Akhtar v. Reno

• Decision Date: 04 December 2000
• Docket Number: No. 00 CIV. 4760(VM).,00 CIV. 4760(VM).
• Citation: 123 F.Supp.2d 191
• Parties: Imran Rashid AKHTAR, Petitioner, v. Janet RENO, Attorney General of the United States, Edward McElroy, New York District Director for Immigration & Naturalization Service, Charles Mule, Facility Director of the Federal Detention Center, Batavia, New York, John J. Ingham, District Director for the Buffalo District, Immigration & Naturalization Service, Respondents.
• Court: U.S. District Court — Southern District of New York

123 F.Supp.2d 191

Imran Rashid AKHTAR, Petitioner, v. Janet RENO, Attorney General of the United States, Edward McElroy, New York District Director for Immigration & Naturalization Service, Charles Mule, Facility Director of the Federal Detention Center, Batavia, New York, John J. Ingham, District Director for the Buffalo District, Immigration & Naturalization Service, Respondents.

No. 00 CIV. 4760(VM).

United States District Court, S.D. New York.

December 4, 2000.

Jorge Guttlein, Aranda & Guttlein, New York City, for Petitioner.

Meredith E. Kotler, U.S. Attorney, New York City, for Respondents.

DECISION AND ORDER

MARRERO, District Judge.

Imran Rashid Akhtar ("Akhtar"), detained by the Immigration and Naturalization Service ("INS" or "the Government") at the Buffalo Federal Detention Center in Batavia, New York, petitions for a writ of habeas corpus under 28 U.S.C. § 2241 challenging an order of deportation entered against him by the Bureau of Immigration Appeals ("BIA") that affirmed a decision by the immigration judge ("IJ"). For the following reasons, the petition is denied.

BACKGROUND

Akhtar, a 29 year old Pakistani native and citizen, entered the United States in 1979 as a lawful permanent resident. Return to the Petition for a Writ of Habeas Corpus, ex. A (Certified Administrative Record A35 542 224)("A") 213, 315, 400. In 1990, Akhtar pleaded guilty in Schenectady County to attempted drug possession, and was later sentenced to one to three years imprisonment.

In October 1994, based on the 1990 felony narcotics conviction, the INS initiated deportation proceedings against Akhtar under the Immigration and Nationality Act ("INA"), as amended, §§ 241(a)(2)(A)(iii), (B)(i) (now renumbered as INA §§ 237(a)(2)(A)(iii), B(i)), codified at 8 U.S.C. §§ 1251(a)(2)(A) (iii),(B)(i)(1994).¹ (A 566-72). In June 1995, a deportation hearing commenced before an IJ in Louisiana but was adjourned so that Akhtar could retain counsel. (A 504). Shortly thereafter, venue of Akhtar's hearing was transferred to New York City and resumed in March 1996. (A 507, 543-45). Akhtar conceded his deportability as charged by the INS, but requested time to prepare a § 212(c) application for waiver of deportation.² (A 509). Meanwhile, in September 1995, Akhtar was arrested again and charged with criminal sale of a controlled substance in the third degree. Akhtar's § 212(c) application was due by June 7, 1996. Instead, on that very day, Akhtar appeared in New York County Supreme Court and was sentenced to three to six years imprisonment for the September 1995 controlled substance charge. (A 403, 515, 519).

Akhtar's deportation hearing resumed in August 1996. (A 403; B 6). Akhtar, by then incarcerated, did not appear. (A 514-16). The IJ, evidently unaware of Akhtar's incarceration, ordered Akhtar deported in absentia. (A 500, 515-16).

In January 1999, the INS moved to reopen Akhtar's deportation proceedings, having learned that his failure to appear in August 1996 had been due to his incarceration.³ (A 488-89). In April 1999, an IJ transferred venue to Buffalo, New York, where Akhtar was incarcerated. (A 473). On April 21, 1999, the INS lodged an additional charge that Akhtar was deportable because of the June 1996 felony narcotics conviction. (A 95-96).

After several additional adjournments for various reasons, Akhtar's deportation hearing finally went forward on August 23, 1999. (A 99, 110-12, 125-26).

Akhtar sought relief under INA § 212(c) and also applied for deferral of his removal to Pakistan under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention" or "Convention"), claiming that he would be tortured in Pakistan because he is a Christian.⁴

Both Akhtar and his brother testified in support of his applications for § 212(c) relief and deferral of removal. (A 144-276). In addition to his testimony about his background, his drug use and criminal record, Akhtar testified he had read articles describing that Christians in Pakistan were being "blasphemed" and that people who spoke against the Koran were killed, but he admitted that he did not know anything about the current Pakistani government, that he did not know who the president of Pakistan was or the president's position with respect to Christians. (A 268 71). He also admitted that he had not read the State Department's report concerning conditions in Pakistan. (A 270).

