Raffington v. Cangemi

Full title: SHERNETH RAFFINGTON, Petitioner, v. MARK CANGEMI, District Director, U.S…

Court: United States District Court, D. Minnesota

Date published: Oct 6, 2004

Civil No. 04-3846 (JRT/RLE) (D. Minn. Oct. 6, 2004)

Opinion

Civil No. 04-3846 (JRT/RLE).

October 6, 2004

Herbert A. Igbanugo, BLACKWELL IGBANUGO, Minneapolis, MN, for petitioner.

Lonnie F. Bryan, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN, for respondents.

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

JOHN TUNHEIM, District Judge

On August 10, 2004, Immigration and Customs Enforcement ("ICE") contacted Sherneth Raffington ("Raffington") via letter requesting that she come in for a meeting to discuss her immigration status. Three days later she reported to ICE for the meeting and was placed in physical custody pursuant to a warrant of removal. Raffington is currently detained at Ramsey County detention facility in St. Paul and has filed a Petition for Writ of Habeas Corpus.

For the reasons stated below, the Court denies Raffington's Petition.

BACKGROUND

Raffington is a 48-year-old Jamaican citizen who arrived in the United States nineteen years ago. Raffington was sexually abused by her uncle in Jamaica and became pregnant before finishing high school. She has three daughters, ages 28, 26, and 16, from whom she is estranged. The oldest is living in Jamaica and is dying of AIDS. Raffington has been diagnosed with chronic mental illness, including major depression, post-traumatic stress disorder, and dissociative disorder. She is suicidal, has attempted suicide at least twice in the past, and requires medication and on-going psychiatric care. Raffington has never been arrested for a crime, has worked as a nursing assistant with the Veteran's Administration for the past eight years, and has health insurance through her employer.

Since first entering the United States, Raffington has gone to Canada three times: in 1985 to obtain a visa; in 1986 to visit her sick father; and in 1988 to be with her parents for the birth of her third child. After her daughter was born, Raffington returned to the United States in April 1988 — Her last entry into the United States.

On October 24, 1994, the Immigration and Naturalization Service ("INS")¹ served Raffington with an order to show cause why she should not be deported. Raffington admitted she was deportable on August 25, 1995.

1 The INS was the predecessor agency to ICE.

In November 1995, Raffington applied for a suspension of deportation pursuant to former Immigration and Nationality Act ("INA") section 244(a)(3), a form of statutory relief available to foreign nationals who were placed in deportation proceedings prior to April 1, 1997. Pursuant to INA section 244(a)(1), to be eligible for suspension of deportation, Raffington had to show that she was physically present in the United States for a continuous period of not less than seven years immediately preceding the date the application for suspension of deportation was filed.²

2 Raffington also had to show that she was a person of good moral character and that deportation would result in extreme hardship. Both of these factors are undisputed in this case.

On September 30, 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). IIRIRA changed the physical presence requirement in regards to obtaining suspension of deportation by, inter alia, including a stop-time rule that stops the accrual of continuous presence when deportation proceedings commence, rather than when an application for suspension of deportation is filed. The stop-time rule provides that, "[f]or purposes of this section, any period of continuous residence or continuous physical presence in the United States shall be deemed to end when the alien is served a notice to appear." 8 U.S.C. § 1229b(d)(1).

IIRIRA also made changes to the structure and terminology of the INA. For example, in IIRIRA,

Congress created proceedings — with different names and slightly different requirements — that paralleled the pre-IIRIRA deportation scheme. Relevant here, before IIRIRA, aliens were placed in deportation proceedings after being served with an [ Order to Show Cause], and could seek relief by applying for, inter alia, suspension of deportation. After IIRIRA, aliens were placed in removal proceedings after being served with a Notice to Appear ("NTA"), and could seek relief by applying for cancellation of removal.

Ram v. INS, 243 F.3d 510, 513 (9^th Cir. 2001).

In addition, although IIRIRA provided that it would not take effect until April 1, 1997, the Act contained a "Transitional Rule with Regard to Suspension of Deportation," providing that the stop-time rule "shall apply to notices to appear issued before, on, or after the date of the enactment of this Act." IIRIRA 309(c)(5). In other words, although the majority of IIRIRA's new rules did not apply to deportation proceedings commenced before its effective date of April 1, 1997, the transition rules mandated application of the stop-time rule to cases in administrative proceedings on the date of IIRIRA's enactment of September 30, 1996.

