Opinion
NO. 3-03-CV-0682-BD
April 21, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Christopher Ukadike, by and through his attorney of record, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application is denied.
I.
Petitioner is a native and citizen of Nigeria who lawfully entered the United States as a student in 1983. (Hab. Pet. at 3, ¶ 6). On March 7, 1989, he was granted lawful permanent resident alien status on a conditional basis based on his marriage to an American citizen. ( Id. at 3, ¶ 7; Resp. Ans., Exh 1). Petitioner and his wife divorced on March 1, 1991. Two weeks after his divorce was final, petitioner applied for a waiver of the requirement to file a joint petition to remove the conditions on his resident status pursuant to section 216(c)(4) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1186a. (Resp. Ans., Exh. 2). The application was denied at the administrative level and petitioner was placed in deportation proceedings. ( Id., Exh. 3). On April 7, 1993, an immigration judge denied petitioner's application for a section 216(c)(4) waiver and ordered him deported to Nigeria. ( Id., Exh. 5). Although the judge found that petitioner was in a born fide marriage with his former wife and was not at fault in terminating the marriage, he denied the waiver request as a matter of discretion based on evidence that petitioner had a reputation for involvement with credit card fraud. ( Id., Exh. 5 at 9, 11-15). Indeed, petitioner was convicted on state charges of credit card abuse shortly after his deportation hearing.
Petitioner married for the first time on January 14, 1985. However, his wife tragically died three months later. Petitioner remarried on June 17, 1988 and sought an adjustment of status based on his second marriage. (See Hab. Pet. at 3, ¶ 6 7).
Section 241(a)(1)(D)(i) of the INA provides, in relevant part:
Any alien . . . in and admitted to the United States shall, upon order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
— Any alien with permanent resident status on a conditional basis under section 1186a of this title (relating to conditional permanent resident status for certain alien spouses and sons and daughters) or under 1186b of this title (relating to conditional permanent resident status for certain alien entrepreneurs, spouses, and children) who has had such status terminated under such respective section is deportable.8 U.S.C. § 1227 (a)(1)(D)(i).
Petitioner timely appealed this decision to the Board of Immigration Appeals ("BIA"). While his appeal was pending, the state appellate court reversed petitioner's credit card abuse conviction for insufficient evidence and entered a judgment of acquittal. (Hab. Pet., Exh. 4). The BIA then remanded the deportation case for consideration of this new evidence. In re Ukadike, No. A29 572 511 (BIA Aug. 12, 1998). On remand, the immigration judge once again denied a section 216(c)(4) waiver and ordered petitioner removed to Nigeria. (Resp. Ans., Exh. 6). This time, the BIA affirmed the removal order. In re Ukadike, No. A29 572 511 (BIA Sept. 23, 2002). A motion to reopen the proceedings was denied. In re Ukadike, No. A29 572 511 (BIA Mar. 17, 2003). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241.
II.
In his sole ground for relief, petitioner contends that his removal hearing was fundamentally unfair because the immigration judge misinterpreted the law in a way that affected the outcome of the proceedings. More particularly, petitioner claims that the judge abused his discretion in denying a section 216(c)(4) waiver based on his purchase of stolen credit cards — a charge of which he was eventually acquitted.
Respondent counters that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIJA"), Pub.L. 104-208, 110 Stat. 3009, deprives the court of jurisdiction to review any action by the Attorney General to execute the removal order. The court will address the jurisdictional issue first.
A.
The IIRIRA attempts to limit, or in some cases eliminate, judicial review in immigration cases. See 8 U.S.C. § 1252 (a) (b). This statute provides, in relevant part:
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.Id. § 1252(g). The plain language of this statute applies to actions by the Attorney General to "execute removal orders." However, petitioner is not challenging the execution of the order deporting him to Nigeria. Instead, he complains that the order is invalid because the immigration judge erroneously interpreted the law in denying his application for a section 216(c)(4) waiver. A federal district court has habeas jurisdiction to consider such a claim. INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001) (statutory changes wrought by IIRIJA did not repeal habeas jurisdiction under 28 U.S.C. § 2241). See also Cano-Miranda v. Ashcroft, 262 F.3d 477, 478 (5th Cir. 2001) (recognizing that St. Cyr overruled prior case law); Fabuluje v. INS, 2001 WL 1597812 at *2 (N.D. Tex. Dec. 11, 2001) (Kaplan, M.J.) (same).
B.
The gravamen of petitioner's complaint is that the immigration judge abused his discretion in denying a section 216(c)(4) waiver based on evidence regarding his purchase of stolen credit cards. Because petitioner was eventually acquitted of credit card abuse, he maintains that any reliance by the judge on this alleged criminal conduct rendered the removal proceeding fundamentally unfair.
Section 216(c)(4) of the INA provides, in relevant part:
The Attorney General, in the Attorney General's discretion, may remove the conditional basis of the permanent resident status for an alien . . . if the alien demonstrates that —
(A) extreme hardship would result if such alien is removed,
(B) the qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage has been terminated (other than through the death of the spouse) and the alien was not at fault in failing to meet the requirements of paragraph (1), or
(C) the qualifying marriage was entered into in good faith by the alien spouse and during the marriage the alien spouse or child was battered by or was the subject of extreme cruelty perpetrated by his or her spouse or citizen or permanent resident parent and the alien was not at fault in failing to meet the requirements of paragraph (1).
