Opinion
3:03-CV-2878-M.
August 2, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a removable alien pursuant to 28 U.S.C. § 2241.
Parties: Petitioner, Chong Yi, filed this habeas corpus petition through retained counsel.
While Petitioner is under a final order of removal, it is unclear whether he is presently free on an immigration bond.
Respondents are Tom Ridge, Secretary of the Department of Homeland Security; Anthony S. Tangeman, Director of the Office of Detention Removal, Immigration Customs Enforcement; and Nuria Prendes, Interim Field Officer, Detention Removal, Dallas Immigration Customs Enforcement.
Statement of Case: Petitioner, a native of Korea, obtained his lawful permanent resident status in the United States on September 14, 1979. (Pet. at ¶¶ 6-7). On March 26, 1996, he pled guilty to forgery in Dallas County, Texas. (Gov't. Exh. A for Judgment, attached to Respondent's Answer and Mot. to Dismiss). Punishment was assessed at five years imprisonment, which was later suspended, and a $300 fine. (Id.). He served five years of regular probation and paid restitution in the amount of $10,000. (Id. for Amended Conditions of Probation).
On May 10, 2000, the Immigration and Naturalization Service issued a Notice to Appear charging Petitioner with removability for having been convicted of an aggravated felony. (Pet. Exh. A). He was subsequently ordered removed on March 6, 2001. (Id.). The Board of Immigration Appeals (BIA) remanded the case to grant Petitioner the opportunity to apply for a waiver of removability under former § 212(c) of the Immigration and Nationality Act in accordance with the Supreme Court's decision in Immigration and Naturalization Service (INS) v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that § 212(c) relief remained available for aliens whose convictions were obtained through plea agreements prior to the 1996 amendments). Following a hearing, an immigration judge (IJ) denied his petition for a 212(c) waiver on May 17, 2002. (Gov't Exh. B). After considering testimony from Petitioner, his wife and step-daughter, the IJ concluded:
Section 212(c) was literally applicable only to exclusion proceedings, but has been interpreted by the BIA to authorize any permanent resident alien with "a lawful unrelinquished domicile of seven consecutive years" to apply for a discretionary waiver from deportation." St. Cyr, 533 U.S. at 293, 121 S.Ct. at 2275.
"When you balance all the factors present[ed] here pro and con, it's my view that the nature and seriousness of the offense under consideration and the manner in which the respondent has dealt with his victims since he was convicted leads to the conclusion that the relief should not be granted. (Id.). The IJ found that the significant nature of the crime (the forging of a $30,000 check, of which Petitioner was required to repay only $10,000, and for which he never paid any taxes) and his lack of remorse outweighed his only "strong" positive factor — that he had resided in the United States for over twenty years. (Id. at 12-13). In addressing the favorable factors — including his family ties to his wife and step-daughter, acquired after he had committed the aggravated felony — the IJ concluded that "I don't think that the hardship that the respondent would experience is particularly unusual." (Id. at 13).
Believing that the IJ "abused his discretion by giving undue weight to [his] failure to pay a greater restitution than that required by the criminal court, and insufficient weight to the numerous favorable factors that warranted granting 212(c) relief," Petitioner appealed to the BIA. (Pet. Exh. C). On October 20, 2003, the BIA affirmed without opinion. (Gov't. Exh. C).
Petitioner thereafter filed this habeas corpus petition. He alleges the BIA decision violated his due process rights because the BIA Member, to whom his appeal was assigned, took into consideration "non-record factors . . . in determining the nature and scope of the review," and the "`one-line' boilerplate decision" failed to provide "meaningful consideration of the issues raised. (Pet. at 6). Petitioner further alleges that the IJ committed "legal errors" in failing to adjudicate the 212(c) waiver in accordance with precedent and that his decision was "a manifest abuse of discretion" which amounted to a due process violation. (Pet. at 7-8).
