Opinion
No C-00-3603 VRW
January 18, 2001
ORDER
Petitioner seeks a writ of habeas corpus staying her impending deportation to Peru. Petitioner alleges that the Immigration Judge (IJ) who denied her application for withholding of deportation and ordered her removed lacked jurisdiction to initiate removal proceedings against her due to improper notice. Petitioner also argues that the IJ erred in finding that petitioner was not subject to withholding of removal under 28 U.S.C. § 1231. Petitioner initially alleged due process violations arising from the improper notice and the selective operation of section 1231 but petitioner appears to have abandoned those claims in her reply brief.
I
Petitioner, a 43 year old citizen of Peru, was lawfully admitted to the United States in 1985 and on or about October 1, 1996, became a lawful permanent resident. Petitioner is married to Roger Nogueira, a former Peruvian customs officer. In May 1998, petitioner was convicted of transportation of a controlled substance. Based on this conviction, the Immigration and Naturalization Service (INS) brought removal proceedings against petitioner pursuant to section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1227(a)(2)(A)(iii). Before the IJ, petitioner brought a motion to terminate, challenging the sufficiency of her notice to appear. The IJ denied that motion.
Petitioner also applied for withholding of removal claiming that because of her husband's position as a custom's officer she would be subject to persecution if returned to Peru. The IJ considered but denied petitioner's request finding that petitioner had failed to prove that it was more likely than not that she would be subject to persecution if she returned to Peru. Petitioner appealed this decision to the Board of Immigration Appeals (BIA). In May 2000, the BIA dismissed her appeal. The BIA rejected petitioner's argument with respect to insufficiency of notice, stating that petitioner had not been prejudiced by the omission of the time and place of her hearing. The BIA also affirmed the IJ's finding that petitioner had failed to prove that persecution was more likely than not. Finally, the BIA held that petitioner's membership in "a group of customs officers and their dependents" was not a social group eligible for protection under the statute.
Petitioner appealed the BIA's decision to the Ninth Circuit but that court dismissed petitioner's claim for lack of jurisdiction. The court of appeals found jurisdiction precluded by 8 U.S.C. § 1252(a)(2)(C), based on petitioner's aggravated felony conviction. Petitioner then filed this habeas petition.
II A
Respondents argue that the court lacks jurisdiction to hear this petition because petitioner's custody is not "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. Respondents argue that this is the case because petitioner's insufficient notice claim is an insubstantial constitutional claim and because petitioner's withholding of removal claim presents a factual issue that cannot be resolved in a habeas motion.
First, the court must reject respondents' argument that the court can only exercise habeas jurisdiction over substantial constitutional questions. Respondents cite Flores-Miramontes v. INS, 212 F.3d 1133, 1135 n3 (9th Cir 2000), for this proposition. But Flores-Miramontes supports precisely the opposite conclusion. The Florence-Miramontes court characterized Webster v. Doe, 486 U.S. 592, 603 (1988), as holding that substantial constitutional questions may not be wholly removed from judicial review. Flores-Miramontes, 212 F.3d at 1135-36. The court did not hold that habeas jurisdiction is limited in fact to substantial constitutional questions. Rather, the court explicitly rejected the INS's argument that habeas review, after amendments to the INA, extends only to substantial constitutional questions. The court stated: "Congress did not modify or amend the general federal habeas statute, which as we have previously held, allows for review of both statutory and constitutional questions." Id at 1143. Hence, petitioner's notice claim need not be construed as a due process claim to give rise to habeas jurisdiction. If the notice given was insufficient under a federal statute then a violation of a law of the United States has been alleged.
It is another question whether the court has jurisdiction to review decisions by the BIA that are not purely legal, such as the BIA's decision to deny petitioner's application for withholding of deportation, which involved the application of the law to the facts. In support of their argument that habeas jurisdiction is unavailable to challenge a factual determination by the IJ, respondents have cited a number of older Supreme Court cases holding that an erroneous decision does not constitute a due process violation. Respondents then cite Toscano-Gil v. Trominski, 210 F.3d 470 (5th Cir 2000), for the notion that habeas jurisdiction is unavailable absent a constitutional violation. Toscano-Gil held that habeas jurisdiction did not extend to a challenge of a BIA determination that a waiver of inadmissibility was not warranted. The Toscano-Gil court held that petitioner's challenge to the BIA's decision did not state a due process violation and thus that jurisdiction was unavailable. Id at 474. The court held that a constitutional violation was necessary to give rise to habeas jurisdiction. Id ("For § 2241 habeas jurisdiction to even exist per Reciuena-Rodriquez, Toscano must have stated a cognizable constitutional claim.").
But as explained above, the Ninth Circuit has explicitly declined to find that recent amendments to the INA have limited the scope of habeas review and has held that habeas is available to review both constitutional and statutory questions. Flores-Miramontes, 212 F.3d at 1143. Thus, Toscano-Gil's holding must be rejected as inconsistent with the law of this circuit. Given this state of applicable law, not only may the court exercise jurisdiction over all constitutional violations, substantial or insubstantial, the court can hear claims that the BIA decision was contrary to federal statutory law.
