Opinion
02 Civ. 2965 (WHP) (GWG)
January 2, 2003
REPORT AND RECOMMENDATION
To the Honorable William H. Pauley, United States District Judge
Danragh Miguel Maragh, pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging removal proceedings instituted by the Immigration and Naturalization Service ("INS"). The petition was initially brought in the United States District Court for the Northern District of New York on August 31, 2001. The petition was thereafter transferred to the Southern District of New York and was received by the Clerk on April 17, 2002. On April 18, 2002, Maragh was removed to Jamaica.
For the reasons stated below, the petition should be dismissed as moot.
I. BACKGROUND
Maragh was admitted to the United States as a lawful permanent resident in April 1994. R. 50, 62, 71. On February 17, 2000, Maragh was convicted in New York Supreme Court, Queens County, of robbery, N.Y. Penal L. § 160.10; criminal sale of a controlled substance, N.Y. Penal L. § 220.39; and criminal possession of stolen property, N.Y. Penal L. § 165.45. R. 51, 56, 58, 60. Maragh was sentenced to serve a five-year prison term for the robbery as well as two one-year sentences, to run concurrently, for the other convictions. R. 51, 56, 58, 60.
"R. ___" refers to the certified administrative record of Maragh's removal proceedings reproduced as Exhibit A to Respondent's Return.
On April 20, 2000, the INS served Maragh with a Notice to Appear notifying him that he had been charged as removable under section 237 of the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1227. R. 69-72. Specifically, the INS claimed that Maragh was removable because of his convictions for controlled substance crimes under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), as well as aggravated felonies under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). R. 72.
On July 26, 2000, a removal proceeding was commenced before an Immigration Judge ("IJ") at the Downstate Correctional Facility in Fishkill, New York. R. 41. At this hearing, the IJ notified Maragh of his right to obtain an attorney to represent him but informed him that if he did not secure an attorney the removal proceeding would go forward without one. R. 43. The IJ also notified Maragh of his right to examine and challenge any documents presented by the INS during the proceeding. Id. The proceeding was adjourned until October 11, 2000. R. 42, 44. On October 11, 2000, Maragh appeared without an attorney. R. 46. The IJ informed Maragh that whether or not he obtained an attorney, the removal hearing would take place on the next hearing date, November 15, 2000. R. 47.
On November 15, 2000, Maragh again appeared without an attorney and the IJ commenced the hearing. R. 49. At the hearing, Maragh affirmed that he was not a citizen or national of the United States. R. 50. He admitted to being a citizen of Jamaica and entering the United States as a lawful permanent resident on April 15, 1994. Id. The IJ asked the INS attorney whether Maragh had any possibility of derivative citizenship, to which the attorney responded that Maragh's mother was "a lawful permanent resident" — indicating there was no such possibility. R. 50-51.
The IJ informed Maragh that the INS was introducing as evidence Maragh's immigrant visa, as proof of alienage, as well as records of his three convictions, which showed he had been sentenced to 5 years imprisonment. R. 52; see R. 56, 58, 60, 62. Maragh offered no objection to the evidence except to claim that he was innocent of the underlying robbery charge. R. 53. He conceded, however, that he was the individual who was convicted of the three offenses. R. 51.
In addition, Maragh made no claim of entitlement to derivative citizenship or any other claim that would entitle him to stay in the country.
At the conclusion of the hearing the IJ found Maragh removable and ordered him removed to Jamaica. R. 36-37, 54. The IJ stated that based on the documentary evidence and Maragh's admissions, Maragh's alienage and removability had been established by clear and convincing evidence. R. 36. The IJ further stated there was "no issue" relating to any claims that Maragh was a derivative citizen. Id. The IJ also noted that, although Maragh had not applied for relief from removal, he was barred by statute from any such relief. R. 36, 53. The IJ ordered Maragh removed and informed him that he could appeal the decision. R. 37, 53-54.
On December 7, 2000, Maragh appealed to the Board of Immigration Appeals ("BIA").
R. 26-27. Maragh asserted that the IJ had failed to ascertain his competence to understand the proceedings; had not informed him of his right to consular access; had not informed him of possible relief for which he could apply, including derivative citizenship; that the INS had not met its burden of establishing either his removability or ineligibility for discretionary relief; and that he had been deprived of due process, equal protection and "statutory rights." R. 26.
