Calderon v. Reno

Decision Date03 December 1998
Docket NumberNo. 98 C 552.,98 C 552.
Citation39 F.Supp.2d 943
PartiesFaustino 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.
CourtU.S. District Court — Northern District of Illinois

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

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


MORAN, Senior District Judge.

Petitioner Faustino Calderon (Calderon) is an alien subject to a final order of deportation. He filed a petition for writ of habeas corpus in this court on January 28, 1998, challenging the order as a violation of his right to due process and equal protection, and seeking release from custody. Respondents seek dismissal of the petition for lack of subject matter jurisdiction or, in the alternative, summary judgment on the petition. Petitioner has filed a cross-motion for summary judgment. For the reasons set forth below, we find that we have no subject matter jurisdiction over Calderon's claims and dismiss the petition in its entirety.


Calderon is a native and citizen of Mexico. He entered the United States as a lawful permanent resident alien in May 1972. He is married, the father of five children,2 and the proprietor of a small trucking firm. For almost two decades now Calderon has been the subject of a series of criminal and deportation proceedings. Literally on the eve of his scheduled deportation, Calderon filed this petition for a writ of habeas corpus, seeking once again to avoid return to his native Mexico.

The events that led to Calderon's final deportation order began on March 19, 1978, when he lawfully reentered the United States, as a returning resident alien, after a brief visit to Mexico. Before leaving Mexico, however, Calderon apparently made arrangements with five individuals to provide them with transportation to Chicago, once they had illegally crossed the border, in exchange for a total of $2500. According to court records the group was apprehended by authorities when their truck broke down. On May 18, 1978, after a plea of not guilty, Calderon was convicted of transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(2).3 Shortly thereafter, the Immigration and Naturalization Service (INS) commenced deportation proceedings and issued an order to show cause alleging that Calderon was deportable from the United States pursuant to 8 U.S.C. § 1251(a)(13)(1980) (alien smuggling), as an alien who, at the time of entry, or within five years of any entry, knowingly and for gain, encouraged, induced, assisted, abetted or aided another alien to enter the U.S. in violation of the law. Calderon continued to maintain his innocence and vigorously contested the charge of deportability.

On May 8, 1987, Calderon was arrested in Chicago along with a co-conspirator, Luis Perez (Perez), after the two men delivered a kilogram of cocaine to an undercover federal agent. On April 22, 1988, Calderon was convicted of several drug trafficking offenses in violation of 21 U.S.C. §§ 841(a)(1), 844, and 846, as well as a firearms offense in violation of 18 U.S.C. §§ 922(g)(1) and 924(c). The INS then amended the order to show cause, adding allegations that Calderon was deportable under 8 U.S.C. § 1251(a)(2)(B)(i)(1994), as an alien convicted of a controlled substance violation, and under 8 U.S.C. § 1251(a)(2)(C)(1994), as an alien convicted of a firearms offense. Calderon presented no evidence to dispute the firearms and controlled substance counts and, on November 28, 1995, the immigration judge entered a finding as to Calderon's deportability, based on these two grounds.

At this point, absent a finding of deportability on the alien smuggling charge, Calderon would still have been eligible under the Immigration and Nationality Act (INA)4 for an adjustment of status under § 245(a)5 and for a waiver of deportability under 212(c).6 See Matter of Gabryelsky, 20 I. & N. Dec. 750 (BIA 1993).7 The smuggling count, therefore, became the pivotal issue in Calderon's case before the immigration judge.

Because Calderon's 1978 conviction was for "transportation" and not for "bringing in" or "encouraging entry," the INS' prima facie case relied heavily on sworn statements to the INS from the five aliens transported by Calderon. Calderon's lawyers objected to the consideration of the affidavits for several reasons. First, they were now almost seventeen years old and, since 1979, the INS had been unsuccessful in its attempts to locate the affiants or corroborate the testimony. Second, the affidavits were prepared in English, without the use of an interpreter, even though the statements were given in Spanish. Third, none of the affidavits identified "Faustino Calderon" or identified the physical attributes of the man they referred to as "Faustino." Finally, Calderon's counsel noted that the affidavits were "suspiciously similar in wording" and that two were "virtually word for word similar" (R. at 19).

After an extensive review of both the record of the immigration proceedings and the record from the criminal trial, the immigration judge concluded that the INS had met its burden of proving deportability on the alien smuggling charge by the requisite "clear, convincing and unequivocal evidence." He found that, in fact, Calderon had entered the United States on March 19 or 20, 1978, after having made arrangements to either encourage or induce illegal aliens to enter the United States for gain. In his oral decision, the judge noted that "but for the transcript of proceedings in the underlying criminal case ... there might be some merit to the respondent's arguments" regarding the affidavits' deficiencies. To bolster his finding, therefore, the judge provided a detailed inventory of testimony from the trial record which closely tracked each affiant's statement to the INS. He then concluded simply and without elaboration that Calderon was ineligible for any adjustment of status or waiver of deportability under 212(c) and ordered him deported.8

On December 6, 1995, Calderon appealed the decision to the Board of Immigration Appeals (BIA). His notice of appeal identified only the immigration judge's finding on the smuggling charge as the reason for the appeal. On July 25, 1997, the BIA dismissed Calderon's appeal, agreeing with "the well-reasoned and thorough decision" of the immigration judge that deportability "on the charge of smuggling for gain, as well as the other charges" had been established. The Board did not discuss the judge's conclusion that Calderon was ineligible for waiver or adjustment of status.

In the meantime, Calderon and Perez were both serving their sentences for the cocaine and weapons charges in the federal corrections system. After several transfers, the two men ended up as cellmates at FCI-Oxford. Around January 1993, Perez apparently became aware that Calderon had assisted the government with several drug prosecutions, including providing testimony against one of Perez' family members. He also reportedly blamed Calderon for his thirteen-year sentence and his lost $25,000 in cocaine. Perez, 43 F.3d at 1132. On January 13, 1993, Perez attacked Calderon with a razor blade — slicing his face, neck and shoulders — and then walked into the officer station to report the incident. The injuries almost killed Calderon, cut off part of his ear, and required more than 100 stitches to sew up his neck. Calderon testified at Perez' trial and a jury found his former cellmate guilty of assault with intent to commit murder and of possession of a prohibited object intended as a weapon. After the Seventh Circuit overturned the conviction based on faulty jury instructions, United States v. Perez, 43 F.3d 1131 (1994), the government reindicted Perez, adding a new count of "assault resulting in serious bodily injury." Calderon testified once again and the Seventh Circuit upheld Perez' subsequent conviction on the lesser charge. United States v. Perez, 79 F.3d 79, cert. denied, 519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996).

On October 21, 1997, Calderon filed an application for a stay of his deportation in order to liquidate his trucking business. His accompanying declaration claimed that because his firm's semi-trucks were secured by mortgages on Calderon's house and rental property his wife — who was to remain in the United States — would be at risk of losing her home and sole source of income. The INS granted Calderon's application and stayed his deportation to January 29, 1998. This petition for a writ of habeas corpus was filed on January 28.

Petitioner now claims that if he returns to Mexico, family and "co-horts" of Perez will kill him in retaliation for his testimony. His deportation, he concludes, would violate the U.N. Convention Against Torture. See infra at 952 n. 33. Calderon further claims that his right to equal protection and due process was violated when the immigration judge ordered him deported and ineligible for relief, and when the Board of Immigration Appeals affirmed the decision without elaboration.


After Calderon filed his appeal with the BIA, but before the Board took any action, Congress passed two pieces of legislation which significantly amended the structure and substance of the Immigration and Nationality Act. After several earlier efforts to speed the deportation of aliens convicted of crimes,9 Congress passed the Anti-terrorism and Effective Death Penalty Act (AEDPA), Pub.L.No. 104-132, 110 Stat. 1214 (codified throughout U.S.C.), hoping to eliminate various avenues for judicial review available to prisoners and criminal aliens. Before the AEDPA was signed into law by President Clinton on April 24, 1996, section 106 of the INA, codified at § 1105a...

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