Duldulao v. Reno

• Decision Date: 18 March 1997
• Docket Number: Civil No. 97-00163 DAE.
• Citation: 958 F.Supp. 476
• Parties: Alfredo A. DULDULAO, Petitioner/Plaintiff, v. Janet RENO, Attorney General; Doris Meissner, Commissioner of the Immigration and Naturalization Service; Immigration and Naturalization Service; and, Donald A. Radcliffe, District Director, Respondents/Defendants.
• Court: Hawaii Supreme Court

958 F.Supp. 476

Alfredo A. DULDULAO, Petitioner/Plaintiff, v. Janet RENO, Attorney General; Doris Meissner, Commissioner of the Immigration and Naturalization Service; Immigration and Naturalization Service; and, Donald A. Radcliffe, District Director, Respondents/Defendants.

Civil No. 97-00163 DAE.

United States District Court, D. Hawai`i.

March 18, 1997.

Ronald T. Oldenburg, William F. Thompson, III, Lynch & Farmer, Honolulu, HI, Laura L. Ho, American Civil Liberties Union Foundation, Immigrant Rights Project, San Francisco, CA, Kendall Wong, Law Offices of Kendall Wong, Honolulu, HI, for Plaintiff.

Michael Chun, U.S. Attorneys Office, Honolulu, HI, Mary Reiko Osaka, Special Assistant U.S. Attorney, Honolulu, HI, for Defendants.

ORDER DENYING PETITIONER'S MOTION FOR PRELIMINARY INJUNCTION AND HABEAS CORPUS RELIEF AND DISMISSING COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

DAVID ALAN EZRA, District Judge.

The court heard Petitioner's Motion for Temporary Restraining Order and Preliminary Injunction on February 18, 1997. Kendall Wong, Esq., appeared at the hearing on behalf of Petitioner; Special Assistant United States Attorney Mary Reiko Osaka, appeared at the hearing on behalf of Respondents. After reviewing the motion and the supporting and opposing memoranda, the court DENIES Petitioner's Motion for Preliminary Injunction and Habeas Corpus Relief and DISMISSES Complaint for Declaratory and Injunctive Relief.

BACKGROUND

Alfredo Duldulao ("Petitioner"), a native and citizen of the Philippines, entered the United States on June 15, 1975 lawfully as a permanent resident alien. In 1980, he married a United States citizen, and together they have four children who were all born in the United States. Mrs. Duldulao suffered an aneurysm in 1987 and has been disabled and confined to a wheelchair since then. Petitioner's parents and siblings all live in the United States. Respondent Donald A. Radcliffe ("Radcliffe"), District Director of the Honolulu District of the Immigration and Naturalization Service, has approved Mrs. Duldulao's petition for an immediate relative visa on Petitioner's behalf.

While in the United States, Petitioner served in the National Guard for more than four years. He was discharged under "other than honorable conditions." After his discharge in 1981, he worked as a licensed independent roofing contractor, and supported his family through his business' earnings.

On February 9, 1990, Petitioner was convicted of two counts relating to the unlawful possession of a firearm and one count of assault. He was sentenced to five years in prison. He was released on parole in 1991, was returned to prison for a parole violation in 1993, and was released in 1994. Prior to his conviction, Petitioner was the sole support for his wife and children.

Petitioner was placed in deportation proceedings as an alien who has been convicted of a firearms offense, pursuant to 8 U.S.C. § 1251(a)(2)(C) of the Immigration and Nationality Act ("INA"). On August 19, 1994, Petitioner appeared before an Immigration Judge and conceded deportability as charged; as a form of discretionary relief, however, he applied for adjustment of status pursuant to INA § 245; 8 U.S.C. § 1255. The Immigration Judge ("IJ") found Petitioner to be statutorily eligible for such relief, but denied the application in the exercise of his discretion.

On February 21, 1995, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision, rendering Petitioner's order of deportation administratively final. Petitioner filed for review in the Ninth Circuit Court of Appeals pursuant to 8 U.S.C. § 1105a(a), § 106(a), INA. On appeal, Petitioner argued that the deportation order was unlawful because the IJ and the BIA (1) applied an erroneous legal standard and (2) admitted hearsay evidence that was fundamentally unfair and prejudicial. While the petition for review was pending in the Ninth Circuit, the Antiterrorism and Effective Death Penalty Act ("AEDPA") was enacted and became immediately effective. Section 440(a) of the AEDPA provides that a "final order of deportation" entered against an alien who is deportable by reason of having committed one of the enumerated criminal offenses, including § 242(a)(2)(C), "shall not be subject to review by any court." In response to the Respondents' motion to dismiss, Petitioner argued that the preclusion of judicial review violates the due process and separation of powers clauses of the Constitution. However, the Court dismissed the petition for review for lack of jurisdiction finding no constitutional violation, and did not reach the merits of Petitioner's claims.

