Geronimo v. Mukasey
| Decision Date | 27 February 2008 |
| Docket Number | No. EP-07-CV-199-PRM.,EP-07-CV-199-PRM. |
| Citation | 535 F.Supp.2d 808 |
| Parties | Michael Anibal GERONIMO, Petitioner, v. Michael MUKASEY et al., Respondents. |
| Court | U.S. District Court — Western District of Texas |
Manuel Anibal Geronimo, El Paso, TN, pro se.
Gary L. Anderson, Assistant United States Attorney, San Antonio, TX, Jose J. Tavarez, Special Assistant U.S. Attorney, Magdalena G. Jara, Assistant U.S. Attorney, El Paso, TX, for Respondents.
On this day, the Court considered (1) Petitioner Manuel Anibal Geronimo's ("Geronimo") ("Petition") filed on June 6, 2007; (2) Respondents Michael Mukasey,1 Michael Chertoff, Robert Jolicoeur, and Alfredo Campos's ("Respondents") "Motion to Dismiss," filed on August 13, 2007; (3) Geronimo's "Reply to Government's Motion to Dismiss for Lack of Subject Matter Jurisdiction Under Fed. R.Civ.P. 12(b)(1) and for Failure to State a Claim Upon Which Relief can be Granted Pursunat [sic] to Fed.R.Civ.P. 12(b)(6)," filed on September 5, 2007; (4) Respondents"Reply to Petitioner's Response to Respondents' Motion to Dismiss," filed on September 17, 2007; (5) Geronimo's "Reply to the Government's Second and Third Response to Plaintiff's Habeas Petition," filed on October 2, 2007; (6) a letter from Geronimo, dated October 19, 2007, filed on October 23, 2007; and (7) Respondents' "Advisory to the Court," filed on November 9, 2007, in the above-captioned cause. After due consideration, the Court is of the opinion that Respondents' Motion to Dismiss should be granted for the reasons that follow.
Geronimo, a citizen of the Dominican Republic, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, challenging a final order of removal issued on the basis of his conviction for the importation of methylenedioxymethamphetamine (commonly referred to as "ecstasy"). Pet. 1
Geronimo asserts he immigrated to the United States as a legal permanent resident on April 19, 1990, registered with the Selective Service on May 5, 1993, and filed a N-.400 Application for Certificate of Citizenship ("Application for Citizenship") with the United States Customs and Immigrations Service ("Customs") on July 28, 1997. Id. at 2-3. In 2001, he was convicted of a drug trafficking offense and sentenced to a term of imprisonment. Resps.' Mot. to Dismiss Ex. 4. In 2006, following the completion of Geronimo's sentence, the Department of Homeland Security issued a Notice to Appear which charged that Geronimo was removable because his prior conviction constituted an aggravated felony. Id. 2. Consequently, removal proceedings were initiated against Geronimo. On May 17, 2007, an Immigration Judge ("IJ") held a hearing, found Geronimo removable, and issued an order removing him to the Dominican Republic. Geronimo appealed to the Board of Immigration Appeals ("BIA") on May 22, 2007. The BIA denied his appeal and affirmed the removal order on August 6, 2007.
In his Petition, Geronimo argues that removal is improper because his Application for Citizenship was negligently denied, and that but for the Government's negligence, he would have been a citizen at the time of his conviction and, thus, not subject to removal. Pet. 2-3. Specifically, Geronimo alleges he never received notice of an interview scheduled in 1998 by Customs to address his Application, and that, as a result, he missed the interview, which caused Customs to terminate his Application for Citizenship. Id. He urges the Court to order that he be released from Respondents' custody. He also asks the Court to declare him a United States citizen or, alternatively, order Customs to process his Application for Citizenship, and issue him a Certificate of Citizenship on the ground that he was eligible for citizenship at the time he originally filed his Application for Citizenship. Id.
