Balogun v. I.N.S.
| Decision Date | 02 December 1993 |
| Docket Number | No. 93-4885,93-4885 |
| Parties | Olugbenga BALOGUN, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, John B.Z. Caplinger, Respondents-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Christopher A. Aberle (court-appointed counsel), Metairie, LA, for petitioner-appellant.
Josette L. Cassiere, Asst. U.S. Atty., Shreveport, LA, William Flanagan, U.S. Atty., and Carl E. Perry, Asst. U.S. Atty., Lafayette, LA, for respondents-appellees.
Appeal from the United States District Court for the Western District of Louisiana.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
Petitioner-appellant Olugbenga Balogun (petitioner) appeals the district court's dismissal of his application for writ of habeas corpus. We hold that the district court erred in entering judgment without giving petitioner notice or the opportunity to respond to the allegations set forth by respondents-appellees Immigration and Naturalization Service and John B.Z. Caplinger (respondents). Accordingly, we reverse and remand the case to the district court for further proceedings.
Petitioner is a citizen and native of Nigeria. In August of 1984, he entered the United States as a nonimmigrant student authorized to remain in this country so long as he maintained his status as a student. In July of 1987, petitioner graduated from Jacksonville State University, thereby discontinuing his student status. He did not, however, leave the country as his visa required, but instead remained in the United States. On March 17, 1990, petitioner was arrested in Anniston, Alabama and charged with illegal possession of credit cards, fraudulent use of credit cards, and forgery. In June of 1990, he pleaded guilty to the charged offenses and was sentenced to a five-year term of imprisonment in the Alabama State Penitentiary.
On September 2, 1990, the Immigration and Naturalization Service (INS) issued an order to show cause charging petitioner with deportability pursuant to section 241(a)(9) [8 U.S.C. Sec. 1251(a)(9) ] of the Immigration and Nationality Act, 1 in that he failed to comply with the conditions of the nonimmigrant status under which he was admitted. After a hearing before an immigration judge on April 24, 1991, in which petitioner admitted all of the allegations in the order to show cause, the judge found petitioner deportable as charged and ordered him deported to Nigeria. Petitioner appealed to the Board of Immigration Appeals (BIA), and on July 18, 1991, the BIA affirmed the immigration judge's order. Petitioner appealed to this court and on March 27, 1992, we affirmed the BIA decision. Balogun v. Immigration and Naturalization Service, No. 91-4705 (5th Cir. March 27, 1992) (unpublished).
While in custody at the INS Detention Center in El Paso, Texas, petitioner was charged with illegally obtaining telephone credit cards through the use of a false social security number and using the cards to make several thousand dollars worth of long distance telephone calls. On March 20, 1992, petitioner pleaded guilty to this offense and was sentenced by the federal district court to seven months imprisonment; the INS released petitioner to the custody of the Bureau of Prisons (BOP) pursuant to this sentence. On July 10, 1992, the BOP returned petitioner to the custody of the INS.
On January 13, 1993, upon completing six months of continuous INS custody, petitioner filed an application in the United States District Court for the Western District of Louisiana for a federal writ of habeas corpus under 28 U.S.C. Sec. 2241; the application was referred to a magistrate judge pursuant to 28 U.S.C. Sec. 636(b)(1)(B). In his application, petitioner alleged that his detention was unlawful because more than six months had elapsed since his deportation order became final, in violation of 8 U.S.C. Sec. 1252(c) and (d). Petitioner contended that section 1252(c) mandates an alien's release from detention if the INS has not effected deportation within six months of the final order adjudging the alien's deportability. As relief, petitioner requested that he be released on supervision pending his deportation.
On March 9, 1993, the magistrate judge entered a memorandum order which directed respondents to file a response to petitioner's complaint within thirty days. The magistrate judge also ordered that after respondents had filed their answer, petitioner would have twenty days in which to file a reply to respondents' memorandum. Finally, the magistrate judge stated that after the record was complete, he would determine the necessity of an evidentiary hearing, and if no hearing was necessary, would issue a report and recommendation.
Respondents did not respond to petitioner's application within thirty days of the magistrate judge's order and on April 14, 1993, petitioner moved for summary judgment or, alternatively, default judgment. On April 21, respondents filed an "Answer and Return and Response to Summary Judgment/Default Judgment Motion" in which they conceded that they missed the filing deadline, but explained that respondents' counsel had "improperly calendared [the petition] for a sixty day response time." In their answer, respondents asserted that the habeas petition should be dismissed because petitioner's own actions caused the delay in his deportation. 2
Six days after respondents filed their answer, the magistrate judge issued a report recommending denial of petitioner's motion for summary judgment and dismissal of his application for writ of habeas corpus. The magistrate judge determined that 8 U.S.C. Sec. 1252(c) gives the Attorney General six "unhampered" months from the date of the final order of deportation in which to deport the alien. 3 The report concluded that because petitioner "seeks to interfere with the ability of the INS to obtain travel documents for him," the INS has not had six unhampered months to effect petitioner's deportation and thus the time limit prescribed under Sec. 1252(c) was equitably tolled by petitioner's conduct.
On May 5, 1993, petitioner filed written objections to the magistrate judge's report in which he asserted, among other things (1) that the magistrate judge's order of March 9, 1993 allowed petitioner twenty days to respond to respondents' answer; (2) that the magistrate judge's report was issued six days after respondents filed their answer; and (3) the magistrate's findings were based solely on respondents' answer and its attached exhibits. Petitioner disputed the allegations made by respondents that the delay in his deportation was due to his deliberate attempts to hamper the INS; rather, he alleged that the deportation was delayed because the Anniston, Alabama police department lost his passport when they arrested him in 1990 and the Nigerian Embassy would not issue a travel document without a passport. Along with his objections, petitioner filed an affidavit and other documentary evidence tending to support some of his contentions. Respondents filed nothing further.
In an order dated May 19, 1993, the district court adopted the magistrate judge's report in its entirety and dismissed petitioner's application for writ of habeas corpus. Thereafter, petitioner filed a timely notice of appeal. 4
Petitioner raises two points of error on appeal. First, petitioner argues that the district court erred in relying only on respondents' answer and supporting exhibits in making the factual findings underlying its denial of petitioner's habeas corpus application. Second, petitioner argues that even if the factual findings were correct, the INS was nevertheless without authority to continue detaining him beyond the six-month period allowed by 8 U.S.C. Sec. 1252(c). We address petitioner's second argument first.
Petitioner contends that the district court erred in concluding that the facts as it found them justified his continued detention by the INS. He argues that the plain meaning of section 1252(c) and (d) mandates that the INS release an alien subject to deportation if they cannot effect his deportation within six months of the final order of deportation. Petitioner asserts that in his case the six-month period has expired and nothing allows the INS to continue detaining him. Accordingly, he seeks immediate deportation or release on bond.
Both parties agree that petitioner has been in continuous INS detention since July 10, 1992, when petitioner was transferred by the BOP into INS custody. The question then is whether the six-month period allowed under section 1252(c) for INS detention pending execution of deportation may be tolled where the alien's conduct has intentionally prevented the INS from effectuating the deportation. Section 1252(c) reads in pertinent part:
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