Opinion
No. 99 Civ. 1546 (TPG).
March 2, 2001
OPINION
Petitioner pro se Okacci Remoi seeks a writ of habeas corpus, challenging certain criminal convictions in the New Jersey state courts, the order of removal against him, and his detention in the custody of the Immigration and Naturalization Service (INS). Respondent has answered the petition, asserting that no right to relief exists. The Court finds that petitioner has not exhausted his administrative remedies with respect to any of his claims. Accordingly, the petition is dismissed.
Facts
Petitioner is a native and citizen of Uganda who entered the United States on September 14, 1987 as a non-immigrant visitor for pleasure. On December 27, 1988, petitioner was granted a change of status to that of nommmigrant student to attend Rutgers University.
Petitioner's New Jersey Convictions
On January 8, 1991, petitioner pled guilty in New Jersey Superior Court, Middlesex County, to two counts of criminal sexual contact in the fourth degree, in violation of N.J.S.A. 2C:14-3b. He was sentenced to concurrent three-year probationary terms, conditioned upon serving 77 days in the Middlesex County Adult Correction Center. He was credited with 77 days already served. Petitioner appealed his convictions to the Appellate Division on September 27, 1991, and the convictions were affirmed on October 6, 1992.
Petitioner was expelled from Rutgers University in May 1990 in response to the incidents underlying his 1991 convictions.
On October 2, 1995, petitioner was convicted after a bench trial in the New Jersey Superior Court, Middlesex County, of fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b, and sentenced to three years of probation. Probation for this offense was revoked on September 25, 1996, because petitioner failed to attend the weekly mental health counselling sessions which were a special condition of his probation. Petitioner asserts that he ceased attending the sessions because his counselor insisted that he accept responsibility for his crimes. Petitioner refused to do so because he claims he is actually innocent. Petitioner was sentenced to incarceration for 18 months.
Following his incarceration in New Jersey, petitioner was released into INS custody, apparently in April of 1997.
Petitioner's Removal Proceedings
Based on petitioner's 1991 conviction and his failure to maintain his non-immigrant student status, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against petitioner in 1994. These proceedings were terminated in April of 1997 because the charging document or "Order to Show Cause" issued by INS was not signed by an authorized official and was not properly served upon petitioner. It is unclear what, if anything, occurred with regard to this deportation proceeding between 1994 and 1997.
The INS commenced new removal proceedings against petitioner under the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"). On April 16, 1997, the INS issued a Notice to Appear alleging that the petitioner is removable under Section 237(a)(1)(C)(i) of the Immigration and Nationality Act ("INA") for failure to comply with the conditions of his change of status. Subsequently, the INS filed two additional charging documents. The first charged that petitioner was removable, pursuant to Section 237(a)(2)(A)(ii) of the INA, as a person who had been convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct. The second charged that petitioner was removable, pursuant to Section 237(a)(2)(A)(iii) of the INA, as a person who had been convicted of an aggravated felony as defined in Section 101(a)(43).
On August 14, 1997, petitioner appeared before Immigration Judge Eugene Pugliese and admitted the factual allegations in the Notice to Appear. The Court sustained the charge of removability pursuant to section 237(a)(1)(C)(i) of the INA, as amended. On that date, petitioner submitted an Application for Asylum and Withholding of Removal. Petitioner claims that his asylum proceedings were preterminated.
A hearing was held before Immigration Judge Gabriel Videla in which he considered the second two charging documents and the application for asylum and witholding. Petitioner admitted the factual allegations contained in both charging documents but denied removability pursuant to section 237(a)(2)(A)(ii) and (iii) of the INA. On December 2, 1998, the Court sustained the charges, finding that petitioner had been convicted of two crimes involving moral turpitude and an aggravated felony. The Court applied a presumption that an alien convicted of an aggravated felony for which a sentence of fewer than 5 years was imposed is convicted of a "particularly serious crime" rendering the alien ineligible for withholding of removal. Based on petitioner's convictions, the Court found him ineligible for asylum and withholding of removal. Petitioner filed a timely appeal of the Immigration Judge's decision with the Board of Immigration Appeals ("BIA").
