Opinion
No. 3:99-CV-0285-P
September 4, 2002
OPINION AND ORDER
Now before the Court are: (1) Federal Respondents' ("Government" or "Defendants") Objections to the Findings and Recommendations of the United States Magistrate Judge ("Objections"), filed June 11, 2002; and (2) Petitioner's Objections to the Findings and Recommendation of the United States Magistrate Judge, filed June 12, 2002.
Pursuant to the Court's Order of July 10, 2002, Petitioner filed his supplemental briefing on July 30, 2002, Defendants filed their supplemental briefing on August 9, 2002 and August 16, 2002, and Petitioner filed a letter response on August 23, 2002.
PROCEDURAL HISTORY
Petitioner, a native of Nigeria, became a lawful permanent resident of the United States in 1990. On August 18, 1994, Petitioner pled guilty to credit card fraud and was sentenced to a 56-month term, which he has completed. On September 17, 1996, while still incarcerated, Petitioner filed a Motion Seeking Waiver of Deportation Under Section 2 12(c) of the Immigration and Nationality Act ("INA"). On April 22, 1997, the INS issued a notice to appear to Petitioner asserting that Petitioner was subject to deportation due to his criminal conviction. On January 9, 1998, during a hearing before an Immigration Judge, Plaintiff conceded deportability, but requested political asylum. Petitioner's request was denied because the Immigration Judge found that Petitioner was statutorily barred from being granted asylum. At the hearing, Petitioner's counsel requested time to apply for withholding of removal. The proceedings were then continued to January 30, 1998. At that hearing, the Immigration Judge ordered Petitioner's counsel to file an application for withholding of removal by February 5, 1998. Petitioner's counsel failed to do so, and on February 6, 1998, he moved to withdraw as counsel for Petitioner.Because Petitioner was without counsel, Petitioner failed to file the application for withholding of removal, as instructed by the Immigration Judge. He also failed to remind the Immigration Judge of his September 17, 1996 § 212(c) request. Therefore, on March 6, 1998, the Immigration Judge found that Petitioner had abandoned his application for withholding of removal and failed to rule on the § 212(c) request.
Petitioner appealed the Immigration Judge's March 6, 1998 ruling to the Board of Immigration Appeals ("BIA") arguing (a) that the judge had erred in refusing to grant additional time to file an application for withholding of removal and (b) in failing to consider or grant a hearing on Petitioner's § 212(c) request. On September 28, 1998, the BIA dismissed Petitioner's appeal and affirmed the March 6, 1998 ruling. The BIA affirmed the judge's determination that Petitioner had abandoned his request for withholding of removal and held that Petitioner was statutorily ineligible for relief under § 212(c). The BIA reasoned that because § 212(c) had been repealed and replaced by § 240A, its terms were not applicable to Petitioner.
Section 212(c) permitted the Attorney General to grant relief from deportation for humanitarian reasons, especially if the immigrant has deep roots in the United States. During its enactment, many immigrants agreed to plead guilty to aggravated felonies knowing that § 212(c) still made them eligible for this relief. In 1996, Congress changed the rules and completely eliminated eligibility for § 212(c) relief for all "aggravated felons." Thus, now non-citizens convicted of "aggravated felonies" are automatically deported from the United States.
Petitioner filed a motion to reconsider with the BIA, arguing that its refusal to consider Petitioner's § 212(c) request and its application of § 240A to this case constituted an impermissible retroactive application of the law. The BIA denied Petitioner's motion on its merits on November 25, 1998.
On February 9, 1999, Petitioner filed his Petition for Writ of Habeas Corpus and Request for Stay of Deportation in federal district court. Soon thereafter, the Government moved to dismiss the Petition based on the court's purported lack of jurisdiction to review the action under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). The Court found that it lacked jurisdiction to review the action and dismissed the case on May 21, 1999. Petitioner appealed the Court's order to the Fifth Circuit Court of Appeals, which affirmed the Court's order on July 7, 2000.
Petitioner filed a writ of certiorari with the United States Supreme Court of the Fifth Circuit's decision. He also filed an emergency motion to stay his deportation pending resolution of his petition to the Supreme Court. This Court found it did not have jurisdiction to issue a stay of Petitioner's deportation and denied Petitioner's motion. Petitioner then appealed this Court's October 10, 2000 Order denying a stay of his deportation, which the Fifth Circuit denied. Petitioner was deported to Nigeria on October 12, 2000.
