Opinion
No. 04-CV-0033A.
January 26, 2004
DECISION and ORDER
Petitioner, EMILIO REYES, acting pro se, seeks relief pursuant to 28 U.S.C. § 2241, alleging that a final Order of Removal entered by an Immigration Judge on January 6, 2003 was unconstitutionally obtained, as set forth more precisely in the petition. Petitioner has requested in forma pauperis status.
Petitioner's request to proceed as a poor person is granted. Petitioner's removal or deportation is stayed pending disposition of his habeas proceeding in this Court. Respondents may, during the pendency of this proceeding in this Court, move to lift the stay of removal or deportation.
A petitioner seeking habeas corpus relief pursuant to 28 U.S.C. § 2241 is required to first exhaust his administrative remedies with respect to each of the grounds raised in the petition. See 8 U.S.C. § 1252(d); Thoodoropoulos v. I.N.S., ___ F.3d ___, 2004 WL 49118, 7 (2nd Cir. Jan 12, 2004); Berharry v. Ashcroft, 329 F.3d 51 (2d Cir. 2003). If the petitioner can no longer exhaust those remedies, he must show cause for the default and prejudice slemming from the court's failure to consider his claim, see Carmona v. United States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir. 2001), or that a fundamental miscarriage of justice will result if this court does not examine the merits of his claim. Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002), cert. denied, 537 U.S. 955, 123 S.Ct. 426, 154 L.Ed.2d 305 (2002). Petitioner states that he did not appeal the Immigration Judge's Order of Removal to the Board of Immigration Appeals ("RIA") and therefore it appears that he has not exhausted his administrative remedies. See Moija-Ruiz v. INS. 51 F.3d 358 (2d Cir. 1995).
If petitioner has in fact not exhausted his administrative remedies, this Court would need to dismiss this petition without prejudice so that petition can attempt to exhaust his administrative remedies by filing an appeal with the BIA. If petitioner can no longer appeal to the BIA from the Order of Removal of the Immigration Judge he will need to show cause for his failure to appeal and prejudice if the Court were not to consider his petition, or that a fundamental miscarriage of justice will result if this Court does not consider the merits of the petition. Accordingly, petitioner is directed to file a response to this Order by February 26, 2004 advising the Court whether or not he did appeal the Order of Removal to the BIA and, if not, the cause for the failure to appeal to the BIA and the prejudice sustained with respect to the claim raised in the petition if the Court were not to consider the merits of the claim. If the Court finds that the cause and prejudice is legally sufficient, the claim will be deemed exhausted and the petition determined on the merits. Petitioner is cautioned, however, that if the cause and prejudice is not found legally sufficient, the Court will dismiss the petition and all the grounds therein with prejudice.
An alien has the right to appeal the Immigration Judge's decision to the BIA by filing a notice of appeal within thirty days of the decision, 8 C.F.R. § 240.15, and may also file one motion to reopen the proceedings upon the basic of new facts within ninety days of the decision. 8 U.S.C. § 1229a(c)(6).
Failure to comply with this Order and file a response by February 26, 2004 will result in the automatic dismissal of the petition under Rules 1 and 4 of the Rules Governing Section 2254 Cases in the United States District Court.
In order to advise the Respondents of the filing of the Petition and the stay, the Clerk of Court shall serve a copy of the application, together with a copy of this order, by certified mail, upon the following.
• Secretary, U.S. Department of Homeland Security, Washington, D.C. 20528;
• Acting Director, Bureau of Immigration and Customs Enforcement, 425 I Street, NW Washington, DC 20536;
• Attorney General of the United States, Main Justice Building, 10th and Constitution Avenues N.W., Washington, DC 20530;
• United States Attorney for the Western District of New York, 138 Delaware Avenue, Buffalo, New York 14202:
• James W. Grable, District Counsel for the Department of Homoland Security, 130 Delaware Avenue, Room 203, Buffalo, New York 14202.
THE PETITIONER MUST FORWARD A COPY OF ALL FUTURE PAPERS AND CORRESPONDENCE TO THE ATTORNEY APPEARING FOR THE RESPONDENT.
SO ORDERED.