Opinion
No. C 04-04290 WHA.
November 16, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR A STAY OF DEPORTATION
INTRODUCTION
Petitioner Mr. Rong Jian Xu seeks federal habeas corpus relief under 28 U.S.C. 2241 and has filed a motion for a stay of his deportation. Because he has failed to demonstrate the existence of serious questions going to the merits of his claims, petitioner's motion is hereby DENIED.
STATEMENT
Unless otherwise noted, the following facts are not in dispute. Petitioner is a native and citizen of the Peoples Republic of China (Habeas Pet. ¶ 11). In 1981 petitioner entered the United States as a lawful permanent resident ( ibid.). On May 13, 1987, petitioner (aka "James Tu") was convicted of second-degree robbery and sentenced to three years in prison with an additional two-year enhancement (Guajarda Decl. Exh. B). On June 10, 1993, petitioner was convicted of kidnapping and sentenced to eight years in prison with an additional one-year enhancement ( ibid.).In January 1997, the INS served petitioner with an order to show cause charging him with being subject to removal under Section 241(a)(2)(A)(ii) of the Immigration and Nationality Act for having been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal conduct ( id. Exh. C). In March 1997, the INS charged petitioner with being subject to removal under INA Section 241(a)(2)(A)(iii) for having been convicted of an aggravated felony (kidnapping) for which a term of imprisonment of at least one year was imposed ( ibid.).
On January 13, 1998, during proceedings before the immigration court, petitioner admitted the allegations charged by the INS, conceded the grounds for removal, and sought relief from removal in the form of withholding of deportation ( id. Exh. D). Petitioner subsequently indicated an intent to apply for asylum and withholding of removal under the Convention Against Torture ( ibid.). The immigration court noted that it would consider only petitioner's CAT claim, because he was ineligible for withholding of removal and asylum due to his criminal convictions ( ibid.).
At a continuation of his hearing, petitioner's counsel raised the issue of possible relief for petitioner under INA Sections 212(c) and 244(a)(2) ( id. Exh. D). Counsel for INS countered that petitioner was ineligible for such relief because of his aggravated felony conviction ( ibid.). The immigration court denied petitioner's application for withholding of removal under CAT, finding that petitioner had failed to meet his burden of demonstrating a likelihood that he would be tortured upon his return to China. The immigration court declined to consider petitioner's eligibility for relief under Sections 212(c) and 244(a)(2), because petitioner had failed to submit applications for such relief ( ibid.).
Petitioner filed a motion for reconsideration to which he attached an application for suspension of deportation under Section 244. The immigration court denied the motion for reconsideration as untimely under 8 C.F.R. 1003.23(b)(1) ( id. Exh. G). The BIA subsequently affirmed without opinion the deportation order of the immigration court ( id. Exh. H). Petitioner moved the BIA for reconsideration, arguing that the immigration court had erred by failing to inform him of his eligibility for suspension of deportation ( id. Exh. I). The BIA denied the motion to reconsider, holding that, due to his conviction of an aggravated felony, petitioner could not establish the good moral character necessary to render him eligible for suspension of deportation ( id. Exh. J).
On May 7, 2004, petitioner filed a petition for review with the Ninth Circuit. The Ninth Circuit granted the government's unopposed motion and dismissed for lack of jurisdiction on July 15.
ANALYSIS
In order that a motion for a stay of deportation be granted, a petitioner must meet the following requirements, Andreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (internal citations and quotation marks omitted):
the petitioner must show either (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. These standards represent the outer extremes of a continuum, with the relative hardships to the parties providing the critical element in determining at what point on the continuum a stay pending review is justified.
Petitioner's motion fails because he cannot demonstrate the existence of serious legal questions going to the merits of his claim.
Petitioner makes two arguments in support of his motion. First, petitioner argues that the immigration court violated his right to due process by failing to inform him that he was eligible for suspension of deportation under section 244(a)(2) of the INA (Habeas Pet. ¶ 14). Section 244(a)(2) provided as follows:
As hereinafter prescribed in this section, the Attorney General may, in his discretion, suspend deportation and adjust the status to that of an alien lawfully admitted for permanent residence, in the case of an alien (other than an alien described in section 1251(a)(4)(D) of this title) who applies to the Attorney General for suspension of deportation and —
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(2) is deportable under paragraph (2), (3), or (4) of section 1251(a) of this title; has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting grounds for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child who is a citizen of the United States or an alien lawfully admitted for permanent residence.
