Opinion
Civil No. 04-1025 (JRT/FLN)
April 23, 2004
Herbert A. Igbanugo, BLACKWELL IGBANUGO, Minneapolis, for petitioner
Joan D. Humes, Minneapolis, Minnesota, for respondent
ORDER
Petitioner Fouad Jaouhar ("petitioner") filed an "Emergency Petition" for a writ of habeas corpus on February 24, 2004; at the time the petition was filed, petitioner was in the custody of the ICE (Immigration and Customs Enforcement, a part of the Department of Homeland Security) and was detained in the Washington County Jail. Despite this petition, he was deported to his native country Morocco on March 3, 2004. He now requests that the government return him from Morocco so that he can assist in the prosecution of his habeas petition. For the reasons discussed below, the Court denies petitioner's request, and dismisses the petition for a writ of habeas corpus.
BACKGROUND
Petitioner entered the United States on a visitor's visa on May 5, 1994. He married his wife, who is a United States citizen, on August 12, 1994. In September of 1994, he applied to adjust his status to lawful permanent resident, and that was approved on September 25, 1995. In June of 1996, the United States Marshals Service arrested petitioner, and he was eventually extradited to Switzerland. Though petitioner was not tried for the offense for which he was extradited, he was tried and convicted for criminal conduct from 1988. From December 22, 1996, to December 31, 1998, he was detained in Switzerland.
On December 31, 1998, he re-entered the United States on a visitor's visa. Petitioner and his wife then filed a joint petition to remove the conditions on residence. A hearing was scheduled regarding the petition to remove the conditions on residence. Petitioner's wife was required to be at the hearing, but due to a medical emergency she was hospitalized and could not attend the hearing. Petitioner asserts that the District Adjudications Officer told him the interview would be rescheduled for good cause. On April 4, 2000, however, petitioner received a letter from the Minnesota district office of the Citizenship Immigration Services terminating his employment authorization and conditional status. Despite the termination letter, petitioner continued to believe he was a conditional permanent resident because his conditional permanent residence card had been renewed every year since April 2000. In addition, he had left and re-entered the country at least four times as a conditional permanent resident.
In October 2003, however, immigration officers took petitioner into custody, and issued a Notice of Intent to Issue a Final Administrative Order. The Notice indicated that petitioner was subject to mandatory detention because he had been convicted in Switzerland of a felony. Petitioner's request for a bond hearing was denied. Petitioner's challenge to the Notice of Intent to Issue a Final Administration Removal Order was also unsuccessful and on November 14, 2003, the Bureau of Immigration and Customs Enforcement ("ICE") issued a Final Administrative Removal Order on November 14, 2003. The ICE found that the administrative record established by clear, convincing and unequivocal evidence that he was deportable as an alien convicted of an aggravated felony pursuant to INA § 238(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
Petitioner requested an additional bond re-determination, which was denied by the Immigration Judge because the Immigration Judge determined he had no authority to review bond determinations where the alien was in proceedings pursuant to § 238. Petitioner then filed a petition for review with the Eighth Circuit Court of Appeals, asking the Circuit Court to stay the removal and to review the November 14, 2003 Final Administrative Removal Order. The Eighth Circuit dismissed the appeal in accordance with Federal Rules of Appellate Procedure 42(b), and denied as moot his motion for a stay. This judgment was entered on January 29, 2004.
As noted above, petitioner had been in custody since October 2003. He was on notice of removal since at least November 11, 2003 when he was issued a Final Administrative Removal Order. He filed this petition in February 2004. Petitioner did not move for a temporary restraining order. Shortly after his removal, petitioner filed a motion requesting the Department of Homeland Security be directed to return him to the United States.
ANALYSIS
The issues petitioner raises in the instant habeas petition are the same claims that have been litigated in the Eighth Circuit. Congress has divested the courts (including this Court) of jurisdiction to review the removal orders of criminal aliens. 8 U.S.C. § 1252(a)(2)(C) ("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 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.") (emphasis added).
In Counts I and II of the habeas petition, petitioner asserted that he should be released pending deportation, pursuant to the Supreme Court's decision in Zadvydas v. Davis, 533 U.S. 678 (2001) and that continued detention violated his substantive due process rights. That claim is now moot, and will not be addressed in this opinion and order.
If an alien brings a challenge to such a removal order, the Eighth Circuit must first determine the preliminary jurisdictional facts. Gavilan-Cuate v. Yetter, 276 F.3d 418 (8th Cir. 2002); Santos v. Reno, 228 F.3d 591 (5th Cir. 2000); Beshli v. Department of Homeland Security, 272. F. Supp.2d 514, 521 (E.D. Pa. 2003). Namely, the Eighth Circuit must determine that the petitioner is an alien, and has been convicted of an aggravated felony. Id. Petitioner suggests that there is no way of knowing what the Eighth Circuit decided, because the two sentence judgment simply dismissed the case. However, that is the same procedural background as occurred in Gavilan-Cuate, where the Eighth Circuit noted that "a jurisdictional determination . . . is binding as to issues that are addressed by the Court in determining the jurisdictional question." Gavilan-Cuate v. Yetter, 276 F.3d at 420.
The Eighth Circuit's determination is binding on this Court. Therefore, plaintiff's petition must be dismissed.
ORDER
Based on the submissions of the parties, the arguments of counsel, and the entire file and proceedings herein, IT IS HEREBY ORDERED that:
1. The petition for a writ of habeas corpus [Docket No. 1] is DISMISSED with prejudice.
2. Petitioner's motion for court order directing Department of Homeland Security to return petitioner to the United States anon [Docket No. 7] is DENIED.