On January 26, 2001, the BIA issued a scheduling order requiring Maragh to submit a brief before February 26, 2001. R. 22. On February 20, 2001, Maragh requested an extension of time to file his brief, R. 16, which was granted on March 1, 2001, giving him until March 28, 2001. R. 14. On March 28, 2001, Maragh again requested an extension to file his brief. R. 6-7.
This time, on April 9, 2001, Maragh's request was denied for a failure to demonstrate compelling circumstances. R. 5. The record contains no brief from Maragh before the BIA, although the BIA decision refers to such a brief. R. 3.
On August 9, 2001, the BIA dismissed Maragh's appeal of his removal order. R. 2-3.
The BIA ruled that Maragh was not entitled to any discretionary relief as a matter of law. R. 3.
It also ruled that because Maragh was imprisoned, not detained, he was not entitled to notification of consular access pursuant to 8 C.F.R. § 236.1 and, in any event, Maragh was not prejudiced by any failure to notify him of consular access. Id. The BIA also found no evidence to support Maragh's claim that he was not competent to understand the proceedings. Id. The BIA did not address any of Maragh's other claims.
On August 31, 2001, Maragh filed this petition for habeas corpus in the Northern District of New York challenging his order of removal. He filed an amended petition on November 30, 2001. Because the challenged removal order was issued within the Southern District of New York, his petition was transferred to this Court on March 13, 2002 and received by the Clerk of this Court on April 17, 2002. Maragh's amended petition asserts that (1) he was denied due process because the IJ failed to require the INS to establish alienage and negate the existence of derivative citizenship; (2) the removal order was contrary to law and violated the INA because the INS did not inquire into his ability to obtain derivative citizenship or otherwise determine what relief was available to him from removal; and (3) he was denied due process because the IJ and the BIA failed to suspend the proceedings to allow him an opportunity to pursue adjustment of his status to that of a citizen. See Amended Petition at 2-7.
On April 18, 2002, Maragh was removed to Jamaica.
II. DISCUSSION
The Government asserts that the petition should be denied as moot because Maragh has already been removed. Resp. Mem. at 6-9. Under Article III, § 2 of the Constitution a federal court may exercise jurisdiction only over a "case or controversy." See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 316 (1974). In the present case, this means that Maragh must show that he has suffered an "actual injury" that is "traceable to" the removal order and that is "likely to be redressed by a favorable judicial decision." See, e.g., Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (citing cases). Because the removal order has already been executed, Maragh must show some collateral consequence arising from the removal order for his petition to be considered a live controversy. See Spencer v. Kemna, 523 U.S. 1, 7-8 (1998); see also Leitao v. Reno, 311 F.3d 453, 455 (1st Cir. 2002) ("A habeas petition will become moot once the prisoner is released from custody unless the petitioner can show some sufficient collateral consequence of the underlying proceeding.") (citation omitted). A "collateral consequence" means "concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law . . ." Spencer, 523 U.S. at 8.
The Government's brief also argues that the removal order was proper; that Maragh's claim of derivative citizenship does not provide a basis for relief; that Maragh's claim that the removal proceedings should have been terminated or suspended is without merit; and that this Court lacks jurisdiction to review Maragh's "citizenship claim" because it must be brought in the United States Court of Appeals for the Second Circuit, not the district court. See Respondent's Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated August 9, 2002 ("Resp. Mem."), at 9-22.
In this case, Maragh has appeared pro se and, because his current address is unknown, he has not had the opportunity to respond to the Government's argument and thereby demonstrate any collateral consequences flowing from the removal order. In addition, after examining the petition and administrative record in this matter, the Court is unable to find any such collateral consequences. In other words, the Court is unable to find any injury to Maragh that could be redressed through a judicial reversal of the removal order.
This is because Maragh is permanently inadmissible to this country by statute. Under 8 U.S.C. § 1182(a)(2)(B), an alien who is convicted of two or more offenses for which a term of imprisonment of five years or more was imposed is permanently inadmissible. Maragh was convicted of three offenses for which a term of imprisonment of five years was imposed and thus comes within the statutory bar. The bar to admissibility may not be waived by the Attorney General; rather, the only waiver available is for a "single offense of simple possession of 30 grams or less of marijuana," 8 U.S.C. § 1182(h), a circumstance that does not exist here.
In other words, even if this Court were to overturn the removal order as part of the habeas proceeding, it would have no effect on Maragh's ability to return to this country. His inadmissibility exists independent of the removal proceeding. Were Maragh contesting the fact that he was the individual convicted of these offenses, the Court might view the matter differently. But Maragh admitted that he was convicted of these offenses during the removal proceedings and makes no claim to the contrary in this habeas petition. It is thus impossible to discern what relief could be offered by this Court that would have any practical effect on Maragh.
