Opinion
02 CV 4586 (NG)(vvP)
August 1, 2003
ORDER
Petitioner, Kryzstof Galicki, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, on August 14, 2002, challenging a final order of removal issued by the Board of Immigration Appeals ("BIA"). Petitioner claims that he should be permitted to apply for suspension of deportation pursuant to Section 244(a) of the Immigration and Nationality Act of 1952, as amended (the "INA"), 8 U.S.C. § 1254(a), because the Immigration and Naturalization Service (the "INS") impermissibly deprived him of the opportunity to seek such relief in deportation proceedings prior to the repeal of Section 244(a) by Section 304(a)(3) of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IRRIRA"), Pub.L. No. 104-208, § 304(a)(3), 8 U.S.C. § 1101. Respondents move to dismiss on the grounds that this court lacks jurisdiction to consider petitioner's claim pursuant to Section 242(g) of the INA, 8 U.S.C. § 1252(g), and, alternatively, that petitioner's claim lacks merit.
Background
Petitioner, a native and citizen of Poland, claims to have entered the United States on March 23, 1989 without being inspected, admitted or paroled by an immigration officer. On August 31, 1993, petitioner filed an application for asylum with the INS. While this application was pending, petitioner departed the United States and returned to Poland pursuant to a grant of advance parole by the INS on May 13, 1994. Upon his return on June 24, 1994, petitioner was granted parole into the United States for a one-year period. In December of 1996, the INS denied petitioner's application for asylum.
On December 26, 1996, the INS served petitioner with an Order to Show Cause ("OSC"), alleging that petitioner was subject to deportation from the United States because he had entered the United States without having been inspected or admitted by an immigration officer. The INS did not file the OSC with the immigration court. On June 16, 1997, the INS served petitioner with a Notice to Appear (the "Notice"), and filed the Notice with the immigration court. In the Notice, the INS incorrectly stated that petitioner was deportable, pursuant to Section 212(a)(6)(A)(i) of the INA, as an alien present in the United States without having been inspected, admitted or paroled by an immigration officer. 8 U.S.C. § 1182(a)(6)(A)(i). On April 30, 1998, the INS corrected the charges in the Notice to indicate that petitioner was an arriving alien whose parole had expired and that petitioner was inadmissable under Section 212(a)(7)(A)(i)(I) of the INA as an intending immigrant not in possession of an immigrant visa or other required documents. 8 U.S.C. § 1182(a)(7)(A)(i)(I).
At his removal hearing, petitioner, through his accredited representative and priest, Robert Vitaglione, attempted to seek relief from deportation in the form of suspension of deportation under former Section 244(a) of the INA. Petitioner asserted that he was not properly in removal proceedings and that he should be permitted to seek suspension of deportation because the OSC served upon him (but not filed with the immigration court) preceded the enactment of IIRIRA. Petitioner also claimed that he should be permitted to seek relief from removal in the form of special rules cancellation of removal pursuant to Section 203(b) of the Nicaraguan and Cuban Adjustment and Central American Relief Act of 1997 ("NACARA"), Pub.L. No. 105-100, 111 Stat. 2160, see 8 U.S.C. § 1101 note. On July 14, 1998, the Immigration Judge ("IJ") ordered the petitioner removed from the United States based on the charges in the amended notice. The IJ determined that, as conceded by petitioner, petitioner was properly in removal proceedings and therefore could not apply for suspension of deportation. The IJ also found that petitioner did not qualify for special rules cancellation because he did not meet the statutory requirements of NACARA. The IJ noted that, although petitioner objected to the judge's findings regarding the availability of NACARA relief on equal protection grounds, the immigration court lacked jurisdiction to consider such a constitutional challenge.
Petitioner filed a timely appeal from the decision of the IJ with the BIA. The petitioner argued that NACARA violated equal protection by distinguishing between similarly situated aliens based upon their nationality. On April 10, 2002 the BIA dismissed petitioner's appeal and affirmed the decision of the IJ without opinion.
Discussion
Prior to the enactment of IIRIRA, aliens seeking entry to the United States were subject to exclusion proceedings based on inadmissibility grounds under former Section 212(a) of the INA. INA §§ 212, 236, 8 U.S.C. § 1182, 1226 (1994). Those aliens who had already entered the United States were subject to deportation proceedings under the deportation grounds of former Section 241(a) of the INA. Id. §§ 241, 242, 8 U.S.C. § 1251, 1252, IRRIRA retained the distinction between the grounds for inadmissibility and deportability, but made all aliens placed in proceedings after April 1, 1997, subject to removal proceedings. 8 U.S.C. § 1101.
