Opinion
00-CV-239S
September 2, 2002
DECISION AND ORDER
I. Introduction
In the context of Respondent's present Motion to Transfer Petitioner's Amended Petition for a Writ of Habeas Corpus to the Second Circuit Court of Appeals, this Court is tasked with determining whether jurisdiction over a petitioner's challenge to a reinstated final order of removal properly lies in the federal district court or in the circuit court of appeals. Having considered the parties' written submissions and oral arguments, this Court finds that jurisdiction is proper in the Second Circuit Court of Appeals, and will therefore grant Respondent's motion.
Respondent filed the following documents in support of its motion: Notice of Motion to Transfer Petition to the Second Circuit, Memorandum of Law in Support, Reply Memorandum of Law, and Notice of Supplemental Authority. In opposition to Respondent's motion, Petitioner filed a Memorandum of Law in Opposition.
II. Background
While this Court is primarily faced with a question of law, some background facts are necessary to place the foregoing legal discussion into the proper context. The facts recited below are generally not in dispute.
Petitioner is a twenty-seven year old native and citizen of Guatemala, who entered the United States without inspection on June 18, 1995, at Douglas, Arizona. See Amended Petition, at ¶ 2. He subsequently married a United States citizen, Suzanne Finucane, on June 27, 1996, in Niagara Falls, New York. See id. at ¶ 6. Together they have two children, both citizens of the United States. See id.
On April 8, 1997, the Immigration and Naturalization Service ("INS") placed Petitioner into removal proceedings by filing a Notice To Appear that charged him with being removable for entering this country without inspection. See id. On March 10, 1998, at a hearing before an Immigration Judge, Petitioner's counsel conceded removability. See id. at ¶ 8. As a result, the Immigration Judge ordered Petitioner removed from the United States, but granted him the privilege of voluntary departure through July 8, 1998, with an alternate order of removal to Guatemala. See id. Petitioner's counsel waived appeal. See id. Thereafter, Petitioner failed to depart during his prescribed voluntary departure period and was consequently removed by the INS from the United States to Guatemala on September 9, 1998. See id. at ¶¶ 8, 9.
Upon returning to Guatemala, Petitioner was allegedly attacked by four individuals who accused him of being a traitor and cut off two of his fingertips with a machete. See id. at ¶ 10. After the attack, Petitioner fled Guatemala and returned to the United States on October 15, 1998, again at Douglas, Arizona, without permission from the INS. Petitioner allegedly feared continued harm if he remained in Guatemala. See id. at ¶ 11.
Petitioner asserts that he originally fled Guatemala in November 1990 to avoid recruitment by the Guatemalan National Revolutionary Unity ("URNG"), a leftist guerilla organization. See Amended Petition, at ¶ 10. Petitioner therefore believes that the attack in the Fall of 1998 was carried out by former members of the URNG, although Petitioner concedes that the attackers did not identify themselves. See id.
Petitioner again came to the INS's attention, and on February 7, 2000, the INS issued a Notice of Decision to Reinstate the prior order of removal. See id. at ¶ 12. In response to Petitioner's statement that he feared returning to Guatemala, the INS conducted a "reasonable fear" interview on February 29, 2000. See id. at ¶ 13. After completing the interview, the INS officer determined that Petitioner had failed to establish a reasonable basis for fear of persecution or torture if he were returned to Guatemala. See id. Petitioner then sought review of the INS officer's decision.
On March 9, 2000, an Immigration Judge affirmed the INS officer's finding and returned Petitioner's case to the INS to effectuate Petitioner's removal from the United States. See id. at ¶ 14. On March 16, 2000, within 30 days after the Immigration Judge's decision, Petitioner filed a Petition for a Writ of Habeas Corpus, which he amended on October 24, 2001.
III. Discussion A. Reinstatement Order
From the face of Petitioner's Amended Petition, it is clear that he is principally petitioning for review of the INS's decision to reinstate the prior order of removal against him. See, e.g., Amended Petition, at ¶¶ 17-19. As prayers for relief, for example, he requests that the reinstatement order be vacated and declared unconstitutional as applied, and in violation of statutory and regulatory authority. See id. at 6, 7.