Petitioner correctly notes that, under former 8 C.F.R. 2417(a), an immigration judge was required to inform an alien in proceedings of his apparent eligibility for relief under the Immigration Act. See Moran-Enriquez v. Immigration and Naturalization Service., 884 F.2d 420, 422 (9th Cir 1989).
The substance of former 8 C.F.R. 242.17(a) can now be found at 8 C.F.R. 1240.11(a)(2) and 1240.49(a).
Petitioner fails to mention, however, that petitioner's counsel raised the possibility of relief under 244(a)(2) in the proceedings before the immigration judge. Petitioner was at that time represented by the same attorney that represents him in the present action. At the July 25, 2003, proceedings, Mr. Guajardo argued as follows: "[s]ince the charging document in this case was one that was initiated by the Form I-22, Immigration and Nationality Act provides under Section 244(a)(2) that an individual who has been in the United States for a period of 10 years after the date of his conviction may in fact apply for relief under 244(a)(2)" (Guajardo Decl. Exh. D at 34). In her decision, the immigration judge confirmed that Mr. Guajardo made an argument under Section 244(a)(2). "Respondent's counsel in arguments has asserted eligibility for a 212(c) waiver of certain criminal convictions and suspension of deportation pursuant to 244(a)(2)" ( id. at 5).
The Ninth Circuit has described the purpose of the immigration judge's duty to inform the alien of all relief in these terms: "Section 2421.7(a) obviously is mean to prompt the IJ to help an alien explore legal avenues of relief that might not be apparent to him or his attorney." Moran-Enriquez, 884 F.2d 420 at 423. The potential for relief under Section 244(a)(2) was clearly apparent to petitioner's counsel. He himself raised the topic. The purpose of Section 242.17(a)(2) was not frustrated. Accordingly, petitioner has failed to show the existence of serious questions going to the merits of his due process claim.
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Petitioner makes a second argument in favor of a stay based on statutory construction. Before addressing the merits of that argument, it is necessary to provide the following background information. The Board of Immigration Appeals found that petitioner did not qualify for relief under Section 244(a)(2) because "he is unable to establish the requisite good moral character to be eligible for suspension of deportation" (Guajardo Decl. Exh. J). The BIA based its decision on petitioner's conviction for kidnapping and the requirements regarding "good moral character" set forth at 8 U.S.C. 1101(f)(8). That statute provides that an individual convicted of an "aggravated felony" must at all times be found to lack good moral character. Petitioner contends that the BIA's interpretation of relationship between Section 244(a)(2) and Section 1101(f)(8) should be rejected because it renders the relief afforded "meaningless."Though petitioner cites to no authority in support of his argument, it appears to proceed as follows. Section 244(a)(2) relief is available to deportable aliens who can show good moral character for 10 years "immediately following the commission of an act, or the assumption of a status, constituting grounds for deportation." Although it is at points unclear, petitioner seems to assume that the act "constituting grounds for deportation" will invariably be an aggravated felony — and, the argument goes, Section 1101(f)(8)'s prohibition on aggravated felon's ability to demonstrate good moral character renders the relief provided by Section 244(a)(2) meaningless.
Petitioner's assumption regarding what acts will constitute grounds for deportation, however, is unwarranted. There are a myriad of different acts an individual may commit — and ways to assume deportable status — that constitute grounds for deportation. Commission of an aggravated felony is only one type of such act. Section 1101(f)(8) merely represents congress' intent to foreclose the possibility of Section 244(a)(2) relief to those individuals that have committed crimes of violence. Contrary to petitioner's assertion, there is nothing "absurd" or "impracticable" about this statutory scheme.
CONCLUSION
For the reasons stated above, petitioner's motion is DENIED. Within ten days of the filing of this order, each party shall submit a memorandum stating whether or not this case can be closed.IT IS SO ORDERED.