On October 25, 2001, the Fifth Circuit Court of Appeals issued an order vacating this Court's order dismissing Petitioner's Petition for lack of jurisdiction. The Fifth Circuit held that because the Supreme Court found in INS v. St. Cyr that the IIRIRA did not divest the district courts of habeas jurisdiction to review removal orders, the case must be remanded for further proceedings. The Fifth Circuit also noted that the Supreme Court found that "the IIRIRA did not retroactively eliminate eligibility for discretionary relief under § 212(c) of the Immigration and Naturalization Act for aliens, such as [Petitioner], `whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.'" (Fifth Cir. Order at 2-3 (citing INS v. St. Cyr, 121 S.Ct. 2271, 2293 (2001) (emphasis added).)
This habeas case is now before us on remand from the Fifth Circuit. On March 1, 2002, the Government filed another motion to dismiss the Petition based on lack of jurisdiction. On May 29, 2002, the United States Magistrate Judge conditionally granted Petitioner's application for writ of habeas corpus. The Government timely filed its Objections to the Magistrate Judge's findings, conclusions, and recommendations, which are now before the Court for its consideration.
Petitioner also objected to a portion of the Magistrate Judge's Findings and Recommendation, which the Court will consider herein.
MAGISTRATE PROCEEDINGS
The Magistrate Judge's Findings and Recommendation addressed both the Government's Motion to Dismiss and the Petitioner's Writ of Habeas Corpus. In its motion to dismiss, the Government argued that the Court lacked jurisdiction to review the case because Petitioner was not "in custody." The Magistrate Judge rejected the Government's argument and found that because Petitioner was incarcerated at the time he filed his application for writ of habeas corpus, he satisfied the "in custody" requirement. The Magistrate Judge held that the fact that he was deported while this case was pending does not defeat the "in custody" requirement of § 2241.The Magistrate Judge also held that because St. Cyr requires that the Court apply § 212(c) in those cases in which a criminal defendant pleads guilty prior to the 1996 enactment of the IIRIRA, Petitioner is entitled to habeas relief in this case.
GOVERNMENT'S OBJECTIONS TO MAGISTRATE'S FINDINGS
The Government filed its objections to the Findings and Recommendations of the United States Magistrate Judge on June 11, 2002. The Government offers four bases for its objections: (1) there was no jurisdiction because Petitioner was not "in custody;" (2) former § 206(c) of the INA precludes judicial review of Petitioner's deportation order; (3) Petitioner's deportation was lawful; and (4) Petitioner is no longer a permanent resident and thus, is not eligible for § 212(c) relief. Because the Government had not raised issues (2), (3), or (4) during the proceedings before the Magistrate Judge, and consequently, because the Petitioner had not responded to those issues, the Court instructed Petitioner to respond to the Government's new arguments.
DISCUSSION
I. "IN CUSTODY."
The Government argues in its Objections that the Court should reject the Magistrate Judge's ruling because the Petitioner was not "in custody." Specifically, the Government contends that because Petitioner was deported to Nigeria on October 12, 2000, the Court does not have jurisdiction to consider his habeas corpus petition pursuant to 28 U.S.C. § 2241(c)(1) ("The writ of habeas corpus shall not extend to a prisoner unless [he] is in custody."). (Gov't Obj. at 7.)
In his Findings and Recommendation, the Magistrate Judge cited to Supreme Court cases that have held that the "in custody" determination is made at the time the habeas petition is filed. (See Findings and Recommendations at 3 ( citing Spencer v. Kenna, 523 U.S. 1, 7 (1998); Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)).) The Government does not cite to any cases to the contrary, and in fact, its cases recite and apply the same legal principle. See Maleng v. Cook, 490 U.S. 488, 492 (1989). Moreover, it is undisputed by the Government that Petitioner was removed after he filed his petition. ( See Pet. ¶ 2 ("[Petitioner] . . . is currently in INS custody at the Grayson County Lo-Risk Detention Center in Sherman, Texas.".)
The Government also argues that Petitioner "has already received an opportunity for administrative and judicial review of the underlying deportation order in the prior deportation proceeding." (Gov't's Obj. at 9.) This argument is disingenuous — Petitioner never received a § 212(c) hearing and his deportation was never considered on its merits. Every administrative and judicial body that has reviewed this case has denied Petitioner's request for § 212(c) relief based not on the merits but on a change in the rules (that has since been found inapplicable).
