Opinion
02 CV 4417(SJ)
May 13, 2003
JOHN FRASER, Federal Detention Center Oakdale Louisiana for Plaintiff
Steven J. Kim, Esq., ROSLYNN R. MAUSKOPF, Esq., NY, New York, for Respondents
MEMORANDUM AND ORDER
Presently before the Court is the application of Petitioner John Fraser, also known as Andrew Burrell, ("Petitioner") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging his detention by the Immigration and Naturalization Service ("INS") pending his final order of removal He contends that Section 236(c) ("§ 236(c)") of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1226(c), as amended by the Illegal Immigration Reform and Responsibility Act of 1996 ("IIRIRA"), is unconstitutional as applied to him because it mandates his detention without giving him an opportunity to demonstrate that he is not a danger to society or a risk of flight. He also argues that he is eligible for cancellation of removal under Section 212(c) of the INA, 8 U.S.C. § 1182(c) ("§ 212(c)"), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") and IIRIRA, because the INS first initiated removal proceedings against him prior to those amendments. Additionally, he asks this Court to review the conduct and decisions of the Immigration Judge who handled his removal proceedings. For the reasons stated herein, the petition is denied.
BACKGROUND
Petitioner is a native and citizen of Jamaica who became a Lawful Permanent Resident of the United States ("LPR") on May 24, 1990. On August 30, 1995, Petitioner was convicted by this Court, following a jury verdict, of possessing a firearm as a convicted felon in violation of the Armed Career Criminal statute, 18 U.S.C. § 922(g)(1). The felony which served as the predicate offense for the 1995 conviction was a Connecticut state conviction following a guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), whereby he declared himself guilty, but did not make an express admission of guilt. That conviction was later vacated by the Connecticut state court, on the ground that it was illegally obtained. Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("§ 2255") on December 12, 1997. On February 13, 2001, that petition was denied by this Court. Petitioner appealed, and on July 11, 2001, the Second Circuit issued a mandate vacating the District Court's order in part and remanding the action for a new determination of Petitioner's claim that he is actually innocent of violating 18 U.S.C. § 922(g)(1) because his Alford plea does not qualify as a conviction under Connecticut law, and his claim that his sentence violates Apprendi v. New Jersey, 530 U.S. 446 (2000). This Court assigned counsel to brief those issues on behalf of Petitioner. The Court denied Petitioner's § 2255 motion on August 19, 2002. Because Petitioner's claim that an Alford plea does not qualify as a conviction under Connecticut law is an issue of first impression in this Circuit, this Court issued a certificate of appealability. Petitioner's appeal is currently pending before the Court of Appeals for the Second Circuit.
This history was not included in the § 2241 petition. However, this Court presided over Petitioner's federal criminal trial and his § 2255 petition and is familiar with this portion of the record. See United States v. Burrell No. 97 Cr. 319; Burrell v. United States. No. 97 Civ. 7358, 2002 WL 31051594 (E.D.N.Y.Aug. 19, 2002). Petitioner has asked this Court to recuse itself from hearing his § 2241 petition, on the grounds that its consideration of his previous filings might have a "potential damaging effect that might spark because of his familiarity with the petitioner's criminal case, the risk of biasness and prejudicial effect might be inevitable." [sic] (Pet's Reply at 7.) The Court believes that it can consider the constitutionality of § 236(c) without being influenced by prior proceedings involving Petitioner, and thus denies the motion for recusal.
On May 29, 2001, while he was serving his federal sentence for the firearms conviction, Petitioner was served with a Notice to Appear and charged with removability from the United States. (Kim Decl. ¶ 5 Ex. C). On January 23, 2002, an immigration judge found him removable pursuant to 8 U.S.C § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, denied his application for relief under the Convention Against Torture, and ordered him removed from the United States to Jamaica. (Kim Decl. ¶ 8 Ex. E.) Petitioner appealed that decision to the Board of Immigration Appeals ("BIA"), and that appeal remains pending. Petitioner remains in INS custody pursuant to § 236(c) of the INA, which mandates the detention of LPRs in removal proceedings. Petitioner filed the current petition for a writ of habeas corpus on August 7, 2002.
