Opinion
No. 3:02-CV-0700-H
February 12, 2003
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and a court order, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS:
Petitioner is a Nigerian national who was ordered deported and whose appeal is pending before the Board of Immigration Appeals. Respondent is the Board of Immigration Appeals. Petitioner seeks a writ of mandamus to compel the Board of Immigration Appeals to act on his appeal and/or to release him from custody.
STATEMENT OF FACTS
The facts are taken from the record in Petitioner's prior habeas corpus application and from Respondent's Response in Opposition and Exhibits in this case. Petitioner failed to reply to the response and the facts are undisputed.
Petitioner is an adult male, a native and citizen of Nigeria, who entered the United States for the first time as a visitor on August 23, 1979. Petitioner was ordered to leave the United States after he overstayed his visit in 1979; however, he failed to leave and was convicted in Dallas County Criminal Court of theft on September 4, 1981. He was also convicted of theft on September 10, 1981. In October, 1981, Petitioner was ordered deported. Petitioner claims he reentered the United States the same year he was deported, 1981, by entering illegally from Mexico. Petitioner was convicted in Dallas for theft by check on May 29, 1985. Petitioner has used several different social security numbers, has used numerous drivers licenses under different names and has an extensive history of insurance fraud arising from property damage claims. On October 1, 1992, Petitioner was convicted of presenting a fraudulent insurance claim to Nationwide Insurance in Georgia and giving a false name to a law enforcement officer.
The INS encountered Petitioner a second time on March 5, 1996, in the Dallas County Jail; he had been arrested for unpaid traffic tickets. On March 11, 1997, he was ordered to show cause why he should not be deported. The Show Cause Order alleged entry without inspection and the 1992 convictions in Georgia. An additional charge was filed on March 7, 1997, alleging the prior deportation in 1981, and reentry without the consent of the Attorney General.
On June 6, 1997, after consideration of Petitioner's admissions and the evidence of record, the immigration judge ordered Petitioner deported for having entered this country without inspection, and for returning without permission after deportation, or without seeking permission from the Attorney General. The immigration judge held a bond hearing and set Petitioner's bond at $35,000.00. Petitioner appealed, and while the appeal was pending, moved the Board to reopen the deportation proceedings for purposes of adjudicating an application for adjustment of status. The BIA treated the latter application as a motion to remand. On March 19, 1998, the BIA affirmed the immigration judge's deportation order and bond and denied the motion to reopen the case and remand it for consideration of adjustment of status.
Petitioner filed a request for a bond redetermination, and on September 23, 1997, a different immigration judge denied his request.
On March 31, 1998, Petitioner filed a petition for writ of habeas corpus with this Court. Petitioner claimed the immigration judge badgered him, that he denied him relief for which he was eligible, and that the charge filed against him was unfair. Petitioner claimed he was a lawful permanent resident who had been granted amnesty in 1987. However, this was untrue. Petitioner was denied amnesty status, and the denial was affirmed on appeal. Based upon the recommendation of the United States Magistrate Judge, the District Court dismissed the habeas corpus petition for want of jurisdiction. The Fifth Circuit Court of Appeals affirmed the decision on March 20, 2000.
Shortly thereafter, the Board of Immigration Appeals (BIA) reopened Petitioner's case to permit him to apply for protection under the Convention Against Torture, to which the United States is a signatory. This is the same as an application for political asylum, except that the petitioner must prove a clear probability of persecution, as opposed to a reasonable possibility of persecution. The immigration judge held hearings on October 24, 2000, and December 1, 2000. At each of these hearings Petitioner was unprepared and requested more time. The immigration judge set a deadline of January 2, 2001, for Petitioner to present his petition. At the January 2, 2001, hearing Petitioner withdrew his application for Protection Against Torture and again requested relief under a provision for adjustment of status, § 245(i). Petitioner was ineligible for this or any other kind of relief because he had never been a permanent resident. The immigration judge ordered Petitioner deported. Petitioner filed an appeal on February 1, 2001.
On April 4, 2002, Petitioner filed this petition for writ of mandamus. Petitioner urges this Court to intervene, essentially because the INS is taking too long in deciding the appeal. According to Petitioner, the fifteen-month delay is particularly unreasonable and egregious because the United States Supreme Court decided a case nine months previously which Petitioner claims would entitle him to relief. He requests this Court to (1) order the BIA to decide the case immediately, or (2) release him from custody.
Under 28 U.S.C. § 1361, the "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The United States Supreme Court has cautioned:
Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. We do not doubt power in a proper case to issue such writs, but they have the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants before him . . . As extraordinary remedies, they are reserved for really extraordinary causes.Ex parte Fahey, 332 U.S. 258, 259-60 (1947). The Fifth Circuit Court of Appeals recognizes mandamus is a recognized "extraordinary remedy" and requires three jurisdictional prerequisites: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and preemptory duty on the part of the defendant to do the act in question; (3) no other adequate remedy available. United States v. O'Neil, 767 F.2d 1111 (5th Cir. 1985); Green v. Hedler, 742 F.2d 237, 241 (5th Cir. 1984); Sheeham v. Army Air Force Exchange Serv., 619 F.2d 1132, 1141 (5th Cir. 1980); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969).
Petitioner does not address any of these factors, and in fact, he does not lack an adequate remedy. The decision from the BIA will issue. Accordingly, Petitioner is not left remediless. Appeals are often time consuming, and Petitioner has pointed to no authority that would suggest otherwise. Petitioner has presented no evidence of the date his appeal was ripe for decision after briefing and no evidence that the delay is entirely the fault of Respondent. Judging from Petitioner's behavior in failing to prosecute his petition for protection under the Convention Against Torture, it is entirely possible that much of the delay is attributable to Petitioner. Moreover, while the decision is arguably late in coming, this Court does not find as a matter of law that the delay is so unreasonable that judicial intervention is warranted. See Bothyo v. Immigration and Naturalization Service, 783 F.2d 74, 76 (7th Cir. 1985) (finding that eleven months after filing of appeal was not unreasonable period of delay and did not constitute effective denial of administrative remedies). Additionally, Petitioner has shown no factual or legal basis that would entitle him to release from custody, and to the extent he may be seeking habeas corpus relief, he has failed to exhaust his administrative remedies. For the reasons stated herein, Respondent's Motion to Dismiss should be granted, and Petitioner's Application for a Writ of Mandamus should be dismissed without prejudice.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).