Opinion
CASE NO. C2-02-822
September 5, 2002
ORDER AND OPINION
This matter comes before the Court for consideration of Plaintiff's Request for a Preliminary Injunction to prevent the Board of Immigration Appeals ("Immigration Board") from considering an appeal brief filed by the Immigration and Naturalization Service ("INS"). (Doc. #1). Plaintiff claims that the appeal brief was untimely filed and thus violates his constitutional due process rights. For the reasons set forth below, Plaintiff's Motion is DENIED.
In accordance with the August 23, 2002, telephone conference on the record, this is the only issue presently before the Court. In that conference, Plaintiff asserted that the irreparable harm he is alleging is the Immigration Board's considering the appeal brief submitted by the INS.
I.
Plaintiff is a legal permanent resident of the United States and a citizen of Jamaica. Complaint/or Habeas, Mandamus, and Injunctive Relief, ¶ 3 (" Complaint"). Plaintiff entered the United States in October of 1987. Id. On February 4, 1999, Plaintiff was convicted in the Franklin, County, Ohio, Court of Common Pleas fur possession of a large amount of marijuana. Id. ¶ 8. Plaintiff was sentenced to two years incarceration and served his term at the Chillicothe Correctional Center and the Orion Correctional Centers. Id.Plaintiff was placed in removal proceedings by the INS in May of 1999, due to his drug conviction and was found by an Administrative Law Judge ("ALJ") to be removable pursuant to the Immigration and Nationality Act, 8 U.S.C. § 237 (a)(2)(B)(i), as an alien who has ben convicted of a violation of any law or regulation relating to a controlled substance. Id. ¶ 10.
On January 3, 2001, Plaintiff was released from state incarceration and taken into custody by the INS. Id. Plaintiff is currently confined at the Kenton County Detention Center in Covington, Kentucky. Complaint, ¶ 11. On January 11, 2002, Plaintiff filed an application for cancellation of removal pursuant to Section 240A of the Immigration and Nationality Act, 8 U.S.C. § 1229. Id. ¶ 12. The ALJ granted Plaintiff the requested relief Id. ¶ 13.
On January 22, 2002, the INS filed a notice of appeal of the ALJ's decision to cancel removal. Id. ¶ 14. On February 22, 2002, the Immigration Board issued a briefing schedule indicating that the INS was to file its brief in support of its appeal ("Appeal Brief") on March 25, 2002. Id. ¶ 15.
On April 22, 2002, Plaintiff filed a motion to dismiss based upon the fact that the INS did not comply with the briefing schedule. Id. ¶ 19. The INS contends that it did not comply with the briefing schedule because it did not receive the schedule. Id. Ex. H. The INS asserts that when it realized it was in noncompliance with the schedule, it filed its brief Id. On June 6, 2002, the Immigration Board returned the appeal brief stating that if a brief is untimely filed it must be accompanied by a motion for consideration. Id. Ex. G. The Immigration Board instructed the INS in its letter as to the proper procedure it must follow to file a late brief. Id. Plaintiff filed a second motion to dismiss for failure to follow the briefing schedule on July 11, 2002. Id. 24. Defendant filed a brief in support of its appeal on August 15, 2002. Plaintiff's Memorandum in Support of Preliminary Injunction (titled Memorandum Concerning BIA Brief), Ex. A.
Plaintiff asks this Court to issue a preliminary injunction preventing the Immigration Board from considering Defendant's appeal brief in its consideration of Plaintiff's Motion to Dismiss the Appeal now pending before the Immigration Board. Defendant claims that this Court lacks subject matter jurisdiction to issue the preliminary injunction.
II.
To determine whether to grant a motion for a preliminary injunction, a court must analyze the following four factors:
"(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction."Bonnell v. Lorenzo, 241 F.3d 800, 809 (quoting Rock Roll Hall of Fame Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998)). These factors are meant to be balanced as they guide the Court in exercising its discretion; they are not due rigid application and need not be assigned equal weight. In re Eagle-Pitcher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992).
III.
Plaintiff asks the Court to prevent the Immigration Board from considering Defendant's Appeal Brief. Plaintiff contends that the Immigration Board has a mandatory duty to conduct its adjudication process in the manner provided in its practice manual and that the Board ignored this duty. Reply Memorandum in Support of Complaint and for Preliminaiy Injunction, at 3. Specifically, Plaintiff asserts that the Appeal Brief was untimely, thus precluding the Immigration Board from considering it.
Section 4.7(c) of the Immigration Board's Practice Manual provides:
(ii) Extension requests must be received at the Board by the Briefs original due date. Extension requests received after the date will not be granted.
Plaintiff argues that Detroit Free Press v. Ashcroft, 2002 U.S. App. LEXIS 17646, 2002 FED App. 0291P (August 26, 2002 6th Cir.), controls the issue before the Court and dictates that a preliminary injunction should issue. The Court disagrees.
