Opinion
CV 02-1840 (RR)
March 28, 2002
JAMIE LAUREANO PERALTA-VERAS, #17148-265 (A37-153-679) FDC. Oakdale, Oakdale, LA, Petitioner Pro Se.
HONORABLE ALAN VINEGRAD, UNITED STATES ATTORNEY, EASTERN DISTRICT OF NEW YORK, Brooklyn, New York, Attorney for Respondent; HONORABLE JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, Washington, D.C., Respondent; JAMES ZIGLER, COMMISSIONER IMMIGRATION AND NATURALIZATION SERVICE, Washington, D.C., Respondent; EDWARD McELROY, NEW YORK DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, New York, New York; CARYL THOMPSON, ACTING DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE New Orleans, Louisiana, Respondent; NANCY HOOKS, OFFICER IN CHARGE OF OAKDALE DETENTION CENTER, New Orleans, Louisiana Respondent.
ORDER
Upon the petition of Jamie Laureano Peralta-Veras filed on March 25, 2002, a copy of which is attached, to stay and/or vacate the final order of deportation, entered against petitioner under 28 U.S.C. § 2241, directing the Immigration and Naturalization Service to reverse its decision to deport petitioner, it is ORDERED that:
1. Petitioner is granted leave to proceed in forma pauperis.
2. The United States is hereby ordered to show cause why an order should not be issued staying petitioner's deportation pending the court's consideration of his petition for habeas corpus, in writing by 5:00 p.m. on Friday, April 26, 2002.
3. To the extent the petitioner seeks other habeas relief in addition to a stay of deportation, the United States is to respond to the petition or before May 27, 2002, providing copies of relevant transcripts of proceedings, as well as petitioner's and the United States Attorney's brief on appeal.
4. Petitioner is granted until June 20, 2002, to file a reply, if any;
5. Service of a copy of this Order shall be made by the Clerk of this court, together with a copy of the petition, to the Honorable Alan Vinegrad, United States Attorney for the Eastern District of New York, One Pierrepont Plaza, Brooklyn, New York 11201, the Honorable John Ashcroft, United States Attorney General, U.S. Department of Justice, 10th Street and Constitution Avenue, N.W., Washington, D.C. 20005, Kevin Rooney, Commissioner, Immigration and Naturalization Service, 425 I Street, N.W., Washington, D.C. 20536, Edward McElroy, New York, District Director, Immigration and Naturalization Service, Jacob Javits Federal Building, 26 Federal Plaza, New York, New York 10278, Christine A. Davis, New Orleans, District Director, Immigration and Naturalization Service, 28th District, 701 Loyola Avenue, Room 1-8011, New Orleans, Louisiana 70113, and by mailing a copy of his Order to the petitioner.
SO ORDERED.
PETITIONER EMERGENCY PETITION FOR A WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF WITH A STAY OF DEPORTATION/REMOVAL.
COMES NOW, Petitioner/Plaintiff (hereinafter "Petitioner") Peralta-Veras Jamie Laureano, hereby petitions this Honorable Court to issue a Writ of Habeas Corpus to review his unlawful detention by the United States Immigration and Naturalization Service. The "INS" and enjoin his removal from the United States. Petitioner also files this action for declaratory and injunctive relief to protect his rights under both Due Process Clause of the Fifth Amendment to the Constitution of the United States and applicable law. In support of this petition Petitioner alleges as follows:
JURISDICTION
1. This action arises under the Constitution, the Immigration and Nationality Act of 1952, as amended (The "INA"), 8 U.S.C. § 1101 et seq., and the administrative Procedural Act (the "APA"), 5 U.S.C. § et seq. This Honorable Court has Habeas Corpus jurisdiction pursuant to 28 U.S.C. § 2241 et. seq.; MOJICA v. RENO, 970 F. Supp. 130 (E.D.N.Y. July 11, 1997); YESIL v. RENO, 958 F. Supp. 828 (S.D.N.Y. 1997); See also POTTINGER v. RENO, 51 F. Supp. 2 d 349 (E.D.N.Y. 1999); DUNBAR v. INS, 64 F. Supp.2d 47 (D. Conn. 1999); HENDERSON v. INS, 157 F.3d 106 (2nd Cir. 1998), cert. denied, 119 S.Ct. 1141 (1999); Art. I, § 9, Cl. 2 of the United States Constitution (the "Suspension Clause"); and the Common Law. This Court may also exercise jurisdiction pursuant to 28 U.S.C. § 1331 et. seq., and all Writs Act. 28 U.S.C. § 1651. Finally, This Court has Mandamus jurisdiction pursuant to 28 U.S.C. § 1361.
2. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 et. seq., and 28 U.S.C. § 2241 et. seq.
EXHAUSTION
3. Petitioner has exhausted all his administrative remedies and his only remedy is by way of this judicial action. It is well-settled that exhaustion is not required if it would be futile. See e.g., AMERICAN-ARAB ANTI-DISCRIMINATION COMM. v. RENO, 70 F.3d 1045, 1058 (9th Cir. 1955). Furthermore, exhaustion is not required if there would be irreparable harm. See, e.g., RICHARDSON v. RENO, 994 F. Supp. 1466 (S.D. Fla. 1998). The Immigration and Nationality Act requires exhaustion of administrative remedies only where an alien seeks judicial review of an actual order of removal, not review of a custody decision. Accordingly, Petitioner has exhausted his administrative remedies.
PARTIES
4. Petitioner, Mr. Peralta, is a thirty four (34) years old male. native and citizen of the Dominican Republic, who has been a legal Permanent Resident of the United States since 1980. He resides in New York with his wife and his daughter of the age 2 1/2 years old, born in New York, his father is also an American citizen, and his 2 sisters are American citizens, All is living close to each other.
5. Respondents/Defendants John Ashcroft, is sued in his official capacity as the Attorney General of the United States. As such he is the legal custodian of the Petitioner and he has the authority to direct his sub-ordinates to carry out any. order that is directed to him.
6. Respondent/Defendant James W. Ziglar, is sued in his official capacity as the Commissioner of the Immigration and Naturalization Service ("INS"). As such, he has the responsibility for the administration of the Immigration Laws pursuant to 8 U.S.C. § 1103 and is a legal custodian of the Petitioner.
7. Respondent/Defendant Edward McElroy, is sued in his official capacity as the New York District Director of the INS. As such, he is the AG's designate for the New York District, charged with all the duties of administration and enforcement of all the functions, powers and duties of the INS.
8. Respondent Caryl Thompson is sued in his official capacity as the Acting INS Louisiana District Director. As such he is charged with the duty of administration and enforcement of all functions, powers and duties of the INS Detention facilities. Respondent Caryl Thompson routinely conducts business with the State of New York, by sending transfer orders to New York for aliens who resides within the State of New York, to relocate them to the INS Detention facility in Oakdale, Louisiana, merely as a convenience for INS, because they have excess of space. Petitioner a long time resident of New York City was transferred, against his will without prior notice, far from his family, to the INS Oakdale, Louisiana Detention facility.
9. Respondent/Defendant Immigration and Naturalization Service, is made a party Respondent/Defendant for purposes or obtaining judicial review and relief pursuant to Declaratory and Judgment Act 28 U.S.C. § 2201 et. seq., with respect to the action of the Department of Justice, including the Immigration and Naturalization Service and the Executive Office for Immigration Review.
FACTS
10. On or about May 17th, 1991, Petitioner was convicted by way of guilty plea agreement in the State of New Jersey Superior Court County of Bergen, for the offense of criminal possession of a controlled substance to wit: Cocaine in violation of Section 2C:35-10 A1 of the New Jersey Statutes under Indictment Number S-1154-90-002. He was sentenced to 2 1/2 probation.
11. On or about February 20th, 1999, Petitioner was convicted of the offense Class B Misdemeanor of criminal possession of marijuana in the Fifth degree, in violation of Section 221.10 of the State of New York pursuant to a Judgment entered on February 20th, 1999 by the criminal court of New York City, County of the Bronx, under Docket #99X010798. Petitioner's case was dismissed.