On December 11, 1996, an Immigration Judge ("IJ") granted Raffington her request for suspension of deportation enabling her to secure lawful permanent residency. As part of that determination, the IJ found that Raffington had been physically present in the United States for a continuous period of not less than seven years; from April 1988, when she last returned from Canada, until November 1995, when she filed her application for suspension of deportation. To reach this conclusion, the IJ held that the stop-time rule was "incapable of taking place until April 1, 1997" because it referred to issuance of a Notice to Appear, which did not replace an order to show cause until that date. (Ex. 2 at 11.)

On December 22, 1996, the INS appealed to the Board of Immigration Appeals ("BIA") arguing that the enactment of IIRIRA required Raffington to have accrued seven years continuous presence from the time of her last entry to the time that the INS served the order to show cause. The INS relied on Matter of N-J-B, Int. Dec 3309 (BIA 1997) wherein the BIA held that service of an order to show cause ends the period of continuous physical presence for suspension of deportation.

On October 11, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act, Pub.L. No. 105-100, 111 Stat. 2160 (1997) ("NACARA"). NACARA replaced "notice to appear" in the stop-time rule with "orders to show cause" and made the amendment effective as if included in IIRIRA. NACARA § 203(a) and (f); Sad v. INS, 246 F.3d 811, 816 (6^th Cir. 2001). After NACARA, the "Transitional Rule with Regard to Suspension of Deportation" provides that the stop-time rule "shall apply to orders to show cause . . . issued before, on, or after the date of the enactment of this Act." Id.

On January 7, 1998, the INS filed another brief with the BIA arguing that NACARA had clarified the use of "notice to appear" instead of "orders to show cause" in IIRIRA and resolved the ambiguity relied on by the IJ to grant Raffington suspension of deportation.

On September 26, 2001, the BIA vacated the IJ's decision, finding that under IIRIRA, as amended by NACARA, the issuance of an order to show cause ended Raffington's period of continuous physical presence. Thus, the BIA held that Raffington did not meet the seven-year continuous presence requirement and, therefore, was statutorily ineligible for suspension of deportation.

In October 2001, Raffington filed a motion to reopen and remand with the BIA to apply for asylum and for withholding of deportation. The BIA denied her motion finding that she failed to submit evidence supporting her claim that she had a well-founded fear of persecution in Jamaica.

In March 2002, Raffington filed a motion to reconsider with the BIA, but the BIA denied her motion. Also in March 2002, Raffington filed a petition for review with the Eighth Circuit Court of Appeals. The Eighth Circuit granted her stay request, but eventually denied her petition for review of the BIA's decision not to reopen Raffington's case. Raffington v. INS, 340 F.3d 720 (8^th Cir. 2003). The Eighth Circuit further held that Raffington did not appeal the BIA's decision to deny her application for suspension of deportation. Id.

In October 2003, Raffington submitted a request for a deferred action to ICE. Deferred action status results in ICE giving low priority to executing the final removal order and allows the foreign national to remain in the United States, perhaps indefinitely. In August 2004, Raffington applied to the Citizenship and Immigration Service to renew her work permit. In response, ICE sent her a letter requesting that she appear before them to discuss her case. On August 13, 2004 Raffington reported to ICE for the meeting and was placed in physical custody pursuant to a warrant of removal that issued after Raffington failed to comply with an order for voluntary removal. At that time she was notified that her request for deferred action was denied.

Prior to the hearing on this motion, ICE agreed not to deport Raffington until September 15, 2004. In response to Raffington's Motion for a Temporary Restraining Order, this Court granted Raffington's motion and prohibited ICE from removing Raffington from the United States until this Court ruled on this Motion for Writ of Habeas Corpus, or October 6, 2004, whichever came first.

ANALYSIS

Raffington asserts that the IJ's decision, made after IIRIRA was enacted, but three months before IIRIRA went into effect, was legally sound when made. Therefore, Raffington argues, the INS's appeal to the BIA was frivolous, in bad faith, and in violation of Raffington's due process rights because it was based on a law that was not yet in effect. Raffington further asserts that, but for the BIA's five-year delay in ruling on the appeal, the stop-time rule would not have applied to her.

ICE, on the other hand, argues that the "INS had a good faith belief in arguing that despite the effective date of April 1, 1997, IIRIRA's stop-time rule applied on the date of enactment, September 30, 1996, sixty days before the IJ decided Plaintiff's application for suspension of deportation." (Resp. at 18.) The Court agrees with ICE that it had a good faith argument that Congress intended the stop-time rule to apply to orders to show cause issued prior to April 1, 1997. This argument, in fact, has been born out, not only by the passage of NACARA, but also by several courts facing similar arguments. See Escudero-Corona v. INS, 244 F.3d 608, 613 (8^th Cir. 2001) (stating that NACARA put an end to any "questions regarding whether the stop-time rule applies to orders to show cause issued before the enactment of IIRIRA"); Afolayan v. INS, 219 F.3d 784, 788 (8^th Cir. 2000) (stating that "Congress clearly intended a retroactive application of the stop-time measure").