DISCUSSION
I. Jurisdiction and Venue
Federal courts retain jurisdiction to review orders of removal and other habeas corpus petitions under 28 U.S.C. § 2241. See INS v. St. Cyr. 533 U.S. 289, 314 (2001) (rejecting the government's argument that sections of AEDPA and IIRIRA stripped courts of jurisdiction over § 2241 habeas corpus petitions); see also Calcano-Martinez v. INS, 232 F.3d 328, 342 (2d Cir. 2000) (holding that federal courts retain jurisdiction to review "purely legal statutory and constitutional claims"). The Supreme Court recently held that it has habeas jurisdiction over claims involving challenges to detention under § 236(c). Demore v. Hyung Joon Kim, 123 S.Ct. 1708 (April 29, 2003) (publication page numbers not available) (rejecting the argument that 8 U.S.C. § 1226(e) deprived it of jurisdiction over habeas corpus challenges to § 1226(c). However, the scope of jurisdiction does not extend to the review of the agency's factual findings or the Attorney General's discretionary decisions. 8 US.C. § 1252(a)(2)(B)(ii); Sol v. INS. 274 F.3d 648, 651 (2d Cir. 2001). Such discretionary decisions may only be reviewed for violations of the Constitution or laws and treaties of the United States. See Id.; see also 28 U.S.C. § 2241(c)(3). Accordingly, the Court considers only those portions of Petitioner's application alleging constitutional violations.
The United States Attorney argues that Petitioner's case should be transferred to the Western District of Louisiana. The Court must consider two factors in analyzing venue in habeas petitions brought under 28 U.S.C. § 2241: 1) whether the court has personal jurisdiction over the petitioner's custodians, and 2) whether the petitioner satisfies traditional venue considerations. Mojica v. Reno. 970 F. Supp. 130, 165 (RD.N.Y. 1997).
The Court finds that the Attorney General is a proper custodian of an alien detained in any INS facility. See e.g. Alcaide-Zelaya v. McElroy. Nos. 99 Civ. 5102, 99 Civ. 9999, 2000 WL 1616981, at *4-*5 (S.D.N.Y. Oct. 27, 2000) (citing and comparing the conflicting cases in the Eastern and Southern Districts of New York, which have split on the issue of whether the Attorney General is a proper custodian for such cases); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (Attorney General is proper respondent); but see Guerrero-Musla v. Reno. No, 97 Civ. 2779, 1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (Attorney Genera! is not proper respondent); see also Henderson v. INS. 157 F.3d 106, 122-28 (2d Cir. 1998) (thoroughly analyzing, but declining to resolve this "difficult question"). This Court has personal jurisdiction over the Attorney General. See Arias-Agramonte v. Comm'r of INS. No. 00 Civ. 2412, 2000 WL 1617999, at *9 (S.D.N.Y. Oct. 30, 2000).
Traditional venue considerations include 1) the location where the material events took place, 2) where records and witnesses pertinent to the claim are likely to be found, 3) the convenience of the forum for the respondent and petitioner, and 4) the familiarity of the court with the applicable laws. See Henderson. 157 F.3d at 128, n. 25; Alcaide-Zelava, 2000 WL 1616981, at *5; Arias-Agramonte, 2000 WL 1059678, at *9; Mojica, 970 F. Supp. at 165 (E.D.N.Y. 1997).
In the instant case, these considerations favor venue in the Eastern District of New York. Petitioner had no ties to Louisiana, prior to his involuntary transfer by the government to its facility in Oakdale. Although the record is not clear on this point, Petitioner asserts that he is a resident of New York, that he was raised in New York, that his family continues to own property in New York, and that his family continues to live in New York. ("Pet's Objections to the Respondent's Return to Petitioner's Pet. for a Writ of Habeas Corpus" ("Pet's Reply"), at 15-16.) At various times, it appears that he has also resided in Connecticut, and that is the location of his original state conviction, which served as the predicate for his federal conviction. His federal conviction and the events underlying that conviction took place within the Eastern District of New York. This is a particularly important consideration, because the appeal of his § 2255 petition remains pending in the Second Circuit. A ruling favorable to Petitioner on this appeal could reverse the conviction that makes him subject to removability as an alien convicted of an aggravated felony. It is this appeal, in part, that has contributed to the delay in his removal proceedings. Petitioner thus argues that he is entitled to have the claims in his § 2241 petition heard under the law of the Second Circuit. (Pet's Reply at 15.) Although Petitioner's removal proceedings remain pending in Louisiana, this Court does not consider any challenges to those removal proceedings, but only the constitutionality of § 236(c) of the INA. For adjudication of these constitutional claims, the Eastern District of New York is equally as convenient for Respondents as the Western District of Louisiana, and there is no indication that Respondents would be prejudiced by litigating in New York. Thus, the Court finds that venue is proper in the Eastern District of New York.
