Opinion
Case No. C02-2229L.
February 27, 2003
REPORT AND RECOMMENDATION
INTRODUCTION
Petitioner is a native and citizen of Ethiopia who, until recently ordered released by this Court, was in the custody of the Immigration and Naturalization Service ("INS"). On November 6, 2002, he filed, pro se, a habeas corpus petition pursuant to 28 U.S.C. § 2241, which challenged his continued detention by the INS after: (1) an immigration judge ("IJ") granted him release on bond during removal proceedings; (2) petitioner posted such bond, but the INS rejected it after receiving an automatic stay of the IJ's custody determination; (3) petitioner then received a grant of relief from removal under INA § 209(c); (4) respondents failed to appeal the grant of relief; and (5) the grant of relief is now administratively final. (Dkt. #2). Respondents argue that this Court lacks subject matter jurisdiction to review the habeas petition because they have appealed the IJ's grant of relief. (Dkt. #15),
Having reviewed the entire record, including the habeas petition and memorandum in support (Dkts. #1 and #2), respondents' return and status report ("RSR") and motion to dismiss (Dkt. #15), the INS administrative record (Dkt. #14), petitioner's reply to the RSR (Dkt. #19), and the balance of the record, I recommend that the Court DENY petitioner's habeas petition for lack of jurisdiction, and GRANT respondents' motion to dismiss.
BACKGROUND
Because the Court has determined that it lacks subject matter jurisdiction to review the habeas petition, and therefore does not address the merits of the case, an abbreviated immigration background follows.
Petitioner is a 54-year-old native and citizen of Ethiopia. (Dkt. #2 at 2). According to the record, he initially entered the United States in 1974 with a "J" nommmigrant visa. (Dkt. #14, Part 1 at L1). In 1984, petitioner adjusted his status to lawful permanent resident. (Dkt. #14, Part 3 at 19).
Petitioner was initially placed into deportation proceedings on June 19, 1995, as a result of a conviction in the 17th Circuit Court in Grand Rapids, Michigan, for Attempted Possession of Less than 25 grams of Cocaine. (Dkt. #14, Part 3 at 4-5). In the deportation proceedings, petitioner was found deportable as charged, but the IJ granted petitioner asylum, allowing him to remain in the United States. (Dkt. #14, Part 1 at L333). Neither side appealed the order.
On August 28, 2001, petitioner was again placed in removal proceedings, as a result of a conviction in the United States District Court for the Western District of Michigan, for Conspiracy to Commit an Offense Against or Defraud the United States: Possess, Utter and Publish Counterfeit Currency, and for Receipt of Counterfeit Currency with Intent it be Uttered and Published. (Dkt. #14, Part 3 at 5). These removal proceedings were held in Seattle before IJ Kendall Warren, where petitioner applied for an INA § 209(c) waiver of grounds of inadmissibility. ( See Dkt. #14, Part 1 at L375). At the same time, petitioner was taken into custody under the "mandatory detention" provision of INA § 236 as he was an alien charged with an aggravated felony. See INA § 236(a) and (c).
This was apparently necessary as a preliminary requirement for petitioner to readjust his status from asylee to lawful permanent resident. (Dkt. #15 at 3).
Petitioner then applied for release on bond. The IJ issued an order setting bond in the amount of $7,500. ( See Dkt. #14, Part 3 at 13). On the same date, the INS filed an emergency motion asking the IJ to stay his bond order and to reconsider. (Dkt. #14, Part 3 at 6). The IJ subsequently stayed his bond order, and, on July 8, 2002, issued a revised decision denying petitioner's bond completely. (Dkt. #14, Part 3 at 64). Petitioner then appealed the bond denial decision to the Board of Immigration Appeals ("BIA"). On September 23, 2002, the BIA affirmed the IJ's denial. (Dkt. #14, Part 1 at L417).
