Opinion
EP-00-CA-16-DB
December 6, 2000.
MEMORANDUM OPINION AND ORDER
On this day, the Court considered Petitioner Rosevelt Stuart Taylor's "Petition for Writ of Habeas Corpus" (the "Writ Petition"), filed in the above-captioned cause on May 17, 1999; Petitioner's "Addendum to Petition for Judicial Review," filed July 23, 1999; and Respondent the Immigration and Naturalization Service's "Motion to Dismiss Petition for Writ of Habeas Corpus" ("Motion to Dismiss"), filed May 8, 2000. On August 23, 2000, Petitioner filed a "Counter-Motion to Set Aside Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus," which the Court construes as Petitioner's Response to Respondent's Motion to Dismiss.
Petitioner initially filed this action in the District of Columbia. Eventually, that district transferred the cause here by Order entered in that court on November 3, 1999, because Petitioner is physically located in El Paso, Texas — within this district.
Further, on June 5, 2000, Petitioner filed a "Counter Motion to Set Aside Respondent's Motion to Dismiss for Failure to State Claim upon Which Relief May Be Granted Et Cetera, and for Summary Judgment." That document was essentially a Reply to a Response from Respondent to Petitioner's "Motion for Release on Recognizance, or Cash Surety Bond Pending the Disposal of Habeas Corpus Petition," which for some reason Respondent labeled a "Motion to Dismiss for Failure to State a Claim Upon Which Relief May Be Granted and Alternatively, Motion for Summary Judgment, and Memorandum of Law in Support." Presumably, Respondent did not want the Court to find jurisdiction with respect to that "Motion for Release," which might prejudice its jurisdictional argument set forth herein. Nonetheless, because all of those documents are at least tangentially related to the instant Motion to Dismiss and the Writ Petition, the Court considers those documents generally herein.
After due consideration, the Court is of the opinion that the Motion to Dismiss should be granted and the Writ Petition denied and dismissed, for the reasons that follow.
BACKGROUND
Petitioner is in the custody of the Immigration and Naturalization Service ("INS") pending his removal from the United States as a criminal alien. The INS took custody of Petitioner in July 1999, after he completed a lengthy sentence at the La Tuna Federal Correctional Institution in Anthony, New Mexico/Texas, for a drug-related crime. Previously, the INS commenced removal proceedings against Petitioner on September 26, 1996, while he was still incarcerated. Petitioner admitted having been born in Saint Kitts Island, British West Indies. He claimed, however, that he became a United States citizen through naturalization in 1980 and, therefore, was not subject to removal.
Through a May 25, 1994, Judgment, the United States District Court for the Southern District of Texas sentenced Petitioner to serve eighty-four months imprisonment for possessing with intent to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).
On March 12, 1997, an immigration judge ("IJ") issued a lengthy oral decision after having held three hearings in which Petitioner was present and represented by counsel. The IJ found Petitioner removable from the United States as charged pursuant to the Immigration and Nationality Act ("INA") for having been convicted of an aggravated felony which was also a controlled substance violation. The IJ further addressed in detail Petitioner's claim to United States citizenship, stating as follows:
The IJ found Petitioner removable pursuant to former INA § 241(a)(2)(A), (B)(i), which have since been renumbered as INA § 237(a)(2)(A) and (B)(i), respectively. See 8 U.S.C.A. § 1227 (West 1999) and Historical and Statutory Notes thereto.
The respondent was born outside of the United States . . . and, therefore, has the burden of coming forward with evidence to demonstrate citizenship in the United States. Counsel for the respondent has presented evidence that the respondent made an application for naturalization while a member of the United States military in 1980. . . . The petition for naturalization was apparently filed August 18th, 1980 with the United States District Court for the Western District of Kentucky sitting at Louisville. . . . The respondent testified that he had appeared with his two witnesses, the witnesses listed on the petition, and filed and been sworn in as a citizen the same date. The material presented with the petition, that is form, N-400, indicates that the respondent appeared and was tested on English and government on August 18, 1980 and passed those examination, but that his case was continued by the designated examiner that date for the purpose of receiving various agency checks. . . . Also noted was that the respondent had reported his alien registration card lost that date. The agency checks were completed according to the notations on the petition and the petition noted that those were okay on April 3rd, 1981, substantially after the respondent's appearance and filing with his petitioners on August 18, 1980.
