Guzman v. Ashcroft

Full title: ESPERANZA GUZMAN, Plaintiff, v. JOHN ASHCROFT, et al. Respondents

Court: United States District Court, E.D. Pennsylvania

Date published: Jun 30, 2004

Civil Action No. 04-1954 (E.D. Pa. Jun. 30, 2004)

Opinion

Civil Action No. 04-1954.

June 30, 2004

REPORT AND RECOMMENDATION

LINDA CARACAPPA, Magistrate Judge

Now pending before this court is a Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2241(c)(3), by a petitioner currently incarcerated in Berks County Jail, in Berks County, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied without prejudice.

I. PROCEDURAL HISTORY

Petitioner is a citizen and national of the Dominican Republic who became a lawful, permanent resident of the United States on December 7, 1995. On May 23, 2001, petitioner pled guilty to endangering the welfare of a child at Yonkers City Court in Westchester County, New York. He was originally charged with sodomy for forcing a minor to perform oral sex on him in the back of his store.

On December 12, 2003, removal proceedings under the Immigration and Nationality Act (INA) commenced when petitioner was served with a Notice to Appear as a result of his aggravated felony conviction.¹ Under the INA, crimes of domestic violence, stalking, child abuse, child neglect, and child abandonment are classified as aggravated felonies. See §§ 101(a)(43)(A) and 237(a)(2)(E)(i).

1 Petitioner contends that he was served with a Notice to Appear and imprisoned on December 29, 2003.

On March 30, 2004, the Honorable Walter Durling, IJ, issued a written opinion in which he found petitioner not guilty of an aggravated felony under § 101(a)(43)(A), and ordered petitioner's release under a $7,500 bond. The following day, the government stayed the Judge's order by invoking 8 C.F.R. § 1003.19(i)(2) (2003). Petitioner remains in custody, pending a removal hearing before the Board of Immigration Appeals (BIA). All parties were required to submit briefs to the BIA by May 14, 2004.

Petitioner filed the instant petition for Writ of Habeas Corpus on May 5, 2004, challenging the constitutionality of 8 C.F.R. § 1003.19(i)(2). Respondent retorts that petitioner's continued detention pursuant to the above regulation both comports with due process and is consistent with Supreme Court precedent.

II. ADMINISTRATIVE EXHAUSTION

Congress, through its enactment of § 1252(d)(1), requires that all administrative remedies be exhausted before a district court can acquire jurisdiction. See Nyhuis v. Reno, 204 F.3d 65, 69 (3^rd Cir. 2000). "Even when an alien is attempting to prevent . . . deportation proceeding[s] from taking place in the first instance and is thus not, strictly speaking, attacking a final order of deportation . . ., it is well settled that `judicial review is precluded if the alien has failed to avail himself of all administrative remedies,' one of which is the deportation . . . hearing itself." Massieu v. Reno, 91 F.3d 416, 420 (3^rd Cir. 1996).

In the case at bar, the government's appeal is still pending before the BIA. As petitioner has not been issued a final order of removal, he has not exhausted his administrative remedies, which Congress mandates he do before this court can acquire jurisdiction. As a result, this petition must be dismissed without prejudice for want of jurisdiction. Petitioner may refile a petition for Writ of Habeas Corpus after a determination as to removal is made by the BIA.

Therefore, I make the following recommendation:

RECOMMENDATION

AND NOW, this ____ day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED WITHOUT PREJUDICE.