Opinion
C.A. No. 03-577 S
March 29, 2004
Report and Recommendation
On December 9, 2003, Mwithi Eric Mwangi, pro se, ("Mwangi" or "petitioner") filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging an order of removal, ordering him removed to Kenya. In the petition, Mwangi also seeks to be released from custody on bail. On January 7, 2004, Mwangi filed with the Court an "Urgent Motion" to grant in part and dismiss in part the habeas corpus petition. In the "Urgent Motion," Mwangi also challenges the order of removal and seeks to be released from custody on bail. The Bureau of Immigration and Custom Enforcement ("Government") has moved to dismiss Mwangi's petition and filed an objection to Mwangi's "Urgent Motion."
These matters have been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. After a review of both the petition and the "Urgent Motion," it is apparent that the issues raised in both are duplicative. Therefore, I shall consider Mwangi's "Urgent Motion" part of his habeas corpus petition. For the reasons that follow, I recommend that the Government's motion to dismiss be granted, and Mwangi's petition for a writ of habeas corpus be denied and dismissed.
Background
Mwithi Eric Mwangi is a native and citizen of Kenya who was admitted to the United States on May 17, 1999 as an exchange visitor with a J-1 visa. On October 15, 2001, a state court in Massachusetts convicted Mwangi of larceny by check over $250.00, in violation of section 37, chapter 266, of the Massachusetts General Laws. For this offense, the court sentenced Mwangi to sixty days confinement.
On November 29, 2001, the then Immigration and Naturalization Service, now the Department of Homeland Security (hereinafter referred to as "DHS") initiated removal proceedings against Mwangi. The DHS alleged that Mwangi was removable pursuant to § 237(a)(2)(A)(i) of the Immigration and Nationality Act ("INA") as an alien who had been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i). At the removal hearings before the immigration judge ("IJ"), Mwangi conceded removablity as charged by the DHS. Mwangi thereafter applied for asylum, withholding of removal, and protection under the Convention Against Torture. Mwangi was not successful and the IJ ordered him removed to Kenya.
Mwangi appealed the I J's decision to the Board of Immigration Appeals ("BlA"). The BIA affirmed. Mwangi timely filed a petition for review with the U.S. Court of Appeals for the First Circuit. On December 11, 2003, the First Circuit affirmed. Mwangi then requested a rehearing and a rehearing en banc. His requests were denied on February 12, 2004.
During the course of his appeal to the First Circuit, Mwangi filed the instant petition for a writ of habeas corpus. In his petition, Mwangi contends that (1) he was not convicted of a crime of moral turpitude and (2) he is entitled to a "petty offense" waiver. As relief, Mwangi seeks to permanently stay his removal. (He phrases it as "dismissing the charges" alleged by DHS.) See Mwangi's Petition for a Writ of Habeas Corpus at 12. Mwangi also seeks to be released from custody on bail. The Government has moved to dismiss. Mwangi has objected.
Discussion
As his first basis for federal habeas relief, Mwangi contends that he was not convicted of a crime of moral turpitude as alleged by the DHS and found by the I J. See 8 U.S.C. § 1227(a)(2)(A)(i). However, Mwangi presented this claim to the U.S. Court of Appeals for the First Circuit and they determined that Mwangi has, in fact, been convicted of a crime of moral turpitude. See Government's Exhibit 14, page 2, Mwangi v. Ashcroft, Nos. 03-1373 and 03-2300 (1st Cir. 2003). Indeed, Mwangi concedes that this claim is "moot" and has moved to voluntarily dismiss it since the Court of Appeals has already rendered a decision on this issue. See Government's Exhibit 8; See also Petitioner's "Urgent Motion" at p. 3. Thus, this claim fails to provide a basis for federal habeas relief.
Next Mwangi contends that he is entitled to a "petty offense" waiver pursuant to Section 212(a)(2)(A)(ii)(ll) of the INA, codified at 8 U.S.C. § 1182(a)(2)(A)(ii)(ll). Mwangi, however, is not eligible for this type of relief for two reasons. First, Mwangi has not presented this claim to the appropriate DHS official for determination. Thus, he has not exhausted his administrative remedies, providing a basis for dismissal of this claim. See Ravindran v. INS. 976 F.2d 754, 764 (exhaustion requirement applies to immigration cases).
Second, Mwangi misconstrues 8 U.S.C. § 1182(a)(2)(A)(ii)(ll). Section § 1182(a)(2)(A)(ii)(ll) provides that an alien convicted of a crime of moral turpitude may seek relief under this section if:
the maximum penalty possible for the crime of which the alien was convicted . . . did not exceed imprisonment for one year and. . . . the alien was not sentenced to a term of imprisonment in excess of 6 months. . . .8 U.S.C. § 1182(a)(2)(A)(ii)(ll). Thus, in order to fall within this exception, Mwangi's crime must have provided for a maximum possible penalty of a year or less incarcerated and Mwangi must not have been sentenced to more than 6 months incarcerated. While petitioner was only sentenced to serve sixty days incarcerated, the maximum punishment for his crime was five years incarcerated. See Mass. Gen. Laws 266, § 30(1)(". . . if the value of the property stolen exceeds two hundred and fifty dollars, [the offender shall] be punished by imprisonment in the state prison for not more than five years, or by a fine of not more than twenty-five thousand dollars and imprisonment in jail for not more that two years. . . .") Accordingly, Mwangi is statutorily ineligible for relief under § 1182(a)(2)(A)(ii)(lI).
Finally, Mwangi seeks to be released from custody on bail. Title 8, U.S.C. § 1231 provides that the Attorney General shall remove an alien within a ninety day period and shall detain the alien during that period. See 8 U.S.C. § 1231 (a)(1)(A) and § 1231(a)(2). This ninety day period begins when the order of removal is final. See 8 U.S.C. § 1231 (a)(1)(B). Mwangi's order of removal became final on December 11, 2003 when the First Circuit issued its mandate. Pursuant to 8 U.S.C. § 1231(a)(2), Mwangi must be detained for ninety days thereafter. 8 U.S.C. § 1231 (a)(2). Here, Mwangi has been in post-removal order detention for greater than ninety days.
Pursuant to 8 U.S.C. § 1231(a)(6), criminal aliens, such as Mwangi, or aliens considered a flight risk or danger to the community may be detained beyond the ninety day removal period for a period reasonably necessary to accomplish their removal from this country. See 8 U.S.C. § 1231 (a)(6). The Supreme Court found a six month detention following a final order of removal presumptively reasonable. Zadvydas v. Davis. 533 U.S. 678(2001).
Here, Mwangi's current detention is presumptively reasonable. He has not yet been in post removal order detention for more than six months. Moreover, there is not any "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701. Indeed, the government has indicated that Mwangi's removal will occur in the very near future (mid April 2004).
Accordingly, at this time, Mwangi is not eligible to be released from custody by way of the instant habeas corpus petition.
Conclusion
Mwangi has provided no basis on which to justify federal habeas relief. Therefore, I recommend that the Government's motion to dismiss be granted and Mwangi's petition for a writ of habeas corpus be denied and dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete. 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co.. 616 F.2d 603 (1st Cir. 1980).