Raffington agrees that, over time, through court interpretation and the passage of NACARA, the stop-time rule is now applied retroactively, but argues that, at the time the IJ made his decision, the interpretation of the stop-time rule was not clear, the IJ's decision was legally correct, and the INS did not have a sound basis on which to appeal. Raffington relies heavily on Otarola v. INS, 270 F.3d 1272 (9^th Cir. 2001), in making this argument. In that case, an IJ granted suspension of deportation holding that IIRIRA's stop-time rule did not take effect until April 1, 1997, only to be reversed by the BIA. The Court of Appeals then overruled the BIA and affirmed the IJ's decision holding that the INS's appeal was frivolous because it was taken in "the face of clear statutory language and this court's precedent holding that the stop-time provision of IIRIRA was not effective until April 1, 1997." Id. at 1273.

Although Otarola is strikingly similar to the present case, it is also distinguishable. At the time the INS filed its appeal in Otarola, there was clear Ninth Circuit precedent holding that the stop-time rule did not take effect until April 1, 1997, thus resolving the INS's argument. See Astrero v. INS, 104 F.3d 264, 266 (9^th Cir. 1996). When the INS filed its appeal in the present case, however, there was no such binding precedent in this Circuit that the INS was required to follow. To the extent that Raffington argues that the INS should have been in some way bound by the Ninth Circuit's holding in Astrero, this argument also fails as Astrero was not decided until two weeks after the INS filed its appeal.

Raffington next argues that even if the stop-time rule applies to her case, she has accrued seven years of continuous presence since she was served with the order to show cause. The Eighth Circuit, however, has already dismissed this argument. Afolayan, 219 F.3d at 789 (holding that the BIA's conclusion that IIRIRA does not allow a new seven-year clock to restart following the issuance of a deportation order is "reasonable and consistent with the statute's language and legislative history").

Raffington also argues that ICE's denial of her request for deferred action is arbitrary and capricious. Although under previous versions of the INS Operations Instruction, courts had some ability to oversee the grant of deferred action, see, e.g., In re Guerrero-Morales, 512 F. Supp. 1328, 1331 (D. Minn. 1981) (remanding case to district director "to permit him to reconsider the application for deferred action status and to determine whether, in the exercise of his discretion, he can grant relief to the petitioner"), that is no longer the case. The INS Operations Instructions have since been amended. There is now general agreement among the courts that district courts lack jurisdiction to review agency decisions as to deferred action. The Tenth Circuit has described deferred action as "an informal administrative stay of deportation . . . having no effect on an alien's adjudication as deportable but potentially leading to an extended stay in this country. It is, in essence, a `reprieve' from deportation — an administrative decision by the INS to take no action against an otherwise deportable alien." Velasco-Gutierrez v. Crossland, 732 F.2d 792, 794 (10^th Cir. 1984) (internal quotations and citations omitted). As such, this Court lacks jurisdiction to review INS decisions denying deferred action. See, e.g., Botezatu v. INS, 195 F.3d 311, 314 (7^th Cir. 1999) (holding that review of a refusal to grant deferred action is excluded from district court jurisdiction pursuant to 8 U.S.C. § 1252(g)); Romeiro de Silva v. Smith, 773 F.2d 1021, 1025 (9^th Cir. 1985) (holding that the district court lacked jurisdiction to review district director's decision not to recommend deferred action).

CONCLUSION

Although the Court is very sympathetic to the plight Raffington faces, the Court has very carefully reviewed the record in this case and cannot find a basis for relief to be granted. The law is simply not on Ms. Raffington's side, despite her compelling circumstances. The Court finds that INS's appeal of the IJ's decision was not frivolous, that IIRIRA does not allow for a new seven year clock to begin after an order to show cause is issued, and that ICE's denial of deferred action is a discretionary decision not reviewable by this court. To the extent that Raffington has a claim under the Convention Against Torture as suggested in her reply brief, the Court is unable to address it at this time as the claim is not fully briefed by both parties.

ORDER

Based upon the foregoing, the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that Petitioner's request for Petition for Writ of Habeas Corpus [Docket No. 1] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.