GRIGORIAN v. MORTON et al

Filing 16

MEMORANDUM and ORDER DISMISSING petition for writ of habeas corpus; ICE shall treat the petitin for writ of habeas corpus as a request for release under 8CFR Section 241.4 and 241.13;ICE shall provide petitioner w/ a response w/i thirty days; and Clerk of Court is directed to CLOSE case.Signed by Honorable James M. Munley on 9/7/10. (sm, )

GRIGORIAN v. MORTON et al

Doc. 16

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA V A R D A N GRIGORIAN, P e t itio n e r : N o . 3:10cv1540 : : (J u d g e Munley) : v. : : J O H N MORTON, Assistant Secretary, : Im m ig r a tio n and Customs : E n fo rc e m e n t; : E R IC HOLDER, United States : A tto r n e y General; : J A N E T NAPOLITANO, Secretary, : D e p a r tm e n t of Homeland Security; : C R A IG A. LOWE, Warden, Pike : C o u n ty Correctional Facility, : R e s p o n d e n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM B e fo re the court is the instant petition for a writ of habeas corpus. The g o v e rn m e n t has responded to the petition with a motion to dismiss and the parties h a v e briefed the issue, leaving the matter ripe for disposition. D is c u s s io n P e titio n e r Vardan Grigorian entered the United States on or about December 1 2 , 1996 (Petition (Doc. 1) at 5). On July 7, 2003, Grigorian was placed in removal p ro c e e d in g s via a notice to appear. (Id.). Petitioner filed an application for asylum o n September 24, 2003, contending that his removal should be withheld pursuant to th e United Nation's Convention Against Torture. (Id.). An Immigration Judge denied

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this application on April 14, 2004. (Id.). Petitioner appealed this decision to the B o a rd of Immigration Appeals (BIA) on April 29, 2004. (Id.). The BIA dismissed this a p p e a l on June 28, 2005. T h e heart of petitioner's claim is based on the events that followed this BIA d e c is io n . He contends he received a letter from his then-attorney, Mr. Nalbandian, in fo rm in g him that the BIA had denied his appeal and relating that he must file an a p p e a l in the Ninth Circuit Court of Appeals within thirty days. (Id. at 5-6). Doubting N a lb a n d ia n 's credibility, petitioner sought a second opinion. (Id. a 6). Yefim M. S h lio n s k y , who, despite only recently completing law school, assured petitioner that h e was competent to assist him, advised Grigorian that he should file a motion for re c o n s id e ra tio n with the BIA rather than appealing. (Id.). Shlionsky did not inform p e titio n e r that failing to file the appeal would foreclose him from later appealing to th e Circuit Court. (Id.). Petitioner had Shlionsky file the motion for reconsideration, a n d he alleges that he thereby lost his ability to appeal the case beyond the BIA. (Id.). Grigorian thus claims that Shlionsky's advice cost him the ability to appeal his c a s e . (Id.). He relates that he has petitioned the BIA to reopen his case, alleging th a t Shlionsky's conduct constituted ineffective assistance of counsel. (Id.). Petitioner's motion to reopen and request for a stay with the BIA are currently p e n d in g . At the same time, the Armenian Consulate has informed petitioner that the B u re a u of Immigration and Customs Enforcement (ICE) has requested Armenia to

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re-issue a travel document. (Id. at 6-7). Petitioner predicted that this travel d o c u m e n t will be issued for his deportation on July 16, 2010. (Id. at 7). G rig o ria n filed the instant petition on July 13, 2010 in the United States District C o u rt for the Eastern District of Pennsylvania, along with motions for an emergency h e a rin g and for an order to show cause. (Docs. 2-3). The Hon. Judge Thomas N. O 'N e ill, Jr. was assigned to the case, and he scheduled a hearing for July 27, 2010. (Doc. 4). The parties then filed briefs stating their respective positions, with the g o v e rn m e n t additionally filing a motion to dismiss. The defendants argued in part th a t the case should be dismissed due to lack of subject matter jurisdiction or in the a lte rn a tiv e transferred to the Middle District of Pennsylvania, where petitioner was h e ld pending deportation. (See Docs. 5-6). Before conducting the hearing, h o w e v e r, the court issued a memorandum and order that declined to rule on the is s u e of jurisdiction and instead transferred the case to this court. (See Doc. 8). The c a s e was then assigned to the instant judge, bringing the matter to its present p o s tu re . J u r is d ic tio n P e titio n e r brings this action pursuant to 28 U.S.C. § 1343 and 28 U.S.C. § 2 2 4 1 . As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The d is tric t courts shall have original jurisdiction of all civil actions arising under the C o n s titu tio n , laws, or treaties of the United States."). Legal Standard