Third, the Government argues that the Magistrate Judge's finding that the ten-year bar to reentry to the United States was a sufficient collateral consequence to confer Article III standing is erroneous. As the Magistrate Judge pointed out, the Fifth Circuit expressly held in Max-George v. Reno that the inability to reenter the United States within ten years of the date of removal constituted sufficient collateral consequence to confer Article III standing. Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000). In Max-George, the Fifth Circuit held that "[petitioner's] ongoing Article III injury [was] that he cannot be admitted into the United States within ten years of the date of his removal . . . as a `collateral consequence' of his deportation . . . [W]e [have] held that both future inadmissibility and risk of prosecution for future reentry constitute such `collateral consequences,' which preserve Article III standing . . ." Id. The Government's argument at pages 10-11 of its brief are irrelevant to this issue. There, the Government is arguing about "collateral review" and "collateral attack" of a prior habeas order that has been violated, not the "collateral consequences" of deportation, which was the issue discussed by the Magistrate Judge who found that the Court did have jurisdiction to hear Petitioner's habeas petition.
II. WAIVER
Petitioner argues that the Government has waived the remainder of its arguments because the Government did not raise them — though it had the opportunity to do so — before the Magistrate Judge during the initial briefing and hearing. Petitioner contends out that the Government opted to challenge the habeas petition on jurisdictional grounds only, rather than on its merits, and that only now, after the Government lost its jurisdictional argument, does it attempt to address the habeas petition on its merits with three new legal arguments. (Pet.'s Supp. Br. at 3.)
The Government responds by arguing that it is entitled to a de novo review of the magistrate's findings simply because it filed its Objections at all. (Gov't Supp. Br. at 6.) However, the Fifth Circuit has expressly held that a party who objects to the magistrate judge's report waives legal arguments not made in the first instance before the magistrate judge. See Cupit v. Whitley, 28 F.3d 532, 535 (5th Cir. 1994); Freeman v. County of Bexar, 142 F.3d 848, 851 (5th Cir. 1998); Thornton v. Johnson, Civ. A. No. 4:00-CV-032-A, 2001 WL 331983, at *1 (N.D. Tex. 2001). In Freeman, the Fifth Circuit analyzed the meaning of de novo review in this context and concluded that de novo review does not entail consideration of a legal issue that was not previously raised before the magistrate, although it does permit the presentation of new factual evidence. See Freeman, 142 F.3d at 851.
This is not a case in which the Government is offering new evidence for the Court's consideration. Rather, the Government seeks to raise new legal arguments at this late stage of the proceedings. Because the Government is not permitted to do so, the Court will not consider the new arguments raised by the Government in its Objections.
PETITIONER'S OBJECTIONS TO MAGISTRATE'S FINDINGS
Petitioner argues that the Government should bear the financial burden of transporting Petitioner back to the United States for the § 212(c) hearing. According to the INA, a removal proceeding may take place: (1) in person; (2) in the absence of the alien, when agreed to by the parties; (3) through video conference; or (4) through telephone conference. See 8 U.S.C. § 1229a(a)(3)(b)(2)(A). Evidentiary hearings on the merits may be conducted by telephone only with the consent of the alien after the alien has been advised of the right to proceed in person or through video conference. See id. § 1229a(a)(3)(b)(2)(B). The rules also provide that an immigration judge may, for good cause, waive the presence of the alien at a hearing when the alien is represented by legal counsel. See 8 C.F.R. § 3.25 (a).
Based on the law as it existed at the time of Petitioner's deportation, the INS's decision to deport Petitioner was not negligent or unreasonable. Further, the law provides Petitioner with several different options for participating in his § 212(c) hearing and Petitioner is represented by competent legal counsel. If Petitioner chooses the option of attending the hearing in person, he should bear the expense of doing so.
As the Magistrate Judge noted, if Petitioner chooses to attend the hearing, the INS is directed to admit him into the United States for purposes of attending the hearing. Whether Petitioner should be detained while in the United States should be decided by the INS in the first instance.
CONCLUSION
Therefore, for the reasons stated herein, the Federal Respondents' Objections to the Findings and Recommendations of the United States Magistrate Judge is hereby DENIED and Petitioner's Objections to the Finding and Recommendation of the United States Magistrate Judge is hereby DENIED. Consequently, the Court adopts the Findings and Recommendation of the Magistrate Judge conditionally granting the Petition. Accordingly, the INS is instructed to give Petitioner a hearing on his request for a waiver of excludability under § 212(c) of the INA and to readmit him to the United States for that purpose at Petitioner's own expense.SO ORDERED.