Opinion
NO. 3-03-CV-1233-BD
October 20, 2003
MEMORANDUM OPINION AND ORDER
Petitioner Amali Thomas Okpoju, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application is dismissed in part and denied in part.
I.
Petitioner, a native and citizen of Nigeria, entered the United States without inspection and admission on or about October 28, 1995. (Resp. App., Exh. A). In 1998, the Immigration and Naturalization Service ("TNS") initiated removal proceedings against petitioner under section 212(a) of the Immigration and Nationality Act ("INA"). ( Id.). That same year, petitioner married an American citizen and applied for asylum. On January 13, 1999, an immigration judge rejected petitioner's asylum application as untimely and frivolous, but failed to consider his request to withhold removal. The Board of Immigration Appeals ("BIA") remanded the case to the immigration judge with instructions to consider the withholding application. Following a hearing on December 23, 2000, the immigration judge denied petitioner's request to withhold removal and ordered him removed to Nigeria. ( Id., Exh. B). Petitioner appealed that decision to the BIA and sought release on bond pending the outcome of the appeal. Because of his lack of candor during the proceedings, the immigration judge found that petitioner was a flight risk and set a $100,000 bond. ( Id. Exh. C). Petitioner then appealed the bond determination. On May 1, 2003 the BIA summarily affirmed the underlying asylum decision and removal order. In re Okpoju, No. A74-699-170 (BIA May 1, 2003). Petitioner's bond appeal was later dismissed as moot. In re Okpoju, No. A74-699-170 (BIA May 27, 2003). Having fully exhausted his administrative remedies, petitioner now seeks federal habeas relief.
Section 212(a)(6)(A)(i) of the INA provides, in pertinent part:
An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.8 U.S.C. § 1182(a)(6)(A)(i).
The immigration judge also determined that petitioner was not eligible for an adjustment of status based on his marriage to an American citizen. As noted by the judge, petitioner has married twice since coming to the United States. He also was married to a woman in Nigeria, which was not disclosed in a prior I-130 visa application filed by his current wife. The INS denied that application. Although a second visa application was pending at the time of the removal hearing, the immigration judge found that "any further continuances to resolve the question of the I-130 will be unnecessary" as petitioner's testimony was "utterly and completely unworthy of belief." (Resp. App., Exh. B). Petitioner does not appear to challenge this finding on federal habeas review.
II.
In three grounds for relief, petitioner contends that: (1) his continued detention under an excessive bond violates due process; (2) his detention for an indefinite time pending removal is unconstitutional; and (3) the immigration judge improperly denied his application for asylum. The court will address these claims in turn.
A.
Petitioner first argues that the immigration judge set an unreasonably high bond "due to his personal vendetta against my race and national origin." (Hab. Pet. at 2). According to petitioner, his continued detention under this bond violates the due process clause of the Fifth Amendment to the United States Constitution.
At the time petitioner was taken into custody, he was eligible for release on bond "pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). However, as respondent correctly points out, petitioner is now subject to a final order of removal and must be detained during the removal period. See id. § 1231(a)(2). Only the district director of the Bureau of Immigration and Customs Enforcement ("BICE") has authority to set a bond or release petitioner on conditions. See 8 C.F.R. § 241.33(a). Because the immigration judge no longer has jurisdiction over bond-related matters, this claim must be dismissed as moot. See Al Najjar v. Ashcroft, 273 F.3d 1330, 1339-40 (11th Cir. 2001), citing See In re Valles-Perez, 21 I. N. Dec. 769, 772, 1997 WL 80986 (BIA Feb. 10, 1997).
Effective March 1, 2003, the INS ceased to exist and its domestic enforcement functions were transferred to the Department of Homeland Security, Bureau of Immigration and Customs Enforcement. See generally, HOMELAND SECURITY ACT, Pub.L. 107-296, 116 Stat. 2135, § 110, et seq. (2002).
B.
Petitioner further contends that his indefinite detention pending removal is unconstitutional. Section 241(a)(1)(A) of the INA provides, in relevant part:
Except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days . . .8 U.S.C. § 1231(a)(1)(A). Here, the removal period commenced when the BIA affirmed petitioner's removal order on May 1, 2003. Id. § 1231(a)(1)(B)(i) (removal period begins on date the order of removal becomes administratively final). Although the 90-day post-removal period has expired, respondents may continue to detain petitioner for "a period reasonably necessary to bring about [his] removal from the United States." Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653 (2001). Detention for up to six months after expiration of the 90-day period is "presumptively reasonable." Id., 121 S.Ct. at 2505. After that time:
[O]nce the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink.Id.
