Beshli v. Department of Homeland Security

• Decision Date: 22 July 2003
• Docket Number: Civil Action No. 03-2222.
• Citation: 272 F.Supp.2d 514
• Parties: Essam Khalifa BESHLI, A-75-806-195, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

272 F.Supp.2d 514

Essam Khalifa BESHLI, A-75-806-195, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Respondent.

Civil Action No. 03-2222.

United States District Court, E.D. Pennsylvania.

July 22, 2003.

Susan R. Becker, U.S. Attorney's Office, Philadelphia, PA, for Respondent.

Sandra Greene, York, PA, for Petitioner.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

Petitioner, Essam Khalifa Beshli ("petitioner"), a thirty-seven year-old native and citizen of Egypt, is subject to a final order of removal issued under 8 U.S.C. § 1228(b). The final order of removal arises from an October 4, 2001 conviction for conspiracy to traffic in and use unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2) and (c)(1)(A), in the United States District Court for the Eastern District of New York. Petitioner is currently detained at the Pike County Correctional Facility, Lords Valley, Pennsylvania, pending his removal to Egypt.

Presently before the Court is petitioner's Emergency Petition for Habeas Corpus, filed pursuant to 28 U.S.C. § 2241. The Petition presents two issues for the Court's consideration. First, petitioner claims that he is not subject to removal under the expedited removal proceedings of 8 U.S.C. § 1228(b) because the Notice of Intent fails to aver that he was convicted of an aggravated felony. In essence he argues that he is not an aggravated felon. Second, petitioner claims that the Immigration and Naturalization Service ("INS")¹ violated his procedural due process rights by ignoring (1) his request for additional time to submit a response to the charges in the Notice of Intent to Issue a Final Administrative Removal Order and (2) a response to the charges in the Notice of Intent filed by petitioner's attorney that presented legal authority in support of his argument that he was not convicted of an aggravated felony.

For the reasons set forth in this Memorandum, the Court concludes that petitioner's claims are without merit. Accordingly, the Court denies the Petition and vacates the temporary stay of petitioner's removal to Egypt.

II. BACKGROUND

The Court first sets forth the relevant facts and procedural history with respect to the removal order underlying the Petition. The facts are taken from the Petition and attached exhibits, the government's response and attached exhibits and from matters of public record.

Petitioner first entered the United States on October 18, 1995 at a port in Portland, Oregon. See U.S. Dep't of Justice, INS, Record of Deportable/Inadmissible Alien (Jan. 5, 2002) (appended to Gov't Resp. at Exh. A) ("INS Record of Inadmissible Alien"). Petitioner "jumped ship" and entered the United States illegally, without inspection.² Id.

Petitioner was illegally present in the United States from a period of "1 month to 1 year." Id. He then applied to adjust his status to that of a Lawful Permanent Resident ("LPR") and, on the basis of that application, was granted employment authorization. Id. On February 22, 1998 and August 3, 1999, respectively, petitioner sought and received from the INS advance parole³ to re-enter the United States. Id. The designated re-entry point for both of petitioner's advance parole applications was New York, New York. Id.

On September 29, 2000, petitioner was charged in an Indictment in the United States District Court for the Eastern District of New York with, inter alia, one count of conspiracy to traffic in and use unauthorized devices, in violation of 18 U.S.C. § 1029(b)(2) and (c)(1)(A). See Indictment, United States v. Essam Khalifa, No. 00-CR-1007-5 (E.D.N.Y. filed Sept. 29, 2000) (appended to Gov't Resp. at Exh. C) ("Indictment").⁴ Petitioner pled guilty to Count One of the Indictment on November 21, 2000 and, on October 4, 2001, he was sentenced to a term of imprisonment of twelve months followed by three years of supervised release and ordered to pay $168,468.00 in restitution. See Judgment in a Criminal Case, id. (appended to Gov't Resp. at Exh. C) ("Judgment and Commitment Order"). Id. Petitioner did not appeal the conviction or sentence. He was released from custody on November 18, 2002.

