Opinion
No. 3-99-CV-0285-P
May 29, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Emanuel Obajuluwa has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application should be conditionally granted.
I.
Petitioner is a native and citizen of Nigeria. He entered the United States in 1981 as a non-immigrant visitor and became a permanent resident alien in 1990. On August 18, 1994, petitioner pled guilty to federal conspiracy and credit card fraud charges. Punishment was assessed at 56 months confinement followed by supervised release for a period of three years. The trial court also ordered petitioner to make restitution in the amount of $301,877.00. Based on these convictions, an immigration judge ordered petitioner removed to Nigeria. His request for a waiver under section 212(c) of the Immigration and Nationality Act ("INA") was denied. Petitioner appealed this decision to the Board of Immigration Appeals. The Board affirmed. In re Obajuluwa, No. A91 878 391 (BIA Sept. 28, 1998), reconsideration denied (BIA Nov. 25, 1998).
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA") provides, in relevant part:
Any alien who-
(I) is convicted of a crime involving moral turpitude committed within five years . . . after the date of admission, and
(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.8 U.S.C. § 1227(a)(2)(A)(i).
On February 9, 1999, petitioner filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. This Court initially dismissed the application for lack of subject matter jurisdiction. Obajuluwa v. Reno, No. 3-99-CV-0285-P (N.D. Tex. May 21, 1999). The Fifth Circuit affirmed. Obajuluwa v. Reno, 226 F.3d 641 (5th Cir. 2000) (Table). Petitioner then sought review from the U.S. Supreme Court. While his petition for writ of certiorari was pending, petitioner was deported to Nigeria. Eight months later, the Supreme Court held that the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") do not divest federal district courts of habeas jurisdiction to review removal orders and remanded this case back to the lower courts for further proceedings. Obajuluwa v. Ashcroft, 533 U.S. 943, 121 S.Ct. 2581, 150 L.Ed.2d 742 (2001). The case is now before the Court on remand from the Fifth Circuit. Obajuluwa v. Ashcroft, 275 F.3d 1078 (5th Cir. 2001) (Table).
II.
Petitioner challenges his removal in three grounds for relief. First, he contends that the three-year delay in bringing removal proceedings was unreasonable and contrary to federal law. In two related grounds, petitioner argues that the retroactive application of section 240A of the INA, which eliminates the right to apply for a waiver under section 212(c), violates the due process clause of the Fifth Amendment and the ex post facto clause of the United States Constitution.
Respondents point out that petitioner has been removed to Nigeria and is no longer in the custody of immigration officials. Consequently, they maintain that the habeas petition should be dismissed as moot. The Court will address the jurisdictional issue first.
A.
A federal court has jurisdiction to issue a writ of habeas corpus only if the person seeking the writ is "in custody." See 28 U.S.C. § 2241; Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000). The "in custody" determination is made as of the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968). Once federal habeas jurisdiction has attached, "it is not defeated by the release of the petitioner prior to the completion of proceedings on such application." Carafas, 88 S.Ct. at 1559-60.
Here, petitioner was "in custody" at the time he filed his application for writ of habeas corpus. The fact that he was deported while this case was pending does not defeat the "in custody" requirement of section 2241. Nor does it moot this proceeding. As a result of his removal as an aggravated felon, petitioner cannot seek readmission to the United States for 10 years. See 8 U.S.C. § 1182(a)(9)(a)(ii). This penalty constitutes a legitimate collateral consequence which is sufficient to confer Article III standing. Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000), vacated on other grounds by Max-George v. Ashcroft, 533 U.S. 945, 121 S.Ct. 2585, 150 L.Ed.2d 746 (20O1). See also Chong v. District Director, I.N.S., 264 F.3d 378, 385 (3d Cir. 2001); Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001); Tapia Garcia v. I.N.S., 237 F.3d 1216, 1218 (10th Cir. 2001). But see Uwagboe v. I.N.S., 32 Fed.Appx. 362, 2002 WL 461814 at *1 (9th Cir. Mar. 19, 2002), citing Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.), cert. denied, 122 S.Ct. 541 (2001) (removal of petitioner during pendency of appeal mooted habeas petition challenging removal proceedings and conditions of detention). Accordingly, this case is not moot.
This statute provides, in pertinent part:
Any alien . . . who (I) has been ordered removed under section 240 or any other provision of law . . . and who seeks admission within 10 years of the date of such alien's departure or removal . . . is inadmissible.8 U.S.C. § 1182(a)(9)(A)(ii).