The BIA found that the Immigration Judge erred in concluding that an alien convicted of an aggravated felony for which a sentence of fewer than 5 years was imposed is presumed to have been convicted of a "particularly serious crime" rendering the alien ineligible for withholding of removal. The Board took the position that in determining the eligibility for withholding of removal in the case of a respondent convicted of an aggravated felony for which fewer than 5 years imprisonment are imposed, the Immigration Judge is required to conduct an individual examination of the conviction, the sentence imposed, and the circumstances and underlying facts of the conviction. As a result, the BIA remanded the case for further proceedings. In addition, the BIA directed the Immigration Judge on remand to conduct further proceedings to determine petitioner's eligibility for relief under Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT").
On remand, Immigration Judge Alan Page found that the nature and circumstances of petitioner's crimes supported the finding that petitioner's convictions constitute "particularly serious crimes," and denied petitioner's application for withholding under section 241(b)(3). Judge Page also found that petitioner had not established statutory eligibility for relief under CAT.
Petitioner timely appealed the Immigration Judge's decision to the BIA. As of November 16, 2000, the appeal is still pending.
Petitioner's Custody Proceedings
Petitioner was released from the custody of New Jersey state officials into INS custody, apparently on or about April 2, 1997.
On April 14-17, 1997, a bond hearing was held before an immigration judge, who found that petitioner was not a flight risk or a danger to society and ordered him released. It was at this time that INS terminated petitioner's 1994 deportation proceedings and instituted new proceedings under Illegal Immigration Reform and Immigrant Responsibility Act. Petitioner was returned to INS custody after the conclusion of his removal hearing before Immigration Judge Videla on December 2, 1998. Petitioner sought release from INS custody in December 1998 by filing a request for a change in custody status. The request was denied by Immigration Judge Alan Page on December 22, 1998.
Petitioner timely appealed the custody determination to the BIA, which affirmed the Immigration Judge's determination regarding petitioner's custody status on June 29, 1999. The BIA found that petitioner was no longer eligible for release on bond after the expiration of the Transition Period Custody Rules because petitioner's status as an alien convicted of an aggravated felony subjected him to mandatory detention during the pendency of his removal proceedings.
Petitioner renewed his request for release from INS custody following a change in INS policy making him eligible for a discretionary determination as to his suitability for release on bond. A hearing was held before Immigration Judge Page on February 15, 2000. The Immigration Judge denied, in his discretion, petitioner's request for release on bond.
Petitioner timely appealed the decision of the Immigration Judge. As of November 16, 2000, this appeal is still pending before the BIA.
The Petition for Habeas Corpus
This petition for habeas corpus, embodied in many submissions from petitioner, states a wide variety of claims. These claims, liberally construed, fall into three broad categories. These are: (1) Claims relating to petitioner's New Jersey convictions, (2) Claims relating to petitioner's removal proceedings, and (3) Claims relating to petitioner's INS custody.
a. New Jersey Convictions
The first category of claims relates to petitioner's convictions in New Jersey state courts. Petitioner asks that the Court void his 1991 conviction based on the government's breach of the plea agreement, and void his 1994 conviction based on actual innocence.
Also related to petitioner's New Jersey convictions, petitioner claims that he was drugged by the New Jersey police investigating the incident on which the 1991 conviction was based. In May 1999, petitioner filed a separate action in this Court under the Alien Tort Claims Act, 28 U.S.C. § 1350, and the Torture Victim Protection Act, in which he alleges that defendants at Rutgers College and Middlesex County Correctional Facility forcibly "administer[ed] . . . a mind altering substance . . . that disrupted [his] sense of self and mind." On September 16, 1999, this Court ordered the tort action transferred to the United States District Court for the District of New Jersey, finding that the action was unrelated to the petition for habeas corpus pending before it.
Petitioner also claims that the revocation of his parole in 1996 was unconstitutional. Petitioner claims that he is actually innocent of the acts upon which the 1995 conviction is predicated, and that the counselor's demands that he admit wrongdoing violated his Fifth Amendment rights.
b. Removal Proceedings
Petitioner asks that his application for asylum be granted, his application for withholding be granted, and his application for suspension of deportation be granted. Petitioner also asks that the Court void the INS removal proceedings, dismiss the INS charges, and grant him his Torture Convention.
