Opinion
CIVIL ACTION NO. CCB-01-3159
May 4, 2004
MEMORANDUM
I. Introduction
Petitioner Ablavi Malm ("Malm"), a native and citizen of Togo, filed this 28 U.S.C. § 2241 petition for writ of habeas corpus through counsel, seeking review of the time and numerical limitations found under 8 C.F.R. § 3.2(c)(2) (2000), to deny her motion to reopen her requests for asylum and protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). Petitioner claims that the application of § 3.2(c)(2) to her case violates her constitutional rights under the Due Process Clause, as well as the treaty and statutory obligations of the United States to uphold provisions of the CAT.
See 8 C.F.R. § 208.16, et seq. or Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"). Article 3 provides that a signatory nation will not expel, return or extradite a person to another country where there are substantial grounds for believing that he would be in danger of being subjected to torture. Article 3 of the CAT was implemented by the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA").
According to the petition, Malm entered the United States on October 29, 1994, on a visitor's visa. She applied for political asylum on October 20, 1997, upon her proffer that she had previously been raped and tortured at the hands of the government officials in her native Togo for pro-democracy political activities. A hearing on her asylum request was scheduled for April 15, 1998. Malm claims that on April 15, 1998, a hearing was held in absentia and the Immigration Judge denied her asylum request based upon her failure to appear, found her subject to removal as charged, and ordered her removed from the United States.
The basis for the charges of removability will be discussed later in this opinion.
Petitioner claims that the legal representative hired to assist her in filing her asylum claim negligently failed to notify the Immigration and Naturalization Service ("INS") or the Immigration Court of her change of address. She asserts that she did not attend the April 15, 1998 hearing because she did not receive notice of the proceeding.
The petition indicates that Malm moved to reopen the asylum proceedings on July 24, 1998, based upon the claim of inadequate representation arising from the failure to notify the INS and the Immigration Court of her change of address. On September 10, 1998, the Immigration Judge denied the motion to reopen, finding that there were no exceptional circumstances which prevented Malm from attending the hearing and that the motion had been filed out of time, more than 90 days after her hearing. Petitioner appealed the decision to the Board of Immigration Appeals ("BIA") under the established ineffective assistance of counsel standards. On February 7, 2000, the BIA denied the appeal, finding that ineffective assistance of counsel rules and standards did not apply because Malm's legal representative was not an attorney or someone authorized to practice before the INS or the BIA. Malm's appeal to the United States Court of Appeals for the Fourth Circuit was dismissed as untimely as it was filed past the 30-day deadline. See 8 U.S.C. § 1252(b)(1).
See Matter of Lozada, 19 I. N. Dec. 637, 639 (BIA 1988). Lozada set out the standards for reopening or reconsidering an immigration ruling upon a claim of ineffective assistance. It requires that: (1) the motion be accompanied by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.
According to the petition, on May 26, 2000, Malm filed a motion to reopen to apply for asylum and for relief under Article 3 of the CAT with the BIA. On September 28, 2000, the BIA denied petitioner's motion to reopen, citing to § 3.2(c)(2) and concluding that Malm had already used her "one bite of the apple" to seek review of her ineffective assistance of counsel claim regarding her asylum proceeding and that her May 26, 2000 motion was untimely because it was filed more than 90 days after the administrative decision.
8 C.F.R. § 3.2(c)(2) (2000) provides, in part that "except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened . . ." These limitations were enacted as part of the 1996 reforms to immigration law under the Illegal Immigration Reform and Immigrant Responsibility Act. See 8 U.S.C. § 1229a(c)(6). The former § 3.2(c)(2) currently is codified at 8 C.F.R. § 1003(2)(c)(2).
Malm appealed the denial of her motion to reopen to the Fourth Circuit. On August 10, 2001, the Fourth Circuit affirmed the BIA denial of her motion to reopen. The instant petition was subsequently filed in this court.
According to District Counsel for the Department of Homeland Security, Immigration Customs Enforcement, petitioner was released from custody on an order of supervision on July 6, 2000. She is subject to monthly reporting requirements.
