Ajurulloski v. USINS

• Citation: 688 F. Supp. 1272
• Decision Date: 09 June 1988
• Docket Number: No. 87 C 6403.,87 C 6403.
• Parties: Beadin AJURULLOSKI, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and A.D. Moyer, District Director, Respondents.
• Court: U.S. District Court — Northern District of Illinois

688 F. Supp. 1272

Beadin AJURULLOSKI, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE and A.D. Moyer, District Director, Respondents.

No. 87 C 6403.

United States District Court, N.D. Illinois, E.D.

June 9, 1988.

Donald E. Puchalski, Doss, Puchalski & Keenan, Ltd., Chicago, Ill., for petitioner.

Anton R. Valukas, U.S. Atty., Linda A. Wawzenski, Asst. U.S. Atty., Chicago, Ill., for respondents.

MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

I. INTRODUCTION

Beadin Ajurulloski ("Ajurulloski") has filed a petition for a writ of habeas corpus against the Immigration and Naturalization Service ("INS") and its District Director A.D. Moyer ("District Director"). Ajurulloski concedes his deportability but claims that the District Director abused his discretion when he refused to extend Ajurulloski's voluntary departure date.

Presently pending before the Court is the respondents' motion to dismiss the petition on the ground that this Court lacks subject matter jurisdiction, or alternatively, that the District Director did not abuse his discretion in denying Ajurulloski an extension. For the reasons set forth below, the respondents' motion is granted.

II. FACTS

The facts are not in dispute. Ajurulloski, a native of Yugoslavia, entered the United States without inspection. On March 31, 1986, agents of the INS arrested Ajurulloski, and an order to show cause was issued alleging his deportability.¹

At his first hearing on May 23, 1986, Ajurulloski sought an extension for the purpose of filing an application for asylum. (A.R. at p. 8). The Immigration Judge continued the hearing until June 23, 1986. The Judge granted Ajurulloski two additional extensions, however, Ajurulloski failed to apply for asylum.

At the next hearing on January 20, 1987, Ajurulloski, represented by counsel, indicated that he no longer intended to apply for asylum. Ajurulloski conceded his deportability and requested that the INS allow him to voluntarily depart the United States as an alternative to deportation. Ajurulloski made his request in order to continue his medical therapy and pursue a workers' compensation claim brought after he suffered a work-related knee injury in October, 1986. The Immigration Judge issued an order allowing Ajurulloski to voluntarily depart the United States by July 20, 1987.²

On July 16, 1987, Ajurulloski appeared at the INS office and requested that the District Director extend his voluntary departure date.³ Once again, Ajurulloski claimed that he needed additional time to continue medical treatment and to pursue the workers' compensation claim. In support of this request, Ajurulloski submitted letters from his attorney, physical therapist and orthopedic surgeon. (A.R. at pp. 3-5).⁴

In denying the extension, the District Director found that Ajurulloski walked without the use of artificial aids, and was thus sufficiently mobile to travel. (A.R. at p. 1). Furthermore, the District Director found that the evidence indicated that Ajurulloski would not require additional surgery and that he could continue his physical therapy in Yugoslavia. (A.R. at p. 1). Finally, the District Director indicated that Ajurulloski could pursue his workers' compensation claim through his attorney in the United States. (A.R. at p. 1).

Ajurulloski filed the instant petition on July 20, 1987, the last day provided for his voluntary departure from the United States, claiming that the District Director abused his discretion when he failed to extend the voluntary departure date.

III. SUBJECT MATTER JURISDICTION

A. Generally

The first issue the Court must address is whether a district court is the proper forum for a review of a district director's denial of an extension of an alien's voluntary departure date. Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a), confers exclusive jurisdiction over all final orders of deportation upon the Courts of Appeal. Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963). However, § 106(a)(9)⁵ allows an alien to appeal a discretionary decision of the district director to the district court through a habeas corpus proceeding if that alien is held in custody pursuant to a final order of deportation. Cf., Cheng Fan Kwok v. I.N.S., 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968).

Ajurulloski does not challenge the validity of the deportation order, or the proceeding in which it was entered. He merely seeks review of the District Director's denial of an extension of the voluntary departure date. It is clear under the pertinent regulation that a grant of such relief is a discretionary determination. Both parties ignore a Ninth Circuit decision on this issue — Flores v. United States Immigration and Naturalization Service, 524 F.2d 627 (9th Cir.1975). In Flores, the Ninth Circuit affirmed the district court's determination that the district director had abused his discretion when he denied an application for an extension of the voluntary departure date. Although the Ninth Circuit did not specifically address the question of either the district court or its own subject matter jurisdiction, its silence on such a basic yet essential point demonstrates its confidence that the district court was acting within its jurisdictional mandate. This Court holds that Ajurulloski's petition falls within the narrow jurisdictional grant provided in § 106(a)(9) for review by this Court so long as all the other requirements of § 106(a)(9) are met.

