Opinion
NO. 3-02-CV-1369-L
September 11, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Gideon Olayinka Oyeniyi, 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 should be dismissed in part and denied in part.
I.
Petitioner, a native and citizen of Nigeria, entered the United States as a student in 1983 and became a permanent resident alien in 1989. (Resp. App. at 8-9). On June 16, 1999, petitioner pled guilty to federal conspiracy and money laundering charges. Punishment was assessed at 30 months confinement and a $5,000 fine. ( Id. at 1-6). Based on this conviction, an immigration judge ordered petitioner removed to Nigeria. ( Id. at 13-18). Petitioner appealed this decision to the Board of Immigration Appeals. The Board affirmed. In re Oyeniyi, No. A26 086 061 (BIA Aug. 9, 2002). Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2241.
Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA") provides for the deportation of any alien who has been convicted of an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA defines an "aggravated felony" as:
(D) an offense described in section 1956 of Title 18 (relating to laundering of monetary instruments) or section 1957 of that title (relating to engaging in monetary transactions in property derived from specific unlawful activity) if the amount of the funds exceeded $10,000;
(U) an attempt or conspiracy to commit an offense described in this paragraph;Id. § 1101(a)(43)(D) (U).
II.
Petitioner argues that his federal conviction for conspiracy to commit money laundering does not constitute an "aggravated felony" under section 101(a)(43) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43), because the amount of funds attributable to his role in the conspiracy did not exceed $10,000. As a result, petitioner contends there is no legal basis for his continued detention and removal.
Respondents point out that petitioner has been removed to Nigeria and is no longer in the custody of immigration officials. Consequently, they maintain that the habeas petition should be dismissed as moot. The court will address the jurisdictional issue first.
A.
A federal court has jurisdiction to issue a writ of habeas corpus only if the person seeking the writ is "in custody." See 28 U.S.C. § 2241; Pack v. Yusuff, 218 F.3d 448, 454 n. 5 (5th Cir. 2000). The "in custody" determination is made as of the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998); Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968). Once federal habeas jurisdiction has attached, "it is not defeated by the release of the petitioner prior to the completion of proceedings on such application." Carafas, 88 S.Ct. at 1559-60.
Here, petitioner was "in custody" at the time he filed his application for writ of habeas corpus on June 28, 2002. The fact that he was deported while this case was pending does not defeat the "in custody" requirement of section 2241. Nor does it moot a collateral attack of the removal order. As a result of his removal as an aggravated felon, petitioner cannot seek readmission to the United States for 10 years. See 8 U.S.C. § 1182(a)(9)(a)(ii). This penalty constitutes a legitimate collateral consequence which is sufficient to confer Article III standing. Max-George v. Reno, 205 F.3d 194, 196 (5th Cir. 2000), vacated on other grounds by Max-George v. Ashcroft, 533 U.S. 945, 121 S.Ct. 2585, 150 L.Ed.2d 746 (2001); Obajuluwa v. Ashcroft, No. 3-99-CV-0285-P (N.D. Tex. May 29, 2002), rec. adopted, (Sept. 5, 2002). See also Chong v. District Director, I.N.S., 264 F.3d 378, 385 (3d Cir. 2001); Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001); Tapia Garcia v. I.N.S., 237 F.3d 1216, 1218 (10th Cir. 2001). But see Uwagboe v. I.N.S., 32 Fed.Appx. 362, 2002 WL 461814 at *1 (9th Cir. Mar. 19, 2002), citing Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.), cert. denied, 122 S.Ct. 541 (2001) (removal of petitioner during pendency of appeal mooted habeas petition challenging removal proceedings and conditions of detention). Therefore, petitioner's claims involving his removal are not moot.
This statute provides, in pertinent part:
Any alien . . . who —
(I) has been ordered removed under section 240 or any other provision of law . . . and who seeks admission within 10 years of the date of such alien's departure or removal . . . is inadmissible.8 U.S.C. § 1182(a)(9)(A)(ii).