The threshold question facing this Court is whether a reinstatement order constitutes a final order of removal such that jurisdiction is proper only in the circuit court of appeals on direct review under the provisions of 8 U.S.C. § 1252(a)(1), rather than on habeas review in the district court under 28 U.S.C. § 2241. On this point, the Second Circuit has not yet rendered a decision. However, the courts of appeals that have confronted this issue have all held that reinstatement orders are properly reviewed at the circuit level. See Ojeda-Terrazas v. Ashcroft, 290 F.3d 292, 295 (5th Cir. 2002) (finding that as a final order of the INS, circuit court of appeals had jurisdiction to review a reinstatement order under 8 U.S.C. § 1252(a)(1)); Alvarez-Portillo v. Ashcroft, 280 F.3d 858, 863-68 (8th Cir. 2002) (reviewing alien's challenge to INS's reinstatement order); Velasquez-Gabriel v. Crocetti, 263 F.3d 102, 105 (4th Cir. 2001) (noting "clear" subject matter jurisdiction over alien's petition to review and reverse an INS reinstatement order); Bejjani v. Immigration and Naturalization Serv., 271 F.3d 670, 674 (6th Cir. 2001) (finding that the provisions of 8 U.S.C. § 1252 apply to orders of reinstatement); Castro-Cortez v. Immigration and Naturalization Serv., 239 F.3d 1037, 1043-44 (9th Cir. 2001) (finding jurisdiction to review petitioners' claims that INS reinstatement orders violated their constitutional rights); Salazar v. Ashcroft, 38 Fed.Appx. 812, 813 (3d Cir. 2002) (unpublished) (finding jurisdiction to review the reinstatement order, but not the underlying removal order itself).
Salazar is an unpublished decision from the Third Circuit with no precedential value. This Court, however, does not cite Salazar as precedent or even persuasive authority, but rather, includes it here as an additional example of a circuit court of appeals finding jurisdiction to review challenges to INS reinstatement orders.
This Court has carefully reviewed the above-cited cases and finds no reason to depart from the conclusions reached therein. As the Ninth Circuit noted in Castro-Cortez, reinstatement orders are not literally orders of removal, but instead, give effect to previously issued final orders. See Castro-Cortez, 239 F.3d at 1044. Under 8 U.S.C. § 1231(a)(5), a reinstatement order is basically an administrative nunc pro tunc final order of removal, as it has the effect of reimposing removal as of the original date of the prior final order of removal. Moreover, it is notable that Congress did not specifically exclude reinstatement orders from review under 8 U.S.C. § 1252(a)(1), as it did with, for example, expedited removal orders under 8 U.S.C. § 1225(b)(1). See 8 U.S.C. § 1252(a)(1). Consequently, following the circuit courts of appeals that have addressed this issue, this Court finds that a reinstatement order is properly included as a final order of removal for purposes of 8 U.S.C. § 1252(a)(1).
That being the case, Congress has expressly provided that aliens challenging their final removal orders must file their review petitions in the circuit courts of appeals. See 8 U.S.C. § 1252(a)(1). As a result, this Court finds that jurisdiction to review Petitioner's challenges to the Attorney General's decision to issue the reinstatement order properly lies with the Second Circuit Court of Appeals. See 8 U.S.C. § 1252(a)(1); 28 U.S.C. § 2347.
This Court further notes that Petitioner's desire to have the INS's and Immigration Judge's "reasonable fear" determinations reviewed may also be addressed by the Second Circuit, in its discretion, under the "zipper clause" of 8 U.S.C. § 1252(b)(9). See Reno v. American-Arab Anti-Discrimination Comm., et al., 525 U.S. 471, 483 (1999) (referring to § 1252(b)(9) as an "unmistakable zipper clause"). Arguably, those determinations were made in connection with the entry of the reinstatement order, and therefore constitute questions of law and fact "arising from any action taken . . . to remove an alien from the United States." 8 U.S.C. § 1252(b)(9). Further, case law is clear that the circuit courts of appeals' jurisdiction under 8 U.S.C. § 1252(a) encompasses review of the Attorney General's factual findings regarding an alien's persecution and torture claims. See, e.g., Melgar de Torres v. Reno, 191 F.3d 307 (2d Cir. 1999) (affirming Attorney General's denial of asylum application because it was supported by substantial evidence).
