Gutierrez-Morales v. Homan, Civil Action No: SA-03-CA-0736-XR (W.D.Tex. 11/20/2003)
| Decision Date | 20 November 2003 |
| Docket Number | Civil Action No: SA-03-CA-0736-XR. |
| Parties | RUPERTO GUTIERREZ-MORALES Petitioner, v. TOM HOMAN, et. al., Respondents. |
| Court | U.S. District Court — Western District of Texas |
On July 31, 2003, the Petitioner Ruperto Gutierrez-Morales filed an application for writ of habeas corpus and an application for a temporary restraining order ("TRO") and for preliminary and permanent injunctions. Petitioner seeks to prevent his deportation from the United States. On that same date, the Honorable Fred Biery granted the application for temporary restraining order. On August 5, the Court ordered that the status quo be preserved and the government subsequently filed its motion to dismiss, or in the alternative motion for summary judgment. The government's motion is GRANTED and the Petitioner's Application for Writ of Habeas Corpus and for preliminary and permanent injunctions is DENIED.
This Court has jurisdiction to review the Petitioner's petition for writ of habeas corpus. 28 U.S.C. §2241; Cano-Miranda v. Ashcroft, 262 F.3d 477 (5th Cir. 2001).
Petitioner, a citizen of Mexico, was admitted to the United States as a lawful permanent resident on May 4, 1990. On December 30, 1999, he was convicted in the United States District Court, Western District of Texas, Del Rio Division of aiding and abetting illegal aliens to enter into the United States in violation of 8 U.S.C. §1325.1 He was fined and placed on probation. Although his conviction would have entitled the Department of Homeland Security, formerly the Immigration and Naturalization Service, to take him into custody, he was not placed in removal proceedings at that time.
On July 19, 2001, upon his return from a visit to Mexico, an Inspector discovered that Petitioner had been previously convicted of a removable offense. Petitioner was arrested at the San Antonio International Airport. At that time Petitioner admitted that he was previously convicted as described above. He was placed in removal proceedings as an arriving alien subject to removal pursuant to the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(E)(i).
A removal hearing was scheduled before an Immigration Judge on July 25, 2002.2 An agreed motion for continuance was filed on June 20 with regard to the July 25 hearing, but was denied on July 8 because no reason for the continuance was stated in the motion.
On July 10, the Immigration Judge (IJ) determined that Petitioner failed to timely file an application for relief. The Immigration Judge cancelled the July 25 hearing as unnecessary because there was no other pending request for relief. He further ordered Petitioner removed from the United States.
On July 11, Petitioner sent a motion to reopen and amended motion for continuance arguing that his counsel was under the care of a cardiologist. The motion further explained that counsel's illness was the cause of the oversight in failing to timely file the application for relief.3 The motion to reopen was denied on July 25.
Petitioner thereafter filed a notice of appeal to the Board of Immigration Appeals (BIA) arguing that denying him the right to avoid deportation because Petitioner's attorney filed an application 19 days late was a denial of due process under the Fifth Amendment. That appeal was dismissed and the decision of the Immigration Judge was affirmed. The BIA concluded that Petitioner's attorney failed to explain his failure to timely file an application and that his previous hospitalizations in February and March failed to explain his missing a June deadline. With regard to a possible claim of ineffective assistance of counsel, the BIA concluded that Petitioner had failed to comply with the requirements enumerated in Lozada v. I.N.S., 19 I&N Dec. 637, aff'd, 857 F. 2d 10 (1st Cir. 1988).
On August 7, 2003, Petitioner filed a Petition for Review of the BIA decision in the United States Court of Appeals for the Fifth Circuit. In that Petition for Review he argues that he "was denied the opportunity to apply for cancellation of removal" and that such denial was a gross violation of his due process right.4
In this Application for Writ of Habeas Corpus5, Petitioner argues the following: (1) he was not an "arriving alien" and was illegally arrested on July 19, 2001 at the San Antonio International Airport; (2) his 1999 conviction did not involve an aggravated felony and accordingly he was eligible to be considered for cancellation of removal; and (3) the Immigration Judge abused his discretion in denying his motion to reopen and amended motion for continuance.