In their Motion to Dismiss, Respondents assert the case should be dismissed for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted pursuant to Rules 12(b)(1) and 12(b)(6), respectively, of the Federal Rules of Civil Procedure. Resps.' Mot. to Dismiss 1. They do not dispute that Geronimo filed an Application for Citizenship, but assert that he is removable because he was convicted of an aggravated felony, and has no constitutional right to citizenship on the basis of his having filed an Application for Citizenship prior to his conviction. Id. at 3.
On October 24, 2007, Geronimo was deported to the Dominican Republic pursuant to the removal order. Resps.' Advisory to the Court 3.
"[A] deportation subsequent to the filing of the petition in habeas corpus does not deprive the courts of jurisdiction." Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir.2004). "[F]or a court to exercise habeas jurisdiction over a petitioner no longer in custody, the petitioner must demonstrate that ... his subsequent release has not rendered, the petition moot, i.e., that he continues to present a case or controversy under Article III, § 2 of the Constitution." Id. at 296. "The petitioner presents an Article III controversy when he demonstrates `some concrete and continuing injury other than the now-ended incarceration' — a `collateral consequence of the conviction.'" Id. (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)).
In the instant action, although Geronimo has been deported and is no longer in custody, his Petition should not be denied as moot.2 Geronimo's removal to the Dominican Republican does not resolve his challenge to his status as a removable alien, given that he continues to face a collateral consequence. Because Geronimo was deported on the basis of committing an aggravating felony, he is barred from seeking reentry into the United States for a period of twenty years. 8 U.S.C. § 1182(a)(9)(A). See Zalawadia, 371 F.3d at 297 (). Thus, Geronimo's challenge to the removal order is not rendered moot by his subsequent deportation.
The REAL ID Act, codified at 8 U.S.C. § 1252, provides that "a petition for review to the courts of appeal is the exclusive means of review of an administrative order of removal, deportation, or exclusion." 8 U.S.C. § 1252(a)(5). If the "[C]ourt finds that there is a want of jurisdiction, the [C]ourt shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed." 28 U.S.C. § 1631. Thus, a case may be transferred to another court if (1) it is in the interest of justice, and (2) the Court can identify another court in which the action could have been brought at the time it was filed. Id.
The Court is precluded, pursuant to the REAL ID Act, from exercising jurisdiction over Geronimo's challenge to his removal order. 8 U.S.C. § 1252(a)(5). Rather, jurisdiction is proper in the Fifth Circuit Court of Appeals. Id. Geronimo timely filed his Petition with the District Court for the Western District of Texas on June 6, 2007, which date is less than thirty days after the final removal order was entered on May 17, 2007. See id. (). Thus, the Court finds it is in the interest of justice to transfer Geronimo's claim challenging his removal order to the Fifth Circuit Court of Appeals.
The REAL ID Act, however, does not preclude a district court from exercising jurisdiction over constitutional claims or questions of law which do not challenge a final order of removal. I.N.S. v. St. Cyr, 533 U.S. 289, 312-13, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (). Geronimo's assertions that Respondents negligently denied his Application for Citizenship and that such negligence resulted in a violation of his constitutional rights do, not bear on the propriety of his removal order. Thus, the Court has jurisdiction to address Geronimo's claim that Respondents violated his constitutional rights by denying his Application for Citizenship.
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rule 12(b)(6)") authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED.R.CIV.P. 12(b)(6). The Court must determine "whether in the light most favorable to the plaintiff and with every doubt resolved on his behalf, the complaint states any valid claim for relief." Gregson v. Zurich Am. Ins. Co., 322 F.3d 883, 885 (5th Cir.2003) (internal quotation omitted). "To survive a Rule 12(b)(6) motion to dismiss, a complaint `does not need detailed factual allegations,' but must provide the plaintiffs grounds for entitlement to relief — including factual allegations that when assumed to be true `raise a right to relief above the speculative level.'" Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007) (quoting Bell Atl. Corp. v. Twombly, ___ U.S. ___, ___ _ ___, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)).
Generally, matters concerning immigration and citizenship are vested within the discretionary authority of the Executive and Legislative Branches and precluded from judicial review....
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