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The government argues that the court lacks subject-matter jurisdiction and s h o u ld not hear the case. Federal courts are courts of limited jurisdiction, and thus h a v e a continuing duty to satisfy themselves of jurisdiction before addressing the m e rits of a case. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir. 1 9 9 3 ) cert denied sub nom Upp v. Mellon Bank N.A., 510 U.S. 964 (1993). In fact, it is to be presumed that a cause lies outside this limited jurisdiction and the burden of e s ta b lis h in g the contrary rests upon the party asserting jurisdiction. Kokkonen v. G u a rd ia n Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Moreover, federal courts h a v e the obligation to address the question of subject matter jurisdiction sua sponte. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999); see g e n e ra lly Nelson v. Keefer, 451 F.2d 289, 293-95 (3d Cir. 1971) (finding that the fe d e ra l judiciary has been too cautious in addressing the large number of cases w h ic h do not belong in federal courts). Discussion T h e question here is whether petitioner seeks review of a final order of re m o v a l. Under the Real ID Act of 2005, "a petition for review filed with an a p p ro p ria te court of appeals in accordance with this section shall be the sole and e x c lu s iv e means for judicial review of an order of removal entered or issued under a n y provision" of the Immigration and Nationality Act. 8 U.S.C. § 1252(a)(5). That lim ita tio n applies to review sought through means of a habeas corpus petition. Id. "Arguably, any challenge by an alien who seeks to remain in this country could be

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construed as challenging his or her "`removal, deportation, or exclusion,' but such a b ro a d interpretation would be counter to Congress' express intent. Instead, only c h a lle n g e s that directly implicate the order of removal . . . are properly the subject of tra n s fe r [to the Court of Appeals] under the REAL ID Act." Nnadika v. Attorney G e n e ra l of the United States, 484 F.3d 626, 632 (3d Cir. 2007). Here, petitioner c la im s he is not seeking review of the order of removal, but instead simply seeks to s ta y the implementation of that order until the BIA rules on his attempt to reopen the c a s e . Thus, he argues, the restrictions in the REAL ID Act do not apply to this case. P e titio n e r first contends that the court has the power to stay the case pending a decision of the BIA. "An appellate court's power to hold an order in abeyance w h ile it assesses the legality of the order has been described as `inherent,' p re s e rv e d in the grant of authority to federal courts to `issue all writs necessary or a p p ro p ria te in aid of their respective jurisdictions and agreeable to the usages and p rin c ip le s of law.'" Nken v. Holder, 129 S. Ct. 1749, 1756 (2009) (quoting 28 U.S.C. § 1651(a)). This power "was `firmly imbedded in our judicial system,' `consonant with th e historic procedures of federal appellate courts,' and `a power as old as the ju d ic ia l system of the nation." Id. at 1757 (quoting Scripps-Howard Radio, Inc. v. F C C , 316 U.S. 4, 9-10, 13 (1942)). The reviewing court has discretion to issue a s ta y , and is guided by "four factors: `(1) whether the stay applicant has made a s tro n g showing that he is likely to succeed on the merits; (2) whether the applicant w ill be irreparably injured absent a stay; (3) whether issuance of the stay will

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substantially injure the other parties interested in the proceeding; and (4) where the p u b lic interest lies.'" Id. at 1761 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1 9 8 7 )). A t this point, there is no final order that the petitioner could seek to have the c o u rt review. Petitioner awaits a decision from the BIA, and review may not be n e c e s s a ry in any case. Moreover, this court does not have authority to review a final o rd e r of removal, or an order, as the one in this case, that refuses to reopen an a p p e a l. Such review is limited by law to the Court of Appeals. See Kolkevich v. A tto rn e y General of the United States, 501 F.3d 323, 326 (3d Cir. 2007) (holding that th e Real ID Act "eliminated availability of habeas corpus relief in the district courts for a lie n s seeking to challenge orders of removal. Instead, Congress substituted p e titio n s for review, filed with the courts of appeals within the first 30 days after is s u a n c e of an order of removal, as the sole vehicle whereby aliens could challenge th e ir removal."). Courts have found that reviews of a refusal to reopen a deportation p ro c e e d in g can be brought only in the appropriate court of appeals.1 See Guo v. A s h c ro ft, 386 F.3d 556, 561 (3d Cir. 2004) (finding that the court had jurisdiction to

The Court rejects petitioner's argument that he should be allowed to seek relief in this court because he claims ineffective assistance of counsel, and thus he is not seeking a review of the final order of removal. The review of his ineffectiveness claim would necessarily implicate the final order of removal, and is thus outside this court's jurisdiction. Indeed, the case cited by the defendant for the proposition that ineffective assistance of counsel is grounds for reversing an order of removal, Fadiga v. Attorney General of the United States, 488 F.3d 142 (3d Cir. 2007), demonstrates that the proper forum for petitioner's action if the BIA's decision were final would be the Court of Appeals. The Court reviewed an order of the BIA, and the district court was never involved. See Id. at 153. 6