The Court acknowledges other Fifth Circuit cases holding that "no court may review a deportation order once deportation has occurred." See, e.g. Cipriano v. I.N.S., 24 F.3d 763, 764 (5th Cir. 1994); Quezada v. I.N.S., 898 F.2d 474, 477 (5th Cir. 1990); Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986). However, those decisions were based on the explicit language of section 106(c) of the INA, which precluded judicial review of a removal order after the alien had been deported. See 8 U.S.C. § 1105a(c) (repealed 1996) ("An order of deportation . . . shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order."). Section 106(c) was repealed in 1996, before the commencement of removal proceedings against petitioner. Therefore, those authorities are of dubious precedent. See also Chavez v. U.S.I.N.S., 55 F. Supp.2d 555, 556 (W.D. La. 1999) (distinguishing cases decided prior to repeal of section 106(c)).
At the time this case was filed, petitioner was incarcerated in the Grayson County Detention Center which lies within the Sherman Division of the Eastern District of Texas. The Court therefore sua sponte questioned whether jurisdiction was proper in this district. See ORDER, 4/5/02, citing Lee v. Wetzel, 244 F.3d 370, 373 (5th Cir. 2001) (section 2241 petition must be filed in district where prisoner is incarcerated or his custodian is located); Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999) (filing requirements in habeas case are jurisdictional). After reviewing the briefs submitted on this issue, the Court determines that the proper respondent in an immigration habeas case is the INS director for the district in which the petitioner is held. See Vasquez v. Reno, 233 F.3d 688, 690 (1st Cir. 2000), cert. denied, 122 S.Ct. 43 (2001); In re Smith, 1999 WL 506695 at *1 (D.C. Cir. 1999); Roman v. Ashcroft, 162 F. Supp.2d 755, 758 (N.D. Ohio 2001); Santiago v. U.S.I.N.S., 134 F. Supp.2d 1102, 1104 (N.D. Cal. 2001); Williams v. Reno, 2001 WL 85867 at *2 (E.D. Mich. Jan. 11, 2001); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 208 (S.D.N.Y. 1998). But see Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994) (proper respondent in immigration habeas case is warden of facility where detainee is held). Since the INS district director for this region is located in Dallas, jurisdiction is proper in the Dallas Division of the Northern District of Texas.
B.
Petitioner does not contest the fact that he was subject to removal as an aggravated felon. Rather, he maintains that he should have been allowed to apply for a "waiver of excludability" under section 212(c) of the INA, 8 U.S.C. § 1182(c). This statute, which was amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and eventually repealed as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), provided:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General.8 U.S.C. § 1182(c), repealed (1996). Petitioner maintains that he remains eligible for discretionary relief under this statute based on the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
Although the statute applied literally only to exclusion proceedings, it had been interpreted by the INS to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation. See INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 2276, 150 L.Ed.2d 347 (2001), citing Matter of L, 1 I. N. Dec. 1, 2, 1940 WL 7544 (1940).
The petitioner in St. Cyr was a Haitian citizen who became a lawful permanent resident of the United States in 1986. Ten years later, he pled guilty to a state drug offense. That conviction made him deportable. Under the law as it existed at the time his guilty plea was entered, petitioner would have been eligible for a waiver of deportation at the discretion of the Attorney General. However, removal proceedings were not commenced until April 10, 1997 — nearly a year after section 212(c) had been repealed by the AEDPA and the IIRIRA. Based on the language of this newly enacted legislation, the Attorney General maintained that she no longer had discretion to grant a waiver from deportation. The Supreme Court disagreed, holding that section 212(c) relief remains available for aliens "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." St. Cyr, 121 S.Ct. at 2293.
Petitioner pled guilty to federal conspiracy and credit card fraud charges in 1994. At the time he entered his guilty plea, petitioner was a lawful permanent resident and had been physically present in the United States for more than 12 years. Petitioner exhibited his desire to remain in this country no later than April 1988, when he applied for lawful permanent resident status. (Pet. Reply, Exh. A at ¶ 5). Thus, he clearly was eligible for discretionary relief under section 212(c). See White v. I.N.S., 75 F.3d 213, 215 (5th Cir. 1996) (domicile for purposes of section 212(c) evidenced by physical presence within the United States and intent to remain indefinitely). Yet the INS deprived petitioner of the opportunity to seek a waiver under this statute because, at the time his removal proceedings were commenced, section 212(c) had been repealed and replaced by section 240A of the INA, which provides for the automatic removal of aggravated felons. Obajuluwa, No. A91 897 391, op. at 2. As in St. Cyr, the retroactive application of section 240A in this case was improper. Accordingly, petitioner is entitled to habeas relief.
The resolution of this issue pretermits consideration of whether the three-year delay in bringing removal proceedings against petitioner was unreasonable and contrary to federal law.