Sango-Dema v. District Director, I.N.S., 99-CV-11325-PBS.

Citation122 F.Supp.2d 213
Decision Date20 November 2000
Docket NumberNo. 99-CV-11325-PBS.,99-CV-11325-PBS.
PartiesJohn Jekasai SANGO-DEMA, Petitioner, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

John J. Sango-Dema, Plymouth County Correctional Facility, Plymouth, for John Jekesai Sango-Dema, Plaintiffs.

Frank Crowley, Special Assistant U.S. Attorney, U.S. I.N.S., Boston, for Salem Superior Court, Immigration & Natura, Respondents.

MEMORANDUM AND ORDER

SARIS, District Judge.

Petitioner John Jekesai Sango-Dema ("Sango-Dema"), who is an alien subject to deportation based on his prior criminal convictions, petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The Respondent, District Director of the Immigration and Naturalization Service ("INS"), has moved for summary judgment against the Petitioner on both jurisdictional and substantive grounds. Sango-Dema has filed a cross-motion for summary judgment.

For the reasons stated below, the motion of the INS is DENIED and the petition of Sango-Dema is ALLOWED in part.

BACKGROUND

The Petitioner Mr. Sango-Dema is a native and citizen of Zimbabwe who entered the United States as a visitor in December of 1991. On April 21, 1994, Sango-Dema pleaded guilty in Essex Superior Court in Salem, Massachusetts to counts of rape of a child under Mass. Gen. L. ch. 265, § 23 and indecent assault and battery on a person over fourteen years old under Mass. Gen. L. ch. 265, § 13H.1 Sango-Dema was sentenced to two-and-a-half years incarceration for the rape of a child conviction; he received a three to five year suspended sentence and three years probation for the indecent assault conviction.2

After serving his sentence, Sango-Dema was issued an administrative notice to appear on November 24, 1998 that charged him with removability under the Immigration and Nationality Act ("INA") for conviction of an aggravated felony. After a hearing, the Immigration Judge ("IJ") issued a decision on December 16, 1998 that Sango-Dema was removable as charged and ineligible for any relief from removal. Sango-Dema was ordered removable to Zimbabwe. The Petitioner appealed the IJ's order to the Board of Immigration Appeals ("BIA"), where his appeal was dismissed on August 26, 1999.

The Petitioner filed an action in this Court on June 17, 1999. That action, styled as a motion to vacate his state court conviction, was referred to the state court. Sango-Dema was also given leave to refile his action as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which he did on August 4, 1999.

After numerous delays (relating mostly to Sango-Dema's efforts to vacate his state court convictions), both parties have moved for summary judgment on Sango-Dema's petition.

DISCUSSION
A. Scope of Available District Court Review

In its earlier motion to dismiss, the INS argued that this Court lacks jurisdiction over Sango-Dema's petition for a writ of habeas corpus under 28 U.S.C. § 2241. It is therefore important at the outset to establish whether this Court has jurisdiction over this matter and to clarify the scope of review available.

Under the current immigration laws, direct review of decisions of the BIA in the federal courts is severely limited, especially where the BIA's removal ruling is based on the alien's conviction for an aggravated felony. According to the new INA § 242, enacted as part of the permanent rules for the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996):

Judicial review of all questions of law or fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.

IIRIRA § 306(a); INA § 242(b)(9); 8 U.S.C. § 1252(b)(9). This "zipper clause" channels all review of removal proceedings through INA § 242, which provides for only limited review in the court of appeals. See IIRIRA § 306(a)(2); INA § 242(b). Review under § 242 is further qualified by § 242(a)(2)(C), which reads: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony] ...." IIRIRA § 306(a); INA § 242(a)(2)(C); 8 U.S.C. § 1252(a)(2)(C). Thus, under IIRIRA's permanent rules, direct review of a finding that an alien is removable because of a conviction for an aggravated felony is available only in the court of appeals and is strictly limited to determining jurisdictional facts.3 See Sousa v. I.N.S., 226 F.3d 28, 31 (1st Cir.2000) (court's review is limited to determining whether petitioner is 1) an alien who is 2) removable for having committed an aggravated felony).

Notwithstanding these limitations, the First Circuit has held that the federal courts' traditional jurisdiction to entertain habeas corpus petitions under 28 U.S.C § 2241 was not repealed by the sweeping provisions of IIRIRA § 306(a) for divesting federal court jurisdiction. See Mahadeo v. Reno, 226 F.3d 3, 8 (1st Cir.2000). Accord St. Cyr v. I.N.S., 229 F.3d 406, 409 (2nd Cir.2000); Liang v. I.N.S., 206 F.3d 308, 323 (3rd Cir.2000); Flores-Miramontes v. I.N.S., 212 F.3d 1133, 1140 (9th Cir.2000). But see Max-George v. Reno, 205 F.3d 194, 199 (5th Cir.2000) (holding that IIRIRA § 306(a) eliminates § 2241 habeas jurisdiction for those cases that fall within its scope); Richardson v. Reno, 180 F.3d 1311, 1314-15 (11th Cir.1999) (same). Thus, under the First Circuit's holding in Mahadeo, this Court has jurisdiction over all Sango-Dema's claims falling legitimately within the scope of a habeas petition under § 2241. That is, this Court may entertain Sango-Dema's constitutional and statutory construction claims. See Mahadeo, 226 F.3d at 6 n. 6. To the extent, however, that Sango-Dema raises claims that are neither constitutional nor involve an interpretation of a federal statute, those claims must fail as beyond the scope of the petition.