Respondent filed a return to the petition and petitioner has filed a reply. For reasons to follow, habeas corpus relief shall be denied without oral hearing.
II. Procedural History
According to the record, petitioner was admitted to the United States on or about October 29, 1994, on a six-month non-immigrant visa. In effect, Malm was only authorized to remain in the United States for a temporary period not to exceed April 28, 1995. On February 4, 1998, the INS served Malm with a Notice to Appear, charging her with remaining in the United States longer than permitted, in violation of Immigration and Naturalization Act ("INA") § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). (Paper No. 4 at Ex. A.) Petitioner was notified that her removal proceedings would be held on April 15, 1998. ( Id.) She did not appear for her hearing. Immigration Judge Bruce Barrett held that, in the absence of any showing of good cause for her failure to appear, Malm had abandoned any and all claims for relief from removal. ( Id. at Ex. B.) Malm was ordered removed from the United States to Togo on April 15, 1998. ( Id.)
On July 24, 1998, counsel for petitioner filed a motion to reopen her removal proceedings and requested a stay of deportation. ( Id. at C.) On September 10, 1998, Judge Barrett denied the government-opposed motion to reopen. ( Id. at D.) The Judge concluded that the notice to appear had been sent to the address provided by Malm and that she had not shown that a change of address was properly filed with the INS. ( Id.) In addition, Judge Barrett concluded that petitioner had failed to establish exceptional circumstances for her non-appearance and that the motion to reopen had not been filed until the 90-day period set out in § 3.2(c)(2) had elapsed. ( Id.)
The basis of the motion to reopen related to petitioner's claim that a paralegal working on her asylum case had failed to inform immigration authorities of her change of address and she did not receive the notice to appear. (Paper No. 4, Ex. C at 2.)
Malm appealed the denial of her motion to reopen to the BIA. On February 7, 2000, the BIA dismissed the appeal. ( Id. at Ex. E.) It found that notice was properly sent to the petitioner's last known address and that Malm had not shown that ineffective assistance of counsel resulted in her failure to file a change of address. ( Id.) The BIA further held that the petitioner had not complied with the Matter of Lozada requirements because it was evident that the legal representative who was allegedly involved in a "breach of responsibility" was not "an attorney or someone authorized to practice before the Service or the Board." ( Id.) Malm filed a petition for review with the Fourth Circuit. On March 24, 2000, the Fourth Circuit granted the government's motion to dismiss the 8 U.S.C. § 1252(b) petition and denied Malm's motion to stay deportation. See Malm v. INS, CA-00-1281.
A review of the Fourth Circuit's docket further reveals that on March 30, 2000, counsel for Malm filed a petition for writ of mandamus and a motion for stay pending appeal. See In re Ablavi Malm, CA-00-1849. The petition was voluntarily dismissed pursuant to FRAP 42(b) on July 10, 2000.
On May 26, 2000, petitioner filed a second motion to reopen her removal proceedings and requested an emergency stay of removal, this time to apply for asylum and for benefits and relief under CAT. ( Id. at Ex. F.) Malm argued that as the INS Asylum Office, the Immigration Court or the BIA had not adjudicated the merits of the aforementioned asylum and CAT claims, justice required that she be provided a full hearing on her applications. ( Id.)
In a decision dated September 28, 2000, the BIA reviewed the record and found that Malm's motion to reopen was properly denied under § 3.2(c)(2). ( Id. at G.) It concluded that the motion exceeded the numerical limitations and had been filed out of time. The BIA further held that Malm had not demonstrated that her motion fell within the exception noted at § 3.2(c)(3)(ii) because: (1) her asylum application and a statement from a retired foreign officer were dated from 1998; (3) an affidavit from a family member related to facts that were previously available or were not shown to be previously unavailable; and (3) evidence of "recent origin" did not substantiate petitioner's claim of "changed circurnstances,"merely reflecting a continuation of Togo's poor record on human rights. ( Id.) Finally, the BIA rejected the petitioner's argument that the time and numerical restrictions found at § 3.2(c)(2) and 8 C.F.R. § 208.18(b) did not apply in the case of a treaty-based remedy, such as the CAT. ( Id.) It found that it was bound by such regulations, which clearly applied to Malm's case and precluded her second motion to reopen. ( Id.)
