Opinion
3:01-CV-2336-P
February 20, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241.
Parties: Petitioner Katota Nsangwa has been removed to his native country, the Democratic Republic of Congo. Respondents are John Ashcroft, Attorney General for the United States, and the Immigration and Naturalization Service (INS). Process has been issued in this case.
He was formerly detained at the Dallas County Jail in Dallas, Texas.
Statement of Case: Petitioner entered the new United States on July 13, 1989, on the basis of a student visa. (Resp.'s Mot. to Dism. at 1 and Resp.'s Suppl. Brief at 2). On January 13, 1995, he was convicted of Aggravated Sexual Assault of a Child under age of 14 in Dallas County, Texas. (App. to Petit.'s Reply, Exh. 1). On December 12, 1996, he was ordered removed as an aggravated felon. (Resp.'s Mot. to Dism. at 2). Petitioner did not appeal the order of removal. (Id.). On July 28, 1997, the INS unsuccessfully attempted to remove Petitioner. (Id.). Subsequently, Petitioner applied for political asylum with the Board of Immigration Appeals (BIA). (Id. at 4). This motion was denied as untimely. (Id.). Petitioner then filed a motion to reopen, raising a claim under the Convention Against Torture. (Id.). The motion was granted and his claim was heard on the merits and denied by an immigration judge. (Id.). Petitioner appealed to the BIA, which dismissed the appeal on February 26, 2001. (Id. and App. to Mot. to Dism. Exh. 1).
In his § 2241 petition, Nsangwa asserts under Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001), that he is entitled to discretionary relief from deportation under § 212(c) and § 212(h) of the Immigration and Nationality Act. (Petition at 1-4). He also asserts that he should no longer be subject to deportation because his criminal conviction has been stricken from the record. (Petition at 4-5). In support of the latter argument, Petitioner states that he filed a motion to reopen with the BIA on April 18, 2001. (Id.).
After this court's show cause order, Respondents filed a motion to dismiss the instant petition to which Petitioner filed a response.
Findings and Conclusions: Petitioner has not exhausted his administrative remedies by presenting his St. Cyr claim to the BIA. Failure to exhaust administrative remedies in a transitional rule case, such as this, deprives the federal court of jurisdiction. See Goonsuwan v. Ashcroft, 252 F.3d 383, 386-87 (5th Cir. 2001) (holding that transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) required alien to exhaust his administrative remedies prior to filing a habeas corpus petition challenging effectiveness of counsel at his deportation hearing). Nor has Petitioner exhausted his administrative remedies in connection with his second claim — i.e., that he should no longer be subject to deportation because his criminal conviction has been stricken from the record. Contrary to Petitioner's contentions, he did not file a motion to reopen with the BIA on April 18, 2001. Respondents state, however, that a motion to stay deportation, dated April 18, 2001, is in the INS' file. (Resp.' Suppl. Response at 2).
IIRIRA's transitional rules apply to removal proceedings that commence before April 1, 1997, and conclude more than thirty days after September 30, 1996. Requena-Rodriguez v. Pasquarell, 190 F.3d 229, 302 (5th Cir. 1999). Since Petitioner's deportation proceedings concluded on December 12, 1996, IIRIRA's transitional rule apply.
Notwithstanding Petitioner's failure to exhaust his administrative remedies, which provides a sufficient basis to dismiss the petition, Respondents state that Petitioner was removed on January 30, 2002, and arrived in Kinshasa, Congo, the following day, as evidenced by the Record of Person and Property Transferred and his thumb print on the Warrant of Deportation. (App. to Resp.'s Suppl. Response at 002-003). Accordingly, Petitioner's removal to his native country renders his petition moot.
RECOMMENDATION
For the foregoing reasons, it is recommended that the District Court enter its order dismissing as moot Petitioner's § 2241 petition for writ of habeas corpus.
A copy of this recommendation will be mailed to Petitioner and to counsel for the government.