Wassouf v. Joilcoeur et al

Filing 17

ORDER DENYING 11 Motion to Reopen Case; MOOTING 13 Motion for Extension of Time to File Response/Reply ; GRANTING 16 Motion for Leave to File Excess Pages Signed by Judge Kathleen Cardone. (fm, )

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS E L PASO DIVISION G E O R G E SAMIR WASSOUF Petitioner, v. R O B E R T JOILCOEUR, et al. Respondents. § § § § § § § § § ORDER On this day the Court considered Petitioner's Emergency Motion to Reopen Petition for Writ of Habeas Corpus Based on Special, Extraordinary Circumstances and Newly Discovered E v id en ce ("Motion") (Doc. No. 11), as well as Respondents' Response to it (Doc. No. 14). For the reason s set forth below, the Motion is DENIED. Petitioner's Motion for Leave to File Response in Ex cess of Ten Pages (Doc. No. 16) is GRANTED. Petitioner's Motion for Extension of Time (D oc. No. 13) is DENIED AS MOOT. I. BACKGROUND Petition er George Samir Wassouf ("Wassouf") was admitted to the United States in 1988 as a legal permanent resident. Mot. ¶ 8; Resp. 1. In November 2001 Wassouf pleaded guilty to one co u n t of bank fraud, in proceedings held before the United States District Court for the District of N ew Hampshire. See Mot. ¶¶ 9-10; Resp. 1; Resp. Ex. E ("N.H. Crim. J.") (Doc. No. 14-3 at 6). He was sentenced to 33 months of imprisonment, a term of supervised release, and ordered to pay ap p rox im ately $250,000 in restitution to various New England banks. Resp. 2-6. After serving his p riso n term, Wassouf was detained by the immigration authorities on a number of occasions and giv en several different immigration hearings. See Mot. ¶¶ 11-15; Resp. 1. Of particular importance h ere, Wassouf was served on Decmeber 12, 2006, with a Notice to Appear in removal proceedings. See Resp. Ex. F ("Notice to Appear") (Doc. No. 14-3 at 12). Wassouf was subsequently ordered rem ov ed to Syria, and on December 3, 2007 his application to withhold or defer removal was d en ied . Resp. 1; see also Order of the Immigration Judge, Resp. Ex. G (Doc. No. 14-3 at 15). Over

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th e next several months, apparently while in custody in the El Paso area awaiting deportation, Wa sso u f sought multiple instances of review by the Board of Immigration Appeals and the Fifth C ircu it Court of Appeals, all of which were unavailing. See Resp. Exs. H-K (Doc. No. 14-4 at 1-9). On July 30, 2008, Wassouf filed a Petition for a writ of habeas corpus with this Court, challenging h is continued detention without bond. See generally Expedited Petition for a Writ of Habeas C orpu s and Release from Detention on Bond ("Habeas Petition") (Doc. No. 1). While the Habeas P etitio n was pending, Respondents gave notice to the Court that Wassouf was to be deported at the en d of August 2008. See Advisory to the Court 2 (Doc. No. 4). Wassouf was duly removed from th e United States to Syria on August 24, 2008. See Mot. to Dismiss 1 (Doc. No. 8). The Court then d ism issed Wassouf's Habeas Petition as moot, because he was no longer being held in custody by th e government. See Order, Sept. 3, 2008 (Doc. No. 9). On April 9, 2010, while in Syria, Wassouf filed his Motion to Reopen his Habeas Petition. See generally Mot. Respondents filed a Response to the Motion to Reopen, opposing it on various gro u n d s. See generally Resp. Wassouf has also requested an extension of time to file a reply on th is subject. See Mot. for Ext. of Time. However, before the original deadline passed, Wassouf filed a Motion for Leave to File excess pages containing his proposed Reply (Doc. No. 16-1). II. DISCUSSION A. Stan da rd

