Funez v. Sessions
| Decision Date | 17 September 2019 |
| Docket Number | No. 6:18-cv-06413-MAT,6:18-cv-06413-MAT |
| Parties | MARCO ANTONIO RAMOS FUNEZ, Petitioner, v. JEFFERSON B. SESSIONS, Attorney General of the United States; CARMEN WHALING, Field Office Director for Detention and Removal, Buffalo Field Office, Bureau of Immigration and Customs Enforcement; DEPARTMENT OF HOMELAND SECURITY; and EDWARD NEWMAN, Assistant Field Office Director, Buffalo Federal Detention Facility Respondents. |
| Court | U.S. District Court — Western District of New York |
Proceeding pro se, Marco Antonio Ramos Funez ("Ramos Funez" or "Petitioner") commenced this habeas proceeding on February 12, 2018, pursuant to 28 U.S.C. § 2241 ("Section 2241") against the respondents (hereinafter, "the Government")1 challenging his continued detention in the custody of the United States Department of Homeland Security ("DHS"), Immigration and Customs Enforcement ("ICE"). For the reasons discussed below, the request for a writ of habeas corpus is denied, and the Petition (Docket No. 1) is dismissed without prejudice.
Ramos Funez, a native and citizen of Honduras, initially entered the United States on or about December 12, 1970, when he was an infant; his status was that of a lawful permanent resident. On or about September 4, 2007, he was paroled into the United States at or near Miami, Florida, as a returning lawful permanent resident.
Ramos Funez has several criminal convictions which he incurred in 2005 (Sexual Abuse in the Second Degree (New York Penal Law ("PL") § 130.60(2)), 2012 (Attempted Conspiracy in the Fourth Degree (PL §§ 110.00/105.10(1)), and 2015 (Grand Larceny in the Second Degree (PL § 155.40(1)). He was placed in immigration removal proceedings by a Notice to Appear ("NTA"), dated July 29, 2010, which was served on him on April 17, 2012.2 The NTA chargedhim, pursuant to Immigration and Nationality Act ("INA") 212(a)(2)(A)(i)(I), 8 U.S.C. 1182(a)(2)(A)(i), as an arriving alien who had been convicted of a crime of moral turpitude.
On or about January 15, 2011, Ramos Funez submitted an Application for Certificate of Citizenship (N-600) to U.S. Citizenship and Immigration Services ("USCIS") which was denied by USCIS on January 30, 2012. During its investigation, USCIS determined that Ramos Funez did not qualify for benefits under INA § 320 because he was over 18 years-old on February 27, 2001, the date the law took effect.3 USCIS further determined that RamosFunez did not qualify for benefits under former INA § 3214 because the statute required that both parents be naturalized before an applicant turned 18 years-old, and only Ramos Funez's mother became a U.S. citizen before he reached age 18.
On January 7, 2013, an immigration judge ("IJ") administratively closed Ramos Funez's case because he was in state custody in Nassau County, New York pursuant to pending criminal charges.5
On August 31, 2016, DHS moved the immigration court to re-calendar Ramos Funez's removal proceedings and change venue to the Ulster Correctional Facility in Napanoch, New York, where he was incarcerated. A copy of this motion was served on Ramos Funez and his attorney, Peter Bark, Esq. Both motions were granted and Ramos Funez's immigration removal proceedings were re-opened on September 20, 2016.
Ramos Funez was served with Additional Charges of Inadmissibility/Deportability on January 11, 2017. In particular, he was charged with being subject to removal pursuant to INA212(a)(2)(B), 8 U.S.C. 1182(a)(2)(B), as an alien who has been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more, in addition to the charge set forth in the original NTA.
Following a hearing on October 24, 2017, an IJ concluded that the immigration court lacked jurisdiction to set bond because Ramos Funez was classified as an arriving alien. He appealed the decision to the Board of Immigration Appeals ("BIA") which dismissed the appeal on March 12, 2018.
On April 13, 2018, an IJ determined that no good cause for a further continuance of the removal proceedings was demonstrated since Ramos Funez's claim of derivative citizenship was denied by USCIS and there was insufficient evidence that this initial denial was ever appealed. The IJ determined that Ramos Funez had withdrawn his applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Finally, the IJ ordered Ramos Funez removed from the United States pursuant to INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), as an arriving alien who had been convicted of a crime of moral turpitude; and pursuant to INA § 212(a)(2)(B), 8 U.S.C. § 1182(a)(2)(B), as an alien who has been convicted of two or more offenses for which the aggregate sentences to confinement actually imposed were five years or more. See Docket No. 8-2, Exhibit ("Ex.") A, pp. 2-6.
