Opinion
No. 3-01-CV-1416-BD
March 2, 2002
MEMORANDUM OPINION AND ORDER
Petitioner Festus M. Okwilagwe has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2241. For the reasons stated herein, the application is granted.
I.
Petitioner, a citizen of Nigeria, entered the United States as a student in 1984. (Resp. App. at 001). He became a permanent resident alien on April 28, 1987. ( Id.). Thereafter, petitioner was twice convicted on state drug charges. On May 6, 1998, he pled guilty to possession of cocaine and was sentenced to 11 months imprisonment. ( Id. at 002). On September 14, 1998, petitioner pled nolo contendere to possession of less than two ounces of marijuana and was sentenced to 42 days in jail. ( Id. at 003-008). Based on these convictions, the Immigration and Naturalization Service ("INS") initiated removal proceedings under Section 237(a)(2)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii). ( Id. at 009). Petitioner was taken into custody by immigration officials and held without bond pending the outcome of removal proceedings. ( Id. at 009-012).
This statute provides, in relevant part:
Any alien . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens:
On April 10, 2000, an immigration judge ordered petitioner removed to Nigeria. ( Id. at 013-019). The Board of Immigration Appeals affirmed this decision. In re Okwilagwe, No. A28 303 939 (BIA Dec. 6, 2000). A petition for review to the Fifth Circuit was dismissed for lack of jurisdiction. Okwilagwe v. Ashcroft, No. 01-60286 (5th Cir. Apr. 12, 2001). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241.
II.
Petitioner challenges his removal and continued detention on four grounds: (1) he was never convicted of a felony under Texas law; (2) his lengthy residence, family ties, and employment in the United States make him eligible for a cancellation of removal; (3) he was denied due process at his removal hearing; and (4) he is entitled to release on bond pending his removal to Nigeria.
A.
The Court initially notes that petitioner's first three claims are barred by res judicata. On January 9, 2001 — more than six months before this case was filed — petitioner sought habeas relief from another judge in this district. His prior section 2241 application presented four grounds for relief: (1) his underlying state conviction was obtained as a result of an illegal search and seizure; (2) the INS failed to prove by clear and convincing evidence that he committed an aggravated felony; (3) the immigration judge improperly determined that he was an aggravated felon; and (4) he was entitled to a cancellation of removal. On January 2, 2002, the magistrate judge recommended that habeas relief be denied on the merits. This recommendation was adopted by the district court on January 25, 2002. Okwilagwe v. INS, 2002 WL 122526 (N.D. Tex. Jan. 25, 2002). Res judicata, or claim preclusion, bars subsequent litigation between the same parties when a prior action involving the same claims or cause of action reached final judgment on the merits in a court of competent jurisdiction. Ellis v. Amex Life Insurance Co., 211 F.3d 935, 937 (5th Cir. 2000), citing Agrilectric Power Partners, Ltd. v. General Electric Co., 20 F.3d 663, 664-65 (5th Cir. 1994). Here, petitioner challenged his removal order in a prior habeas proceeding which was dismissed on the merits. Two of the grounds raised by petitioner in the instant case — that he is not an aggravated felon and is entitled to a cancellation of removal — were presented in the prior habeas case. Petitioner's due process claim arises out of the same removal order at issue in the prior action and could have been litigated in that case. Accordingly, those claims are barred by resjudicata.
Petitioner's first habeas case was originally dismissed for lack of jurisdiction on April 11, 2001. After the Supreme Court decided St. Cyr. petitioner filed a motion to reopen the proceedings. That motion was granted on August 27, 2001. Thereafter, his claims were considered and rejected on the merits.
The Court notes that petitioner is not prohibited from filing a second or successive habeas petition because, as an INS detainee, he is not in custody "pursuant to a judgment of a court of the United States." Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (holding that "gatekeeping" provisions of AEDPA do not apply to successive habeas petitions filed by INS detainees).
B.
In his only viable ground for relief, petitioner contends that he should be released on bond pending his removal to Nigeria. Section 241 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 days8 U.S.C. § 1231(a)(1)(A). Although aliens subject to removal as aggravated felons are not eligible for release on bond, the Supreme Court has held that aliens can be detained beyond the statutory 90-day removal period only for "a period reasonably necessary to bring about that alien's removal from the United States." Zadvydas v. Davis, ___ U.S. ___, 121 S.Ct. 2491, 2498, 150 L.Ed.2d 653. Detention for up to six months after the removal order becomes final is "presumptively reasonable." Id., 121 S.Ct. at 2505. After that time:
The relevant statute provides:
During the removal period, the Attorney General shall detain the alien. Under no circumstances during the removal period shall the Attorney General release an alien who has been found . . . deportable [as an aggravated felon].8 U.S.C. § 1231(a)(2).