S u b ject-m atter jurisdiction is "the authority of the court to adjudicate the type of controversy involved in the action." Carlisle v. United States, 517 U.S. 416, 434-35 (1996) (G in sb u rg, J., concurring) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 (1982)). "The district courts of the United States . . . are courts of limited jurisdiction. They possess only that po w er authorized by Constitution and statute." Exxon Mobil Corp. v. Allapattah Servs., 545 U.S. 5 4 6 , 552 (2005) (internal quotation omitted). Because the presence of subject-matter jurisdiction "is mandatory for an action in federal court," a case must be dismissed if jurisdiction is lacking. Avitts v. Amoco Prod. Co., 53 F.3d 690, 693 (5th Cir. 1995); see also FED. R. CIV. P. 12(h)(3). Subject-matter jurisdiction must be addressed before other challenges, "since the court must find jurisdiction before determining the validity of a claim." Moran v. Kingdom of Saudi Arabia,

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2 7 F.3d 169, 172 (5th Cir. 1994). However, a court should "consider[] more extensively the merits of the controversy" when "[t]he jurisdictional and substantive issues are factually meshed." Spector v. L Q Motor Inns, Inc., 517 F.2d 278, 284 (5th Cir. 1975); see also Patin v. Thoroughbred Power Bo ats, Inc., 294 F.3d 640, 646 n.11 (5th Cir. 2002) (reviewing substantive issues when "critical to [th e] adjudication" of jurisdiction). "[T]he trial court is free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case." Montez v. Dep't of the Navy, 392 F.3d 147, 150 (5th Cir. 2004). Finally, dismissals for lack of jurisdiction are not on th e merits and are therefore without prejudice. See, e.g., Warnock v. Pecos County, 88 F.3d 341, 3 4 3 (5th Cir. 1996); see also Verret v. Elliot Equip. Corp., 734 F.2d 235, 238 (5th Cir. 1984). A court reviews pro se pleadings under a less stringent standard than those drafted by attorn eys, and such pleadings are entitled to a liberal construction that includes all reasonable in feren ces which can be drawn from them. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). At the same time, however, parties proceeding pro se are still required to provide sufficient facts in su p p o rt of their claims. United States v. Pineda, 988 F.2d 22, 23 (5th Cir. 1993). Even under the rule of liberal construction, "mere conclusory allegations on a critical issue are insufficient." Id. (citin g United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)). B. A n a lys is

Wassou f's Motion to Reopen can be construed in four distinct ways, but under any of these co n stru ctio n s this Court lacks subject-matter jurisdiction over the dispute and will therefore not reop en this case. 1. A tta ck on detention without bond

Wasso u f's original Habeas Petition challenged his continued detention by the immigration au tho rities, in an El Paso area facility, and the decision to deny him a release on bond while his im m igratio n proceedings and appeals were pending. See Habeas Petition 1. As Wassouf is now liv in g in Syria1 this claim is moot. Any attempt to reopen it is pointless, because the Court cannot

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There is no basis for any belief that he is in custody in Syria, a n d thus in constructive custody on account of any United S t a t e s government actions, notwithstanding W a s s o u f 's empty i n v o c a t i o n of the doctrine of constructive custody. See Reply

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gran t him anything more than he now has ­ freedom from incarceration in a United States detention facility. See Order, Sept. 3, 2008. Disputes rendered moot due to a plaintiff's receipt of requested relief are subject to dismissal for lack of jurisdiction. Withrow v. Miller, 348 F. App'x 946, 948-49 (5 th Cir. 2009) (citing Rocky v. King, 900 F.2d 864, 867 (5th Cir. 1990)). The Court will therefore n o t reopen Wassouf's case on this theory. 2. C ollateral attack on removal order

Wa sso u f may also be seeking to reopen his Habeas Petition and amend his claims to co llaterally attack his removal order and thereby re-establish his right to be present inside the U n ited States. See Mot. ¶ 41. Federal district courts at one time had jurisdiction to consider habeas co rp u s petitions made by aliens subject to deportation, which served as opportunities to review the u n d erlyin g removal orders for errors of law or violations of constitutional rights. See, e.g., Z a lw a d ia v. Ashcroft, 371 F.3d 292, 295-96 (5th Cir. 2004). The REAL ID Act of 2005, however, altered that jurisdictional scheme, and made it clear that judicial review of removal orders and ad m inistrative appeals of removal orders, for errors of law or violations of constitutional rights, are to flow directly to the relevant circuit court of appeals, and not to the district courts. See Grass v. G on zales, 418 F.3d 876, 878-79 (8th Cir. 2005). Wassouf has had his day(s) in court, to the extent that he has sought review of his removal order from the Fifth Circuit on multiple occasions.2 See Resp. Exs. H-K. He has also filed related

