Opinion
Case No.: 00-73353.
August 21, 2001
OPINION AND ORDER DENYING PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS
I. BACKGROUND
This matter is before the court on petitioner, Vladimir Lemeshko's application for habeas corpus under 28 U.S.C. § 2241. Petitioner is a native of the Ukraine who was admitted to the United States as a refugee on October 24, 1989. On October 31, 1990, petitioner obtained permanent resident status. On February 8, 1996, petitioner was convicted in tile Oakland County Circuit Court of attempted false pretenses over $100, in violation of M.C.L.A. § 750.21 8-B(A), a felony. On April 15, 1996, petitioner was sentenced to one year probation. On April 8, 1998, petitioner was convicted of two separate felony offenses of uttering and publishing in violation of M.C.L.A. § 750.249. On April 22, 1998, petitioner was sentenced, under Michigan's habitual offender statute, M.C.L.A. § 769.10, to one year in jail, to be followed by a term of two years probation.
On February 24, 1999, petitioner was found guilty of violating both the April 15, 1996 and April 22, 1998 orders of probation. Petitioner was sentenced to one to five years in the Michigan Department of Corrections for violating the 1996 probation, and to one to twenty-one years for violating the 1998 probation.
On March 1, 2000, the Immigration and Naturalization Service ("INS") issued to petitioner a "Notice to Appear," alleging that he was subject to removal (1) pursuant to the Immigration and Nationality Act (the "INA") § 237(a)(2)(A)(ii), 8 U.S.C. § 1227(a)(2)(A)(ii), because he had been convicted of at least two crimes of moral turpitude not arising out of a single scheme, and (2) pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of an aggravated felony — a theft offense for which the term of imprisonment is at least one year. Thus, pursuant to INA § 236(c), following petitioner's release from the Michigan Department of Corrections on July 10, 2000, the INS took petitioner into custody and lodged him at the Monroe County Jail pending further removal proceedings.
On July 28, 2000, petitioner filed the instant application for writ of habeas corpus under 28 U.S.C. § 2241. Petitioner's application alleges that INA § 236(c) (e) are unconstitutional as they violate his due process and equal protection rights. Pet'r App. p. 5. Petitioner's application also argues that he cannot return to his native Ukraine as he is no longer a Ukrainian citizen and fears persecution upon his return. Id. Finally, petitioner seems to argue that INA § 237(a)(2)(A)(ii) (iii) do not apply to him because his "crimes are not of violence . . . they are of financial nature." Id.
Removal proceedings were held before Immigration Judge Miriam K. Mills on September 14, 2000. Petitioner was ordered removed, and his application for withholding of removal under the Convention Against Torture was denied. Petitioner waived appeal of the Immigration Judge's decision. On September 18, 2000, the INS issued a Warrant of Removal/Deportation. However, petitioner was not removed during the 90-day mandatory removal period provided in INA § 241(a)(1)(A), 8 U.S.C. § 1231(a)(1)(A). After that period passed without petitioner's removal, the United States Department of Justice issued an "Order of Supervision," dated December 22, 2000. The Order of Supervision states:
Because the Service has not effected your deportation or removal during the period prescribed by law, it is ordered that you be placed under supervision and permitted to be at large under the following conditions:
That you appear in person at the time and place specified, upon each and every request of the Service, for identification and for deportation or removal.
Thus, petitioner is currently not in the custody of the INS.
II. PETITIONER'S APPLICATION FOR WRIT OF HABEAS CORPUS
(A) Challenge to INA §§ 236(c) (c)
Petitioner's application for writ of habeas corpus challenges the constitutionality of INA §§ 236(c) (e), 8 U.S.C. §§ 1226(c) (e). Section 236(c) provides that the Attorney General "shall take into custody any alien who . . . (c) is deportable by reason of having committed any offense covered in section 1227(a)(2)(A)(ii), (A)(iii) . . ." Section 236(e) provides that the "Attorney General's discretionary judgment regarding the application of this section shall not be subject to review." Thus, these statutes relate to the INS's physical detention by the INS of a deportable alien awaiting deportation.
As noted above, INA § 241(a)(1) provides that "the Attorney General shall remove the alien from the United States within a period of 90 days," the "removal period." However, in this case, the "90-day removal period" expired without petitioner's removal or deportation. Rather than seeking petitioner's continued detention, the INS released petitioner by issuing an Order of Supervision pursuant to INA § 241(a)(6), 8 U.S.C. § 1231 (a)(6). Thus, petitioner's challenge to the INS's right to detain him pending final removal is moot, and the court need not decide the merits of petitioner's constitutional challenge.
(B) Petitioner's Remaining Claims
Petitioner has two remaining claims: 1) he cannot return to the Ukraine because he will suffer persecution and has been stripped of his Ukrainian citizenship; and 2) INA §§ 237(a)(2)(A)(ii) (iii) are inapplicable to his case. Because Petitioner is no longer being detained, these claims are moot, and the court need not decide their merits.
III. CONCLUSION
For the reasons stated above,
IT IS ORDERED that petitioner's request for a writ of habeas corpus is denied.