Opinion
01-CV-0714E(Sc).
August 19, 2002
MEMORANDUM and ORDER
The decision may be cited in whole or in any part.
Plaintiffs commenced this action October 10, 2001 seeking injunctive and declaratory relief challenging the "policy, pattern, or practice of the Executive Office for Immigration Review (`EOIR') *** to deny unopposed motions filed by the [INS] and aliens in removal/deportation proceedings without stating any findings of fact, any standards of law, any reasons or explanations, or any policy concerns to override the express agreement of the [INS and the alien plaintiffs]." Compl., at ¶ 1. Defendant now moves to dismiss on the ground that, inter alia, this Court lacks jurisdiction because plaintiffs have failed to exhaust their administrative remedies in that plaintiffs currently have pending appeals before the Board of Immigration Appeals ("BIA"). Plaintiff argues in opposition that it does not seek review of the immigration judge's decision — but merely seeks to require the immigration judge to state reasons for his decision in order that such decision may be properly reviewed by the BIA. Defendants' motion to dismiss will be granted.
Plaintiff Jamous applied for naturalization in 1987, pursuant to which she disclosed that she had been incarcerated in a French prison. Compl., at ¶ 14. Deportation proceedings were brought against Jamous in 1988 and were administratively closed in 1992 by agreement of the parties in order for the Immigration and Naturalization Service ("INS") to determine whether it could establish deportability. Ibid. In July 1997 Jamous again applied for naturalization and was denied such because her previous deportation proceeding had been administratively closed rather than terminated. Id. at ¶ 15. On February 23, 2000 Jamous filed an unopposed motion to terminate her deportation proceedings. Id. at ¶ 16. Such was denied the next day by the Immigration Court. Ibid. The INS was subsequently unable to determine which French statute Jamous had violated — an allegedly essential element in determining deportability. Id. at ¶ 18. On March 15, 2001 Jamous filed another motion to terminate deportation proceedings, in which motion the INS joined. Ibid. On the next day the Immigration Court denied such motion without explanation. Id. at ¶ 19. Jamous filed an interlocutory appeal to the BIA on April 3, 2001, but such was denied May 30, 2001. Id. at ¶¶ 20-21.
The Immigration Court's Order stated: "Motion to terminate Deportation proceedings is hereby DENIED."
Plaintiff Eltohami is in deportation proceedings as a result of a criminal conviction; nonetheless, he allegedly remains eligible for permanent resident status if he obtains a waiver of inadmissibility pursuant to section 212(h) of the Immigration Nationality Act. Id. at ¶ 23. On January 29, 2001 the INS filed a motion to terminate removal proceedings against Eltohami, to which Eltohami consented. Id. at ¶ 24. Two days later the Immigration Court denied the motion without explanation. Id. at ¶ 25. Eltohami filed an interlocutory appeal to the BIA, which appeal was denied April 11, 2001. Id. at ¶ 26.
Plaintiffs bring this action seeking an order requiring the Immigration Court to provide reasons for the denials of plaintiffs' jointly made motions to terminate their deportation proceedings. Plaintiffs, however, have appeals pending before the BIA. They are therefore asking this Court to review non-final decisions of the Immigration Court — which this Court must decline to do. Inasmuch as plaintiffs seek relief stemming from the Immigration Court's decision not to terminate plaintiffs' deportation proceedings — this Court lacks jurisdiction to review a non-final order of the Attorney General or one of his delegates. 8 U.S.C. § 1252(d)(1); 8 U.S.C. § 1252(g). Section 1252(g) provides that,
The Attorney General has delegated administrative decision making in immigration matters to the Executive Office of Immigration Review, which in turn delegates such authority to immigration judges and the BIA. 8 C.F.R. § 3.0-3.1; Gonzalez v. I.N.S., 996 F.2d 804, 806 (6th Cir. 1993) (discussing the Attorney General's delegation of his authority to administer the immigration laws).
"[e]xcept as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter." 8 U.S.C. § 1252(g) (emphasis added).
