Opinion
3:00cv2744-P.
February 28, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type Case: This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Parties: Petitioner Abhay S. Chauhan ("Chauhan") is a deportable alien presently detained at the Johnson County Jail in Cleburne, Texas. Respondent is the Immigration and Neutralization Service (INS).
Procedural History: Petitioner, a forty-one year old native and citizen of India, entered the United States as an immigrant on August 26, 1975, based on an immediate relative visa petition filed on behalf of his permanent resident father.
On July 29, 1996, Chauhan was twice convicted of Assault with Bodily Injury-Family Member in County Criminal Court Number Four of Tarrant County, Texas. He was sentenced to 30 days in the Tarrant County Jail and fined $200 on both convictions. On May 5, 1997, Chauhan was convicted a third time for Assault with Bodily Injury-Family Member and received a 40-day jail sentence. On September 24, 1999, Petitioner was convicted of Assault with Bodily Injury-Family Member, after two prior convictions. He was sentenced to 20 months imprisonment.
Chauhan has also been arrested for Violating a Protective Order by Trespass on May 21, 1997, and Violating a Protective Order by Assault on December 7, 1997. The records submitted with the response do not indicate the disposition of these cases.
On May 8, 1997, Respondent issued a Notice to Appear to Chauhan charging him with two convictions of crimes of moral turpitude not arising out of a single scheme of criminal misconduct. An additional charge was lodged on June 26, 1997, for conviction of a crime of domestic violence. Another charge was lodged on October 26, 1999, based on the September 24, 1999, conviction, alleging removability as an aggravated felon for conviction of a crime of violence under § 237(a)(2)(A)(iii), [ 8 U.S.C. § 1227(a)(2)(A)(iii)], as defined in § 101(a)(43)(F)[ 8 U.S.C. § 1101(a)(43)(F)], and as further defined in 18 U.S.C. § 16.
On November 29, 1999, Chauhan appeared with counsel before an Immigration Judge and was ordered removed to India as an aggravated felon. The Immigration Judge found that the Petitioner had been convicted on each of the offenses alleged. The Immigration Judge also specifically found that the Petitioner's September 24, 1999, conviction for Assault with Bodily Injury-Family Member, after two prior convictions, was clearly an aggravated felony crime of violence, which precluded Chauhan from eligibility for any relief from removal, including cancellation of removal under § 240A of the INA [ 8 U.S.C. § 1229b]. See § 240A(a)(3)[ 8 U.S.C. § 1229b(a)(3)].
Chauhan did not file a direct appeal to the Board of Immigration Appeals (BIA). Instead, on December 14, 1999, he filed a motion for reconsideration before the Immigration Judge, arguing that his conviction was "wrongfully understood" by the Immigration Judge, i.e., it was not an aggravated felony. This motion was denied by the Immigration Judge, and affirmed by the BIA on May 30, 2000. Thereafter, Petitioner filed a petition for review with the Fifth Circuit Court of Appeals which dismissed it on September 13, 2000, for lack of jurisdiction. Chauhan was thereafter taken into INS custody for removal from the United States. He filed the instant petition on December 20, 2000.
Findings and Conclusions: Because the INS proceedings at issue here began after April 1, 1997, IIRIRA applies. The court, therefore, uses the new statutory terminology of "removal" rather than "deportation" and cites to the current provision of Title 8, avoiding the complex transition issues that affect some older cases. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936 (1999).
The Respondent first asserts that this court lacks jurisdiction over this claim. Subject matter jurisdiction is a threshold question in any dispute in federal court. Section 242(a)(2)(C)[ 8 U.S.C. § 1252(a)(2)(C)] provides that "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [INA] section 212(a)(2) [ 8 U.S.C. § 1182] or 237(a)(2)(A)(iii), (B), (C), or (D) [ 8 U.S.C. § 1227], or any offense covered by section 237(a)(2)(A)(ii) for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 237(a)(2)(A)(i)."
Following the enactment of IIRIRA, two sets of jurisdictional rules were made available to govern immigration proceedings. The "transitional rules" apply to removal proceedings commenced before April 1, 1997, and which ended more than thirty days after September 30, 1996, the enactment date of the IIRIRA. Max-George v. Reno, 205 F.3d 194, 197 (5th Cir. 2000). The permanent jurisdictional rules apply to cases commenced after April 1, 1997. Id. at 197 n. 3. Since the notice to appear was issued to Petitioner on May 8, 1997, the permanent jurisdiction rules apply.
Although, the Fifth Circuit has held that district courts retain statutory habeas corpus jurisdiction under 28 U.S.C. § 2241 for transitional rule cases, e.g., Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999), such review is abolished for permanent rule cases, such as this one. See Max-George, supra, 205 F.3d at 198. Therefore, this court is without jurisdiction to consider Petitioner's claims.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the § 2241 petition for writ of habeas corpus be DISMISSED for want of jurisdiction.
A copy of this recommendation shall be transmitted to Movant and to counsel for the government.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Assn., 79 F.3d 1415 (5th Cir. 1996) ( en banc) a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.