In the government's motion to dismiss, or in the alternative, motion for summary judgment the government argues: (1) assuming Petitioner should have been treated as an "admitted alien", rather than "arriving alien", he was still subject to arrest and removal based on his previous conviction; (2) alternatively, Petitioner waived any complaint regarding an illegal arrest because he clearly admitted his previous conviction; (3) this Court has no jurisdiction because Petitioner is appealing the BIA decision, and thus he has not exhausted all administrative and judicial remedies before seeking habeas relief; (4) this Court has no jurisdiction to review the denial of the motion to reopen and motion for continuance, and that such discretionary decisions are barred from judicial review by 8 U.S.C. § 1252(a)(2)(B); (5) eligibility for discretionary relief from a removal order is not a liberty or property interest warranting due process protection; and (6) any ineffective assistance of counsel argument was not raised below and there was no compliance with Lozada.
Denial to seek discretionary relief does not constitute a violation of due process.
Petitioner argues that he was unconstitutionally deprived of an opportunity to apply for relief under 240A(a) of the Immigration and Nationality Act. See 8 U.S.C. §1229b(a) ()(emphasis added).
A similar argument concerning another type of discretionary relief has been made and rejected by the Fifth Circuit. In United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir. 2002), cert. denied, 537 U.S. 1135 (2003), the Petitioner argued that neither the Immigration Judge nor anyone at the INS told him that he was eligible to apply for § 212(c) relief. Lopez-Ortiz argued that his removal hearing therefore failed to afford due process. In response the Fifth Circuit stated:
Lopez-Ortiz presupposes that eligibility for discretionary relief under § 212(c) is an interest warranting constitutional due process protection. We disagree. St. Cyr's holding was not grounded in § 212(c) relief having the status of a constitutionally protected interest; rather, it was based on the Court's interpretation of IIRIRA. In fact, § 212(c) relief, because it is available within the broad discretion of the Attorney General, is not a right protected by due process.
This circuit has noted that § 212(c) relief " " and its denial does not implicate the Due Process clause. Other circuits considering the effect of St. Cyr likewise have held that discretionary relief is not a vested right meriting due process protection.
Because eligibility for § 212(c) relief is not a liberty or property interest warranting due process protection, we hold that the Immigration Judge's error in failing to explain Lopez-Ortiz's eligibility does not rise to the level of fundamental unfairness.
Id. at 230-31 (citations omitted)
Here, Petitioner makes a similar claim arguing that the denial of an opportunity to seek 240A(a) relief is a denial of due process. Like section 212(c), 240A(a), however, is couched in conditional and permissive terms. According to the Fifth Circuit, this does not constitute a violation of due process because the Petitioner has no constitutional entitlement to eligibility for discretionary relief. Id.; see also United States v. Sotelo-Mendoza, 234 F. Supp. 2d 671, 678 (W.D. Tex. 2002).6
Petitioner may have been "illegally arrested" as an "arriving alien" but this mistake does not entitle Petitioner to relief.
There is no dispute that Petitioner gained permanent legal resident status in this country in 1990. The question is whether his status changed when he returned from his visit to Mexico and presented his credentials to INS agents at San Antonio International Airport on July 19, 2001. To ascertain his status at that time, reference must first be made to 8 U.S.C. § 1101(a)(13)(C)7.
If Petitioner meets any of the exceptions listed in § 1101(a)(13)(C), he will not be considered an "admitted alien" seeking admission. We next determine whether any of the exceptions listed in section 1101(a)(13)(C) apply to this case. Only two of the subsections need to be discussed here - (iv) has [Petitioner] departed from the United States while under legal process seeking removal of the alien from the United States, and (v) has [Petitioner] committed an offense identified in section 1182(a)(2) of this title. Subsection (iv) is not applicable because it is undisputed that after Petitioner was convicted on December 30, 1999, he was not placed in removal proceedings until after he was arrested at the airport. With regard to subsection (v) Petitioner did commit an offense identified in section 1182(a)(6), but not 1182(a)(2). Accordingly, Petitioner should have been...
To continue reading
Request your trial