§ 3.2(c)(3)(ii) provides an exception or waiver from the time and numerical restrictions found under § 3.2(c)(2), provided the motion to reopen is based on "changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing."
This provision provides, in part, that aliens who were subject to an order of deportation, exclusion or removal that became final prior to March 22, 1999, could move to reopen proceedings for purposes of seeking protection under CAT, without application of the time and numerical limitations on motions to reopen, if the motion was filed by June 21, 1999.
On or about October 27, 2000, counsel for Malm filed a petition for review with the Fourth Circuit. The Circuit subsequently affirmed the BIA denial of the second motion to reopen petitioner's removal proceedings on August 10, 2001. The Fourth Circuit, as more fully discussed below, concluded that (1) petitioner had not been denied a fair opportunity to present her claims under CAT by the denial of her second motion to reopen for failure to adhere to the numerical and time limitations on motions to reopen; (2) the application of the limitations was not contrary to CAT and FARRA; and (3) the BIA's application of the limitations to claims under CAT is a reasonable interpretation of FARRA, and therefore entitled to deference. See Malm v. INS, 16 Fed. Appx. 197, 2001 WL 901271 (4th Cir. 2001).
Analysis
Two primary questions are presented to the court: (1) may it take habeas subject matter jurisdiction over the issues of whether the BIA application of the § 3.2(c)(2) numerical and time restrictions deprived Malm of her Fourteenth Amendment right to a full and fair hearing on her CAT and asylum applications and was contrary to FARRA and CAT, and (2) is the petitioner estopped from presenting her claims in light of prior Fourth Circuit rulings? The Illegal Immigration Reform and Immigrant Responsibility Act promulgated INA § 242(b)(9), 8 U.S.C. § 1252(b)(9). This provision provides that:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.
In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court held that the language in INA § 242(b)(9) did not explicitly mention habeas corpus review and that the subsection was insufficient to bar federal district court habeas corpus jurisdiction. Id. at 313-14. In sum, St. Cyr holds that federal district courts retain 28 U.S.C. § 2241 jurisdiction over pure questions of law. The St. Cyr court, however, seemingly limited its jurisdictional holding by stating that:
The Supreme Court held that the purpose of § 242(b)(9) was to consolidate "judicial review" of immigration proceedings into one action in the court of appeals, but applied only with respect to review of an order of removal under subsection § 1252(a)(1). It found that § 242(b)(9), by its own terms, does not bar habeas jurisdiction over removal orders not subject to judicial review under § 1252(a)(1). St. Cyr, 533 U.S. at 313.
"If it were clear that the question of law could be answered in another judicial forum, it might be permissible to accept the INS' reading of § 1252. But the absence of such a forum, coupled with the lack of a clear, unambiguous, and express statement of congressional intent to preclude judicial consideration on habeas of such an important question of law, strongly counsels against adopting a construction that would raise serious constitutional questions."Id. at 314.
Respondent further argues that there is additional language in St Cyr that suggests that the concerns as to the suspension of habeas corpus review of questions of law are not present where an alien has full access to judicial review in the court of appeals. See St. Cyr, 533 U.S. at 314 n. 38. 10
Holdings subsequent to St. Cyr generally have reaffirmed federal court subject matter habeas jurisdiction over final removal orders brought by aliens facing removal to the extent that those petitions are based on "colorable claims of legal error, that is, colorable claims that an alien's statutory or constitutional claims have been violated." Carranza v. Immigration and Naturalization Service, 211 F.3d 65, 71 (1st Cir. 2002); see also Liu v. INS, 293 F.3d 36, 39-41 (2d Cir. 2002); Bejacmar v. Ashcroft, 291 F.3d 735, 738 (11th Cir. 2002)(§ 242(b)(9) does not bar habeas jurisdiction over final removal orders which are not subject to judicial review); Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir. 2001).