However, two further items were added. That is a review of an arrest and a question and answer statement apparently dealing with the respondent's arrest on May 6, 1981 in Harden County, Kentucky.
The respondent's testimony was that he had gone for his Court appearance some two weeks after the arrest and been sworn in by the District Court Judge and given his certificate, but that he had arrived late and upon completing the last questionnaire was told that his case would be held up and his certificate was returned. I note that this is inconsistent with the respondent's testimony that he appeared with his witnesses that date. The documentation is clear that the witnesses appeared and signed on August 18th, 1980 and that the respondent's case was not ready for final hearing on that date. I further note that there would be no provision for allowing an applicant for citizenship without an updated questionnaire, which is provided with the call-in letter and collected when the call-in letter is presented, having been submitted and that that updated questionnaire would make queries regarding the arrests. I note that the respondent was cleared for call-in for his swearing in on April 3rd, 1981, substantially after the date that he maintains he was sworn in with the Federal District Court judge and find that this testimony is not credible given that the respondent's witnesses did not appear with him subsequent to their having signed the petition on August 18th, 1980. I conclude that the respondent may well have been called in for a final hearing, but not allowed to participate in that final hearing due to his arrest in May of 1981 in Harden County, Kentucky.
The Court records further reveal . . . that citizenship was ultimately denied on November 14, 1984 on the recommendation of the Immigration and Naturalization Service and that the respondent's particular petition was denied that date for lack of prosecution. This order was signed by the Federal District Court judge and a certified copy provided and I find that the evidence is clear, convincing and unequivocal that the respondent did not become a citizen of the United States through naturalization either on August 18, 1980 when he appeared with his witnesses for filing his petition or any subsequent date, but rather that that petition was denied on November 14, 1984 on a properly executed order. . . .
This being all of the evidence of record concerning the respondent's citizenship, I find that the record establishes by competent evidence that is clear, convincing and unequivocal that the respondent is not now a naturalized citizen of the United States. . . .
(Internal exhibit references removed) (handwritten interlineation omitted). Based in part on that narrative, the IJ ordered Petitioner deported to his native Saint Kitts. The IJ further denied Petitioner's request for "suspension of deportation."
"Suspension of deportation," since repealed, was "a discretionary remedy providing relief from deportation." United States v. Mendoza-Lopez, 481 U.S. 828, 831 n. 3, 107 S.Ct. 2148, 2151 n. 3, 95 L.Ed.2d 772 (1987).
Petitioner appealed to the Board of Immigration Appeals ("BIA"). That court affirmed the IJ's ruling through an August 25, 1998, written Decision. Therein, the BIA adopted the IJ's factual findings; specifically found that the IJ's analysis with respect to Petitioner's claim that he is a naturalized United States citizen was proper; and found that the IJ's denial of suspension of deportation was proper in the IJ's discretion.
Petitioner did not petition the Fifth Circuit for review of the BIA decision. Rather, he filed the instant habeas corpus petition in the District Court for the District of Columbia. After some initial procedural wrangling, that court transferred Petitioner's cause here because he currently is in Respondent's custody within this district. The instant motion to dismiss followed.
DISCUSSION
Through its Motion to Dismiss, the INS contends that this Court does not have subject matter jurisdiction to consider Petitioner's claims. Petitioner does not address Respondent's jurisdictional basis. Rather, Petitioner claims that the INS fabricated or tampered with evidence regarding Petitioner's citizenship such that the IJ's decision based on that falsified evidence was erroneous.
As a pro se petitioner, the Court does not hold Petitioner to the same high technical standard of competent response to the motion to dismiss.