If the BIA made a withholding of removal decision not supported by substantial evidence, even if that decision does not violate due process, it does violate a law of the United States. As discussed above, a statutory violation may be challenged via habeas. Furthermore, the fact that the court must review a factual determination to entertain this claim does not preclude jurisdiction. Because the court determines that petitioner has stated claims that she is being held in violation of the law of the United States, the court determines that it has jurisdiction to hear her claims.
B
Petitioner argues that the notice to appear issued by the INS to petitioner failed to comply with the requirements of 8 U.S.C. § 1229(a) because it did not include the time and place of the hearing and the specific aggravated felony giving rise to removability. Respondents assert that petitioner's notice claim must fail because petitioner cannot prevail on a due process theory as she has not shown prejudice. Respondents do not state why petitioner's claim must be construed as a due process claim. Neither the IJ nor the BIA construed it in that way.
The IJ rejected petitioner's insufficiency of notice claim with respect to the specific felony and the time and place omissions. The omission of the specific felony was found to be immaterial because the "factual allegations, combined with the charge of removability under INA § 101(a)(43) provide[ed] sufficient notice of the statutory basis for [petitioner's] removal." Order, June 9, 1999, at 3. The IJ also rejected petitioner's claim based on the omission of the time and place of the hearing. The IJ noted that petitioner received actual notice prior to the hearing and that certain regulations counseled rejection of the claim. One regulation provides that "omission of any of these items shall not provide the alien with any substantive or procedural rights." 8 C.F.R. § 3.15. Additionally, the IJ asserted that 8 C.F.R. § 3.18, which makes the Immigration Court responsible for providing notice to the alien of the time and place of a hearing, justified the omission.
Petitioner argues that the regulations are "subordinate to the terms of the controlling statute [and] are untimely as well." Pet Reply at 9-10. Respondents do not address the notice regulations. No federal district court appears to have addressed the notice requirements of section 1229(a). The court must therefore begin its inquiry with the decision of the IJ. Contrary to the IJ's decision, the regulation that purports to deny aliens any substantive or procedural rights cannot dictate the outcome of this claim because petitioner has not claimed a violation of the regulations but of the statute. The IJ also relied on 8 C.F.R. § 3.18(b), which states: "In removal proceedings pursuant to section 240 of the Act, the Service shall provide in the Notice to Appear, the time, place and date of the initial removal hearing, where practicable. If that information is not contained in the Notice to Appear, the Immigration Court shall be responsible for scheduling the initial removal hearing and providing notice to the government and the alien of the time, place, and date of hearing." 8 C.F.R. § 3.18(b) (2000) (emphasis added). Petitioner questions the IJ's reliance on this regulation because it conflicts with section 1229(a), which requires provision of the time and place of a hearing even when not practicable.
It turns out, however, that the court need not decide whether the challenged regulation is consistent with the statute. The IJ held that even if petitioner could show a violation of the notice provisions, petitioner could not show prejudice. Order, June 9, 1999, at 3. But the IJ asserted that a showing of prejudice was required to prevail under a claim that a regulation was not complied with. Here a statute was violated. The IJ did not consider whether prejudice is required in this situation. This question is at the heart of petitioner's insufficient notice claim. Plainly there was no prejudice in this particular case. Petitioner received actual notice of the hearing prior to the hearing, was able to attend the hearing and was able to contest her deportation. Thus, if prejudice must be shown, petitioner's notice claims must be denied.
A recent case from this district asserted that: "The general rule is that an alien must establish prejudice in order to invalidate deportation proceedings on a claim that statutory or regulatory rights were infringed." Garcia-Guzman v. Reno, 65 F. Supp. 2 d 1077, 1085 (ND Cal 1999). The court agrees with the Garcia-Guzman court that prejudice must be shown. Because petitioner cannot show prejudice, petitioner's insufficient notice claim must be DENIED.
C
Petitioner's second claim for relief attacks the decision by the IJ and the BIA that petitioner is not eligible for withholding of deportation under 8 U.S.C. § 1231(b)(3)(A). That provision states: "the Attorney General may not remove an alien to country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). Under this provision, the Attorney General must withhold deportation if a petitioner establishes a "clear probability of persecution," which means that persecution is "more likely than not." INS v. Stevic, 467 U.S. 407, 429-30 (1987); see also Hernandez-Montiel v. INS, 225 F.3d 1084, 1091 (9th Cir 2000). In this case, petitioner must also show that the persecution is "on account of" her "membership in a particular social group." Hernandez-Montiel, 225 F.3d at 1091.