An alien whose deportation proceedings commenced prior to April 1, 1997 may apply for discretionary relief from deportation in the form of suspension of deportation, provided that the alien satisfies certain prerequisites. See INA § 244(a), 8 U.S.C. § 1254 (1994), repealed by IRRIRA § 304(a)(3). However, suspension of deportation is not available to an alien whose exclusion proceedings commenced before April 1, 1997. See Patel v. McElroy, 143 F.3d 56, 57-60 (2d Cir. 1998) (holding that suspension of deportation is not available in exclusion proceedings); See also Skelly v. INS, 168 F.3d 88, 90-91 (2d Cir. 1999) (holding that Section 244(a)'s differing treatment of aliens in exclusion proceedings and aliens in deportation proceedings does not violate principles of equal protection).
IIRIRA's enactment on April 1, 1997, replaced suspension of deportation relief with cancellation of removal, a new form of discretionary relief. Cancellation of removal is available to all aliens who have been physically present in the United States for at least ten years and have a parent, spouse or child who is a citizen or lawful permanent resident of the United States. 8 U.S.C. § 1101. IIRIRA was amended by Section 203(b) of NACARA, which provided country specific exceptions to IIRIRA that permitted aliens from certain countries to apply for "special rules cancellation of removal," a form of relief identical to pre-IIRIRA suspension of deportation relief Special rules cancellation is available for aliens from the former Sovict-bloc nations who entered the United States and filed for asylum prior to December 31, 1991. 8 U.S.C. § 1101 note. By his own admission, petitioner did not seek asylum until 1993, and he is therefore ineligible for special rules cancellation.
Petitioner claims that the INS was obligated to comply with its own established procedures and commence deportation proceedings against him by filing the OSC with the immigration court in December of 1996, and that, by failing to do so until after IIRIRA's effective date in April of 1998, the INS denied petitioner an opportunity to apply for suspension of deportation under former INA § 244(a)(1).
Respondent argues that petitioner's claim should be dismissed because immigration proceedings were never commenced against petitioner, and this court lacks jurisdiction to review the Attorney General's decision whether or not to initiate immigration proceedings. Section 242(g) of the INA states that: "Except as provided in this section, ... no court shall have jurisdiction to hear any cause or claim arising from the decision of the Attorney General to commence proceedings, adjudicate cases or execute removal orders against any alien under this chapter." The Supreme Court in Reno v. American-Arab Anti Discrimination Committee, 525 U.S. 471 (1999), found that a challenge to the Attorney General's decision to commence immigration proceedings is squarely within the jurisdiction-stripping provisions of Section 242(g). Respondent argues that this decision necessitates the finding that Section 242(g) also precludes judicial review of an executive decision not to commence deportation proceedings.
Because the petition is, in any event, without merit, I decline to consider whether the proceedings should be deemed commenced on the date the OSC was served upon petitioner. Petitioner argues that, had the INS commenced removal proceedings in a timely fashion and in accordance with INS procedure, it is likely that he would have been eligible for Suspension of Deportation under the former INA § 244(a)(1). To be eligible for Suspension of Deportation, under former INA § 244(a)(1), an alien must have been continuously present in the United States for at least seven years, be a person of good moral character and demonstrate extreme hardship to the alien's citizen or resident spouse or children. However, petitioner, by his own admission, was paroled into the United States. Therefore, at the time the OSC was served, petitioner was an arriving alien subject to exclusion proceedings, not deportation proceedings. Patel, 143 F.3d 59 (2d. Cir. 1998) (an alien who departs the United States and is paroled into the United States upon his return is properly placed in exclusion proceedings, and parole does not constitute an "entry" entitling an alien to deportation proceedings rather than exclusion proceedings). As petitioner is an arriving alien subject to exclusion proceedings, suspension of deportation was never available to him, and he may not properly claim that any actions on the part of respondents deprived him of the opportunity to seek such relief.
Conclusion
For the above stated reasons, respondent's motion is granted, the petition for a writ of habeas corpus is denied and the stay of the final order of deportation is vacated. As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied. The Clerk of Court is directed to close this case.