Opinion
03 Civ. 1601 (GEL)
May 28, 2003
Peter Markowitz, Esq., The Bronx Defenders, for Petitioner Jose Napoleon Marquez-Almanzar.
Megan Brackney, Assistant United States Attorney, Southern District of New York (James B. Comey, on the brief), for Respondents.
OPINION AND ORDER
Petitioner Jose Marquez-Almanzar ("petitioner" or "Marquez"), a native of the Dominican Republic, brings this habeas petition pursuant to 28 U.S.C. § 2241, challenging the final order of removal entered against him by an Immigration Judge ("IJ") on June 19, 2000. He argues that, although he was convicted of two counts of criminal possession of a controlled substance, and attempted sale of a controlled substance, in the Supreme Court of New York, which are removable offenses under 8 U.S.C. § 1227 (a)(2)(B)(i) (2000), he may not be removed because he is a non-citizen national of the United States. The Government argues that this Court lacks jurisdiction over Marquez's petition, as 8 U.S.C. § 1252 (b)(2) vests exclusive jurisdiction over nationality claims in the Court of Appeals, and that this Court must therefore transfer the petition to the Second Circuit. For the reasons discussed below, the petition will be dismissed for lack of jurisdiction and transferred to the Court of Appeals.
Marquez was born in the Dominican Republic, but may have later renounced his Dominican citizenship. (Pet. ¶ 14.)
BACKGROUND
The following facts are undisputed. Petitioner was admitted into the United States as a lawful permanent resident on April 16, 1976, at the age of twelve. (Pet. Mem. at 2.) In 1984, shortly after his graduation from high school, he enlisted in the United States Army, swearing an oath to support and defend this country and the Constitution. (Id. at 4.) While in the service, Marquez filled out an application for citizenship, and when he was informed that he was eligible for citizenship, he mistakenly believed that he had become a United States citizen. (Id. at 6.) After being honorably discharged from the Army, Marquez developed an addiction to cocaine, and in May 1998, he was convicted of possessing and attempting to sell cocaine, and sentenced to seven years to life. (Resp. Mem. at 2; Return Ex. A at 68-69.) He is currently serving his sentence in Fishkill, New York.
On May 19, 1999, the Immigration and Naturalization Service ("INS"; now the Bureau of Immigration and Customs Enforcement, or "BICE") instituted removal proceedings against Marquez. (Return Ex. A at 241-42.) The IJ found that Marquez's conviction rendered him removable, under 8 U.S.C. § 1227 (a)(2)(B)(i), but adjourned the proceedings so that the parties could produce proof as to whether Marquez's convictions were on direct appeal. (Id. at 194.) Marquez then filed an application for naturalization, and, when the proceedings before the IJ resumed in June 2000, moved to terminate the proceedings based on his pending application. (Id. at 184.) The IJ found, however, that Marquez was not prima facie eligible for naturalization, based on his conviction, and that because his offense was an aggravated felony, he was ineligible for cancellation of removal. (Id.) The IJ therefore ordered him removed to the Dominican Republic. (Id. at 185.)
Although represented by an Accredited Immigration Representative, Marquez procedurally defaulted on his appeal to the Board of Immigration Appeals ("BIA"). (Id. at 143, 170.) He then filed several motions to reconsider the BIA's rejection of his appeal, based on his pending naturalization application, but these were also rejected for failure to comply with various procedural rules. (Id. at 125, 131.) Meanwhile, as Marquez had not informed the INS that he was incarcerated, his petition for naturalization was denied because he failed to appear to be fingerprinted. (Id. Ex. B.)
In 2001, Marquez filed a pro se petition for habeas corpus in this Court, challenging the removal order and asserting for the first time that he was a non-citizen national of the United States. See Marguez v. INS, 02 Civ. 311 (GEL). After Marquez obtained a lawyer, he entered into a stipulation with the Government providing that his nationality claim would be remanded to the BIA solely for consideration on the merits, and this Court ordered the BIA's previous decisions vacated and the case remanded. See Stipulation and Order of Settlement and Withdrawal, 02 Civ. 311 (GEL) (Oct. 31, 2002). On remand, however, the BIA declined to review the merits of the claim, stating that it did not have jurisdiction over the case because Marquez had procedurally defaulted on his appeal of the IJ's decision. (Return Ex. D.) This latest unfavorable determination prompted Marquez to file the instant habeas petition, challenging the order of removal on the grounds that, as a non-citizen national of the United States, he may not be removed under 8 U.S.C. § 1227. (Pet. ¶ 51.)