Ramos Funez appealed the IJ's decision to the BIA, raising several grounds for reversal. By decision (Docket No. 16-2) dated December 7, 2018, the BIA dismissed Ramos Funez's claim that INA § 320 and former INA § 321, 8 U.S.C. §§ 1431, 1432,6 governing the award of derivative citizenship, are unconstitutional because immigration judges do not have the authority to rule on the constitutionality of statutes. However, the BIA determined that the record must be remanded to immigration court so that the IJ could "complete a written decision in a manner that clearly separates it from the transcript of the proceedings." Docket No. 16-2, p. 2. The BIA noted while the IJ sustained the charges under INA § 212 based on Ramos Funez's "prior admissions," he did not render findings on what Ramos Funez actually admitted. Id. The IJ also failed to make factual findings to support his determination that Ramos Funez's motion to terminate the proceedings was untimely. In addition, although the IJ purported to deny Ramos Funez's motion to changevenue for "the reasons as set forth . . . previously in the court file," the colloquy between the parties and the IJ was insufficient to provide the necessary findings of fact and legal analysis to permit appellate review. Id. (citation omitted). In the absence of a complete written decision, the BIA declined to address the remaining appellate arguments raised by Ramos Funez. The BIA remanded the record to the IJ for further proceedings, including the issuance of a complete written decision.
During the pendency of his appeal to the BIA, Ramos Funez filed the instant habeas petition asserting that DHS's detention of him under 8 U.S.C. § 1231(a)(6) is "illegal/unlawful because he is a derivative citizen of the United States." Petition (Docket No. 1) ("Pet.") ¶ 29; see also id. ¶¶ 28-68. Ramos Funez asserts that he enjoys derivative United States citizenship through his mother's naturalization, which allegedly occurred when he was under 8 years-old. He contends that under the CCA, which amended INA §§ 320 and 332 and repealed INA § 321, he is qualified in all respects for derivative citizenship. Alternatively, he contends if the CCA is not applied to him, and his claim is analyzed under former INA § 321, the latter statute is unconstitutional as applied because it violates the Equal Protection Clause.
As his second claim for habeas relief, Ramos Funez asserts that, as "a derivative citizen of the United States, [he] was deprived of his right to due process when, on April 13, 2018,during a merits hearing, the Assistant Chief Counsel ("ACC") [for DHS] refused to accept his Motion to Terminate which was partially based on his citizenship and a copy of his N-600[,]" on the grounds that it was untimely. Pet. ¶ 69. Ramos Funez asserts that the IJ erroneously agreed with the ACC and ordered Ramos Funez removed without any discussion on his citizenship or motion to terminate. By doing so, Ramos Funez argues, "the IJ failed to confer upon Petitioner his rights to due process and equal protection under the constitution." Pet. ¶ 69.
The Government filed a Motion to Dismiss (Docket No. 8) with Exhibits (Docket Nos. 8-1 to 8-3) and a Memorandum of Law (Docket No. 9) arguing that this Court lacks jurisdiction to consider Petitioner's claim of derivative citizenship and that, in any event, Petitioner is not a derivative U.S. citizen under the Child Citizenship Act of 2000 ("CCA"), which repealed 8 U.S.C. § 1432. The Government also contends that the weight of the precedent holds that former § INA is not unconstitutional.
Ramos Funez filed a Response (Docket No. 13), reasserting that this Court is the proper venue for deciding the issues raised by his Petition. He also alleges he was not served with a motion to reopen his immigration removal proceedings. Docket No. 13, p. 3. In addition, he asserts arguments regarding issues as to which the BIA determined that remand to the IJ was warranted for further proceedings, e.g., the IJ's failure to consider his motion toterminate the proceedings and denial of his motion for a continuance to allow him to retain counsel. See Docket No. 13, pp. 4-9. Ramos Funez provides extensive argument regarding his derivative citizenship claim and his claims that former INA § 321 violates the Equal Protection Clause of the Fourteenth Amendment in that it "discriminates against mothers of otherwise qualified children when said mothers are married and made the choice to remain faithful to their marriage vows," the otherwise qualified children of such mothers, and the fathers of those children. Docket No. 13, pp. 9-28.
The Government filed a Reply (Docket No. 16) arguing that Petitioner cannot establish jurisdiction over his Petition under 28 U.S.C. § 2241 and that binding Second Circuit precedent holds that former INA § 321 is constitutional.
The Motion to Dismiss was submitted without oral argument. For the reasons discussed below, it is granted, and the Petition is dismissed without prejudice.
Rule 12(b)(1) provides that "[e]...
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