II Relief Under Section 236(c) of the INA
Congressional passage of AEDPA and IIRIRA in 1996 drastically changed immigration law and the availability of habeas corpus relief for aliens convicted of "aggravated felonies," as expansively defined by the Acts. One provision of IIRIRA, entitled "Detention of criminal aliens," includes § 236(c) of the INA. This section provides that "The Attorney General shall take into custody any alien who . . . (B) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this title." 8 U.S.C. § 1226(c)(1) (emphasis added). Thus, § 236(c) prohibits bail for aliens during the pendency of their removal proceedings. This no-bail provision is in stark contrast to the provisions of § 241(a) of the INA, 8 U.S.C. § 1231 (a), which permits bail hearings for aliens who have already had a final order of removal entered against them, once 90 days has elapsed, so that the individual may present evidence that he or she is not a danger to the community or a risk of flight.
Only one exception to this no — bail requirement is provided: § 236(cX2) allows the release of aliens who are government witnesses or are cooperating in government investigations. Petitioner Fraser does not claim relief under this subsection.
Petitioner contends that § 236(c) violates his substantive and procedural due process rights under the Fifth Amendment of the Constitution because it mandates his detention without giving him the opportunity to show that he is not a danger to the community or a risk of flight, and thus is suitable for release on bail. (Pet. at 14; Pet.'s Reply at 5.) The Supreme Court recently considered this provision, in order to resolve a conflict among the circuit courts, in Demore v. Hyung Joon Kim, Chief Justice Rehnquist, in an opinion joined in relevant part by four other members of the Court, held that the mandatory detention provision of § 236(c) does not violate the Due Process Clause of the Constitution. "Detention during removal proceedings is a constitutionally permissible part of that process." 123 S.Ct. 1708 (publication page references unavailable). Accordingly, this claim is denied.
The Third Circuit upheld a facial challenge to § 236(c), Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001), and the Fourth, Ninth, and Tenth Circuits each held that § 236(c) was unconstitutional as applied to specific petitioner LPRs. Welch v. Ashcroft 293 F.3d 213 (4th Cir. 2002);Hoang v. Comfort, 282 F.3d 1247 (10th Cir. 2002); Kim v. Zielar, 276 F.3d 523 (9th Cir. 2002) (reversed Demore v. Hyung Joon Kim, 123 S.Ct. 1708 (April 29, 2003)). The Seventh Circuit upheld the constitutionality of § 236(c) in Parra v. Perryman. 172 F.3d 954 (7th Cir. 1999).
III. Petitioner's Additional Claims
Petitioner also appears to be asking this Court to consider his claim that he is eligible for a discretionary waiver pursuant to § 212(c) of the INA (Pet. at 8), and that his conviction is not yet final for immigration purposes (Pet. at 2, 7). These claims must be dismissed because they are not yet exhausted. Petitioner must exhaust his administrative remedies prior to seeking judicial review, where such review is available. 8 U.S.C. § 1252(d)(1); see also Carmona v. United States B.O.P., 243 F.3d 629, 631, 634 (2d Cir. 2001) (upholding the requirement of exhaustion of administrative remedies in the context of § 2241 petitions, absent a showing of cause and prejudice);Lleo-Fernandez v. INS, 989 F. Supp. 518, 519 (S.D.N.Y. 1998) ("[A]liens challenging detention by INS must first exhaust administrative remedies before obtaining habeas review."). Thus, the Court may not consider the merits of these claims.
Petitioner also asks this Court to review the conduct and decisions of the Immigration Judge. (Pet. at 6-7, 14.) These procedures and decisions are within the discretion of the Executive Branch and may not be reviewed by this Court. Federal courts may only review a discretionary decision by the INS where the petitioner has asserted a valid claim that his constitutional rights have been violated by the decision — maker. Petitioner does not make out such a claim.
CONCLUSION
For the foregoing reasons, Petitioner's application for a writ of habeas corpus is denied to the extent that he challenges his mandatory detention pursuant to § 236(c) of the IN A. To the extent that Petitioner seeks review of unexhausted claims and the orders of the Immigration Judge, his petition is dismissed. The Clerk of the Court is directed that this Order closes this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued.
SO ORDERED.
JUDGMENT
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on May 19, 2003, denying petitioner's application for a writ of habeas corpus to the extent that he challenges his mandatory detention pursuant to § 236(c) of the Immigration and Nationality Act; dismissing the petition to the extent that petitioner seeks review of unexhausted claims and the orders of the Immigration Judge; and declining the issuance of a Certificate of Appealability; it isORDERED and ADJUDGED that petitioner take nothing of the respondents; that petitioner's application for a writ of habeas corpus is denied; that the petition is dismissed; and that a Certificate of Appealability shall not issue.