As of today, petitioner has been in BICE custody for less than three months after the expiration of the 90-day post-removal period. Consequently, his request for habeas relief is premature. Petitioner may file another habeas petition if he has not been removed and is still in custody after this six-month post-removal period expires. But see id. ("This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future."); Kendy v. Ashcroft, 2003 WL 214483 80 at *2 (N.D. Tex. May 14, 2003) (same); Fabuluje v. I.N.S., 2001 WL1597812 at *2 (N.D. Tex. Dec. 11, 2001) (same).
C.
Finally, petitioner complains that the immigration judge improperly denied his application for asylum. Respondents counter that federal habeas jurisdiction is not proper because such a claim must be raised on direct appeal in a petition for review. Alternatively, respondents argue that petitioner has failed to state a claim upon which relief can be granted.
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("TIRIRA") attempts to limit, or in some cases eliminate, judicial review in immigration cases. See Pub.L. 104-208, 110 Stat. 3009 (1996). This statute provides, in relevant part:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.8 U.S.C. § 1252(b)(9). Aliens who, like petitioner, are not removable by reason of having committed a criminal offense, may obtain judicial review of a final order of removal by filing a petition for review with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings. See id. § 1252(a) (b). Although criminal aliens have no right to direct judicial review, the Supreme Court has held that such aliens may collaterally attack their removal orders on constitutional grounds in an application for writ of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Q. 2271, 2287, 150 L.Ed.2d 347 (2001) (statutory changes wrought by IIRIRA did not repeal habeas jurisdiction for criminal aliens who were precluded from challenging removal order in petition for review). After St. Cyr, it is unclear whether non-criminal aliens, who have a statutory right to direct judicial review, may also challenge their removal orders on collateral review in federal district court. The Second, Third, and Tenth Circuits have held that federal habeas relief remains available to non-criminal aliens. Liu v. INS, 293 F.3d 36, 39-41 (2nd Cir. 2002) (suggesting that habeas relief remains available to non-criminal aliens who challenge removal orders on constitutional grounds); Ckmakov v. Blackman, 266 F.3d 210, 215-16 (3rd Cir. 2001) (same); Riley v. INS, 310 F.3d 1253, 1256-57 (10th Cir. 2002) (same). The First Circuit and several district courts, including two judges in this district, have held to the contrary. Foroglou v. Reno, 241 F.3d 111, 114-15 (1st Cir. 2001) (holding that non-criminal alien must challenge removal order in petition for review), Brathwaite v. Ashcroft, 2003 WL 22005871 at *5 (N.D. Tex. Aug. 22, 2003) (same), Lee v. Ashcroft, 2003 WL 21832237 at *3 (N.D. Tex. Aug. 5, 2003) (same); Arloo v. Ashcroft, 238 F. Supp.2d 381, 383 (D. Mass. 2003) (same). Neither the Supreme Court nor the Fifth Circuit have directly addressed the issue.
Section 242(a)(2)(C) of the IIRIRA provides:
Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2) or 1227(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title.8 U.S.C. § 1252(a)(2)(C).
The court need not answer this thorny jurisdictional question because petitioner has failed to state a claim upon which relief can be granted. To the extent that petitioner can bypass a direct appeal and obtain federal habeas review of his removal order, he must allege and prove that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Although couched in constitutional terms, petitioner has failed to allege the violation of a federal constitutional or statutory right. His only challenge to the removal order is that respondents failed to prove that he submitted false documents in support of his asylum application. (See Hab. Pet. at 5). This is nothing more than an evidentiary challenge to the decision of the immigration judge which is not cognizable in a federal habeas proceeding. See, e.g. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (evidentiary ruling must implicate federal constitutional right in order to justify habeas relief).
Petitioner alleges that respondents violated his rights under the Sixth Amendment to the United States Constitution. (See Hab. Pet. at 5). However, the Sixth Amendment does not apply to immigration proceedings. See Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993), citing Paul v. INS, 521 F.2d 194, 197 (5th Cir. 1975).
CONCLUSION
Petitioner's application for writ of habeas corpus is dismissed in part and denied in part. All claims relating to his pre-removal bond determination are dismissed as moot. The claims relating to his post-removal detention are denied without prejudice. All other claims, including those relating to the denial of asylum, are dismissed for failure to state a claim upon which relief can be granted.
SO ORDERED.