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H i s argument against his deportability appears to be that his N e w Hampshire bank fraud guilty plea should be set aside b e c a u s e he was not warned of the collateral immigration c o n s e q u e n c e s that would attend such a plea, or because it was n o t voluntary due to certain of his mental health defects. See U n ite d States v. Wassouf, No. 03-2602 (1st Cir. Sept. 13, 2 0 0 5 ) (rejecting these arguments on direct appeal of his bank fr a u d conviction). W h ile Padilla v. Kentucky, 130 S.Ct. 1473 ( 2 0 1 0 ) , may be relevant to W a ss o u f's alleged failure to be w a r n e d of the immigration consequences of his guilty plea, this C o u r t cannot sit in direct review of his District of New H a m p s h ir e criminal case. Instead, the Padilla doctrine must b e applied by a court empowered to directly review that case.

W a s s o u f also complains of a number of alleged misdeeds on the part of the im m ig r a tio n authorities in connection with the procedures they followed when

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cases in numerous other courts. Resp. 2-5. All these attempts have met with a distinct lack of success, however, generally based on the fact that these petitions and appeals have either been cu m u lativ e, beyond the jurisdiction of the courts in which they were filed, or were filed too late u n d er the relevant deadlines. Id. The Court is without jurisdiction to reopen this case in order to co llaterally review the legality or correctness of Wassouf's removal order itself. 3. R ea d miss ion to the United States for the purpose of pursuing appeals

Wassou f also appears to be seeking relief from this Court in the form of permission to reenter the United States for the purposes of pursuing further appeals of his removal order, with other co u rts and authorities which may have more jurisdiction than this one to conduct such a review. See Mot. ¶ 41 (seeking permission to enter and "remain within the United States while [Wassouf] re-seeks and re-files any new appeals and petitions[] with all of the appropriate courts."). He cites alleged misconduct and irregularities in the course of his initial removal proceedings as justification for this, arguing that, had these irregularities not occurred, he would not have been deported while h is litigation efforts were ongoing. See Mot. ¶¶ 12-20. The Court, however, is not aware of any legal basis for fashioning a remedy of returning a deported alien to his status quo ante, by flying h im back to the United States, simply for his convenience in pursuing further litigation. Moreover, as the present proceedings demonstrate, Wassouf has overcome his difficulties in accessing the U n ited States court system and is at least adequately capable of making use of it from his current resid en ce in Syria. Accordingly, the Court finds that it lacks subject matter jurisdiction as to this facet of Wassouf's Motion. 4. Tort claims for alleged misdeeds

Wasso u f makes various allegations of misconduct incident to his treatment by the im m igratio n authorities during his removal proceedings. See Mot. ¶¶ 12-20. This could form the b asis of a colorable tort claim under the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § § 1346(b), 2674. To pursue such a claim in court, however, the claimant must first present the

conducting his removal proceedings. See Mot. ¶¶ 12-20. It is unclear, however, a s to how any of these allegations affect the central issue surrounding his e l i g i b i l it y for deportation; that is, his conviction for bank fraud.

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claim to the relevant administrative agency and suffer a denial of that claim. See 28 U.S.C. § 2675. Wassouf has not even averred that he presented his claim for monetary damages to the relevant ad m inistrative agency. Until such presentment and rejection takes place, any claim for damages is b eyo n d the jurisdiction of this Court. See In re Katrina Canal Breaches Litig., 345 F. App'x 1, 3 (5 th Cir. 2009) (citing Gregory v. Mitchell, 634 F.2d 199, 203-04 (5th Cir. 1981)). The Court will the refore not reopen the case on this basis either. III. C O N C L U SIO N Fo r the reasons set forth above, the Court finds that it lacks subject-matter jurisdiction as to an y of the possible theories under which Wassouf may be seeking to reopen the instant case. Accordingly, the Motion is DENIED. S O ORDERED. S IG N E D on this 1 s t day of June 2010.

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KATHLEEN CARDONE UNITED STATES DISTRICT JUDGE

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