Akhtar also sought to offer the testimony of Reverend Samuel Samson, who he claimed to be an expert on religious discrimination in Pakistan. (A 185). In attempting to qualify as an expert, Samson testified that he graduated from seminary in Pakistan in 1970, then worked as a pastor there until 1974. (A 187-90). He thereafter worked as a travel agent in Pakistan for about twelve years. (A 191-92). Samson testified that he emigrated to the United States in 1991, and had since not returned to Pakistan. (A 192-94, 196). Samson testified that he was in contact with various friends and relatives who had been to Pakistan, and that he received information on conditions in Pakistan from various media and newspaper articles, friends, and faxes. (A 199-200, 208-09). He further testified that he spoke at different churches and groups, and had twice spoken at demonstrations in front of the United nations in New York, about the treatment of Christian churches in Pakistan. (A 201-04).

The IJ declined to designate Samson as an expert on current conditions in Pakistan, observing that he had not been to Pakistan since 1991 and that his knowledge of the subject matter was limited to either hearsay or the contents of documents that could be submitted. (A 90-91, 211). The IJ also noted that Samson had served as a pastor in Pakistan for only a few years, and then was not affiliated with any church for the twelve years prior to his immigration to the United States. Id.

Akhtar also submitted documentary evidence respecting conditions for Christians in Pakistan, including newspaper articles, newsletters, congressional press releases and letters, demonstration flyers, and Amnesty International's country report, all of which were accepted by the IJ.

The Immigration Judge's Decision

In September 1999, the IJ ordered Akhtar deported to Pakistan and denied the requests for § 212(c) relief and for deferral of removal under the Torture Convention. (A 68-93). The IJ found that Akhtar was not barred from seeking § 212(c) relief, but concluded that the adverse factors against granting discretionary relief "far, far outweigh[ed]" the equities in favor. (A 75-86). The IJ also concluded that Akhtar failed to demonstrate that it was "more likely than not" that he would be tortured in Pakistan by or with the acquiescence of public officials, as required for a grant of protection under the Torture Convention. See A 88 (citing 8 C.F.R. § 208.16(c)(2)).

Akhtar appealed the IJ's decision to the BIA, arguing that the IJ (1) arbitrarily denied him § 212(c) relief; (2) applied the wrong standard for deferral of removal under the Torture Convention; and (3) violated his due process rights in precluding Samson's testimony. (A 61). In January 2000, the BIA dismissed Akhtar's appeal, affirming the IJ's decision in every respect, and ordered Akhtar deported to Pakistan. (A 2-4).

This petition followed.⁵ Akhtar now reiterates the arguments he raised before the BIA. The Government argues that each claim should be either dismissed for lack of jurisdiction or rejected as meritless.

DISCUSSION

Jurisdiction to Review § 212(c) Determination

Judicial review of deportation proceedings, like Akhtar's, which became administratively final after October 30, 1996 but were initiated before April 1, 1997 are governed by the provisions of the INA § 106, 8 U.S.C. § 1105a (1994), as modified by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") § 309(c)(1)(B),(4), 110 Stat. 3009-625 to -626 (1996). See Henderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). The transitional rules provide that "there shall be no appeal permitted in the case of an alien who is [ ] deportable by reason of having committed a criminal offense covered in section [] 241(a)(2)(A)(iii),(B) [] of the Immigration and Nationality Act [8 U.S.C. § 1251(a)(2)(A)(iii),(B)(1994)(covering aliens convicted of aggravated felonies and controlled substance offenses)]." IIRIRA § 309(c)(4)(G), 110 Stat. 3009-626 (1996).

The Second Circuit has held that criminal aliens barred from appealing their deportation orders by IIRIRA § 309(c)(4)(G) may seek habeas review of such orders under 28 U.S.C. § 2241. See Henderson, 157 F.3d at 119, 122; Jean-Baptiste v. Reno, 144 F.3d 212, 219-20 (2d Cir.1998). The Government argues that the scope of habeas review, however, does not encompass a discretionary determination to deny an applicant § 212(c) relief.

In Henderson, the Second Circuit observed that in the wake of AEDPA and IIRIRA, the scope of review that remains available to criminal aliens challenging deportation orders "is considerably narrower than the review that was available prior to the 1996 amendments." 157 F.3d at 119. Indeed, the court noted that the 1996 amendments were intended to make "administrative [immigration] decisions nonreviewable to the fullest extent possible under the Constitution." Id. The court concluded that the scope of habeas review of criminal aliens' deportation orders included constitutional questions and questions of statutory interpretation or "pure law," such as those that raise "the Attorney General's interpretation of the immigration laws." Henderson, 157 F.3d at 120; accord St. Cyr v. I.N.S., 229 F.3d 406, 410 (2d Cir.2000)(questions of pure law, as distinguished from "the BIA's refusal to exercise discretion in [petitioner's] favor," are cognizable on habeas review of a final order of removal). In addition, the court specifically noted that the...