JOYA v. RIDGE

Full title: ELIA SARAHI JOYA, Petitioner, v. TOM RIDGE, SECRETARY, DEPARTMENT OF…

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Sep 2, 2004

Civil Action No. 3:03-CV-0974-K (N.D. Tex. Sep. 2, 2004)

Opinion

Civil Action No. 3:03-CV-0974-K.

September 2, 2004

ORDER

ED KINKEADE, District Judge

Before the Court is Petitioner's Motion to Alter or Amend Judgment. Because the Court construes motion as a successive application for a writ of habeas corpus, the motion is DENIED.

I. Background

Petitioner Elia Sarahi Joya ("Joya") was born in El Salvador, and was a lawful permanent resident of the United States for 13 years. On January 24, 2002, Joya pled guilty to, and was convicted of, felony theft and was sentenced to one year of community supervision. After her conviction, the Board of Immigration Appeals ("BIA") issued a deportation order which called for Joya's deportation to El Salvador on May 9, 2003. Joya sought a cancellation of removal hearing pursuant to 8 U.S.C. 1229b(a), which states that a legal permanent resident who is deportable based on her criminal history may have a due process hearing before being deported. However, on December 18, 2002, an Immigration Judge denied her request because, as an aggravated felon, she was not entitled to this due process hearing. See 8 U.S.C. § 1101(a)(43)(G) (an individual qualifies as an "aggravated felon" if she is convicted of a theft offense and sentence to a term of imprisonment for at least one year). She filed a pro se appeal of this order, which was denied by BIA.

After she had exhausted her administrative remedies in seeking a cancellation of removal hearing, Joya petitioned this court for a writ of habeas corpus, which was denied on the merits on May 8, 2003. No appeal was filed. The following day, Joya was deported to El Salvador, and was thereafter free from custody. On May 14, 2003, the 199th Judicial District Court of Collin, County, Texas, reduced Joya's sentence from one year to 270 days community supervision. Joya moves to amend the court's judgment and remand to BIA on two grounds: (1) the state court's modification of the one-year sentence is newly discovered evidence as defined by Federal Rule of Civil Procedure 60; and (2) the hardship she and her four daughters (ages 18, 17, 9, and 7) have suffered as a result of their separation.

II. Analysis

While Joya seeks an opportunity to have a cancellation of removal hearing before the BIA, Respondents argue that she is not entitled to such relief. The Court agrees.

When a petitioner files a Rule 60(b) motion for reconsideration in a habeas case, the motion is often treated as a second or successive habeas petition. See Kutzner v. Cockrell, 303 F.3d 333, 338 (5^th Cir. 2002) ("a motion under Rule 60(b) is the equivalent of a second or successive habeas petition"). Accordingly, the Court treats Joya's Rule 60(b) motion as an independent petition for a writ of habeas corpus. A threshold question in determining whether a petitioner is entitled to habeas relief is whether the petitioner is in custody at the time the petition was filed. See 28 U.S.C. § 2241(c). Accordingly, the Court must determine anew whether, at the time she filed her Rule 60(b) motion, Joya was in custody. See Zalawadia, 371 F.3d at 297 ("the Supreme Court has made it clear that the `in custody' determination is made at the time the habeas petition is filed"). In this case, as Joya is currently free in El Salvador, it is clear that she was not in custody at the time she filed her Rule 60(b) motion. See Samirah v. O'Connell, 335 F.3d 545, 549 (7^th Cir. 2003) (holding that a petitioner was not in custody where the United States could not exercise ongoing control, restraint, or responsibility over him). Indeed, Joya "may wander the earth, so long as [her] wanderings do not lead [her] to the United States." Id.

Joya relies on Max-George v. Reno, 205 F.3d 194 (5^th Cir. 2000), rev'd on other grounds, 533 U.S. 945 (2001), to establish that she is still considered in custody based on the consequences she would face if she were to attempt to return to the United States. In that case, the Fifth Circuit held that a deportation subsequent to the filing of a habeas petition did not deprive the courts of jurisdiction. See id. at 196. Unlike the petitioner in Max-George, however, the Court denied Joya's petition before she was deported. Thus, the Court must make the "in custody" determination as of the filing of her second petition for habeas relief, not her first.

Nevertheless, even if Joya can be said to have been in custody at the time she filed her Rule 60(b) motion, her claim nevertheless fails. Joya does not dispute the fact that she was deported pursuant to a lawful order of removal. See Pet. at 4 ("Respondents were within their rights to classify Joya as an aggravated felon and deny her a cancellation of removal hearing"). The Fifth Circuit stated recently that a court inquiring on a petition for a writ of habeas corpus must "confine the scope of its review to considering the legality of the custody at issue." Zalawadia, 371 F.3d at 299. Because Joya concedes that, at the time she was detained and deported, the Respondents were acting lawfully, her petition cannot succeed.

III. Conclusion

At the time she filed her Rule 60(b) motion, Joya was not in custody, and even if she had been, Joya has never questioned the legal propriety of her detention or deportation. Accordingly, Joya's Motion for Reconsideration is DENIED.

SO ORDERED.