In response to this court's order to show cause, Respondents filed an answer and, in the alternative, motion to dismiss. They argue this court lacks jurisdiction to consider Petitioner's claim that the IJ abused his discretion in denying a 212(c) waiver. They further argue that the BIA's affirmance without opinion is constitutional. Petitioner filed a response asserting he is raising a pure question of law because the IJ failed to apply the proper standard, and the summary affirmance of this case by the BIA was inappropriate. Respondents filed a reply to Petitioner's response.
Findings and Conclusions: The magistrate judge addresses first the jurisdictional question. It is undisputed that underINS v. St. Cyr this court has jurisdiction to hear the petition in this case. 533 U.S. 289, 314, 121 S.Ct. 2271, 2287. A separate question, and the one at issue in this case, is whether the scope of a habeas petition pursuant to 28 U.S.C. § 2241 extends to a claim that the IJ failed to properly analyze the evidence before him and abused his discretion in denying § 212(c) relief. The Supreme Court in St. Cyr did not decide whether the scope of § 2241 habeas review also includes the review of factual and discretionary determinations. Id. at 297, 121 S.Ct. at 2278 (noting that St. Cyr's application raises a "pure question of law" and that St. Cyr was not asserting "any right to have an unfavorable exercise of the Attorney General's discretion reviewed in a judicial forum").
Section 2241 provides that habeas corpus review is available to persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241. The text of § 2241 is clear. It permits challenges by one who is in custody on the ground that such custody violates the constitution or federal law (or treaties). However, § 2241 does not permit a habeas challenge of purely discretionary (yet arguable unwise) decisions that do not involve violations of the Constitution or federal law.
Several courts have reached this conclusion in the context of habeas petitions seeking review of the denial of discretionary relief under § 212(c). Gutierrez-Chavez v. INS, 298 F.3d 824, 827-30 (9th Cir. 2002), amended by 337 F.3d 1023 (9th Cir. 2003) (holding court lacked habeas jurisdiction to review IJ's discretionary decision denying application for 212(c) relief);Sol v. INS, 274 F.3d 648, 648-51 (2d Cir. 2001) (same); Naoum v. Attorney General, 300 F. Supp.2d 521, 525-26 (N.D. Ohio Jan. 8, 2004) (same).
All circuit courts to decide the scope of habeas review have limited review of criminal aliens' § 2241 petitions to constitutional challenges and errors of law, and have concluded that habeas review of administrative factual findings or the exercise of discretion is impermissible. See Cadet v. Bulger, ___ F.3d ___, 2004 WL 1615619, *8 (11th Cir. Jul. 20, 2004) (collecting cases).
While the Fifth Circuit has not addressed whether discretionary decisions in the context of a 212(c) application fall within the scope of § 2241 review, it has held that denials of discretionary relief by an IJ or the BIA under the "exceptional and extremely unusual hardship" prong of § 1229b(b)(1) are not review able under § 2241. Bravo v. Ashcroft, 341 F.3d 590, 592-93 (5th Cir. 2003). In so holding, it relied on St. Cyr for the "traditional `distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand'" Id. at 492 (quoting St. Cyr, 533 U.S. at 307). "This distinction comports with the historical understanding of the writ of habeas corpus as a mechanism for remedying for an officials refusal to exercise discretion, but not a `substantively unwise exercise of discretion.'" Id. (quotingSt. Cyr, 533 U.S. at 307).
This court finds the holding in Bravo should be extended to the review of an IJ's decision denying a waiver of deportation under § 212(c). As the Ninth Circuit said in Gutierrez-Chavez, "[a]n alien simply cannot resort to habeas corpus relief as a means of getting a second bite at the purely discretionary 212(c) apple." 298 F.3d at 829.
