Opinion
No. 03 C 0405.
May 14, 2004
Petitioner Sebastiano Agrusa is a native and citizen of Italy who was admitted to the United States in 1955 as a lawful permanent resident. In 1976, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Agrusa based upon his federal convictions for forgery and counterfeiting in violation of 18 U.S.C. § 471 and 473 for which he was sentenced to a term of incarceration of 10 years. Agrusa's convictions were affirmed after his appeal to the Seventh Circuit was dismissed on October 23, 1975.
Agrusa was charged by the INS as an alien who had been convicted of a crime involving moral turpitude committed within five years of entry and confined to a prison for a year or more. He conceded that he was deportable on this ground, and at his final hearing, the immigration judge held that he was also deportable under § 241(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA") as an alien who was convicted of two or more crimes of moral turpitude not arising out of a single scheme of criminal misconduct, as well as § 241(a)(2)(A)(iii) as an alien who has been convicted of an aggravated felony under § 101(a)(43)(R) of the INA. The immigration judge then held that Agrusa was ineligible for any relief from deportation based upon his convictions. Relying on § 321(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-3546 (Sept. 30, 1996), the immigration judge concluded that Agrusa's offenses constituted aggravated felony offenses regardless of the date of conviction. The immigration judge found that he was ineligible for a waiver of inadmissability under former § 212(c) of the INA, 8 U.S.C. § 1182(c), by virtue of § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). The immigration judge therefore ordered that Agrusa be deported to Italy.
Agrusa appealed this finding to the Board of Immigration Appeals ("BIA"). The BIA dismissed his appeal, affirming the decision of the immigration judge, citing Matter of Burbano, 20 I. N. Dec. 872, 874 (B.I.A. 1994) (noting that adoption of affirmance of a decision of an immigration judge, in whole or in part, is "simply a statement that the Board's conclusions upon review of the record coincide with those the immigration judge articulated in his or her decision"). The BIA observed that Agrusa's conviction did not result from a guilty plea, but rather that he was convicted after a jury trial. Agrusa then filed a Petition for Review before the Seventh Circuit, but that was dismissed as well.
This habeas petition under 22 U.S.C. § 2241 was held in abeyance pending the resolution of Agrusa's Seventh Circuit appeal, and respondents now move to dismiss the case in its entirety. Among other grounds, respondents claim that I do not have jurisdiction to review this petition because Agrusa is no longer in custody of the respondents. They are correct. Section 2241 provides that the writ of habeas corpus "shall not extend to a prisoner unless" he is in "custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(2). Agrusa was not in respondents' custody at the time he filed his petition, nor is he in their custody now. I therefore lack jurisdiction to entertain his petition. See Maleng v. Cook, 490 U.S. 488, 492 (1989) ("While we have very liberally construed the `in custody' requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction."); Miranda v. Reno, 238 F.3d 1156, 1159 (9th Cir. 2001) (no habeas jurisdiction where alien was deported before filing petition because petitioner "is subject to no greater restraint than any other non-citizen living outside American borders."); Campillo v. Sullivan, 853 F.2d 593, 595 (8th Cir. 1988) ("Absent custody by the authority against whom relief is sought, jurisdiction usually will not lie to grant the requested writ.").
Agrusa's response to respondents' motion to dismiss is noticeably devoid of any response to this argument. If I have failed to locate such a response in his brief, I trust that he will bring it to my attention.
For the reasons above, respondents' Motion to Dismiss for Lack of Subject Matter Jurisdiction is GRANTED.