DISCUSSION
Under 28 U.S.C. § 2241, District Courts have jurisdiction to grant writs of habeas corpus to petitioners who are being held in custody in violation of the Constitution or laws of the United States, including the immigration laws. As Marquez alleges that he may not be removed because he is a non-citizen national, and therefore is under an order of removal in violation of the laws of the United States, this Court would ordinarily have jurisdiction under 28 U.S.C. § 2241 to consider his claim. The government contends, however, that because Marquez challenges his removal solely based on his claimed status as a non-citizen national, judicial consideration of his claim is governed by 8 U.S.C. § 1252 (b)(5). Section 1252 governs "[j]udicial review of orders of removal," and subsection (b)(5) provides:
Although Marquez is actually in New York state custody, not BICE custody, he brings this petition against BICE, Attorney General Ashcroft and other immigration officials. (Pet. ¶¶ 65-67.) The Second Circuit has recently held that state inmates subject to a final order of removal are in BICE custody for purposes of 28 U.S.C. § 2241. Simmonds v. INS, 326 F.3d 351, 356 (2d Cir. 2003).
(A) Court determination if no issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds from the pleadings and affidavits that no genuine issue of material fact about the petitioner's nationality is presented, the court shall decide the nationality claim.
(B) Transfer if issue of fact
If the petitioner claims to be a national of the United States and the court of appeals finds that a genuine issue of material fact about the petitioner's nationality is presented, the court shall transfer the proceeding to the district court of the United States for the judicial district in which the petitioner resides for a new hearing on the nationality claim and a decision on that claim as if an action had been brought in the district court under section 2201 of Title 28.
(C) Limitation on determination
The petitioner may have such nationality claim decided only as provided in this paragraph.
Thus, § 1252(b)(5), on its face, appears to provide that nationality claims shall be presented to the Court of Appeals in the first instance, and transferred to the District Court only if the Court of Appeals determines that the petition involves genuine issues of material fact. All of the courts that have considered this provision have concluded that it channels nationality claims to the Courts of Appeals, and that the proper means of disposing of such claims, when they are improperly brought before the District Court, is to dismiss for lack of jurisdiction, and then to transfer the case to the Court of Appeals pursuant to 28 U.S.C. § 1631. See, e.g., Taniguchi v. Schultz, 303 F.3d 950 (9th Cir. 2002); Constanza v. Riley, No. Civ. A. 03-2414, 2003 WL 2013360 (E.D. Pa. May 1, 2003); Lee v. Ashcroft, No. 01 CV 997 (SJ), 2003 WL 21143273 (E.D.N.Y. Jan. 22, 2003); Rodriguez v. Ashcroft, No. 02 Civ. 1188 (AGS) (GWG), 2003 WL 42018 (S.D.N.Y. Jan. 6, 2003);Alvarez-Garcia v. Ashcroft, 234 F. Supp.2d 283 (S.D.N.Y. 2002).
Petitioner argues that, notwithstanding § 1252(b)(5)(C), this Court must be able to consider the merits of his nationality claim, because he asserts it in the context of a petition for habeas corpus, and § 1252(b)(2) cannot be read to repeal the District Court's habeas jurisdiction as to petitions asserting nationality claims. (Pet. Mem. at 10.) Petitioner's argument rests on INS v. St. Cyr, 533 U.S. 289 (2001), which requires that a statute must explicitly mention "habeas corpus" or "28 U.S.C. § 2241" in order to repeal the general grant of habeas jurisdiction contained in 28 U.S.C. § 2241. (Pet. Mem. at 9-10.) InSt. Cyr, the Supreme Court considered 8 U.S.C. § 1252 (a)(2)(C)'s foreclosure of "judicial review" of removal orders issued against criminal aliens, which the INS argued divested federal courts of all power to review certain removal orders, even in the context of habeas petitions challenging the legality of the petitioner's INS custody. The Court relied on the "longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction" to hold that the provision did not preclude federal court review of habeas petitions that challenged the specified types of removal orders. St. Cyr, 533 U.S. at 298-99. Because § 1252(a)(2)(C) did not specifically mention habeas review, the Court found that the provision did not repeal the federal courts' habeas jurisdiction. Marquez argues that construing § 1252(b)(5)(C) to preclude District Court consideration of a nationality claim asserted in a habeas petition would treat that statute as a repeal of the District Court's habeas jurisdiction under 28 U.S.C. § 2241; because the provision does not explicitly mention habeas corpus, however, Marquez concludes that it cannot "repeal by implication" the District Court's jurisdiction, St. Cyr, 533 U.S. at 299. (Pet. Mem. at 10.)