Petitioner argues that the circuit courts of appeals cases cited above are "inapposite" because they involve issues pertaining to retroactive application of the reinstatement statute, whereas he "seeks review of the lawfulness and constitutionality of the underlying removal order which forms the basis for the legality of reinstating such a removal order via 8 U.S.C. § 1231(a)(5)." See Petitioner's Memorandum of Law in Opposition, at 3-4. While Petitioner is correct that the retroactive effect of the current reinstatement statute is a recurring theme in the circuit court cases, it does not change the fact that jurisdiction to review the reinstatement order was found to be proper with the circuit court in each case. Moreover, the Second Circuit generally has the authority to review non-criminal aliens' constitutional challenges to removal orders, and in this case reinstatement orders, in a petition for review. See, e.g., Rojas-Reyes v. Immigration and Naturalization Serv., 235 F.3d 115 (2d Cir. 2000) (addressing constitutional challenges in petition for review).
However, as will be discussed in more detail below, judicial review of the underlying removal order is barred by 8 U.S.C. § 1231(a)(5), which provides that the prior order of removal "is not subject to being reopened or reviewed." In any case, the Second Circuit has authority to entertain Petitioner's constitutional challenges, if he lodges them, to 8 U.S.C. § 1231(a)(5)'s bar of review itself. For example, if Petitioner's argument is that Congress's preclusion of all judicial review of the prior removal order under 8 U.S.C. § 1231(a)(5) is unconstitutional, that claim could be heard directly by the Second Circuit. In fact, 8 U.S.C. § 1252(b)(9) specifically mandates that "judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions," arising in removal proceedings "shall be available only in the judicial review of a final order under [§ 1252]." That is, jurisdiction over all matters relating to the final order of removal, both statutory and constitutional, properly lies in the circuit courts of appeals.
B. Transfer to the Second Circuit
While this Court lacks jurisdiction to review Petitioner's claims, it will transfer Petitioner's Amended Petition to the Second Circuit pursuant to 28 U.S.C. § 1631. Transfer under 28 U.S.C. § 1631 shall occur to cure want of jurisdiction over a petition for review of an administrative action if (1) the transferor court lacks jurisdiction, (2) it is in the interests of justice, and (3) the petition for review could have been brought in the transferee court at the time it was filed or noticed.
Here, this Court has determined that it lacks jurisdiction to review the reinstatement order. Moreover, this Court finds that it serves the interests of justice to transfer Petitioner's Amended Petition to the Second Circuit where proper jurisdiction lies. Finally, Petitioner filed his original Petition for a Writ of Habeas Corpus on March 16, 2000, within 30 days of the March 9, 2000 decision by the Immigration Judge, and therefore, had it been filed as a petition for review in the Second Circuit, the petition would have been timely filed. Accordingly, this Court is satisfied that the requirements of 28 U.S.C. § 1631 have been met. Respondent's Motion to Transfer Petitioner's Amended Petition to the Second Circuit Court of Appeals will therefore be granted.
This Court notes that while not a concession, Petitioner recognizes that transfer may be appropriate if the limitation on judicial review in 8 U.S.C. § 1252 applies, which, as noted above, it does. See Amended Petition, at ¶ 19.