Petitioner cannot proceed in this Court without demonstrating the Court's jurisdiction, and he bears the burden of doing so. See B, Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). A court must dismiss a cause for lack of subject matter jurisdiction "when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks removed) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "When a party challenges subject matter jurisdiction, the court is given the authority to resolve factual disputes" and may consider evidence presented beyond the pleadings. Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). Here, Petitioner claims that the Court has habeas corpus jurisdiction under 28 U.S.C. § 2241. The INS counters, however, that certain jurisdiction-stripping provisions Congress added to the INA via the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) ("IIRIRA") eliminate jurisdiction in this cause.
Under the "transitional rules" applicable under IIRIRA, some "§ 2241 habeas jurisdiction remains . . . where [8 U.S.C.] § 1252(g) does not apply." Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 306 (5th Cir. 1999). Section 1252(g) — part of the new INA after IIRIRA — applies to transitional cases. See id. at 303. Section 1252(g) provides as follows:
The "transitional rules" apply to deportation proceedings commenced before April 1, 1997, and concluded more than thirty days after September 20, 1996. See Lerma de Garcia v. I.N.S., 141 F.3d 215, 216 (5th Cir. 1998) (examining IIRIRA § 309(c), 110 Stat. 3009-625). The INS concedes that Petitioner comes within the transitional rules because deportation proceedings commenced in September 1996 and he was not ordered deported until March 1997.
Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.8 U.S.C.A. § 1252(g) (West 1999). "Until the Supreme Court spoke on the matter this year, most courts and parties assumed that § 1252(g) covered the spectrum of deportation cases and drastically limited judicial review in all of them." Requena-Rodriguez, 190 F.3d at 303 (footnote omitted). In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482, 119 S. Ct. 936, 943, 142 L.Ed.2d 940 (1999), however, the Supreme Court did just the opposite, holding that § 1252(g) "applies only to three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders." American-Arab, 525 U.S. at 482, 119 S.Ct. at 943. Thus, where a petitioner's aim is to halt the execution of an impending final deportation order, § 1252(g) applies to remove all jurisdiction in any court. See Cardoso v. Reno, 216 F.3d 512, 516-17 (5th Cir. 2000) (finding that § 1252(g) applied to preclude § 2241 jurisdiction where "challenge is tantamount to a challenge to the execution of a removal order").
Here, the INS contends that 8 U.S.C. § 1252(g) applies in this case "[s]ince [Petitioner]'s claim unquestionably arises from a decision or action by the Attorney General to execute a deportation order." Because § 1252(g) applies, the argument goes, there is no § 2241 jurisdiction in this cause under Requena-Rodriguez. The Court agrees. At bottom, Petitioner seeks to stay in the United States. Indeed, throughout this litigation, Petitioner has spent a great deal of time and effort to show that the BIA and IJ erred in denying his claim for "suspension of deportation" because he is a good person who deserves to stay in the United States. While that may be true, his ultimate goal is to avoid deportation by blocking the Attorney General from executing the standing deportation order. Similarly, Petitioner also claims that the he is not an alien because he took the oath of United States citizenship and became a United States citizen in 1980. Again, the aim is to avoid execution of the final order of deportation. Under Cardoso, those challenges are tantamount to a challenge to the Attorney General's decision to execute the final removal order against Petitioner. Hence, the Court finds that § 1252(g) applies in this case and, consequently, there is no jurisdiction under § 2241.
Even were § 1252(g) not to apply, however, the little § 2241 jurisdiction that remains under the transitional rules is only so broad as to include "`challenges [which] cannot be considered on direct review by the court of appeals.'" Santos v. Reno, 228 F.3d 591, 595 (5th Cir. 2000) (quoting Requena-Rodriguez, 190 F.3d at 305). In that regard, the mere fact that a jurisdiction-stripping provision precludes the court of appeals from directly deciding an issue does not thereby mean that that issue cannot be and is not "considered" by the direct appeal. See, e.g., Santos, 228 F.3d at 597 (holding that court of appeals necessarily decided question of whether burglary of auto was an aggravated felony because required to do so to dismiss direct appeal for lack of jurisdiction). In that respect, IIRIRA § 309(c)(4) sets forth certain transitional changes to the rules concerning judicial review of a BIA decision, which limit the circuit court's ability to consider various types of appeals. See IIRIRA § 309(c)(4), 110 Stat. 3009-626.