As the clear statement rule applies only to potential repeals of habeas jurisdiction, petitioner's argument turns on whether § 1252(b)(5)'s requirement that nationality claims in habeas petitions be presented first to the Court of Appeals is in effect a "repeal [of] habeas jurisdiction," as the phrase is used in St. Cyr, 553 U.S. at 298. The clear statement rule is applied in "traditionally sensitive areas" — that is, where the contemplated congressional action could easily exceed constitutional bounds — in order to ensure that Congress intended the potential result, despite the constitutional issues it would raise. Gregory v. Ashcroft, 501 U.S. 452, 461 (1991); see also St. Cyr, 553 U.S. at 299 n. 10 (citing clear statement rule used for potential congressional abrogation of state sovereign immunity). Thus, the application of the clear statement rule to statutes regulating habeas corpus is informed by the constitutional guarantee of the availability of the writ as a remedy for unlawful executive detention, U.S. Const. Art. 1, § 9, cl. 2, and by 28 U.S.C. § 2241's execution of that guarantee by giving the power to grant writs of habeas corpus to the District Courts, the Supreme Court, and individual Circuit Judges and Justices. Therefore, the statutes that potentially "repeal habeas jurisdiction" and implicate the constitutional concerns informing clear statement rule are those that curtail the availability of the habeas remedy itself by removing the courts' power to grant the writ.
Section 1252(a)(2), the provision at issue in St. Cyr, was just such a statute; it potentially removed all of the power given by § 2241 to grant habeas corpus in a class of cases, thereby making the remedy unavailable to a class of petitioners. As the Court noted, such a result would raise serious constitutional issues, potentially violating the constitutional limits on the power to suspend habeas corpus. St. Cyr, 553 U.S. at 305. Thus, § 1252(a)(2) implicates the core constitutional concerns that the clear statement rule is designed to protect. Accordingly, when the Court used the phrase "repeal [of] habeas jurisdiction" to describe § 1252(a)(2)'s potential effect, it meant a repeal of the remedy itself, through the abrogation of the courts' power to grant it. Id. at 305 (restating the INS's argument as that "the 1996 statutes have withdrawn [the habeas] power from federal judges and provided no adequate substitute for its exercise").
This concern with the courts' power to remedy unlawful detention is evidenced by the cases cited by the Court in discussing the effect of § 1252(a)(2): Felker v. Turpin, 518 U.S. 651 (1996), which involved a statute that potentially foreclosed all Supreme Court original jurisdiction over habeas petitions, and Ex parte Yerger, 8 Wall. 85, 102 (1869), which dealt with a statute that potentially repealed Supreme Court appellate jurisdiction over habeas petitions, and would have left the petitioner entirely without a remedy for his detention. St. Cyr, 533 U.S. at 298. Thus, the St. Cyr discussion as a whole indicates that the Court viewed § 1252(a)(2) as a potential "repeal" of habeas jurisdiction in the sense that it could entirely abrogate the courts' power to review unlawful detention, and used the clear statement rule to ensure that Congress actually intended this result.
In contrast to those statutory provisions that implicate the availability of the habeas remedy by curtailing the courts' power to grant the writ, a number of statutes dictate procedural rules that control the who, when, and how of habeas, or even displace it in favor of an alternative, but equally effective, remedy. Thus, while § 2241 is a broad grant of the power to grant the writ of habeas corpus to all federal courts and judges, numerous statutory procedural rules and equitable, judge-made principles control where a habeas claim must first be brought, under what circumstances the court may consider the merits, and when a denial of the writ may be appealed. See, e.g., 28 U.S.C. § 2254 (b)(1)(A) (requiring exhaustion of state remedies);id. § 2254(e)(2) (restricting circumstances in which new factual claims may be asserted in a habeas petition); id. § 2253(c) (requiring certificate of appealability for review of a denial of the writ). Some of these rules are "jurisdictional," in the sense that they determine which court is competent to hear a particular case, given its procedural posture. Most prominently, 28 U.S.C. § 2255 entirely displaces the writ of habeas corpus for convicted federal defendants, substituting a different but equivalent remedy by channeling the prisoner's attack on his confinement to a different court and providing that a habeas application under § 2241 by such a prisoner "shall not be entertained."
Such rules do not implicate the fundamental power of the courts in grant the remedy, however, because they simply determine when a petitioner may file a petition, or which court may hear the petition first. See Felker v. Turpin, 518 U.S. at 664 (holding that restrictions on successive petitions did not violate the Suspension Clause because they simply codified equitable constraints on the writ); United States v. Hayman, 342 U.S. 205 (1952) (reversing judgment holding that § 2255 is unconstitutional).