On January 11, 2002, INS placed petitioner in expedited removal proceedings under 8 U.S.C. § 1228(b) by personally serving on him a Notice of Intent to Issue a Final Administrative Removal Order under 8 U.S.C. § 1228(b). See U.S. Dep't of Justice, INS, Notice of Intent to Issue a Final Administrative Removal Order (Jan. 11, 2002) (appended to Gov't Resp. at Exh. B) ("Notice of Intent"). The Notice of Intent stated that petitioner had ten days to respond to the charges from the date of service, and that any such response had to be received by the INS at the end of the ten-day period. Id. Petitioner contends that he sought an extension of time in which to respond to the charges in the Notice of Intent and that his attorney responded to the INS charges. Petitioner has attached a copy of the purported response to the Petition. It is undated and bears no indicia that it was ever sent to or received by the INS, and the INS denies receiving it.

On February 20, 2003, more than one year after service of the Notice of Intent, the INS issued a Final Administrative Removal Order, in which the INS found petitioner "deportable" by clear and convincing evidence as an alien not lawfully admitted for permanent residence convicted of an aggravated felony. See U.S. Dep't of Justice, INS, Final Administrative Removal Order Under Section 238(b) of the Immigration and Nationality Act (Feb. 20, 2003) (appended to Gov't Resp. at Exh. D) ("Final Administrative Removal Order"). The Final Administrative Removal Order was served on petitioner by mail on February 27, 2003. Id.

On March 11, 2003, petitioner faxed a pro se submission entitled "Filing Receipt for Motion to Reopen or Motion to Consider" to the INS. See Filing Receipt for Motion to Reopen or Motion to Consider dated Mar. 7, 2003 (appended to Gov't Resp. at Exh. E) ("Motion for Reconsideration"). In that submission, petitioner admitted that he had failed to respond to the Notice of Intent within the ten-day time period but stated that he had "mailed the [Final Administrative Removal O]rder to my Lawyer whom I gather did not respond on time, or not at all or even reopen my case as promised by your statement of removal." Id. Petitioner sought to reopen the removal proceedings on the grounds that his removal from the United States would cause great financial hardship to his family and his wife, and that such hardship violated several provisions of a treaty — the International Covenant on Civil and Political Rights. The record does not reflect any disposition of the Motion for Reconsideration by the INS.

On March 31, 2003, petitioner filed a Petition for Review in the United States Court of Appeals for the Third Circuit. By Order dated April 8, 2003, the Third Circuit stayed the removal of petitioner in order to consider the Petition for Review. That same day, petitioner filed his Petition in this Court "to preserve his right of appeal should the Court of Appeals assert that it lacks jurisdiction." Pet. ¶ 9. By Order dated April 9, 2003, the acting emergency judge in this Court granted petitioner provisional leave to proceed in forma pauperis and stayed petitioner's removal for thirty days. By Order dated April 14, 2003, this Court ordered the parties to file and serve a joint report concerning petitioner's status on or before April 28, 2003 and ordered the INS to respond to the Petition on or before May 5, 2003.

By Order dated April 17, 2003, the Third Circuit dismissed the Petition for Review and lifted the stay of removal entered by that court. The Third Circuit's dismissal of the Petition for Review was based on its determination that petitioner was convicted of an aggravated felony and, because of that conviction, the Court of Appeals lacked jurisdiction to entertain the arguments in petitioner's Petition for Review. See Beshli v. Sec'y of Dep't of Homeland Security, No. 03-1897, slip op. (3d Cir. Apr. 17, 2003). By Order dated April 30, 2003, after consideration of the separate status reports submitted by the parties on April 28, 2003, this Court continued the stay of removal and ordered the INS to respond to the Petition on or before May 14, 2003.

Thereafter, on May 23, 2003, petitioner filed a Motion for Additional Time to Submit Reply to Respondent's Brief. In that Motion, petitioner requested a thirty- to forty-day extension of time to obtain and provide the Court with tracking information from Federal Express to establish that his attorney in fact sent a response to the INS Notice of Intent and that the INS received the response. By Order dated June 10, 2003, the Court granted petitioner a forty-day extension of time to do so.

III. STANDARD OF REVIEW OF FINAL ORDERS OF REMOVAL

Despite the limitations on federal court review of executive branch deportation and removal decisions set forth in the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C, 110 Stat. 3009-506 ("IIRIRA"), it is well established that federal courts retain jurisdiction under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation or removal. See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses." (citing Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001))). The scope of review of such claims is, however, limited to questions of law. Catney v. INS, 178 F.3d 190, 195 (3d Cir.1...