Opinion
00 Civ. 2647 (HB) (JCF).
April 17, 2001.
REPORT AND RECOMMENDATION
Juan Espinal brings this habeas corpus petition pursuant to 28 U.S.C. § 2241, challenging his potential deportation. Because Mr. Espinal has not exhausted available administrative remedies, the petition should be dismissed.
Background
Juan Espinal is confined in the Marcy Correctional Facility in the custody of the New York State Department of Correctional Services pursuant to a conviction for burglary. (Letter of Krishna R. Patel dated Sept. 28, 2000 ("Patel Letter"), at 3 n. 5). In his original habeas corpus petition, Mr. Espinal named the People of the State of New York as respondent and attached a number of documents indicating that he wished to address some aspect of his immigration status. (Petition for a Writ of Habeas Corpus dated Jan. 14, 2000). Accordingly, then-Chief Judge Thomas P. Griesa directed him to file an amended petition naming a proper respondent and indicating whether he had exhausted administrative remedies. (Order dated March 10, 2000, at 3).
Mr. Espinal then filed his amended petition identifying the superintendent of the Marcy Correctional Facility as the respondent. (Petitioner's Amended Petition dated May 3, 2000 ("Am. Pet."). He also clarified that he is not challenging the burglary conviction pursuant to which he is now in custody. Rather, he seeks to attack removal proceedings brought against him as the result of a 1991 conviction for Criminal Sale of a Controlled Substance in the Third Degree. (Am. Pet. ¶¶ 3-6). Mr. Espinal apparently argues that since the INS failed to deport him in 1991 on the basis of the narcotics conviction, it constitutes double jeopardy for him to be subjected to removal proceedings now on the same ground. (Am. Pet. ¶¶ 6, 11).
Mr. Espinal acknowledges that no order of removal has yet issued, that he has filed no appeal to the Board of Immigration Appeals, and that he has not sought a waiver or other relief from removal. (Am. Pet. ¶¶ 7-9). Consistent with this, the INS has indicated that removal proceedings are still pending. (Declaration of Kay N. Perkins dated Sept. 20, 2000, attached as Exh. E to Patel Letter).
Discussion
The administrative process of removal includes the following steps. First, an immigration judge issues an order of removal. 8 C.F.R. § 240.12. The decision of the immigration judge may then be appealed to the Board of Immigration Appeals ("BIA"). 8 C.F.R. § 3.38, 240.15. If the order of removal is not appealed or if the BIA approves it, the order becomes final and the alien may be removed. 8 C.F.R. § 3.1(b), 3.1(d)(3), 3.38, 3.39, 240.14. Under Section 242(d) of the Immigration and Nationality Act, 8 U.S.C. § 1252(d)(1), a court lacks jurisdiction to hear a challenge to an order of removal unless these procedures have been exhausted. See Castro-Cortez v. Immigration and Naturalization Service, 239 F.3d 1037, 1044 (9th Cir. 2001); Remoi v. Immigration and Naturalization Service, No. 99 Civ. 1546, 2001 WL 225240, at *5 (S.D.N.Y. March 2, 2001); Zambra v. McElroy, No. 98 Civ. 3515, 1999 WL 163565, at *2 (S.D.N.Y. March 24, 1999).
In this case, the administrative process has not been completed; indeed it has merely begun. While removal proceedings have been instituted, no order of deportation has issued, and there has obviously been no appeal and no decision by the BIA following such an order. Accordingly, the petitioner has not met the exhaustion requirements, and this Court lacks jurisdiction to review his claim on the merits.
Conclusion
For the reasons set forth above, I recommend that Mr. Espinal's habeas corpus petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Harold Baer, Jr., Room 2230, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.