12. On or about May 16th, 2000, Petitioner was also convicted of Class B Misdemeanor possession of marijuana in the Fifth degree, in violation of Section 221.10 of the New York State Penal Law, pursuant to a judgment entered on or about March 16th, 2000, in the criminal court of New York County of Bronx, under Docket # 20003X-018394, on that case Petitioner's case was dismissed.
13. On March 14th, 2001 upon returning from a brief and casual trip from the Dominican Republic, Petitioner was detained at the JFK International Airport, his Permanent Resident alien card was taken in the process by the INS. he was paroled into the United States with a temporary card and ordered to appear for inspection on May 17th, 2001. When an Immigration inspector found him inadmissible, detained him and served him with a Notice to Appear dated May 9th, 2001. He was later transported to Varick Street (INS Detention and Processing Center) in New York City, and charged as an aggravated felon, and ordered mandatory detention, he was held and detained without bond. He was later transported without notice to him or his counsel nor was he given any bond hearing before an Immigration Judge as required by law to Oakdale, Louisiana. Upon his arrival to Oakdale, Louisiana he was ordered to be mandatory detained and held without bond under IIRAIRA § 236(c) mandatory detention by the Immigration Judge. He remains at this status at this present time.
On September 7th, 2001, Petitioner appeared before an Immigration Judge for his deportation/removal hearing. He was denied the opportunity to seek a waiver of deportation under 212(c) on the basis that the amendment to 212(c) by § 440(d) of the AEDPA purportedly eliminated 212(c) eligibility for those who, like Petitioner, are removable for an aggravated conviction. Further, that the IIRAIRA repealed 212(c) he was also found not eligible for 212(c), and he was ordered removed to the Dominican Republic.
14. On April 24th, 1996, the President signed into law the AEDPA, Pub. L 104-132, 110 Stat. (1996). It prohibited the release of legal aliens pending a determination of deportation for aliens removable for having committed certain enumerated crimes (such as Petitioner) (AEDPA § 440(c), 8 U.S.C. § 1252 (a)(2)) upon release of the alien from incarceration [and] shall deport the alien as expeditiously as possible. The AEDPA also amended, inter alia, INS § 212(c) by eliminating this waiver of deportation for aliens "deportable by reason of having committed any criminal offense covered in Sections 241(a)(2)(iii) [or] (B) . . ." See § 440(d), 110 Stat. at 1277. No express effective date was included in the amendment. See § 440(f), 110 Stat. at 1278.
15. On June 27th, 1996, the Board of Immigration Appeals ("BIA"), decided on MATTER OF SORIANO, Int. Dec. # 3289 (BIA 1996). The BIA held, inter alia that AEDPA's bar to 212(c) relief, for aliens deportable by reason of having committed offenses covered in § 241(a)(2)(iii) [or] (3) should apply to aliens who filed for 212(c) relief after April 24th, 1996 (the enactment date of the AEDPA), but should not apply to aliens who had 212(c) applications pending on or before April 24, 1996.
16. On September 12th, 1996, the Attorney General vacated SORIANO, without comment.
17. On September 30th, 1996, only five months after AEDPA, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act, (IIRIRA). The IIRIRA contained a mandatory detention provision, INA § 236(c), now codified as 8 U.S.C. § 1226 (c) (West Supp. 1998), which replaced AEDPA § 440(c). Congress provided, however, that the Attorney General could request deferment of the implementation of the IIRIRA mandatory provision for up to two years if there was insufficient detention space and INS personnel. See IIRIRA § 303(b)(2). The Attorney General so notified Congress on October 9, 1996 and again in 1997, and, thus, implementation was deferred for two years. During the two years deferment, the "Transition Period Custody Rule" (TPCR), IIRIRA § 303(b)(3) were to be implemented instead of § 440(c) or INA § 236(c). IIRIRA also amended § 212(c) to be cancellation of removal under § 240 (barring aliens with aggravated felonies). IIRIRA went into effect on April 1, 1997.