B. Custody

The second issue before the Court is whether the petitioner is "in custody" for purposes of § 106(a)(9) habeas corpus jurisdiction. The government argues that actual physical custody is a jurisdictional prerequisite. However, the authorities in this Circuit relied upon by the government are factually distinguishable from the case at bar. In Terrado v. Moyer, 820 F.2d 920 (7th Cir.1987), the issue of habeas corpus jurisdiction was moot because the petitioner's attorney filed the application three days after the petitioner was deported. In United States ex rel. Meyer v. Weil, 458 F.2d 1068 (7th Cir.1972) cert. denied 409 U.S. 1060, 93 S.Ct. 564, 34 L.Ed.2d 514 (1972), the Seventh Circuit relied on the fact that the habeas petitioner spent no time in custody as a result of his violation of the Municipal Code of Chicago. Furthermore, the Code section violated by the petitioner merely provided for a small fine as a sanction. Id., 458 F.2d, at 1071. In contrast, Ajurulloski was incarcerated after his arrest and faced the sanction of deportation rather than a small monetary fine. The authority cited by the government from other circuits also fails to support its custody arguments. See United States ex rel. Marcello v. District Director, 634 F.2d 964 (5th Cir.1981) cert. denied 452 U.S. 917, 101 S.Ct. 3052, 69 L.Ed.2d 421 (1981) (being subject to final order of deportation alone is not sufficient custody); Umanzor v. Lambert, 782 F.2d 1299 (5th Cir.1986) (court merely deciding petitioner is in custody of INS through a commercial airline by way of agency theory).

It is well settled that actual physical custody is no longer an absolute necessity for habeas corpus jurisdiction generally. See, e.g. Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (person released on own recognizance is "in custody" for habeas purposes), Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (person released on parole is "in custody" for habeas jurisdiction). Indeed the Seventh Circuit has permitted habeas review for a petitioner released on bond after the government initiated deportation proceedings. Arias v. Rogers, 676 F.2d 1139 (7th Cir.1982). Furthermore, the weight of authority favors a determination that a petitioner released on bond after a final order of deportation is "in custody." Flores v. United States Immigration and Naturalization Service, 524 F.2d 627 (9th Cir.1975); Gurbisz v. United States Immigration and Naturalization Service, 675 F.Supp. 436, 441 (N.D. Ill.1987); and Saleh v. Meese, 669 F.Supp. 885, 887 (N.D.Ill.1987). In the case at bar, the government released Ajurulloski after he posted a $7,500 bond. (A.R. at p. 13). In addition, Ajurulloski became subject to a final order of deportation when he waived his right to appeal the order of the Immigration Judge. (A.R. at p. 6). The Court holds that there is sufficient interference with the petitioner's freedom to satisfy the custody command of § 106(a)(9).

C. Exhaustion

The third preliminary issue the Court must address is the government's contention that this Court lacks jurisdiction because Ajurulloski failed to exhaust his administrative remedies. The government claims that the exhaustion doctrine required Ajurulloski to apply for a stay of deportation after the District Director, in his discretion, denied an extension of his voluntary departure date. The government fails to cite authority requiring an alien to seek alternative forms of administrative relief prior to seeking judicial review. The statute cited by the government is not controlling on this issue because it concerns judicial review of final orders, and not review of discretionary decisions.⁶

The four cases cited by the government in support of this argument are, Kashani v. Nelson, 793 F.2d 818 (7th Cir.1986) cert. denied, 479 U.S. 1006, 107 S.Ct. 644, 93 L.Ed.2d 701 (1986) ("Kashani"); In Ja Kim v. Immigration and Naturalization Service, 403 F.2d 636 (7th Cir.1968) ("Ja Kim"); Roumeliotis v. Immigration and Naturalization Service, 354 F.2d 236 (7th Cir.1966) cert. denied 384 U.S. 907, 86 S.Ct. 1343, 16 L.Ed.2d 360 (1966) ("Roumeliotis"); and Kladis v. Immigration and Naturalization Service, 343 F.2d 513 (7th Cir. 1965) ("Kladis"). Kladis, Roumeliotis, and Ja Kim are each distinguishable in that the petitioners in those cases sought judicial review of final orders of deportation without first appealing such...