The decisions by the Immigration Court — i.e., the Attorney General's delegate — to deny plaintiffs' requests to terminate their respective deportation proceedings are decisions to adjudicate such proceedings and, as such, are not final orders subject to review by this Court. See 8 U.S.C. § 1252(g); Liu v. I.N.S., 293 F.3d 36, 41 (2d Cir. 2002) (stating that section 1252(g) prohibits aliens from seeking review of "any discretionary decision made by the Attorney General"); 8 U.S.C. § 1252(d)(1) (permitting judicial review only when there is a final order of removal); Barton v. Ashcroft, 152 F. Supp.2d 235, 238 (D. Conn. 2001) ("This Court lacks subject matter jurisdiction over Petitioner's appeal of the Immigration Judge's removal order because that order is not yet final. A removal order does not become final until the BIA affirms the order (or the time for filing an appeal has run).") (citations omitted). Inasmuch as plaintiffs' appeals before the BIA remain pending, they do not here challenge a final order.
Cf. Air Espana v. Brien, 165 F.3d 148, 152 (2d Cir. 1999) (citing Mejia-Ruiz v. I.N.S., 51 F.3d 358, 363 (2d Cir. 1995) for the proposition that, in the deportation context, there is no final agency action until the BIA has ruled or appeal is waived). This Court also lacks jurisdiction inasmuch as plaintiffs have failed to exhaust their administrative remedies before the BIA. Ibid. Indeed, plaintiffs do not suggest that the BIA cannot grant the relief plaintiffs seek — to wit, an order requiring the Immigration Court to provide reasons for the denial of plaintiffs' motions to terminate deportation proceedings.
Furthermore, in Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483 (1999), the Supreme Court held that section 1252(g) is applicable to all deportation proceedings, including those initiated before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IRRIRA"), 110 Stat. 3009-546, was enacted. In so finding, the Supreme Court stated that,
"[t]here was good reason for Congress to focus special attention upon, and make special provision for, judicial review of the Attorney General's discrete acts of `commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders' — which represent the initiation or prosecution of various stages in the deportation process. At each stage the Executive has the discretion to abandon the endeavor ***." Id. at 483-484.
Accordingly, the Immigration Court had the discretion to either terminate or continue proceedings against the plaintiffs. The Immigration Court exercised the discretion delegated to it by the Attorney General to continue the deportation proceedings. This Court lacks jurisdiction to review such discretionary action by the Immigration Court — including the discretion to issue its decisions without explanation. 8 U.S.C. § 1252(g); Reno, at 485 ("Section 1252(g) seems clearly designed to give some measure of protection to `no deferred action' decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed.") (emphasis added). The BIA is the proper tribunal before which plaintiffs should seek — and in fact are seeking — review of EOIR's alleged policy of "no-reason-needed" decisions. Additionally, this matter is not ripe for judicial review inasmuch as plaintiffs' appeals remain pending before the BIA. See Howell v. I.N.S., 72 F.3d 288, 294 (2d Cir. 1995) (Walker J., concurring) (stating that alien's deportation proceeding is not ripe for judicial review until there is a final decision). Indeed, the BIA refused to grant plaintiffs' interlocutory review — and this Court declines plaintiffs' invitation to do so as well.
Moreover, inasmuch as plaintiffs' unopposed motions have already been denied without explanation, they lack standing to request injunctive relief prohibiting the EOIR from permitting the Immigration Court to issue unexplained decisions denying unopposed motions in cases involving other aliens. See Am. Immigration Lawyers Assoc. v. Reno, 199 F.3d 1352, 1357 (D.C. Cir. 2000) (finding that organizations lacked standing to assert claims on behalf of unnamed third party aliens that may be removed under IRRIRA and the Attorney General's implementing regulations and affirming the district court's ruling that individual aliens lacked standing to assert the rights of third parties).
Accordingly, it is hereby ORDERED that defendants' motion to dismiss is granted and that the Clerk of this Court shall close this action.