18. On February 28, 1997, the Attorney General issued a decision in SORIANO ruling that the AEDPA § 440(d) amendment to § 212(c) applies retroactively to all deportation cases :n which criminal convictions occurred prior to AEDPA's enactment regardless of when the § 212(c) application was filed.
19. On October 9, 1998, the "TPCR" expired and INA § 236(c) 8 U.S.C. § 1226 (c), became effective, providing for mandatory detention of certain criminal aliens.
20. On September 7, 2001, Petitioner appeared before the Immigration Judge for his deportation/removal hearing. He was denied the opportunity to seek waiver of deportation under § 212(c) on the basis that the amendment to § 212(c) by § 440(d) of the AEDPA purportedly eliminated § 212(c) eligibility for those who, like Petitioner, are removable for an aggravated felony conviction; further, that the IIRIRA repealed § 212(c). He was also found not eligible for § 212(h). He filed a timely appeal to the Board of Immigration Appeals.
21. On December 14, 2001, Petitioner filed a timely appeal with the Board of Immigration Appeals ("BIA"). This appeal was denied on February 27, 2002. Meantime, Petitioner is under the Immigration and Naturalization Service's custody without any consideration for relief at the Federal Detention Center at Oakdale, Louisiana. Petitioner would thus, be unable to obtain a hearing or other adjudication of his claim and would be permanently barred from the United States and separated forever from his family.
22. Petitioner is being subject to an unlawful, arbitrary, and unconstitutional restrain of his liberty to travel, work and reside in the United States. His detention by the Respondents is in violation of the Constitution, the INA, the APA and the Common Law. INA § 236(c), because it mandates his detention without giving him an opportunity to demonstrate that he is not a danger or a flight risk, his continued mandatory detention, serves no purpose.
23. "Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action." FOUCHA v. LOUISIANA, 504 U.S. 71, 80 (1992). Substantive Due Process forbids the Government from infringing on this fundamental interest, regardless of the process provided, unless the infringement is narrowly tailored to serve a compelling Government interest. RENO v. FLORES, 507 U.S. 292, 301-02 (1993). Whether the "infringement is narrowly tailored to serve a compelling Governmental interest is determined by evaluating whether the infringement on liberty: 1) is impermissible punishment or permissible regulation; and 2) is excessive in relation to the regulatory goal Congress sought to achieve." MARTINEZ v. GREENE, 28 F. Supp.2d 1275, 1282 (D. Cob. 1998) (Citing LEADER v. BLACKMAN, 744 F. Supp. 500, 507 (S.D.N.Y. 1990), and UNITED STATES v. SALERNO, 481 U.S. 739, 755 (1987).
FIRST CLAIM FOR RELIEF (Substantive Due Process Violation)
24. The allegations set forth in paragraphs 1 though 23 above are repealed and realleged as though fully set forth herein.25. As a resident of the United States, Petitioner is protected by every clause of the United States Constitution that is not expressly reserved to citizens. This protection includes the Fifth Amendment. The impermissible retroactive application of AEDPA/IIRIRA to eliminate relief from deportation for Petitioner, a long time permanent resident, violates Substantive Due Process under the Fifth Amendment of the United States Constitution.
26. The Respondents are detaining Petitioner without affording him an opportunity to demonstrate his suitability for release. Detention that is mandatory without possibility for release interferes with rights implicit in the concept of ordered liberty and shocks the conscience. Hence, Respondent's conduct is unconstitutional because it violates Petitioner's Substantive Due Process guaranteed by the Due Process Clause of the Fifth Amendment.
SECOND CLAIM FOR RELIEF (Equal Protection Violation)
27. The allegations set forth in paragraphs 1 through 23 are repeated and realleged as though set forth herein.
28. As a resident of the United States, Petitioner is protected by every clause of the United States Constitution that is not expressly reserved to citizens. This protection includes the Fifth Amendment. Respondent's interpretation of § 212(c) and § 212(h) as amended by AEDPA and IIRIRA discriminates between members of a class based on distinction that is not rationally related to the purpose of INA § 212(c) and 212(h) or any other legitimate Governmental interest, and thus, violates the Equal Protection Clause of the Fifth Amendment.
