Opinion
No. 3:04-CV-895-H.
February 10, 2005
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an Order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Factual background
Petitioner filed a petition for writ of mandamus pursuant to 28 U.S.C. § 2241. Petitioner is a native and citizen of Nigeria. On September 17, 2002, he was placed in removal proceedings. Petitioner was charged with being admitted to the United States on a visitors visa and overstaying his visa. The INS detained Petitioner pending his removal. On October 2, 2002, an Immigration Judge ("IJ") ordered that Petitioner should be release on $10,000 bond. Petitioner was unable to post this bond and remained in custody throughout his removal proceedings.
During the course of his removal proceedings, Petitioner applied to remain in the United States and sought cancellation of his removal because he had children who were United States citizens. Petitioner requested that his removal proceedings be continued in order to permit the INS to adjudicate an I-130 visa petition filed by his spouse. The I-130 application sought to establish that Petitioner was married to a United States citizen. If granted, the I-130 application would allow Petitioner to remain in the United States. The IJ found that Petitioner did not merit cancellation of removal because he did not demonstrate that his children would suffer exceptional and extremely unusual hardship should he be removed from the United States. The IJ also decided to deny the continuance of the removal proceedings. The IJ found it was unlikely that Petitioner could show by clear and convincing evidence that his marriage would be found valid.
On April 27, 2004, Petitioner filed this petition requesting that the Court: (1) order Respondents to adjudicate the I-130 application; (2) order that the I-130 application be approved; and (3) order that he be released from custody. On August 26, 2004, Respondents filed a motion to dismiss. On September 13, 2004, Petitioner filed his response. On September 23, 2004, Respondents filed a reply. On October 22, 2004, the Court ordered Respondents to brief additional issues. On December 3, 2004, Respondents filed their response. On December 20, 2004, Petitioner filed his reply. The Court now finds the petition should be denied.
II. Discussion
1. Detention
On September 17, 2002, Petitioner was taken into custody. He remained in custody during his removal proceedings. On September 28, 2004, Petitioner was released from detention. (Pet's Dec. 17, 2004, Response, p. 2; Def's Dec. 3, 2004, Answer, p. 4). Respondent's argue this release moots Petitioner's claims regarding his detention. Petitioner argues he remains under detention because he was placed on supervised release.
The authority to detain aliens after the entry of a final order of removal is set forth in section 241(a) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1227(a)(1)(B). Pursuant to that provision, the Attorney General is afforded a ninety-day period to remove an alien from the United States following the entry of a final order of removal. 8 U.S.C. § 1231(a)(1). During the removal period, the Attorney General shall detain the alien. 8 U.S.C. § 1231(a)(2).
An alien may be detained beyond the removal period if: (1) he is inadmissable to the United States; (2) removable for a violation of his nonimmigrant status; (3) removable for the commission of certain criminal acts; (4) removable as a national security risk; or (5) one who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal. 8 U.S.C. § 1231(a)(6).
In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that section 241(a)(6) "limits an alien's post-removal-period detention to a period reasonably necessary to bring about that alien's removal from the United States. It does not permit indefinite detention." Id. at 689. The Court stated that "once removal is no longer reasonably foreseeable, continued detention is no longer authorized by the statute." Id. at 699.
The Zadvydas Court designated six months as a presumptively reasonable period of post-order detention. "After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. at 701.
Zadvydas' prohibition on indefinite detention, however, does not apply to supervised release. The Court stated that where a petitioner has been release from detention pending removal, "the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate under the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions." Id. at 699-700. Petitioner's claim that his supervised release violates his constitutional rights should therefore be denied.
2. Adjudication of the I-130 Application
Petitioner requests that the Court order Respondents to rule on the I-130 application submitted by his wife. On July 22, 2004, the District Director for Immigration and Customs Enforcement adjudicated the I-130 application and denied relief. (Resp. Sept. 23, 2004, Reply, Ex. A). This claim should therefore be denied as moot.
3. Habeas Corpus Jurisdiction
Petitioner challenges Respondent's final order of removal and the denial of his I-130 application. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") attempts to limit, or in some cases eliminate, judicial review of immigration cases. See Pub.L. 104-208, 110 Stat. 3009 (1996). This statute provides, in relevant part:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.8 U.S.C. § 1252(b)(9). Aliens who, like Petitioner, are not removable by reason of having committed a criminal offense, may obtain judicial review of a final order of removal by filing a petition for review with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. See id. § 1252(a) (b). Petitioner has filed a petition for review with the Fifth Circuit Court of Appeals. Oyelude v. Ridge, et al., No. 04-10323 (5th Cir. filed March 22, 2004). That petition is currently pending.
Under the United States Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 314 (2001), non-criminal aliens, who have a statutory right to direct judicial review, may not also challenge their removal orders on collateral review in federal district court. See Foroglou v. Reno, 241 F.3d 111, 114-15 (1st Cir. 2001) (holding that non-criminal aliens must challenge removal order in petition for review); Lopez v. Heinauer, 332 F.3d 507, 510 (8th Cir. 2003); Brathwaite v. Ashcroft, 2003 WL 22005871 at *5 (N.D. Tex. Aug, 22, 2003) (same); Lee v. Ashcroft, 2003 WL 21832237 at *3 (N.D. Tex. Aug. 5, 2003) (same), Arloo v. Ashcroft, 238 F. Supp.2d 381, 383 (D. Mass. 2003) (same); but see Liu v. INS, 293 F.3d 36, 39-41 (2d Cir. 2002) (suggesting that habeas relief remains available to non-criminal aliens who challenge removal orders on constitutional grounds). Petitioner therefore cannot establish habeas jurisdiction to challenge the denial of the I-130 application and his final removal order. These claims should therefore be dismissed.
RECOMMENDATION
For the foregoing reasons, the Court recommends that the petition and motion for injunctive relief and/or temporary restraining order be denied.