C. Underlying Removal Order
This Court recognizes that ultimately, Petitioner wants both the reinstatement order and the underlying removal order vacated and his immigration proceedings reopened so that he can apply for additional forms of relief from removal. See Amended Complaint, at 7. However, judicial review of the underlying removal order is barred under the current statutory scheme. See, e.g., Ojeda-Terrazas, 290 F.3d at 295 (finding review of underlying removal order barred by 8 U.S.C. § 1231(a)(5)); Salazar, 38 Fed.Appx. at 813 (same). Eight U.S.C. § 1231(a)(5) provides that the underlying final order of removal "is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry." This Court, as well as all others, therefore lacks jurisdiction to review Petitioner's challenge to the underlying removal order. See, e.g., Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1170 (9th Cir. 2001) (affirming the district court's dismissal of an alien's challenge to the underlying deportation order based on 8 U.S.C. § 1231(a)(5)).Habeas jurisdiction under 28 U.S.C. § 2241, however, appears to remain for purely legal challenges to removal orders underlying reinstatement orders. In Smith v. Ashcroft, 295 F.3d 425, 429 (4th Cir. 2002), the Fourth Circuit, in reviewing a district court's dismissal of a criminal alien's habeas petition challenging the final order of removal underlying his reinstatement order, found that the district court had habeas jurisdiction over the petitioner's claims. See Smith, 295 F.3d at 429; see also Green-Mendoza v. Ashcroft, No. 99 CIV.9911 (DC), 2002 WL 1870285, *2 (S.D.N.Y. Aug. 14, 2002) (finding jurisdiction cognizable under § 2241 where petition turns upon a purely legal question).
Review of the Attorney General's discretionary decisions, on the other hand, is clearly precluded on habeas review. See Pickett v. Immigration and Naturalization Serv., No. 3:02CV622(JBA), 2002 WL 1359671, *6 (D.Conn. June 19, 2002); 8 U.S.C. § 1252(g).
The Fourth Circuit reasoned that because the provisions of 8 U.S.C. § 1231(a)(5) eliminated judicial review of the underlying order, the petitioner would be left without a forum for adjudication of his purely legal claims if habeas review was not found. See id. In the Fourth Circuit's opinion, to preclude all review of the underlying order would raise constitutional concerns similar to those expressed by the Supreme Court in Immigration and Naturalization Serv. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).
While the Petitioner here is not a criminal alien, district courts retain habeas jurisdiction under 28 U.S.C. § 2241 over constitutional and statutory claims brought by criminal and non-criminal aliens alike. See St. Cyr, 533 U.S. at 314 (criminal aliens); Liu v. Immigration and Naturalization Serv., 293 F.3d 36, 41 (2d Cir. 2002) (holding that in light of St. Cyr, federal courts retain habeas corpus jurisdiction over § 2241 petitions filed by non-criminal aliens despite the availability of direct review to the circuit court of appeals); see also Chmakov v. Blackman, 266 F.3d 210, 215 (3d Cir. 2001) (holding that habeas is available to review a non-criminal alien's removal order where ineffective assistance of counsel precluded alien from seeking relief via a petition for review).
Thus, reading Smith with Liu and Chmakov, it is plausible that habeas jurisdiction under § 2241 remains for non-criminal aliens' purely legal challenges to underlying removal orders, despite the availability of direct review of the reinstatement order pursuant to 8 U.S.C. § 1252(a)(1).
Therefore, in the event Petitioner does not receive full satisfaction upon direct review by the Second Circuit, habeas relief in this Court may be cognizable under § 2241 to the extent Petitioner has a purely legal challenge to the underlying removal order. For now, however, because the thrust of Petitioner's Amended Petition is a challenge to the reinstatement order, this Court finds that jurisdiction properly lies with the Second Circuit.
IV. Conclusion
For the reasons stated above, this Court will grant Respondent's Motion to Transfer the Amended Petition to the Second Circuit Court of Appeals.
In light of this Court's decision, it is unnecessary to address Respondent's alternative argument that transfer is required under the doctrine of prudential default. See Respondent's Reply Memorandum of Law, at 7-9.
V. Orders
IT HEREBY IS ORDERED, that Respondent's Motion to Transfer Petitioner's Amended Petition to the Second Circuit (Docket No. 27) is GRANTED.FURTHER, that the Clerk of the Court is directed to take the necessary steps to transfer this case from the Western District of New York to the Second Circuit Court of Appeals for direct review.
FURTHER, that the Clerk of the Court is directed to take the necessary steps to close this case.
SO ORDERED.