The IJ found petitioner eligible to seek withholding of deportation but denied withholding because she determined that petitioner "has not shown that it is more likely than not that she will be harmed if she returns to Peru." IJ Order, Oct 25, 1999, at 11. The BIA stated: "we agree with and affirm the Immigration Judge's finding that the respondent has not demonstrated that she was harmed in Peru or that it is more likely than not that she will be harmed if she returns to Peru." BIA Order, May 12, 2000, at 2. The BIA also held that petitioner was not a member of a particular social group eligible for protection. It stated:
Members of a particular social group must share a common, immutable characteristic, something that they either cannot change, or should not be required to change because it is fundamental to their individual identities. We do not find in this case that belonging to "a group of customs officers and their dependents" is a characteristic that its "fundamental to individual identity or conscience," nor does it place one in a small readily identifiable group.
Order, May 12, 2000, at 2 (citations omitted).
Petitioner appears to challenge both the BIA's conclusion that petitioner failed to establish a clear probability of persecution and its conclusion that petitioner was not a member of a particular social group for purposes of the statute. Pet Br ¶ 17, at 6. Respondents argue that petitioner has not challenged the determination by the IJ and BIA that petitioner failed to establish a clear probability of persecution. Respondents characterize this factual finding as an "independent grounds for the denial of petitioner's withholding claim." Res Br at 8. While the court finds that petitioner has raised the issue of clear probability of persecution, respondents' characterization of that question as an independent ground is correct. If the IJ's factual determination that persecution is not more likely than not is upheld, this petition must be dismissed.
The court reviews the IJ's factual determinations for substantial evidence. Hernandez-Montiel, 225 F.3d at 1090 (applying the substantial evidence standard on direct review of a denial of withholding of deportation); Merisier v. INS, 2000 WL 1281243 *12 (SD N Y 2000) (applying substantial evidence test in habeas petition challenging deportation based on 8 U.S.C. § 1231). "Under the substantial evidence standard, '[a court] will uphold the BIA's determination unless the evidence compels a contrary conclusion.'"Hernandez-Montiel, 225 F.3d at 1090-91 (quoting Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir 1996)). The Ninth Circuit has also described the substantial evidence test as follows: "Our task is to determine whether there is substantial evidence to support the BIA's finding, not to substitute an analysis of which side in the factual dispute we find more persuasive." Id at 1090 (quotingMarcu v. INS, 147 F.3d 1078, 1082 (9th Cir 1998)). Finally, "when 'the IJ expressly finds certain testimony given at the hearing to be credible, and where the BIA makes no contrary finding, we accept as indisputed the testimony given at the hearing before the IJ.'" Id at 1091 (quoting Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir 1998)).
Applying that standard, the court concludes that the IJ's determination was supported by substantial evidence. In support of her finding that petitioner was not more likely than not to be persecuted if she returned to Peru, the IJ stated:
Respondent was not harmed in Peru prior to coming to the United States in 1985. (195:18-20) She was not harmed or persecuted when she voluntarily returned to Peru in 1997. (181:24-25) The evidence supports her claim that opposition groups are active in Peru, and that they may have been interested in harming her husband in 1984. (157:19-22) However, there was never a threat against Respondent's health or safety. (177:15-18) While respondent may have been closely associated with the Peruvian customs service in the past, there is no evidence in the record to support the inference that opposition terrorists would have an interest in respondent. Respondent's husband has been out of customs Service for fourteen years. Respondent has spent most of those years outside of Peru. Respondent, returning to Peru after fourteen years, is not a likely candidate for terrorist attack.
IJ Order, May 22, 2000, at 11 (citations to the record added). Petitioner fails to contest the truth of any specific factual finding of the IJ, asserting instead in conclusory fashion: "In the case at hand, the record clearly reflects by clear and convincing evidence based on admitted documentary evidence and the credible, unrefuted testimony of petitioner and her spouse that petitioner has a well-founded fear of persecution * * * ." Pet Reply Br at 12. Petitioner also fails to point to any specific evidence in the record that was not considered by the IJ. The court has reviewed the transcript from the hearing before the IJ and has indicated in the quote from the IJ's order with parenthesis the portions of the transcript that support the IJ's decision.
The IJ concluded that petitioner had not shown that it was more likely than not that she would be persecuted if she returns to Peru. Substantial evidence in the record supports this conclusion. The record shows that petitioner fears returning to Peru. But the inquiry required by INS v. Stevic, 467 U.S. 407 (1987), is an objective one. The court cannot conclude that the decision of the IJ must overturned.
Because the court has determined that the IJ's factual finding that petitioner does not face a clear probability of persecution if she returns to Peru is supported by substantial evidence, the court need not consider petitioner's challenge to the BIA's social group determination. Even if the BIA decided that issue incorrectly, petitioner is not entitled to relief under section 1231(b) unless she can show a clear probability of persecution. Petitioner has failed to make that showing.
Consequently, petitioner's application for a writ of habeas corpus and stay of deportation must be DENIED.
IT IS SO ORDERED.