[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. If a federal habeas court determines that removal is not "reasonably foreseeable," the alien should be released from custody subject to conditions of supervised release that are "appropriate in the circumstances." Id. at 2504. of course, the alien may be returned to custody if he violates any of those conditions. Id.; see also Borrero v. Aljets, 178 F. Supp.2d 1034, 1044 (D. Minn. 2001) (granting habeas relief to alien held more than 90 days after expiration of post-removal period, subject to conditions INS deems appropriate); John v. Aljets, 162 F. Supp.2d 1086, 1090-91 (D. Minn. 2001) (same, but remanding case to INS for consideration under standard set forth in Zadvydas).
The removal order in this case became final when the Fifth Circuit dismissed a petition for review on April 12, 2001. Yet petitioner remains in INS custody pending his removal to Nigeria. In order to determine whether removal is "reasonably foreseeable," the Court held an evidentiary hearing on January 10, 2002. At this hearing, an INS deportation officer testified that arrangements had been made for petitioner to travel from Dallas to Buffalo, New York on January 28, 2002, and from Buffalo to Lagos, Nigeria on January 29, 2002. The INS was merely waiting for travel documents from the Nigerian Consulate in New York City. Although Batten represented that she had been promised these documents in "a few days," counsel for petitioner questioned whether the Nigerian government would accept petitioner in view of his medical condition. At petitioner's request, the Court recessed the hearing so the parties could obtain additional information from the Consul General of Nigeria.
Petitioner contracted spinal tuberculosis while incarcerated in the Dallas County Jail as an INS detainee. Although he was cleared for travel by his doctor on January 2, 2002, petitioner has expressed reservations about returning to Nigerian at this time due to his health. Apparently, the Consul General of Nigeria shares these concerns as it has not yet issued the necessary travel documents.
During the next 45 days, both petitioner and respondent communicated with Nigerian officials to determine whether or when travel documents would be forthcoming. Unable to get a definitive answer, the Court ordered the parties to depose the Consul General of Nigeria, or his designated representative, regarding this issue. This order was vacated after the Consul General objected to the deposition on diplomatic grounds. When the evidentiary hearing reconvened on March 1, 2002, neither side presented any additional evidence. Thus, there is no way to determine whether the Nigerian government will issue the necessary travel documents to effect petitioner's removal in the reasonably foreseeable future.
Article 43, Section 1 of the Vienna Convention on Consular Relations and Optional Protocols provides, in relevant part:
Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.
VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLS, Apr. 24, 1963, art. 43, 21 U.S.T. 77, 1155 U.N.T.S. 31.
The Court concludes that section 1231, as interpreted by Zadvydas, does not authorize the INS to detain petitioner indefinitely. Rather, the INS may detain aliens beyond the statutory 90-day removal period only for "a period reasonably necessary to bring about that alien's removal from the United States." Zadvydas, 121 S.Ct. at 2498. In this case, the 90-day removal period began on April 12, 2001, when the Fifth Circuit dismissed a petition for review, and ended on July 12, 2001. It is now more than six months since the 90-day period ended, which means that petitioner's continued detention is no longer presumptively reasonable. Yet petitioner remains in custody today and, if left up to the INS, will remain there until such time, if any, as the Nigerian government issues travel documents to effect his removal. Such a result would be contrary to Zadvydas. Accordingly, habeas relief must be granted.
CONCLUSION
Petitioner's application for writ of habeas corpus is granted. Petitioner is hereby released from physical custody, subject to such terms and conditions as the INS deems appropriate, pending the issuance of travel documents by the Nigerian government to effect his removal.
The INS shall supervise petitioner pending his removal in accordance with the provisions of 8 U.S.C. § 1231(a)(3) and agency regulations. In particular, the INS may require petitioner:
(a) to appear before an immigration officer periodically for identification;
(b) to submit, if necessary, to a medical and psychiatric examination at the expense of the United States government;
(c) to give information under oath about his nationality, circumstances, habits, associations, and activities, and other information the INS considers appropriate; and
(d) to obey reasonable written restrictions on his conduct or activities.
Provided, however, that the INS may not detain petitioner under any regulation providing for the automatic detention of an alien who has been convicted of an aggravated felony, or for any other reason, other than for violating the conditions of his supervision.
Petitioner shall report to an immigration officer on March 6. 2002 at 10:00 a.m ., at the INS Dallas District Office, Detention and Deportation Services, 8101 North Stemmons Freeway, First Floor, Dallas, Texas.
Petitioner shall fully cooperate with the INS to effect his prompt removal to Nigeria.
SO ORDERED.
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Any alien who is convicted of an aggravated felony at any time after admission is deportable.8 U.S.C. § 1227(a)(2)(A)(iii). The term "aggravated felony" includes certain controlled substance violations. See id. § 1101(a)(43). In addition, "[a]ny alien who at any time after admission has been convicted of a violation of . . . any law or regulation of a State . . . relating to a controlled substance . . . is deportable." Id. § 1227(a)(2)(B)(i).