In Detroit Free Press the Chief Immigration Judge issued a directive to all United States Immigration Judges requiring closure of special interest cases. The directive required that all proceedings in such cases be closed to the press and public, including family members and friends. The Record of the Proceeding was not to be disclosed to anyone except a deportee's attorney or representative, assuming the file did not contain classified information. The restriction on information included the confirming or denying whether such a case was even on the court's docket or scheduled for a hearing. Thus, an entire group was stripped of the primary safeguard against the extraordinary power given to the government under immigration laws. The Detroit Free Press court elaborated on this point stating:
Since the end of the 19th Century, our government has enacted immigration laws banishing, or deporting, non-citizens because of their race and their belief . . . While the Hill of Rights jealously protects citizens from such laws, it has never protected non-citizens facing deportation in the same way. In our democracy, based on cheeks and balances, neither the Bill of Rights nor the judiciary can second-guess governments choices. The only safeguard on this extraordinary governmental power is the public, deputizing the press as the guardians of their liberty. "An informed public is the most potent of all restraints upon misgovernment[,]" Grosjean v. Am. Press Co., 297 U.S. 233, 250, 80 L.Ed. 660, 56 S.Ct. 444 (1936). "[They] alone can here protect the values of democratic government." New York Times v. United States, 403 U.S. 713, 728, 29 L.Ed.2d 822, 91 S.Ct. 2140 (1971) ( per curiam) (Stewart, J., concurring).Detroit Free Press, 2002 U.S. App. LEXIS 17646, *3 (citations and footnote omitted). To analogize Detroit Free Press to the instant case is to trivialize it.
Plaintiff asserts the following the prejudice he will suffer if the Immigration Board considers the Appeal Brief:
Thus, by making broad assertions of fact without reference to a transcript [in the Appeal Brief] in violation of the Board's own Practice Manual, the [INS] places upon [Plaintiff] the unfair burden of trying to search the whole transcript to try to show that the claim is unsubstantiate. . . . The [INS's] brief is grossly unfair to [Plaintiff] Many of the claims are directly contrary to testimony in the record.Plaintiff's Memorandum in Support of Preliminary Injunction, at 2. This "prejudice" is easily dealt with by the Immigration Board and may certainly be raised by Plaintiff as an issue before the Board. Plaintiff does not assert an issue involving fundamental fairness or due process. As stated in Richardson v. Perales, 402 U.S. 359, 409 (1971), a case involving a constitutional challenge to procedural rules applicable to the administrative process in social security cases, "The matter comes down to the procedures integrity and fundamental fairness." Whether the Immigration Board should read an untimely submitted appeal brief does not meet this standard.
If, as Plaintiff claims, the INS has misstated the record compiled by the ALJ, he may certainly press such arguments with the Immigration Board, which has not yet acted. To accept Plaintiff's position that this Court should regulate the written arguments to be considered by the Immigration Board would emasculate the administrative process and circumvent the exclusive appellate jurisdiction vested in the court of appeals, rather that in the district court. 8 U.S.C. § 1252.
Further, the government contends that this Court is without jurisdiction to review a discretionary decision of the INS or that of the Immigration Board. Section 1252(a)(2)(B) of the Immigration and Nationality Act bars judicial review of the Immigration Board's discretionary decisions. Section 1252(a)(2)(B)(ii) provides:
Notwithstanding any other provision of law, no court shall have jurisdiction to review. . . (ii) any other decision or action of the Attorney General the authority for which is specified under this subchapter to be in the discretion of the Attorney General, other than the granting of relief under section 1158(a) [regarding asylum] of this title.8 U.S.C. § 1252 (a)(2)(B)(ii).
"This subchapter," which is subchapter II of Chapter 12 of Title 8, covers S U.S.C.S. §§ 1151-1378, including removal proceedings under 8 U.S.C. § 1229a. Also, the regulations promulgated under this statute specifically grant discretion to the Immigration Board to consider briefs filed out of time.
(c) Briefs. (1) Appeal from decision of an Immigration Judge. Briefs in support of or in opposition to an appeal from a decision of an Immigration Judge shall be filed directly with the Board. In those cases that are transcribed, the briefing schedule shall be set by the Board after the transcript is available. An appellant shall be provided 30 days in which to file a brief, unless a shorter period is specified by the Board. The appellee shall have the same period of time in which to file a reply brief that was initially granted to the appellant to file his or her brief The time to file a reply brief commences from the date upon which the appellant's brief was due, as originally set or extended by the Board. The Board, upon written motion, may extend the period for filing a brief or a reply brief for up to 90 days for good cause shown. In its discretion, the Board may consider a brief that has been filed out of time. All briefs, filings, and motions filed in conjunction with an appeal shall include proof of service on the opposing party.
8 C.F.R. § 3.3 (c) (emphasis added).
In addition the regulations grant the Immigration Board discretion to dismiss, and by implication not to dismiss, any appeal in which a brief is not timely filed.
(d) Powers of the Board — (2) Summary dismissal of appeals — (i) Standards. The Board may summarily dismiss any appeal or portion of any appeal in any case in which:
(D) The party concerned indicates on Form EOIR-26 or Form EOIR-29 that he or she will tile a brief or statement in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain his or her failure to do so, within the time set for filing;
8 C.F.R. § 3.1(d)(1)(D).
The Court concludes that its jurisdiction is questionable under 8 U.S.C. § 1252 (a)(2)(B). Even if jurisdiction exists, there is virtually no likelihood that Plaintiff will succeed on the merits of this case as to the request that this Court enjoin the Immigration Board's consideration of the appeal brief Accordingly, Plaintiff's request for a preliminary injunction is denied.
IV.
Based on the foregoing, Plaintiff's Motion for Preliminary Injunction is DENIED.