THIRD CLAIM FOR RELIEF (Due Process Violation)
29. The allegations set forth in paragraphs 1 through 23 are repeated and realleged as though fully set forth herein.
30. Because Petitioner could still demonstrate his suitability for release if he were give the opportunity, the Respondent's conduct is unfair. It is predisposed to treat him, in spite of all equities, like every other alien convicted of a crime. Consequently, the Respondent's conduct violates Petitioner's Procedural Due Process which s guaranteed by the Due Process Clause of the Fifth Amendment.
31. Because of the Respondent's refusal to grant Petitioner a hearing on the merits of his eligibility request for relief under INA § 212(c) and/or INA § 212(h), Respondent's conduct violates Petitioner's procedural due process which is guaranteed by the Due Process Clause of the Fifth Amendment.
IRREPARABLE HARM
32. The Respondent's conduct is depriving Petitioner of his liberty without providing his due process of law. me deprivation of his liberty is, in and of itself, irreparable harm. If the Petitioner were to be deported/removed from the United States, he and his immediate family would suffer irreparable harm; they would be separated forever because Petitioner would not be eligible to return ever to the United States. If he is not granted a stay of deportation/ removal during the pendency of these proceedings, his removal would become final and not be subject to reopening. See 8 U.S.C. § 3.4. These proceedings would become moot and he would never be able to return or obtain any of the legal claims now pending.
PRAYER FOR RELIEF
WHEREFORE, for all the foregoing reasons, Petitioner prays that this Honorable Court grant the following relief:
A) Issue a Writ of Habeas Corpus mandating that Petitioner be returned to the State of New York and ordering that Petitioner be released or granted a bail in the amount of $1,500.00 or less upon the finding of the Court that this Court has jurisdiction.
B) Issue an Order declaring that the Respondent's conduct is unconstitutional and illegal for the following reasons:
I. Because it violates Petitioner's substantive due process rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.
II. Because it violates Petitioner's Procedural Due Process rights under the Due Process Clause of the Fifth Amendment to the United States Constitution.
C) Issue an Order vacating the order of deportation and remand the case to the Immigration Court for consideration of relief under former INA § 212(o) and/or § 212(h) for The following reasons:
I. Because INA § 212(c) and § 212(h) as amended by the AEDPA and IIRIRA is unconstitutional as applied to Petitioner.
II. Because the Respondent's retroactive application of INA § 212(c) and § 212(h) as amended by the AEDPA and IIRIRA is contrary to the plain meaning of the statute itself.
d) Issue an Order enjoining the Respondent from deporting the Petitioner until a full and complete hearing on the merits of his action any extensions and continuances thereof. and any appeal therefrom has been entertained and exhausted.
e) Grant any other and further relief that this Honorable Court may deem just and proper.
CERTIFICATE OF SERVICE
I, Peralta-Veras Jamie Laureano, the Petitioner, Pro-Se, certify that a true and correct copy of the foregoing has been mailed to the opposite parties in care of the Clerk of the Court.
AFFIRMATION
I, Peralta-Veras Jamie Laureano, the Petitioner, Pro-Se, pursuant to 28 U.S.C. § 1746, testify under the pains of perjury that all the statement contained in this motion is true to the best of my knowledge.
AFFIDAVIT OF SERVICE"
This is to certify Pursuant to 28 U.S.C. § 1746, that I am the Defendant in the above-captioned motion and that I affirm the contents to be true to the best of my knowledge, ability and belief.
I further certify that I have on this 15th day of March, 2002, A.D. caused a true and correct copy of this motion to be served upon the District Attorney for New York and Defense Counsel in care of the Clerk of Court, United States District Court, Eastern District of New York at 225 Cadman Plaza East, Brooklyn, N.Y. 11201.