Opinion
Civil Action No. 1:04-CV-060-C.
August 16, 2004
ORDER
On March 4, 2004, Petitioner Justus Onyangore Ondimu, a native and citizen of Kenya, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 requesting that this Court grant a stay of deportation, order his immediate release, declare his detention unconstitutional, and order Respondents to provide "the appropriate appeal documents." Respondents have filed a Response and Motion to Dismiss with Brief in Support Thereof and copies of records relevant to Petitioner's deportation proceedings. Petitioner has not filed a response or objections.
Petitioner was incarcerated in the Rolling Plains Detention Center in Haskell, Texas, at the time he filed his petition. Haskell is located within the jurisdiction of this Court.
According to Petitioner and his records, he entered the United States as a student in 1998 and has continuously resided in the United States since then. On August 18, 2003, Petitioner pleaded guilty to misdemeanor assault causing bodily injury and was sentenced to fifty (50) days in jail in Case No. 0867557 in County Criminal Court No. Five, Tarrant County, Texas. The state court made an affirmative finding that Petitioner had "committed an offense involving Family Violence." The Bureau of Immigration and Custom Enforcement subsequently arrested Petitioner on August 19, 2003, and placed him in removal proceedings.
Following a hearing on September 17, 2003, an immigration judge found that Petitioner had overstayed the duration of his student visa, had failed to attend school, and was convicted on August 18, 2003, for the offense of assaulting his wife. The immigration judge further determined that Petitioner was not working, his citizen wife was the financial support for the family, both Petitioner and his wife appeared to be healthy, and Petitioner's two stepdaughters did not reside with Petitioner and his wife but with their grandmother, his wife's mother. The immigration judge then ordered that Petitioner be removed from the United States to Kenya.
Petitioner filed an appeal from the removal decision on September 20, 2003. He argued that the immigration judge should have stayed his removal proceedings because he had an I-130 visa petition pending, which is a prerequisite to an alien's application for permanent residence based on marriage to a United States citizen, and he argued that he qualified for a waiver of removal because his conviction for assault fell under the "petty offense" exception in 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Although Petitioner alleges that he has been denied an appeal, the records from the Board of Immigration Appeals indicate that Petitioner's appeal from the removal order is pending.
To the extent that Petitioner's removal order is final and he is requesting that this Court order a stay of deportation, he is requesting relief from a decision or action to execute a deportation order and this Court is without jurisdiction to consider the request. 8 U.S.C. § 1252(g); Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).
In addition, because Petitioner's appeal from the removal order is pending, he cannot demonstrate that he has exhausted his administrative remedies and this Court is without jurisdiction to consider his complaints. "[W]hen exhaustion is statutorily mandated, it is a jurisdictional requirement." Nehme v. INS, 252 F.3d 415, 420 (5th Cir. 2001). Pursuant to 8 U.S.C. § 1252(d)(1), "a court may review a final order of removal only if the alien has exhausted all his administrative remedies." Id. "An alien fails to exhaust his administrative remedies with respect to an issue when the issue is not raised in the first instance before the [Bureau of Immigration Appeals ("BIA")] — either on direct appeal or in a motion to reopen." Kuang-Te Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). See Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001) ("When a petitioner seeks to raise a claim not presented to the BIA and the claim is one that the BIA has adequate mechanisms to address and remedy, the petitioner must raise the issue in a motion to reopen prior to resorting to review by the courts."). "Because it is statutorily mandated, an alien's failure to exhaust his administrative remedies serves as a jurisdictional bar to [a court's] consideration of the issue." Id. at 452. See also Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) (noting that a court does not have jurisdiction to review the denial of a motion to reopen when the BIA has addressed a discretionary decision but this does not preclude judicial review of the BIA's denial of a motion to reopen involving a deportation order).
Finally, as for Petitioner's request that he be released to bond during the pendency of his removal proceedings, he cannot demonstrate that he is entitled to bond during this time. Under 8 U.S.C. § 1226(c)(1), "the Attorney General is required to detain deportable criminal aliens until a final order of removal is issued." Stephens v. Estrada, 2003 WL 21499323 at *1 (N.D. Tex., June 19, 2003). "In Demore v. Kim, ___ U.S. ___, 123 S.Ct. 1708 (April 29, 2003), the Supreme Court held that the mandatory detention of permanent resident aliens without an individualized bail hearing does not violate the Due Process Clause." Omari v. Estrada, 2003 WL 21355891 at *2 (N.D. Tex., June 5, 2003). "[A] majority of the Court concluded that mandatory `detention necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.'" Stephens v. Estrada, 2003 WL 21499323 at *2 (quoting Demore v. Kim, 123 S.Ct. at 1720). "[T]hus, `[d]etention during removal proceedings is a constitutionally permissible part of that process.'" Id. (quoting Demore v. Kim, 123 S.Ct. at 1721-22).
For these reasons, the Court finds that Respondents' Motion to Dismiss should be granted and Petitioner's § 2241 habeas petition should be dismissed without prejudice.
SO ORDERED.