Petitioner argues throughout his pleadings that his petition raises a pure legal issue. He relies primarily on the IJ's failure "to apply a well established legal standard to . . . [his] case." (Petitioner's Reply at 3-6). His contention is baseless and patently frivolous. Contrary to Petitioner's assertion the IJ specifically cited Matter of Marin, 16 IN Dec. 581 (1978), the leading case on 212(c) relief, and weighed the factors set out therein. (IJ Decision at 3-4, and 5-13, attached as Gov't. Exh. B). The IJ was not required, as Petitioner suggests, to compare the factual scenario in his case to the facts and holdings in the Marin or Matter of C-V-T decisions. See Gutierrez-Chavez, 298 F.3d at 829 (petitioner could not rely on § 2241 habeas to obtain review of the equitable balance that the INS arrived at when it denied [his] 212(c) waiver of deportation). Moreover, the BIA has recognized that an IJ may consider just one of the many adverse considerations to "ultimately be determinative of whether § 212(c) relief is in fact granted to an individual case." Marin, 16 IN Dec. at 584. Relief under § 212(c) is not automatic, but dependant upon a balancing of the adverse factors with the social and humane considerations. Id.
It is instructive to note that in Bravo, the petitioners argued that "the IJ used the wrong standard in evaluating whether their child, a U.S. citizen, would be subject to `exceptional and extremely unusual hardship' if deported. Id., 341 F.3d at 591. Nevertheless, the Fifth Circuit concluded that a determination of "exceptional and extremely unusual hardship" was a discretionary decision. Id. at 593. Relying on the child's age and fluency in Spanish, the IJ concluded that he would not suffer hardship if he had to live in Mexico. Although petitioners argued that the IJ "failed to account for other factors that would support a finding of extreme hardship," the Fifth Circuit found that the above argument did not raise a statutory or constitutional challenge.Id.
With respect to the case at hand, the court concludes that Petitioner seeks review of the equitable balance that the IJ reached in denying his request for 212(c) relief and that, as such, his claims challenge a discretionary decision which does not fall within the scope of § 2241 relief. These claims should be denied.
The Fifth Circuit has noted that § 212(c) is "`couched in conditional and permissive terms. As a piece of legislative grace, it convey[s] no right, it confer[s] no status,' and its denial does not implicate the Due Process Clause." United States v. Lopez-Ortiz, 313 F.3d 225, 230-31 (5th Cir. 2002); cert. denied, 537 U.S. 1135 (2003).
Petitioner also contends that the BIA's summary affirmance of the IJ's decision, under 8 C.F.R. § 1003.1(e)(4), was improper and violated his due process rights. That provision provides that a single Board Member may affirm the decision of an Immigration Judge, without opinion, if the Board Member determines the result reached was correct, that any errors in the decision was harmless or immaterial and that "(A) the issues on appeal is squarely controlled by existing . . . precedent; or (B) the factual and legal questions raised on appeal are not so substantial that the case warrants the issuance of a written opinion in the case. 8 C.F.R. § 1003.1(e)(4)(i)(A) and (B).
The Fifth Circuit has held that a similar "affirmance without opinion" clause, found at 8 C.F.R. § 1003.1(a)(7), is not facially unconstitutional. Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003). This rationale was extended in an unpublished opinion by applying the same logic to the particular section at issue in this case. See Hoque v. Ashcroft, 77 Fed. Appx. 709, 2003 WL 22287509, 2003 U.S. App. LEXIS 20273 (5th Cir. Oct. 6, 2003). The Court held that "the summary affirmance procedures employed by the BIA are similar in nature to the summary disposition procedures used by this and other courts."Soadjede, 324 F.3d at 832. Thus, the mere fact of a summary opinion by the Board does not violate due process. See also Soto-Hernandez v. Bureau of Citizenship and Immigration Services, 2003 WL 23310245 (W.D. Tex., San Antonio Div. Dec. 15, 2003).
Moreover, as noted previously, § 212(c) relief is based on a multitude of discretionary factors developed by the BIA inMatter of Marin, 16 IN Dec. 581 (BIA 1978). Here, the IJ followed established BIA precedent in weighing the factors. Petitioner did not raise any substantive novel argument before the BIA, and the IJ's discretionary denial was controlled by existing Board precedent. (See Petitioner's brief on appeal before the BIA, Exh. C to his Pet.). Thus, the BIA did not err in summarily affirming the IJ's decision.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny the petition for writ of habeas corpus.
A copy of this recommendation will be mailed to counsel for Petitioner and for Respondents.