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review an order refusing to reopen a deportation case pursuant to 8 U.S.C. § 1252); M in g Shan Wang v. Attorney General of the United States, 178 Fed. Appx 103, 105 (3 d Cir. 2006) (holding that "[w]e have exclusive jurisdiction to review the BIA's a ffirm a n c e of a denial of a motion to reopen removal proceedings."). The petitioner thus asks the court to stay a case over which it does not have p re s e n tly have jurisdiction, could never have jurisdiction and would not have a u th o rity to review. See, e.g., Amaya v. United States Immigration and Customs E n fo rc e m e n t, No. 09-20749, 2010 U.S. App. LEXIS 14095, *2 (5th Cir. June 22, 2 0 1 0 ) (denying a motion to stay deportation because though the court had "authority to stay a removal order pending consideration of a petition for review of a removal o rd e r . . . [petitioner] has not filed a petition for review with this court."). The purpose o f a stay­to allow the court to consider whether to reverse the BIA's impending order a n d prevent deportation­does not apply when the court lacks the power to make that d e c is io n . The court will therefore deny the petitioner's request for a stay.2 In situations of this sort, the court would normally transfer the case to the a p p ro p ria te appellate court. As a general matter, "[w]hevener a civil action is filed in a court . . . or an appeal, including a petition for review of an administrative action, is n o tic e d for or filed with such a court and that court finds that there is a want of

In any case, petitioner represents that he has asked the Board of Immigration Appeals to reopen his case and "sought the stay of removal from the BIA," which would appear to be the body most appropriate to address the issue at this point. Motion for Emergency Hearing on Petition for Writ of Habeas Corpus (Doc. 2) at 2. 7

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jurisdiction, the court shall, if it is in the interest of justice, transfer such action or a p p e a l to any other such court in which the action or appeal could have been b ro u g h t at the time it was filed or noticed." 28 U.S.C. § 1631. Here, petitioner a lle g e s that the Board of Immigration Appeals has not rendered a decision on his m o tio n to reopen. The Court of Appeals would therefore have no final order or o p in io n to examine on appeal, and thus no jurisdiction to hear the matter. Id. This c o u rt therefore finds that the interests of justice would not be served by transferring th e case to the Ninth Circuit Court of Appeals before the BIA has issued a decision. See, e.g., Atem v. Ashcroft, 312 F. Supp. 2d 792, 798 (E.D. Va. 2004) (refusing to tra n s fe r case to Circuit Court because "the immigration judge had yet to issue an o rd e r of removal"); Alcantara v. Attorney General of the United States, No. 08-3978, 2 0 0 9 U.S. App. LEXIS 11952, *2 (3d Cir. January 26, 2009) (remanding to the d is tric t court to address whether that court could review a citizenship claim and stay a n order of removal because there was no final order of removal and the circuit court la c k e d jurisdiction). Petitioner also seeks a court hearing for a determination of whether he should b e released pending the decision on his motion to reopen his deportation case. He a rg u e s that he was employed and supporting his wife, a United States citizen, and th e ir family. As such, petitioner contends, he should be granted an individualized d e te rm in a tio n of whether he presents a risk of danger to the community or flight. Under federal law, he claims, the district court has jurisdiction to consider the

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propriety of detention pending removal when the petitioner does not seek review of th e order of removal itself. A t question here is whether petitioner may be detained pending removal. "While removal proceedings are in progress, most aliens may be released on bond o r paroled." Zadvydas v. Davis, 533 U.S. 678, 683 (2001). Once there is "entry of a fin a l removal order and during the 90-day removal period [established by law], h o w e v e r, aliens must be held in custody." Id. Such custody can sometimes exceed n in e ty days, and when the detention extends beyond the statutorily prescribed p e rio d , constitutional problems can arise. Id. at 689. The Constitution limits d e te n tio n under the statute "to a period reasonably necessary to bring about [the] a lie n 's removal from the United States. It does not permit indefinite detention." Id. Thus, detention pending removal is designed to allow for that removal, and "once re m o v a l is no longer reasonably foreseeable, continued detention is no longer a u th o riz e d ." Id. at 699. An alien generally cannot be held for more than six months p e n d in g removal. Id. at 701. Once that period passes without a likelihood of re m o v a l, the alien is usually eligible for conditional release. Id. D e te n tio n , release and removal of aliens ordered removed is governed by the p ro v is io n s of 8 U.S.C. § 1231. Under § 1231(a), the Attorney General has ninety d a y s to remove an alien from the United States after his order of removal during w h ic h time detention is mandatory. Section 1231(a)(1)(B) provides the following: T h e removal period begins to run on the latest of the following: (i) The date the order of removal becomes administratively final, 9