The Court acknowledges other Fifth Circuit cases holding that "no court may review a deportation order once deportation has occurred." See, e.g. Cipriano v. I.N.S., 24 F.3d 763, 764 (5th Cir. 1994); Quezada v. I.N.S., 898 F.2d 474, 477 (5th Cir. 1990); Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986). However, those decisions were based on the explicit language of section 106(c) of the INA, which precluded judicial review of a removal order after the alien had been deported. See 8 U.S.C. § 1105a(c) (repealed 1996) ("An order of deportation . . . shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order."). Section 106(c) was repealed in 1996, long before the commencement of removal proceedings against petitioner. Therefore, those authorities are of dubious precedent. See also Chavez v. U.S.I.N.S., 55 F. Supp.2d 555, 556 (W.D. La. 1999) (distinguishing cases decided prior to repeal of section 106(c)).
However, petitioner also challenges his detention in INS custody pending removal. The record shows that petitioner was removed to Nigeria on July 9, 2002 — 11 days after this case was filed but three days before the court issued its Show Cause Order. (Resp. App. at 22). As petitioner is no longer being detained by the INS, the court cannot grant the relief he seeks. All claims relating to his pre-removal detention should be dismissed as moot. See Soliman v. United States, 296 F.3d 1237, 1243 (11th Cir. 2002) (removal moots habeas petition seeking release from detention); Quinones-Molinar v. U.S.I.N.S., 30 Fed.Appx. 198, 1999, 2002 WL 347786 at *1 (4th Cir. Mar. 6, 2002) (same).
B.
Petitioner acknowledges that he was convicted of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h). However, he maintains that this conviction does not constitute an "aggravated felony" because the amount of funds attributable to his role in the conspiracy did not exceed $10,000. See 8 U.S.C. § 1101(a)(43)(D) (only money laundering involving funds in excess of $10,000 constitutes aggravated felony); Chowdhury v. I.N.S., 249 F.3d 970, 974 (9th Cir. 2001).
The presentence report, which was cited by the immigration judge in his removal order, indicates that petitioner participated in a conspiracy to launder the proceeds of a $75,000 counterfeit check. Two co-conspirators deposited the check into one of their bank accounts and immediately withdrew $48,000. A portion of the proceeds were used to purchase two cashier's checks in the amounts of $20,400 and $20,600. The checks were made payable to MODAK Enterprises and TLC Imports, two companies owned by petitioner. Upon receipt of the checks, petitioner cashed them at a local store. Most of the funds were delivered to the co-conspirators with petitioner retaining only $7,500. (Resp. App. at 15-16).
Petitioner argues that, since he received only $7,500 from the money laundering scheme, his participation did not involve funds in excess of $10,000. As the immigration judge noted:
The illegal transaction was the submission of the counterfeit check and the essential theft of those funds from the bank when the cashiers checks and cash were withdrawn by the initial two coconspirators. The laundering of that illegally obtained money occurred when the respondent cashed both cashiers checks, and in that case, and without regard to the amount the respondent may have benefited, the amount laundered directly by the respondent as punishable under 18 U.S.C. § 1956(h), was approximately $41,000 based on the amount of the two cashiers checks. Accordingly, in the view of the Court, the respondent's conviction relates to a monetary loss exceeding $40,000 and certainly exceeding $10,000 without respect to the true benefit the respondent might have received from the monetary standpoint.
( Id. at 17). See also United States v. Allen, 76 F.3d 1348, 1369 (5th Cir.), cert. denied, 117 S.Ct. 113 (1996) (sentencing judge must look to amount of money that has been laundered rather than total loss to victim).
The administrative record amply supports the finding that petitioner committed an "aggravated felony" as defined in section 101(a)(43) of the INA. Accordingly, this ground for relief should be overruled.
To the extent that petitioner contends the immigration judge improperly relied on the presentence report at his administrative hearing, that claim also fails. Petitioner was represented by counsel at all stages of his criminal trial and had ample opportunity to object to the presentence report in that proceeding.