Arguably, such jurisdiction can further be limited to constitutional questions. See Toscano-Gil v. Trominski, 210 F.3d 470, 473-74 (5th Cir. 2000) (analyzing Requena-Rodriguez to require first that Petitioner state a cognizable and meritorious constitutional claim before examining § 2241 jurisdiction); but see Santos, 228 F.3d at 595 n. 6 (noting approach in Requena-Rodriguez, which first determined that § 2241 jurisdiction survived and district court had such jurisdiction and then examined merits of alien's constitutional claim).
Specifically, § 309(c)(4)(E) and (G) respectively provide that there shall be no appeal "of any discretionary decision under 212(c) [suspension of deportation] . . . of the [INA]" or "in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D)." Id.; see also 8 U.S.C.A. § 1251 (West Supp. 1996) (setting forth former INA § 241 — categories of "criminal aliens"). Thus, in Santos, where the petitioner was subject to deportation for having committed an aggravated felony, the Fifth Circuit operating under the transitional rules noted that previously, when Santos had petitioned that court to review the BIA decision directly, that court "considered the three prerequisites for review preclusion under IIRIRA § 309(c)(4)(G): (i) [the petitioner] was an alien; (ii) he was deportable; [and] (iii) he committed a crime covered in INA § 241(a)(2)(A)(iii)." Santos, 228 F.3d at 597. The Santos court further noted that "in dismissing Santos's petition for review, we determined that [the crime he was convicted of] is an aggravated felony."
Here, the INS contends that, certainly, the Fifth Circuit could have considered Petitioner's claims had he sought such review. Had he filed a direct appeal with the Fifth Circuit, the Fifth Circuit would have to determine whether Petitioner is an alien in order to determine whether INA § 309(c)(4) precludes direct review jurisdiction. Even Petitioner's allegation that certain "newly discovered evidence" shows that the INS "knowingly mislead the [IJ] when it used the `Result of Examination' document to cover up and blocked [sic] Petitioner's signature showing where he duly signed and took the `Oath of Allegiance' before the Clerk of the Court in Kentucky on August 18th, 1980," cannot create jurisdiction here. Arguably, that claim could not have been presented to the Fifth Circuit on direct appeal because Petitioner did not have the alleged new evidence. However, the IJ's lengthy, narrative decision indicates that he did not simply rely on the fact that the Petitioner's signature was missing from the form.
Specifically, Petitioner claims that the version of an "N-405 Petition for Naturalization" form the INS submitted to the IJ differs in a material respect than the copy Petitioner received directly from the United States District Court in Louisville, Kentucky, where Petitioner allegedly became a citizen. Petitioners claims that the INS covered up his signature on that N-405 with a certain "Result of the Examination" document.
Rather, the IJ examined a slew of evidence regarding when Petitioner went to the ceremony and with whom (his witnesses), and what actions the INS took thereafter. The IJ then determined that "the evidence is clear, convincing and unequivocal that the respondent did not become a citizen of the United States through naturalization." Thus, at least with respect to Petitioner's claim that he was naturalized, the Court finds that Petitioner's claim could have been considered by the Fifth Circuit on direct review and, accordingly, no § 2241 jurisdiction remains under Requena-Rodriguez for this Court to consider that claim.
After due consideration, the Court is of the opinion that Petitioner cannot demonstrate that the Court has jurisdiction to hear his claims. Hence, the Court is further of the opinion that the Motion to Dismiss should be granted and the Writ Petition should be dismissed.
Accordingly, IT IS HEREBY ORDERED that Respondent the Immigration and Naturalization Service's "Motion to Dismiss Petition for Writ of Habeas Corpus"is GRANTED.
IT IS FURTHER ORDERED that Petitioner Rosevelt Stuart Taylor's "Petition for Writ of Habeas Corpus" and "Addendum to Petition for Judicial Review" are DISMISSED FOR LACK OF JURISDICTION.