Courts have accordingly rejected efforts to apply St. Cyr's clear statement rule to statutes that limit § 2241 jurisdiction by applying such procedural directions, without precluding judicial review of confinement. For instance, habeas petitions challenging removal orders or the legality of state custody may not be brought before the petitioner has exhausted his administrative or state remedies. The exhaustion requirement is a jurisdictional rule, in that a court may not consider the merits of an unexhausted claim. Theodoropoulos v. INS, 313 F.3d 732, 740 (2d Cir. 2002). It does not curtail the power of the courts to hear the petition, however, because the habeas remedy remains available, after the petitioner has exhausted his other avenues of relief. Thus, in Sundar v. INS, the Eleventh Circuit held that the clear statement rule did not apply to the statute requiring exhaustion of administrative remedies before federal courts "may review" a removal order. ___ F.3d ___, ___, 2003 WL 1948970, at *2 (11th Cir. Apr. 25, 2003). Because the exhaustion requirement did not amount to a "complete preclusion of [habeas] jurisdiction," and therefore did not raise constitutional concerns by curtailing the availability of the habeas remedy, St. Cyr did not require a clear statement rule that the applied to habeas petitions. Id. Thus, those "jurisdictional" rules that merely control when or how a court may hear a petition, but do not make the writ unavailable for any class of petitioners, do not implicate the constitutional concerns that the clear statement rule protects, and there is no need to require a clear statement in these types of provisions.
Like the exhaustion requirement, § 1252(b)(5) does not curtail the courts' power to review detentions in nationality cases. Rather, the statute simply specifies the procedure by which such petitions will be decided, dividing the labor between the Courts of Appeals and District Courts. The provision channels nationality petitions raising only questions of law to the Courts of Appeals, and petitions raising genuine issues of fact to the District Courts. 8 U.S.C. § 1252 (b)(5)(B). It does not remove an avenue of relief, or leave any class of petitioners without the ability to challenge the legality of their confinement, because it provides a forum for all petitioners raising nationality claims. See Taniguchi, 303 F.3d at 955 (stating that § 1252(b)(5) "does not foreclose completely the writ of habeas corpus"). Because the constitutional concerns underlying the clear statement rule are not implicated by § 1252(b)(5), there is no need to apply the clear statement rule to this provision.
Marquez argues, however, that § 1252(b)(5) repeals the habeas power of the District Courts, since it prevents them from deciding in the first instance a class of petitions that would otherwise come under the general jurisdictional grant of 28 U.S.C. § 2241, and that therefore the clear statement rule must apply. (Pet. Mem. at 10.) This argument is misplaced. Because the purpose of requiring a clear statement before finding that Congress has repealed the courts' power to grant the writ is to protect the constitutional guarantee that the habeas remedy remain available, as long as the statute preserves some forum that has the power to grant the writ, it is not a repeal of habeas power within the meaning of St. Cyr. See Taniguchi, 303 F.3d at 955 (holding that § 1252(b)(5)'s provision of a forum for habeas petitions raising nationality claims allayed concern as to the availability of the writ in nationality cases); Lee v. Ashcroft, 2003 WL 21142373 at *3 (holding that because § 1252(b)(5) provides a forum for review in the Court of Appeals, St. Cyr's reasoning does not apply). Section 1252(b)(5) is thus comparable to a number of other rules that channel habeas petitions to one court or another, such as 28 U.S.C. § 2244 (e)(3)(B), which requires that successive habeas petitions be presented to the Court of Appeals for authorization before they may be filed in the District Court,see Felker, 518 U.S. at 659-62, and Supreme Court Rule 4(a), which limits the Supreme Court's original habeas jurisdiction to situations in which adequate relief cannot be had in any other court. These statutes all regulate the procedure by which courts consider habeas petitions, by prescribing which court is competent to hear a given petition, but as they do not threaten the availability of the habeas remedy itself, they are not potential repeals of the courts' power to grant the writ. The operative question in considering whether a statute operates as a repeal of the remedy is not whether a particular court may grant the writ in a given case, but whether the federal courts as a whole retain the power to consider the petition, so that the petitioner has some forum in which to obtain review of his custody.
As no constitutional concerns are raised by procedural rules like § 1252(b)(5), the clear statement rule does not apply to them. Since it is therefore not necessary for the provision to mention habeas corpus explicitly in order to provide that nationality claims asserted in the context of habeas petitions must first be presented to the Courts of Appeals, there is no obstacle to reading the clear language of § 1252(b)(5)(C) as meaning exactly what it says. As this Court lacks jurisdiction to consider the merits of the claim in the first instance, it may transfer the petition to the Court of Appeals pursuant to 28 U.S.C. § 1631. See Taniguchi, 303 F.3d at 955-56; Rodriguez, 2003 WL 42018, at *4-*5; Alvarez-Garcia, 234 F. Supp. at 290. Section 1631 allows the Court to transfer a case over which it lacks jurisdiction to the court in which it could have been brought at the time that it was filed, if doing so is in the interests ofjustice. Since it is in the interests of justice for Marquez to have his nationality claim adjudicated on the merits, transferring the case to the Court of Appeals is the appropriate means of disposing of the case.
CONCLUSION
For the reasons stated, the petition is dismissed for lack of jurisdiction, and petitioner's nationality claim is transferred to the United States Court of Appeals for the Second Circuit.
SO ORDERED.