Calderon v. Reno, 98 C 552.

• Decision Date: 25 February 1999
• Docket Number: No. 98 C 552.,98 C 552.
• Parties: Faustino CALDERON, Petitioner, v. Janet RENO, as Attorney General of the United States, Doris Meissner, as Commissioner of the Immigration & Naturalization Service, and Brian Perryman, in his capacity as District Director of the Immigration and Naturalization Service, Respondents.
• Court: U.S. District Court — Northern District of Illinois

56 F.Supp.2d 997

Faustino CALDERON, Petitioner, v. Janet RENO, as Attorney General of the United States, Doris Meissner, as Commissioner of the Immigration & Naturalization Service, and Brian Perryman, in his capacity as District Director of the Immigration and Naturalization Service, Respondents.

No. 98 C 552.

United States District Court, N.D. Illinois, Eastern Division.

February 25, 1999.

Royal F. Berg, Chicago, IL, for petitioner.

James G. Hoofnagle, United States Attorney's Office, Chicago, IL, for respondents.

MEMORANDUM AND ORDER

MORAN, Senior District Judge.

Faustino Calderon ("Calderon") petitioned this court for a writ of habeas corpus on January 28, 1998, seeking to overturn a final order of deportation. Concluding that we had subject matter jurisdiction over Calderon's petition pursuant to 28 U.S.C. § 2241, we nonetheless dismissed both of his claims. Calderon v. Reno, 1998 WL 867413 (N.D.Ill. Dec.3, 1998). We found that he had waived any claim regarding an improper denial of discretionary relief when he failed to raise the issue before the Board of Immigration Appeals. His failure to exhaust administrative remedies deprived this court of jurisdiction over the claim. See 8 U.S.C. § 1105a(c). We further held that we had no jurisdiction to consider Calderon's claims under the United Nations Convention Against Torture¹ because the U.S. ratification documents made clear that the Treaty was not intended to be self-executing. Calderon has now filed a motion to reconsider, asking the court to grant the petition for Writ of Habeas Corpus or, alternatively, to "hold these proceedings in abeyance" until new federal regulations are promulgated regarding the return or extradition of individuals who may be subject to torture in their country of origin. See Pub. L.No. 105-277, § 2242, Omnibus Appropriations Bill for FY 1999 (directing the heads of agencies to prescribe regulations to implement the obligations of the of the United States under Article 3 of the Convention Against Torture).

A motion to reconsider, more accurately called a motion to alter or amend a judgment, serves the limited purpose of allowing a court to correct manifest errors of law or fact. Publishers Resource, Inc. v. Walker-Davis Publications, Inc., 762 F.2d 557, 561 (7th Cir.1985); Fed.R.Civ. Proc. 59. A motion to reconsider should be used neither to introduce new evidence that was available during the original consideration nor to introduce new legal theories. Id. The motion is proper "where the Court has patently misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning but of apprehension. A further basis for a motion to reconsider would be a controlling or significant change in the law or facts since the submission of the issue to the Court." Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir.1990) (quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)).

Calderon has not presented any "significant" new factual evidence that would lead us to reconsider our earlier decision. The controlling law, however, has changed and it now works to deprive this court of jurisdiction over Calderon's petition altogether. As respondents indicate, we had concluded that under the Supreme Court's decision in Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), statutory habeas corpus jurisdiction under 28 U.S.C. § 2241 was not repealed by recent immigration reform legislation. We agreed with several of the circuit courts that immigrants whose deportation proceedings fell within the time frame governed by the transitional rules retained the right to seek collateral review in the district courts. See, e.g., Goncalves v. Reno, 144 F.3d 110, 121 (1st Cir.1998); Henderson v. INS, 157 F.3d 106, (2d Cir.1998). Three weeks after our decision, however, the Seventh Circuit rejected this interpretation when it reversed Judge Conlon's identical conclusion. LaGuerre v. Reno, 164 F.3d 1035, 1998 WL 912107 (7th Cir.(Ill.)), reversing Avelar Cruz v. Reno, 6 F.Supp.2d 744 (N.D.Ill. 1998). Without discussing which set of rules should be applied to aliens like Avelar-Cruz or Calderon, whose deportation proceedings fall within the transitional regime established by IIRIRA § 309(c)(4), the court concluded that § 440(a) of the AEDPA deprives the district courts of habeas jurisdiction with respect to any alien who has been convicted of the enumerated crimes. The court interpreted the INA amendments to permit aliens to bring constitutional challenges...