On February 14, 1997, Petitioner filed a Motion for Temporary Restraining Order and Preliminary Injunction in the United States District Court. That same day, Petitioner filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. Later that afternoon, this court granted a temporary restraining order to prevent deportation pending a hearing and further briefing on the Motion for Preliminary Injunction.

On February 17, 1997, the court heard Petitioner's Motion for Preliminary Injunction. The court granted the Government an opportunity to submit a written response to Petitioner's brief, and the Government filed a reply brief on February 21, 1997. Petitioner filed an Application for Permission to File Reply Brief in Excess of 15 pages, and a Reply Brief on February 26, 1997.¹

Petitioner now seeks review of the deportation order by way of habeas corpus, and moves to enjoin his deportation during the pendency of the habeas proceedings.

DISCUSSION

Approximately ten months prior to the filing of the instant petitions, on April 24, 1996, the Antiterrorism and Effective Death Penalty Act of 1996, 8 U.S.C. § 1105, ("ADEPA") was signed into law. Section 401(e) of the ADEPA expressly revoked the clear grant of habeas jurisdiction formerly found at 8 U.S.C. § 1105a(a)(10), effective as of April 24, 1996. See Section 401(f) of the AEDPA. Section 440(a) of the ADEPA added a new provision in place of the deleted one, which reads:

Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or [the offense of having been convicted of two or more crimes of moral turpitude as defined in 8 U.S.C. § 1251(a)(2)(A)(i)], shall not be subject to review by any court.

8 U.S.C. § 1105A(a)(10) (as amended by § 440(a) of the AEDPA) (emphasis added).

Because Petitioner filed his Petition for Writ of Habeas Corpus after the enactment date of the AEDPA, the post-AEDPA version of 8 U.S.C. § 1105a(a)(10) governs this matter. See Powell v. Jennifer, 937 F.Supp. 1245, 1251-52 (E.D.Mich.1996). The provision has serious implications here. Both an IJ and the BIA have found Petitioner deportable on the basis of the AEDPA enumerated crimes he committed while residing in the United States.

I. Preliminary Injunction

To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury. Big Country Foods v. Board of Education, 868 F.2d 1085, 1087-88 (9th Cir.1989).

Petitioner argues that he will be irreparably harmed if deported while his petition is pending before this court. He claims that he will lose his right to seek U.S. citizenship as a veteran of the National Guard during the Vietnam hostilities. He also fears being separated from his family after deportation to the Philippines. Petitioner's deportation will render him inadmissible, thus barring him from reentering the United States for five years. The court acknowledges that Petitioner's deportation constitutes a serious disruption to the life he has lived in the United States for the past twenty years. However, this harm must be weighed against Petitioner's probable success on the merits of his claim and whether serious questions are raised and the balance of hardships tips strongly in his favor.

The likelihood of Petitioner's success on the merits of this claim depends upon the likelihood of Petitioner's success on his petition for habeas corpus.

II. Petition for Habeas Corpus

A. Post-AEDPA Jurisdiction

Because the applicable sections of the AEDPA are relatively new, few courts have addressed the issue of whether federal courts continue to have jurisdiction to review "final orders of deportation." Recently in Mbiya v. INS, 930 F.Supp. 609 (N.D.Ga.1996), a Georgia district court held that after the AEDPA, 28 U.S.C. § 2241 provides jurisdiction for habeas review of a legal permanent resident alien's final order of deportation. However, the court found that such review was unwarranted because the petitioner was not "in custody" as required under § 2241, and his petition failed to allege injury of constitutional proportions absent facts constituting a fundamental miscarriage of justice. Id. at 613.

Another district court has held that while Congress has removed from circuit courts and district courts the jurisdiction to review "final orders of deportation," federal courts have not been completely divested of jurisdiction to conduct habeas corpus review of denial of a stay of deportation. See Powell v. Jennifer, 937 F.Supp. 1245 (E.D.Mich.1996) (finding that a stay of deportation does not constitute a "final order of deportation" which could preclude even habeas corpus review). The district court in Powell, also adopted the ...