In determining extreme hardship, the Attorney General shall consider circumstances occurring only during the period that the alien was admitted for permanent residence on a conditional basis. In acting on applications under this paragraph, the Attorney General shall consider any credible evidence relevant to the application.8 U.S.C. § 1186a(c)(4). As petitioner recognizes, the decision whether to grant or deny a section 216(c)(4) waiver is discretionary. In order to obtain habeas relief, petitioner must establish that the immigration judge failed to exercise his discretion in accordance with federal law or did so in an unconstitutional manner. See Gutierrez-Chavez v. INS, 298 F.3d 824, 828-29 (9th Cir. 2002); Steinhouse v. Ashcroft, ___ F. Supp.2d ___, 2003 WL 678602 at *3 (D. Conn. Feb. 26, 2003) (habeas jurisdiction under section 2241 is limited to review of purely legal claims).
At his deportation hearing held on April 7, 1993, petitioner testified that he married Willia Mae Finch on June 7, 1988. Almost immediately, his wife began to "run around" and engage in conduct with other men that was inconsistent with her marriage. The couple separated in December 1989 and divorced in March 1991. Petitioner said that he still loves his former wife and that they visit each other from time to time. (Resp. Ans., Exh. 5 at 4). He also admitted his arrest and indictment for credit card abuse in 1992. According to petitioner, he was indicted with another person named "Donald" who he met at a local club. Petitioner did not testify in detail about the factual basis of the criminal charge, but denied that the subject credit cards were ever in his possession. ( Id., Exh. 5 at 5).
William Craig, a detective with the Dallas Police Department, also testified at the hearing. Craig said that he participated in a "sting" operation involving the sale of stolen credit cards. An undercover postal inspector met with petitioner and another person to sell them credit cards that were allegedly stolen from the mail. During this pre-arranged encounter, Craig testified that petitioner examined the credit cards and actively participated in the transaction. Money was paid to the postal inspector by petitioner's companion who took possession of the credit cards. As petitioner and his companion were leaving the scene, they were arrested by the police. ( Id., Exh. 5 at 5-6). Craig told the judge that petitioner had a reputation for involvement with credit card fraud and was targeted because of his reputation. ( Id., Exh. 5 at 7).
Although the immigration judge found that petitioner was involved in a bona fide marriage with Willia Mae Finch and that he was not at fault in terminating the marriage, he denied petitioner's request for a section 216(c)(4) waiver as a matter of discretion. In reaching this decision, the judge noted that:
[Petitioner] does not have a criminal record, he does not have any convictions. He does have a pending charge arising out of a transaction in 1992. The circumstances of that have led me to conclude that the [petitioner] has not demonstrated that he possessed good moral character, at least during 1992, or that part of it that related to the purchase of credit cards from the Postal inspector working undercover. [Petitioner] has a reputation of being involved in such type of misconduct.
( Id., Exh. 5 at 13-14).
Sometime after this decision was announced, petitioner was convicted of credit card abuse. His conviction was later reversed on direct appeal because there was no evidence that the credit cards were stolen as alleged in the indictment. Ukadike v. State, No. 11-94-092-CR, op. at 2 (Tex.App.-Eastland, Feb. 8, 1996). On remand from the BIA, the immigration judge addressed the effect of this new evidence on his prior decision:
Under Texas law, a person commits the offense of credit card abuse if:
[H]e steals a credit card or debit card or, with knowledge that it has been stolen, receives a credit card or debit card with intent to use it, to sell it, or to transfer it to a person other than the issuer or the cardholder.
TEX. PENAL CODE ANN. § 32.31(b)(4) (Vernon 1994) (emphasis added).
On April 7, 1993, I was of the opinion that the [petitioner] could not be held to be a person ineligible for good moral character finding because of Section 101(a)(t) of the Act. I felt that he had not been convicted and that there was no conviction before the Court on April 7, 1993. So these after the fact convictions that are a concern to the Board of Immigration Appeals obviously had no impact on the April 7, 1993, case.
My opinion relative to the [petitioner's] good moral character which I've considered relevant to the issue of whether or not he should get relief is a matter of discretion is spelled out in some detail on page 11 of the April 7, 1993, decision of the Immigration Judge. I discussed the fact that the officer had testified that the [petitioner] had a reputation of being involved in the use of credit cards illegally and that he was believed to be a person who engaged in criminal conduct. I also considered the testimony that the officers watched the man use the card that he thought was stolen although it wasn't actually stolen. It was provided to him by a law enforcement agency.
My view that this information reflects a lack of good moral character is unchanged whether his subsequent prosecution was successful or not. I knew that the card was not stolen when I rendered the April 7, 1993, decision.
My attitude toward the ultimate decision remains unchanged because on April 7, 1993, I had no way of knowing if he was going to be convicted or not and the fact that he was not convicted because the card wasn't stolen doesn't change the circumstances that existed on April 7th. My decision is the same as it was then. At that time I felt that he was not entitled to relief as a matter of discretion. I've considered the circumstances involving the undercover sting operation along with all other factors that are of record and as I look at the case now in 1999, I see that there's little or no change in the circumstances.
(Resp. App., Ex. 6 at 3-5).
It is clear from the record that the immigration judge did not base his decision on petitioner's criminal conduct or his conviction for credit card abuse. Rather, the judge exercised his discretion to deny a section 216(c)(4) waiver because petitioner lacked good moral character. As the BIA noted, "[i]t was not inappropriate for the Immigration Judge to rely upon evidence of the [petitioner's] culpable, but non-criminal, conduct when assessing whether he merited a favorable exercise of discretion." Ukadike, No. A29 572 511, op. at 2. While petitioner may disagree with this decision, he has failed to prove that the immigration judge misinterpreted the law or that his removal proceeding was fundamentally unfair. See Carranza v. INS, 277 F.3d 65, 71-72 (1st Cir. 2002) (noting that alien has constitutional right to process but not to particular result).
CONCLUSION
Petitioner has failed to state a cognizable claim for federal habeas relief. Accordingly, his application for writ of habeas corpus is denied.
SO ORDERED.