On September 17, 2002, IJ Warren continued with petitioner's removal proceedings. The IJ ruled that petitioner was removable as charged, but granted him the section 209(c) waiver for which petitioner had previously applied, and apparently also granting petitioner an adjustment of status to lawful permanent resident and terminating removal proceedings. (Dkt. #14, Part 1 at L426).
On October 11, 2002, the INS filed a Motion for Reconsideration of the IJ's order. (Dkt. #14, Part 1 at L423). The IJ denied the motion on October 11, 2002. (Dkt. #14, Part I at L411). On November 8, 2002, the INS filed a Notice of Appeal with th BIA. (Dkt. #15, Exhibit A). The appeal is still pending.
In the meantime, on October 31, 2002, petitioner lodged the instant habeas petition in this Court, arguing that respondents had failed to file a timely appeal, and therefore his continued detention was unlawful. (Dkt. #2). Petitioner further sought a temporary restraining order ("TRO") enjoining respondents from moving him to multiple INS detention centers, and from preventing him from speaking with his children by telephone. (Dkts. #2 at 4-5 and #8).
On November 8, 2002, this Court ordered respondents to file their RSR within 30 days of the date of the Order. (Dkt. #4). At the same time, respondents were ordered to respond to petitioner's motion for a TRO no later than November 25, 2002. (Dkt. #4 at 2). Respondents did not respond to petitioner's motion for a TRO by that date, nor did they move for an extension of time in which to file such response. Petitioner then filed a memorandum in support of his motion. (Dkt. #8).
On December 4, 2002, respondents were ordered to show cause why petitioner's motion for a TRO should not be granted. (Dkt. #6). In the meantime, petitioner was granted leave to amend his habeas petition to include the new evidence, not previously available, that his grant of relief was never appealed by the INS. (Dkts. #5 and #7).
Respondents' reply to the Order to Show Cause and their RSR were due on December 11, 2002. On that date, respondents filed a reply and motion for an extension of time to respond to petitioner's motion for a TRO and filed their RSR. (Dkt. #9). Respondents cited an especially heavy caseload, the late receipt of petitioner's administrative file, and petitioner's professional — looking briefs as the reasons for their request.
On December 17, 2002, the Coart ordered petitioner released on the same conditions as those available at the time the IJ had granted bond relief on February 22, 2002, pending a decision on the merits of his habeas petition. (Dkt. #10 at 2). The Court found that petitioner had provided evidence that he was granted an adjustment of status and waiver of removal under INA § 209(c) on September 17, 2002, and that while respondents had reserved the right to appear, according to the BIA no appeal was ever filed. (Dkt. #10 at 2). Resnondents had not yet provided the Court with evidence of their pending BIA appeal, nor had they provided evidence that they had appealed the IJ's decision with a motion for reconsideration. At the same time, the Court also granted respondents' request for an extension of time to file their RSR. (Dkt. #10 at 3). Respondents were ordered to file their RSR no later than January 6, 2003. Petitioner's motion for a TRO was then dismissed as moot. (Dkt. #10 at 3).
On January 6, 2003, respondents filed their RSR and motion to dismiss, along with petitioner's INS administrative record. (Dkts. #14 and #15). On January 13, 2002, petitioner filed a motion for appointment of counsel and for extension of time to respond to respondents' RSR and motion to dismiss. (Dkt. #16). On January 15, 2003, the Court granted petitioner's motion for extension of time. (Dkt. #17). The Court also re-noted petitioner's habeas petition for consideration on February 14, 2003. On February 5, 2003, the Court denied petitioner's motion for appointment of counsel. (Dkt. #18).
On February 10, 2003, petitioner filed his reply to respondents' RSR. (Dkt. #19). The briefing is now complete and the matter is ripe for review.