I observe that in discussing St. Cyr, the Fourth Circuit has indicated that the Supreme Court ruling was premised, in part, on the reasons that Congress did not make a plain statement revoking habeas jurisdiction and "because there was no other available forum to adjudicate the purely legal question at issue." Smith v. Ashcroft, 295 F.3d 425, 428 (4th Cir. 2002).
Malm claims that the strict application of the numerical and time restrictions of § 3.2(c)(2) to the filing of her second motion to reopen denied her due process and were contrary to the intent of FARRA and CAT. She asserts that she was denied the opportunity to present her CAT and asylum applications before the immigration courts for a full and fair review. Malm was, however, afforded judicial review of these issues in the court of appeals.
Malm filed an appeal of the BIA's denial of her second motion to reopen. The matter was fully briefed and heard on oral argument. Upon review of the appeal, the Fourth Circuit found that the BIA did not abuse its discretion in denying the second motion to reopen, rejecting Malm's theory that the time and numerical limitations are invalid as applied to immigrants who are likely to suffer torture upon their return. See Malm, 16 Fed. Appx. at 201-03. Relying on First Circuit caselaw, the court found that neither the CAT nor FARRA affirmatively indicated that relief must be available notwithstanding temporal or numerical limitations. Id. at 201-02. Further, the Fourth Circuit found that the BIA's interpretation of the applicability of the limitations was reasonable and therefore entitled to deference under the principles of construction established by Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). Id. at 202-03. The Fourth Circuit concluded that in cases such as Malm's, the Attorney General was "faced with the need to achieve finality in deportation or removal cases and the desirability of ensuring that every alien has some opportunity to apply for CAT protection." Id. at 202 (internal citation omitted). It observed that the Attorney General had implemented regulations to carry out the CAT objectives, but set a June 21, 1999 deadline to file a motion to reopen and waived the general numerical and temporal limitations for cases which had attained finality before March 22, 1999. Id. (citing 8 C.F.R. § 208.18(b)(2)). The Fourth Circuit thus found that the limitations of § 3.2(c)(2), coupled with the extension of time to apply for CAT protection under § 208.18(b)(2), reasonably accommodated the conflicting policies. Id. at 203.
See Foroglou v. Reno, 241 F.3d 111, 113 (1st Cir. 2001).
More importantly, the circuit court examined whether Malm had been denied a fair opportunity to present her claims under CAT.
The Fourth Circuit addressed the claim and concluded that petitioner's "procedural predicament" was caused by her own failure to timely seek relief. Id. at 200. It noted that she did not provide the INS with a current address, which resulted in her failure to appear for her scheduled April 15, 1998 hearing and in the abandoning of her asylum claim in the Immigration Court. Id. Second, the Fourth Circuit observed that Malm's initial motion to reopen was untimely filed in the Immigration Court. Id. It indicated that although Malm could have raised arguments in a circuit court appeal regarding her lack of knowledge as to the hearing date, and, by extension, the deadline for filing a motion to reopen, her notice of appeal was untimely filed. Id. Third, the Fourth Circuit noted that petitioner's second motion to reopen was also untimely filed with the BIA. Id. Finally, the appeals court observed that Malm had been afforded an opportunity to file a motion to reopen to apply for protection under CAT pursuant to the special regulatory procedures provided by the INS. Id. at 201. These special procedures relate to a February 19, 1999 publication of an interim rule implementing FARRA, which permitted aliens whose cases became final before March 22, 1999, to apply for protection under CAT on or before June 21, 1999. See § 208.18(b)(2). Malm, however, did not file her motion to reopen seeking protection under CAT until May 26, 2000.
The Fourth Circuit concluded that as "Malm repeatedly missed available opportunities to pursue her claims, we cannot agree with her argument that she has been denied a fair opportunity to present her claims under CAT." Malm, 16 Fed. Appx. at 201.
The essential issues raised here concern a due process challenge: an attack on the fairness of the immigration CAT and asylum review process in petitioner's case, given the strict adherence to the numerical and time limitations on motions to reopen set out under § 3.2(c)(2). Malm's October 27, 2000 8 U.S.C. § 1252(b) appellate petition for review before the Fourth Circuit involved essentially the same issues, and she was afforded full judicial review of those issues by the Fourth Circuit. St. Cyr arguably permits application of the § 242(b)(9) bar against federal court jurisdiction when judicial review of the issues are available in the court of appeals. Because Malm was afforded Fourth Circuit review of her claims, it appears this court does not have subject matter jurisdiction over Malm's petition.
