Richardson v. Reno, 98-4230
| Decision Date | 22 December 1998 |
| Docket Number | No. 98-4230,98-4230 |
| Parties | 12 Fla. L. Weekly Fed. C 354 Ralph RICHARDSON, Petitioner-Appellee, v. Janet RENO, Attorney General of the United States; Doris Meissner, Commission, Immigration and Naturalization Service; Robert Wallis, Acting District Director, Immigration and Naturalization Service; United States Immigration and Naturalization Service; United States Department of Justice; and Executive Office of Immigration Review, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Adalberto Jordan, Asst. U.S. Atty., Miami, FL, David J. Kline, Deputy Director, Ernesto H. Molina, Jr., David V. Bernal, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for Respondents-Appellants.
Helena Marie Tetzeli, Ira Kurzban, Kurzban, Kurzban, Weinger & Tetzeli, P.A., Miami, FL, for Petitioner-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before CARNES and HULL, Circuit Judges, and HENDERSON, Senior Circuit Judge.
The Court VACATES and WITHDRAWS the previous opinion dated December 9, 1998 and substitutes the following opinion. While the remainder of the opinion stays the same, the Court has revised footnotes 88, 137, and the third paragraph in Section IV(H) and added the following subsequent history to the citations of Hose v. INS, 141 F.3d 932 (9th Cir.1998): withdrawn and reh'g en banc granted, --- F.3d ----, No. 97-15789, 1998 WL 848048 (9th Cir. December 2, 1998). Although the Ninth Circuit's order granting the rehearing en banc was dated December 2, 1998, the order did not appear in the on-line subsequent history of Hose until December 10, 1998--the date after the Court published its original decision in this case.
This appeal arises from a district court's order granting a writ of habeas corpus to a thirty-year permanent resident alien petitioner with a cocaine-trafficking conviction who was detained as he attempted to enter the United States after a two-day trip to Haiti. The INS district director denied bond pending the outcome of petitioner's removal proceedings. Petitioner filed his habeas corpus petition under 28 U.S.C. § 2241 asserting that the INS' illegal detention, denial of admission, and denial of a bond hearing violated his constitutional and statutory rights as a lawful permanent resident alien.
This case presents issues of first impression in this Circuit regarding subject matter jurisdiction under the Immigration and Nationality Act ("INA"), as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). After review, we find the district court lacked jurisdiction over the habeas corpus petition. We reverse and order the district court to dismiss the petition.
Appellee-petitioner Ralph Richardson ("Richardson") is a native and citizen of Haiti who has been a lawful permanent resident alien in the United States since 1968. In 1984, Richardson was convicted of carrying a concealed weapon. In 1990, Richardson was convicted of trafficking cocaine and served five years in prison. 1 The parties do not dispute that Richardson could have been deported under the immigration laws in existence in 1990 and could be deported under current immigration law but that deportation proceedings were never initiated. 2
On October 24, 1997, Richardson left the United States and traveled to Haiti. On October 26, 1997, Richardson attempted to re-enter the United States at the Miami International Airport, but was not allowed to enter. At the initial immigration checkpoint, Richardson presented an expired "I-151" card, also called an Alien Resident Card, and a valid Haitian passport. Richardson's use of an expired card caused him to be referred to a secondary immigration inspector for a more detailed interview regarding his eligibility to enter the United States.
Through this inspection, the INS concluded that Richardson, although a lawful permanent resident alien, was no longer eligible to enter the United States under the new immigration laws due to his prior criminal convictions. During the inspection, Richardson admitted his criminal history including his cocaine trafficking conviction, an aggravated felony under INA § 101(a)(43). 3 Richardson was taken to the Krome Detention Center, Miami, Florida, and immediately was placed in "removal" proceedings under INA § 240. 4
On November 13, 1997, Richardson's attorney sent a letter to the INS district director in Miami requesting release from custody. On December 4, 1997, the district director denied Richardson's request.
On November 18, 1997, while awaiting the district director's response, Richardson also sought release on bond with the immigration judge at Krome. New INA § 101(a)(13)(C)(v) 5 provides that a lawful permanent resident alien, returning from abroad, is not deemed to be seeking an official "admission" to the United States, and can be admitted summarily, unless the alien has been convicted of certain crimes. Since Richardson's conviction for trafficking cocaine is a crime described in INA § 101(a)(13)(C)(v), 6 the immigration judge found that Richardson was "seeking admission" to the United States, that aliens "seeking admission" at the border can request release only from a district director, and that immigration judges lack jurisdiction over such requests. 7 On November 24, 1997, the immigration judge denied Richardson's release request for lack of jurisdiction. 8
On November 26, 1997, Richardson filed in the district court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Richardson filed an amended petition on December 10, 1997. Richardson's petition asserted, inter alia, that he was being illegally detained and, at a minimum, was entitled to a hearing before an immigration judge on his release request and not merely consideration by the district director. The INS moved to dismiss Richardson's petition for lack of subject matter jurisdiction.
On December 30, 1997, the magistrate judge issued a report finding statutory habeas jurisdiction under 28 U.S.C. § 2241 and recommending that Richardson be given "an individualized hearing, within 14 days of any order adopting this recommendation at which time the immigration judge should considered [sic] whether petitioner is an arriving alien, and if not, whether and under what circumstances petitioner may be released from custody pending the completion of deportation proceedings."
On January 8, 1998, Richardson's removal proceedings concluded with the immigration judge's order that Richardson be removed to Haiti. 9 After a hearing during which Richardson testified and was represented by counsel, the immigration judge found that, because of his criminal convictions, Richardson was "inadmissible" under INA §§ 212(a)(2)(A)(i)(I), 212(a)(2)(A)(i)(II), and 212(a)(2)(C) 10 and not entitled to cancellation of removal under INA § 240A(a). 11 Richardson's appeal of the removal order to the Board of Immigration Appeals ("BIA") remains pending. 12
On February 19, 1998 and over the INS' objections, the district court adopted the magistrate judge's report and recommendation, denied the INS' motion to dismiss and granted Richardson's petition. The district court ordered the immigration judge to hold "an individualized hearing within eleven (11) days from the date stamped on the Order, at which time the Immigration Judge should determine whether Petitioner is an arriving alien, and if...
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