Curri v. Reno, Civil Action No. 99-4407 (AJL).
| Decision Date | 23 February 2000 |
| Docket Number | Civil Action No. 99-4407 (AJL). |
| Citation | 86 F.Supp.2d 413 |
| Parties | Anton CURRI, Petitioner, v. Janet RENO, et al., Respondent. |
| Court | U.S. District Court — District of New Jersey |
Frederick A. Organ, River Vale, NJ, for petitioner.
Robert J. Cleary, United States Attorney, Susan Handler-Menahem, Alice Loughran, Assistant United States Attorney, Newark, NJ, for respondents.
This is an action brought by petitioner, Anton Curri ("Curri"), a detainee of the Immigration and Naturalization Service (the "INS") in Elizabeth, New Jersey, against respondents, Attorney General Janet Reno, INS Commissioner Doris Meissner, INS District Director Andrea Quarantillo, Officer in charge of the United States Immigration & Naturalization Service Detention Center Lorelei Valverde, the INS, and the Department of Justice (collectively, the "Respondents"). Presently pending is a petition (the "Petition") of Curri for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ("Section 2241"), seeking parole from INS custody.1
For the reasons set forth below, the Petition is dismissed for lack of subject matter jurisdiction.
On or about 7 August 1999, Curri, a native and citizen of Albania, arrived at John F. Kennedy International Airport ("JFK Airport") and attempted to gain admission into the United States with a fraudulent passport. See Petition at 1, Opp. Brief at 4. It appears Curri sought admission into the United States under the visa waiver pilot program, pursuant to 8 U.S.C. § 1187. The Petition alleges Curri "came to the United States because of credible fear of persecution and because of dangerous war time conditions." Petition at 1. Specifically, the Petition alleges: "The credible fear of persecution was due to political problems between the communist and democrats where his father and him [sic] were democrats looking to advance social and political goals of the people of Albania...." Id.
The Petition further alleges that in or about July 1999, Curri left Albania without any travel documentation, much more a valid passport and attempted to gain "refugee status" in a neighboring European country. Id. at 2. The Petition, moreover, alleges Curri sought "refugee status" in Italy and Belgium. Id. It appears, however, neither country would grant Curri "refugee status.2" Id. As a result, the Petition alleges Curri "determined that the only place that he could seek refuge was the United States which [he] believed was accepting refugees from both Kosovo and Albania." Id.
The Petition further alleges that in preparation for the journey to the United States, the parents of Curri purchased a fraudulent Slovenian passport so Curri would have a "travel document.3" See id. It appears Curri used the fraudulent passport to travel from Belgium to Paris, France where he proceeded to board a United States commercial airline carrier in route to JFK Airport.4 Id.
As mentioned, on or about 7 August 1999, Curri arrived at JFK Airport. See id. at 2 & Opp. Brief at 4. It appears, upon the arrival of Curri at JFK Airport, an immigration inspector determined Curri was in possession of a fraudulent passport. See Opp. Brief at 4. Curri subsequently indicated he desired to file political asylum in the United States and to that end, he declared he was a native citizen of Albania. See Petition at 2 & Opp. Brief at 4. It appears Curri was detained by the INS upon the determination by an INS officer that Curri did not have a valid passport. See Opp. Brief at 4.
It appears that Curri, through an interpreter, indicated in a sworn statement before an INS officer that he intended to reside in the United States "forever," he left Albania because he did not have a job, and that he obtained the fraudulent passport from an individual named Mon Ejlli.
Record of Sworn Statement, attached as Exhibit A to the Opp. Brief.
The Petition further alleges no removal proceedings have been commenced against Curri: "No NTA [notice to appear] has been issued, therefore INS has no charges pending." See Petition at 3.5
Finally, it appears the Petition alternatively alleges because Curri was a minor at the time he arrived in the United States, it is "unlawful for the Immigration Service to hold him in detention." See id. at 2. In this regard, the Petition alleges Curri was born on 28 October 1981. See Facsimile copy of Birth Certificate, attached as Exhibit B to the Petition. It is undisputed, however, that Curri is no longer a minor.
A. Subject Matter Jurisdiction
As a threshold matter, it must be determined whether subject matter jurisdiction exists over the Petition. Curri alleges he is entitled to review of a discretionary denial of his request for release and parole as a matter of statutory and constitutional right. See generally Petition at 3-8, Reply Brief at 1-6.6
It appears the instant Petition is focused solely on the recent congressional enactments pertaining to the apparent narrowing of subject matter jurisdiction as it relates to the federal immigration laws. In 1996, Congress enacted legislation which altered the federal immigration laws: the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996); and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the "IIRIRA"), Pub.L. No. 104-208, 100 Stat. 3009 (1996) (collectively, the "Acts"). It is undisputed the AEDPA and the IIRIRA went into effect before the detention of Curri.7 See Petition.
A review of recent case law indicates that most of the judicial debate surrounding the Acts thus far has involved the extent to which judicial review of final orders of removal remains available following the AEDPA and the IIRIRA. In particular, courts have focused on the availability of review in the context of "transitional" removal cases. See eg. Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir.1999).
Transitional removal cases are those case that were pending before 1 April 1997, the effective date of the IIRIRA. By contrast, all removal proceedings initiated by the INS after that date, such as the underlying action in the instant Petition, are subject to the permanent jurisdictional provisions imposed by the IIRIRA, now codified at 8 U.S.C. § 1252 et seq. ("Section 1252"). See Sandoval, 166 F.3d at 229 (). See also DeSousa v. Reno, 190 F.3d 175, 180-81 (3d Cir.1999) (same).8
As mentioned, the instant Petition is governed by the permanent jurisdictional rules of the IIRIRA. While the Petition does implicate the jurisdictional provisions of Section 1252, it does not concern a final order of removal. Rather, the Petition seeks review of a purely discretionary decision by the INS regarding the temporary parole of Curri, and therefore, appears to be a matter of first impression in this court.
As mentioned, at issue in the instant action is whether a District Court has jurisdiction, pursuant to 28 U.S.C. § 2241, to review a discretionary decision by the INS to deny an alien parole. Specifically, the statutory provision at issue is Section 1252, the jurisdictional counter part to 8 U.S.C. § 1182 ("Section 1182"), among other sections.9 Section 1182, inter alia, grants the Attorney General the discretion to temporarily parole any alien applying for admission into the United States. See 8 U.S.C. § 1182(d)(5)(A) & (B). Section 1252, in turn, delineates the jurisdictional limits of review of the discretionary powers granted under Section 1182.
Section 1182 provides in relevant part:
(5)(A) The Attorney General may ... in [her] discretion parole into the United States temporarily under such conditions as [she] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General, have been served the alien shall forthwith return or be returned to the custody from which he [/she] was paroled and thereafter his [/her] case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.
(B) The Attorney General may not parole into the United States an alien who is a refuge unless the Attorney General determines that compelling reasons in the public interest with respect to that particular alien require that the alien be paroled into the United States rather than be admitted as a refugee....
8 U.S.C. § 1182(d)(5)(A) & (B).
Section 1252, entitled "Judicial Review of Orders of Removal," however, provides inter alia:
(B) Denials of Discretionary Relief:
Notwithstanding any other provision of law, no court shall...
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