The Fourth Circuit further reviewed the issue of whether the application of the temporal and numerical limitations is contrary to the intentions of CAT and FARRA.
Even assuming the § 242(b)(9) jurisdiction-stripping provision does not apply here, however, Malm is precluded from proceeding with her § 2241 claims, because, as already indicated, the issues were fully litigated on direct review before the court of appeals.
Issue preclusion, or collateral estoppel, holds that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Hickman v. Commissioner of Internal Revenue, 183 F.3d 535, 537 (6th Cir. 1999) (quoting Montana v. United States, 440 U.S. 147, 153 (1979)). Issue preclusion requires a litigant to establish the following four elements: (1) the issue in the subsequent litigation is identical to that resolved in the earlier litigation; (2) the issue must have been actually litigated and decided in the prior action; (3) the issue must have been necessary and essential to a judgment on the merits in the prior litigation; and (4) the party to be estopped was a party to the prior litigation or in privity with such a party. Id.
Respondent has established the elements of issue preclusion in this case. Collateral estoppel bars petitioner from relitigating claims previously addressed and ruled on by the Fourth Circuit in the § 1252(b) civil proceeding. Barefoot v. Estelle, 463 U.S. 880, 887 (1983).
Alternatively, the court finds that the habeas corpus challenge to the application of the temporal and numerical limitations on motions to reopen is without merit. In so ruling, I afford the Fourth Circuit decision in Malm's case considerable weight. The Fourth Circuit has emphasized the deference due to procedural rules in the immigration context, recognizing the strong federal interest in "procedures that achieve an accurate and efficient resolution of the rising number of asylum cases." Blanco de BelBruno v. Ashcroft, 362 F.3d 272, 282 (4th Cir. 2004). The BIA's application of the limitations under § 3.2(c)(2) to claims under CAT is reviewed under the deferential standard set out in Chevron. See INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999) (noting that "judicial deference to the Executive Branch is especially appropriate in the immigration context"). The Fourth Circuit indicated that none of the provisions of FARRA or CAT invalidate the application of the limitations set out under § 3.2(c)(2) to claims under CAT. The BIA has broad discretion in deciding whether to grant or deny motions to reopen and did not abuse its discretion in denying petitioner's second such motion. See INS v. Abudu, 485 U.S. 94, 110 (1988) (noting that the reasons for deferring to agency decisions on petitions to reopen "apply with even greater force in the INS context"). Further, as indicated by the Fourth Circuit, Malm had full and fair opportunities to have her applications for CAT and asylum heard, satisfying her due process rights.
Petitioner has seemingly raised an ex post facto argument regarding the application of the temporal and numerical limitations to motions to reopen under CAT. The court finds this claim without merit. The time and numerical limitations of § 3.2(c)(2) were enacted in 1996. As CAT was not available to the petitioner until its enactment in 1998, there is no apparent issue of retroactivity.
IV. Conclusion
For the aforementioned reasons, the instant petition for habeas corpus relief shall be denied, and dismissed without oral hearing. A stay of removal shall not issue.
This court is aware of Malm's claims of abuse and violence at the hands of government officials and officers due to her activities with and support of the political opposition in Togo. The Fourth Circuit acknowledged these same "troubling" allegations. While I am sympathetic to the petitioner's circumstances, caselaw and statute unfortunately require the denial of her petition.
ORDER
In accordance with the foregoing Memorandum, IT IS this 4th day of May 2004, ORDERED that:1. This 28 U.S.C. § 2241 petition for writ of habeas corpus IS DENIED and DISMISSED;
2. The Clerk of the Court shall CLOSE this case; and
3. The Clerk of the Court shall MAIL a copy of this Order, together with the foregoing Memorandum, to counsel for petitioner and to Assistant United States Attorney Alien F. Loucks.