B. Summary Judgment Standard

The claims in Sango-Dema's hand-drafted pro se habeas petition are poorly developed and often difficult to decipher. Where a petitioner proceeds pro se, a court should read his papers liberally and interpret them to raise the strongest arguments that they suggest. See Strahan v. Coxe, 127 F.3d 155, 158 n. 1 (1st Cir.1997). Hence, this court has taken pains to separate his potential claims and analyze them individually. Nonetheless, a petitioner's status as pro se does not permit a court to exempt him from the procedural requirements of summary judgment. See F.D.I.C. v. Anchor Properties, 13 F.3d 27, 31 (1st Cir.1994) ("We have consistently held that a litigant's pro se status does not absolve him from compliance with the Federal Rules of Civil Procedure.") (citations and quotations omitted).

A motion for summary judgment must be allowed if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling on the motion the Court must "view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor." Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995).

The standards are the same where, as here, both parties have moved for summary judgment. "When facing cross-motions for summary judgment, a court must rule on each motion independently, deciding in each instance whether the moving party has met its burden under Rule 56." Dan Barclay, Inc. v. Stewart & Stevenson Serv., Inc., 761 F.Supp. 194, 197-98 (D.Mass.1991) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (2d ed.1983)).

C. Collateral Attack on State Conviction

First, Sango-Dema argues that he is not an "aggravated felon" removable under INA § 237(a)(2)(A)(iii). As a basis for this claim Sango-Dema asserts that his guilty plea in state court was invalid because he was not made aware of the immigration consequences of his conviction.

Under Massachusetts state law, the court must advise a criminal defendant that a guilty plea may have the consequence of deportation before such a plea can be accepted. See Mass. Gen. L. ch. 278, § 29D. Without such a notice, the court must vacate the plea. Id. If no transcript exists to confirm that the proper notice was given, the plea must also be vacated. Id.

Upon Sango-Dema's first filing with this court, I directed his motion to vacate his conviction to the proper state court. That motion was reviewed by the Hon. Elizabeth B. Donovan of the Superior Court. Judge Donovan confirmed that the transcript of the plea colloquy contained the statutorily required notice and denied Sango-Dema's motion on February 23, 1999. Thereafter, Sango-Dema appealed to ruling to the Massachusetts Appeals Court. His appeal was dismissed on November 7, 2000.

I have serious doubts whether Sango-Dema's argument on this claim rooted primarily in state law raises the sort of issue appropriate for redress by a writ of habeas corpus. See Mahadeo, 226 F.3d at 6 n. 6 (habeas review is limited to challenges based on federal statutory interpretation and constitutional questions); cf. United States v. Gonzalez, 202 F.3d 20, 25 (1st Cir.2000) (holding that counsel's failure to advise a defendant of the collateral consequence of deportation is a legally insufficient basis for a plea withdrawal). In any event, in light of the state court rejection of the claim, which was upheld on appeal, without further evidence indicating that Sango-Dema was not informed of the immigration...

To continue reading

Request your trial
31 cases
  • U.S. v. Lepore, CRIM.A.03-10158-WGY.
    • United States
    • U.S. District Court — District of Massachusetts
    • February 12, 2004
    ...as a "crime of violence" under 18 U.S.C. § 16(b). See Sutherland v. Reno, 228 F.3d 171, 175-76 (2d Cir.2000); Sango-Dema v. INS, 122 F.Supp.2d 213, 219 (D.Mass.2000) (Saris, J.). The First Circuit has held that lack of consent is an element of indecent assault on a person fourteen or older ......
  • Ali v. Ashcroft
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 17, 2003
    ...his identity, and these inconsistencies have demonstrably hampered the INS in carrying out his removal"); Sango-Dema v. Dist. Dir., INS, 122 F.Supp.2d 213, (D.Mass.2000) (describing the petitioner's refusal to provide the INS with a passport and birth certificate, to communicate with offici......
  • Fulop v. Malev Hungarian Airlines
    • United States
    • U.S. District Court — Southern District of New York
    • October 29, 2001
    ... ... No. 00 CIV.1965 (VM) ... United States District Court, S.D. New York ... October 29, 2001 ... ...
  • U.S. v. Cadieux, CR-03-41-B-W.
    • United States
    • U.S. District Court — District of Maine
    • December 22, 2004
    ...v. Reno, 228 F.3d 171, 175-77 (2d Cir.2000); United States v. Lepore, 304 F.Supp.2d 183, 189 (D.Mass.2004); Sango-Dema v. INS, 122 F.Supp.2d 213, 219 (D.Mass.2000). Mr. Cadieux's argument on the 1983 conviction is based on the erroneous premise that the conviction should not count, because ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT