning Petitioner's conditions of confinement and alleged beatings and other mistreatment on the part of the individual respondents. For several reasons these claims should be dismissed in the instant case. First, the court has construed the Petition as one for habeas relief pursuant to 28 U.S.C. § 2241. It is axiomatic that habeas petitions concerned the existence of confinement, while civil rights actions concern conditions of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct 1827 (1971). Thus, Petitioner's claims concerning the conditions of his confinement — to the extent they allege civil rights claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388. 91 S.Ct. 1999 (1971), and/or 42 U.S.C. § 1983, tort claims under the Federal Tort Claims Act ("FTCA") and related claims — are not appropriate in the instant habeas proceeding and are more properly brought in a separate complaint.
To the extent that Petitioner paid a full filing fee required for a civil rights action ($150.00) at the commencement of the instant action, the amount paid should be refunded to him, to the extent it exceeds the filing fee chargeable for the filing of a petition for habeas corpus.
In addition, Petitioner's claims under the Federal Tort Claims Act should be dismissed even apart from the form of the pleading in which they appear. First, FTCA claims must be asserted against the United States, which is not a named a party in this action. See 28 U.S.C. § 1346(b), 2674, 2479.; Roman v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). Furthermore, a plaintiff must exhaust his administrative remedies with the applicable agency prior to bringing a the claim under the FTCA. See 28 U.S.C. § 2675(a). Here, Petitioner has made no showing of any exhaustion of administrative remedies. Accordingly, such claims should be dismissed without prejudice pending exhaustion of administrative remedies.
In response to this contention, Petitioner has filed a pleading entitled "Addendum," in which he requests that the United States be added as a party. Since this pleading was not docketed as a motion and has not been referred to me, I make no finding or recommendation concerning it.
This Court has considered all other arguments raised by the Petitioner — both through his counsel and pro se — in support of his claims and finds them to be without merit.
IV. CONCLUSION
For the reasons stated above, I recommend that the INS's motion to dismiss be granted, and that the Petition for writ of habeas corpus be dismissed. I further recommend that Respondents' Motion to Compel Signing of Travel Documents be granted and that Petitioner's claims for damages based upon his conditions of confinement be dismissed without prejudice. Finally, I recommend that Petitioner's Motion for Stay of Deportation be denied.
In view of the undersigned's recommendation that the damages claim be dismissed without prejudice, I need not address respondents' contentions concerning (1) the existence of in personam jurisdiction over the individual respondents Peter Delrusso and Anthony Gural, (2) the lack of service upon such respondents, and (3) the appropriate venue for the claims against those respondents.
Similarly, respondents' contention that the only appropriate respondent in a habeas corpus petition is the warden or administrator of the facility in which Petitioner is being detained, while correct, see Vasquez v. I.N.S., 233 F.3d 688, 693 (1st Cir. 2001), is moot in view of the recommendations of dismissal contained herein.
Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten (10) days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).