(ii) If the removal order is judicially reviewed and if the court orders a s ta y of the removal of the alien, the date of the court's final order. (iii) If the alien is detained or confined (except under an immigration p ro c e s s ), the date the alien is released from detention or confinement. 8 U.S.C. § 1231. At the conclusion of the ninety-day period, the alien may be held in c o n tin u e d detention, or may be released under continued supervision. 8 U.S.C. §§ 1 2 3 1 (a )(3 ) & (6). The statute "limits an alien's post-removal-period detention to a p e rio d necessary to bring about the alien's removal from the United States. It does n o t permit indefinite detention." Zadvydas, 533 U.S. at 689. "Once removal is no lo n g e r reasonably foreseeable, continued detention is no longer authorized by s ta tu te ." Id. at 699. To establish uniformity in the federal courts, a period of six m o n th s was recognized as a "presumptively reasonable period of detention." Id. Id. a t 701. F o llo w in g Zadvydas, regulations were promulgated to meet the criteria e s ta b lis h e d by the Supreme Court. See 8 C.F.R. § 2414. Prior to the expiration of

th e mandatory ninety-day removal period, the district director shall conduct a c u s to d y review for an alien where the alien's removal cannot be accomplished d u rin g the prescribed period. 8 C.F.R. § 241.4(k)(1)(i). When release is denied p e n d in g the removal, the district director may retain responsibility for custody d e te rm in a tio n s for up to three months, or refer the alien to the Headquarters Posts O rd e r Detention Unit ("HQPDU") for further custody review. 8 C.F.R. § 2 4 1 .4 (k )(1 )(ii). Once jurisdiction is transferred, an eligible alien may submit a written re q u e s t for release to the HQPDU. 8 C.F.R. § 241.13(d)(1). Pursuant to 8 C.F.R. § 10

241.13, special review procedures are established for "those aliens who are subject to a final order of removal and are detained under the custody review procedures p ro v id e d at § 241.4 after the expiration of the removal period, where the alien has p ro v id e d good reason to believe there is no significant likelihood of removal to the c o u n ty to which he or she was ordered removed, or to a third county, in the re a s o n a b ly foreseeable future." 8 C.F.R. § 241.13(a). Significantly, an alien may s till be detained beyond six months "until it has been determined that there is no s ig n ific a n t likelihood of removal in the reasonably foreseeable future." Zadvydas, 5 3 3 U.S. at 701. P e titio n e r contends that he should be considered for release by the D e p a rtm e n t of Homeland Security pending decision on his motion to reopen the c a s e . Petitioner admits that he is subject to a final order of removal and thus re m o v a b le under statutory rules. He argues that he meets the criteria for release e s ta b lis h e d by agency regulations, that he is not a danger or a flight risk, and that he s h o u ld be available to support his U.S. citizen-wife and her children. Petitioner lays o u t the factors that the agency should consider in his application for release, but d o e s not represent that he has laid this case before the agency by making a written re q u e s t for release. Instead, he asks this court to weigh those factors. T h e court finds that the appropriate remedy in this case is to dismiss the p e titio n for a writ of habeas corpus and refer the case to the Bureau of Immigration a n d Customs Enforcement (ICE) to examine the propriety of petitioner's continued

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custody. ICE should treat the petition as a request for a release from detention and e v a lu a te that request under the appropriate federal regulations. C o n c lu s io n F o r the reasons stated above, the court will deny the petition for a writ of h a b e a s corpus for want of jurisdiction. The court will order that ICE treat the parts of th e petition aimed at gaining release for the petitioner pending a decision on his m o tio n to reopen as a request for release. ICE shall respond to that request within th irty days.

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF PENNSYLVANIA V A R D A N GRIGORIAN, P e t itio n e r : N o . 3:10cv1540 : : (J u d g e Munley) : v. : : J O H N MORTON, Assistant Secretary, : Im m ig r a tio n and Customs : E n fo rc e m e n t; : E R IC HOLDER, United States : A tto r n e y General; : J A N E T NAPOLITANO, Secretary, : D e p a r tm e n t of Homeland Security; : C R A IG A. LOWE, Warden, Pike : C o u n ty Correctional Facility, : R e s p o n d e n ts : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER A N D NOW, to wit, this 7th day of September 2010: 1 . The instant petition for a writ of habeas corpus is hereby DISMISSED; 2 . As of the date of this order, ICE shall treat the petition for writ of habeas c o rp u s as a request for release under 8 C.F.R. § 241.4 and 241.13. ICE shall p ro v id e petitioner with a response to his request within thirty days; and 3 . The Clerk of Court is directed to CLOSE the case.

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BY THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U n ite d States District Court

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