Petitioner argues that the Immigration and Naturalization Service ("INS") initiated deportation proceedings against him in 1994, prior to the enactment of the Anti-terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996. These 1994 proceedings were terminated after it was discovered that the charging document was defective. INS re-commenced removal proceedings against petitioner in April 1997. Petitioner argues that any removal proceedings should continue under the INA as it stood in 1994.
Petitioner also claims that his application for asylum and withholding was filed before the enactment of AEDPA and IIRIRA. Petitioner claims that the Immigration Judge improperly "preterminated" these proceedings. The factual basis of this claim is unclear.
c. Custody
Petitioner requests that the Court vacate the custody determination of December 22, 1998. In April 1997, the Immigration Judge found that petitioner was not a flight risk and was not a danger to society. At that time, the Immigration Judge ordered petitioner released from custody. Petitioner argues that the Immigration Judges subsequently reviewing his custody status were bound by the factual findings of the Immigration Judge who released him in 1997. Petitioner argues that he is not a danger to society or a flight risk, and that he should be released.
Discussion
This Court is not empowered to grant a writ of habeas corpus based on petitioner's conviction-related claims. A federal district court has jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241 (c)(3). The "in custody" language of the habeas corpus statute does not allow a petitioner to challenge a conviction for which the sentence has been fully served, even where the conviction may result in enhanced penalties against the petitioner in the future. Maleng v. Cook, 490 U.S. 488 (1989).
Petitioner is no longer in custody for the New Jersey convictions. His sentence for these convictions has been fully served and the Court is not empowered to review their legality or constitutionality. Petitioner is being detained by the INS pending removal to Uganda. To the extent that petitioner's conviction-related claims relate to the question of whether he should be removed, the BAI may decide to consider them in petitioner's appeal of the order of removal against him. It is unclear whether the Immigration Judge considered petitioner's conviction-related claims in the context of petitioner's removal proceedings. However, for the reasons articulated below, the Court cannot review the determination of the Immigration Judge at this time because it is not administratively final.
An alien may challenge his removal from the United States only when the removal order is administratively final. Carr v. District Director of I.N.S., 1998 WL 315475 (S.D.N.Y. 1998). Thus, when an appeal of the deportation order of an Immigration Judge is pending before the BIA, a district court may not entertain a habeas corpus petition to review the legality of the deportation order. Stewart v. INS, 1996 WL 603988, at *1 (S.D.N.Y. 1996). This exhaustion requirement is an express condition of the court's statutory grant of power to review removal decisions and is therefore a prerequisite to a court's exercise of subject matter jurisdiction. Id.
This Court lacks jurisdiction to review petitioner's removal-related claims at this time. The INS has not yet rendered an administratively final order with respect to petitioner's removal. If the BIA affirms the Immigration Judge's order of removal, then the order will become administratively final, and petitioner may challenge it in a habeas corpus proceeding.
An alien may challenge his detention while in federal custody by seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 if the applicant has exhausted all available administrative remedies before commencing the action in federal court. Zambra v. McElroy, 1999 WL 163565 (S.D.N.Y. 1999). Unlike the courts' review of removal orders, the exhaustion doctrine in this context is a matter of judicial deference to the administrative agency, not a jurisdictional pre-requisite. In other words, if a district court determines that the administrative remedies are inadequate or unavailable, it may exercise jurisdiction over an alien's challenge to his detention even before his administrative remedies have been exhausted. Troia v. Wiggins, 705 F. Supp. 1014, 1018 (S.D.N.Y. 1989).
Petitioner has not exhausted his administrative remedies with regard to his custody-related claims. All of the issues petitioner raises are currently being considered in the appeal pending before the BIA. There is no reason to believe that the proceedings before the BIA are inadequate to provide petitioner with relief if such is warranted. Therefore, the Court declines to consider the custody claims at this time.
Conclusion
For the reasons stated above, this petition for habeas corpus relief is dismissed.
SO ORDERED.