DISCUSSION
Petitioner essentially argues that respondents have not filed with the BIA a timely appeal of the IJ's decision granting him relief from removal, and therefore, his relief from removal is final, and his removal proceedings are over. (Dkts. #5 and #19). Respondents argue that they have filed a timely appeal, which is currently pending before the BIA, and therefore this Court lacks subject matter jurisdiction to review the habeas petition. (Dkt. #15). For the following reasons, the Court agrees with respondents.
Respondents argue that the immigration statute explicitly requires exhaustion of administrative remedies before petitioner may pursue a habeas petition in this Court. (Dkt. #15 at 6). Respondents rely on INA § 242, which states that judicial review is foreclosed until all administrative remedies have been exhausted, and until an administratively "final order" has been issued. See INA § 242(b)(9) and (d). Respondents assert that petitioner's removal proceedings are not yet administratively final because their appeal to the BIA remains pending, and therefore his order of removal is also not "final," (Dkt. #15 at 6). The Code of Federal Regulations supports respondents' argument. See 8 C.F.R. § 241.1. Specifically, section 241.1 states that an order of removal made by the immigration judge becomes final "[u]pon a dismissal of an appeal by the Board of Immigration Appeals." 8 C.F.R. § 241.1(a).
As a threshold matter, the Court notes that 28 U.S.C. § 2241 does not require exhaustion of administrative remedies. See 28 U.S.C. § 2241, et seq. While the Ninth Circuit has held that in the interest of judicial economy, petitioners are required to exhaust their administrative remedies before seeking habeas relief, see Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir. 2001), there has been flexibility in the Court's application of that requirement. See generally McCarthy v. Madigan, 503 U.S. 140, 144 (1992) (explaining that where Congress has not required exhaustion, "sound judicial discretion governs"); Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990) (stating that the District Court must use its discretion in determining whether petitioner must exhaust administrative remedies when the exhaustion requirement is not jurisdictional). Therefore, the habeas statute does not in and of itself preclude review of petitioner's claims.
In the instant case, respondents filed their appeal with the BIA on November 8, 2002. (Dkt. #15, Exhibit A). The appeal is still pending. Petitioner argues that this Court should determine that the appeal was untimely filed. (Dkt. #19 at 7). The Court, however, may not make that determination on behalf of the BIA. In the first place, it is not clear from the record that the appeal is, in fact, untimely. Respondents filed a motion for reconsideration of the IJ's decision granting relief from removal with the Immigration Court on October 11, 2002. (Dkt. #14, Part 1 at L423). When that motion was denied on the same date, respondents reserved the right to appeal the IJ's merits decision, and filed such appeal on November 8, 2002. (Dkt. #15 at 4).
Furthermore, even if that appeal was untimely filed, the BIA has wide discretionary authority to permit untimely appeals. See 8 C.F.R. § 3.1(c); see also, Matter of Ruiz, 20 IN Dec. 91 (BIA 1989) (accepting jurisdiction by certification because it was unclear whether the appeal was timely filed); Matter of Rodriguez-Esteban, 20 IN Dec. 88 (BIA 1989) (accepting jurisdiction by certification because there was a question as to the propriety of the filing of the appeal). Thus, until the BIA has expressly ruled on respondents' appeal, the IJ's removal order, along with his grant of relief from removal, is not "final" as defined under INA § 101(a)(47)(B). See also 8 C.F.R. § 241.1(a). Accordingly, this Court lacks jurisdiction to review the order of removal, and the merits of petitioner's habeas petition should not be addressed.
Finally, petitioner has already been released from INS custody pursuant to an order by this Court. (Dkt. #10). Respondents state that pending the resolution of the IJ's grant of relief from removal, they will not ask this Court to modify its release order, as long as petitioner complies with the terms of his release. (Dkt. #15 at 5). Thus, petitioner will not be prejudiced by dismissal of the habeas petition.
CONCLUSION
Based on the foregoing, the court should DENY petitioner's Petition for Writ of Habeas Corpus without prejudice and should GRANT respondents' motion to dismiss. A proposed order accompanies this Report and Recommendation.