The Court is aware of cases holding that a live controversy exists in some removal proceedings even after the alien has been removed. These cases do not compel a different result.
In some cases, the alien claimed that he was in fact eligible for discretionary relief — a claim that was properly addressable in the context of the removal proceeding. See, e.g., Leitao, 311 F.3d at 456 (alien eligible for relief pursuant to INA § 212(c), 8 U.S.C. § 1182(c) (1994) (repealed)); Chong v. Disrict Director, 264 F.3d 378, 386 (3d Cir. 2001) (alien eligible for discretionary relief from Attorney General allowing re-entry into United States); Gonzalez v. INS, 2002 WL 31444952, at *5 (S.D.N.Y. Oct. 31, 2002) (same). In other cases, whether or not the alien had been rendered inadmissible by virtue of a criminal conviction was disputed. See, e.g., Tapia Garcia v. INS, 237 F.3d 1216, 1221 (10th Cir. 2001); Steele v. Blackman, 236 F.3d 130, 135 (3d Cir. 2001). Finally, in still others, the removal or deportation itself — rather than an underlying criminal conviction — had a collateral consequence because a statute made the alien inadmissible based simply on the existence of the removal order. See, e.g., Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000), vacated on other grounds, 533 U.S. 945 (2001); Oyeniyi v. Cockrell, 2002 WL 31298855, at *2 (N.D.Tex. Oct. 7, 2002).
Here, by contrast, Maragh can never be admitted into the United States because of the bar that exists in section 8 U.S.C. § 1182(a)(2)(B). Nothing this Court can do with respect to the removal proceedings will change that statutory bar to admissibility. This case is thus similar in some respects to the issue presented to the Second Circuit in Perez v. Greiner, 296 F.3d 123 (2d Cir. 2002). In Perez, a petitioner attempted to challenge his state criminal conviction for robbery through a habeas petition under 28 U.S.C. § 2254. See id. at 124. The petitioner was subsequently removed. See id. at 125. The Second Circuit ruled that the habeas petition was moot because the petitioner had been rendered permanently inadmissible to the country due to a prior unrelated drug conviction. See id. at 125-26.
Here too, Maragh is inadmissible based on his criminal convictions — none of which are or can be challenged in the removal proceeding. See, e.g., Trench v. INS, 783 F.2d 181, 184 (10th Cir.) (deportation proceeding may not be used to challenge validity of alien's criminal conviction), cert. denied, 479 U.S. 961 (1986). Thus, Maragh's permanent bar from re-entering the United States is not redressable through this habeas challenge to his deportation proceeding.
While Maragh makes reference to a potential claim of derivative citizenship, that allegation cannot confer subject matter jurisdiction on the Court. Jurisdiction over such a claim made as part of a challenge to a removal order lies solely in the United States Court of Appeals for the Second Circuit — not this Court — as provided in 8 U.S.C. § 1252(b)(5). See, e.g., Baeta v. Sonchik, 273 F.3d 1261, 1263-65 (9th Cir. 2001); Hughes v. Ashcroft, 255 F.3d 752, 755 (9th Cir. 2001); Hussein v. Ashcroft, 2002 WL 31027604, at *1-*2 (E.D.N.Y. Sept. 12, 2002); Clark v. INS, 2000 WL 1456944, at *1-*3 (N.D.Cal. Sept. 20, 2000). Given that Maragh's whereabouts are unknown, that there is no allegation that he has made an application for citizenship, that he failed to raise the issue properly before the IJ and the BIA, and that his claim to citizenship itself appears to lack merit, see Resp. Mem. at 12-19, the Court does not deem it "in the interest of justice" to transfer this petition to the Court of Appeals under 28 U.S.C. § 1631.
In any event, the validity or existence vel non of the removal order would have no bearing on any future application for citizenship. Such an application may be pursued by filing an Application for Certificate of Citizenship with the INS. See 8 U.S.C. § 1452(a); 8 C.F.R. § 341.1. The government has asserted that this step may be pursued from abroad. See Resp. Mem. at 9.
Conclusion For the foregoing reasons, Maragh's petition should be dismissed. Because no address is available for Maragh, this Report and Recommendation is being delivered to the Clerk. Cf. Fed.R.Civ.P. 5(b)(2)(C) (providing for service on litigants for whom there is no known address).