Handa v. Crawford
| Decision Date | 17 February 2004 |
| Docket Number | No. C03-235-Z.,C03-235-Z. |
| Parties | Anuj Blake HANDA (Agency # A95-560-300), Petitioner, v. Phillip C. CRAWFORD, Field Office Director for Detention and Removal Operations, Seattle Field Office, U.S. Immigration and Customs Enforcement; Aaron G. Wilson, Interim District Director for Interior Enforcement, U.S. Immigration and Customs Enforcement; Department of Homeland Security; Tom Ridge, Secretary of the United States Department of Homeland Security; and Colin L. Powell, Secretary of State, Respondents.. |
| Court | U.S. District Court — Western District of Washington |
Robert Pauw, Gibbs Houston Pauw, Seattle, WA, for Anuj Handa, Petitioner.
Christopher Lee Pickrell, U.S. Attorney's Office, Brian C Kipnis, U.S. Attorney's Office, Seattle, WA, for Aaron G Wilson, Tom Ridge, Colin Powell, Respondents.
The Petitioner, Anuj Blake Handa, M.D. ("Dr.Handa"), is a citizen of the United Kingdom. Petitioner's Reply, docket no. 13, Exhibit 1, Handa Decl. ¶ 1. Dr. Handa entered the United States at New York City on March 2, 2003, under the Visa Waiver Program ("VWP"). Id. at ¶ 2. The VWP allows citizens of designated countries to enter the United States in a visitor's status without first obtaining a non-immigrant visa. See 8 U.S.C. § 1187. The Attorney General has designated a list of countries whose citizens may participate in the VWP, which includes the United Kingdom. See 8 C.F.R. § 217.2(a). Citizens of the designated countries may enter the United States in a visitor's status by presenting a passport and completing a I-94W Nonimmigrant Visa Waiver Arrival/Departure form. Id. § 217.2(b)(1). Individuals who enter the United States under the VWP, are allowed to remain for a period of up to 90 days. 8 U.S.C. § 1187(a)(1).
Dr. Handa executed a Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Form, which provided as follows:
WAIVER OF RIGHTS: I hereby waive any rights to review or appeal of an immigration officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation.
* * * * * *
Warning: .... You are authorized to stay in the U.S. for 90 days or less.... Violation of these terms will subject you to deportation.
Government Appendix, docket no. 10, p. 47; Governments' Motion to Dismiss, docket no. 9, Exhibit 1, p. 2. Dr. Handa's 90-day entry period under the VWP expired on or about June 2, 2003. It is undisputed that Dr. Handa overstayed the 90-day period.
Dr. Handa asserts that he planned to leave in May, before the 90-day period expired, after attending a conference in Toronto, Canada. Petitioner's Reply, docket no. 13, Exhibit 1, Handa Decl. ¶ 2. However, Dr. Handa admits that he planned to return to the United States in order to prepare for his medical board examinations that were held on July 11, 2003. Id. Due to the SARS outbreak in Toronto, the conference was cancelled, and Dr. Handa remained in the United States. Id. at ¶ 3. Dr. Handa also alleges that he planned to leave before his 90 day entry period expired, but he fell ill at the end of May and was diagnosed with pancreatitis on June 5, 2003. Id. at ¶ 4. He alleges that he was house bound and unable to travel. Id. Nevertheless, Dr. Handa took his medical board exam on July 11, 2003. Id.
Dr. Handa contends that before returning to England, he planned a three-day trip to Vancouver, British Columbia. Id. Dr. Handa purchased a return ticket to the United Kingdom, and was set to depart on July 22, 2003. Id. at ¶ 6. On July 14, 2003, he traveled to Blaine, Washington, and attempted to cross the border into Canada. Id. at ¶ 5. At the border crossing, the Canadian Immigration Service inspected his United States visa waiver card and determined that it had expired. Id. The immigration official instructed Dr. Handa that he should go to the United States border crossing to clarify his status because he may have trouble re-entering the United States. Id. Dr. Handa signed a written withdrawal of his application to enter Canada, and agreed to leave Canada expeditiously. Government Appendix, docket no. 10, p. 45. Dr. Handa left the Canadian border crossing, drove further into Canada, around the Canadian flagpole, and then back to the United States immigration inspection office. Petitioner's Reply, docket no. 13, Exhibit 1, Handa Decl. ¶ 5.
At the United States border, Dr. Handa explained to the immigration inspectors the circumstances regarding why his visa had expired. Id. at 6. The immigration inspectors instructed him that he should make arrangements to fly to the United Kingdom from Canada, leaving voluntarily. Id. The immigration inspectors also instructed him that he was required to have a customs declaration signed at the immigration counter. Id. While he was waiting at the immigration counter for a customs declaration, another immigration official informed him that he needed to be taken into custody for deportation. Id. at ¶ 7. After being arrested, Dr. Handa was taken to the Blaine police station, and later transported to the Seattle INS/ICE detention facility. Id. at ¶ 8.
On July 17, 2003, Dr. Handa filed this Petition for Habeas Corpus. On July 21, 2003, after a preliminary hearing was held Dr. Handa was deported to the United Kingdom. The Government filed a motion to dismiss for lack of subject matter jurisdiction, docket no. 9. In response, Dr. Handa seeks a declaratory judgment that his departure does not constitute "removal" or "deportation," but rather a denial of admissibility, under the applicable immigration laws, docket no. 13.
The Government seeks to dismiss Dr. Handa's habeas petition pursuant to FED. R. CIV. P. 12(b)(1) on the ground that the Court lacks subject matter jurisdiction.
Historically, courts have held that habeas jurisdiction under 28 U.S.C. § 2241 does not extend to actions filed by a deported or removed alien. Miranda v. Reno, 238 F.3d 1156, 1158-59 (9th Cir.2001). The rationale is that an alien outside the United States cannot satisfy the "in custody" requirement for habeas jurisdiction under 28 U.S.C. § 2241. Id. However, the Ninth Circuit has recently held that if an alien files a habeas petition prior to his removal from the United States, his subsequent removal does not moot the case, thereby destroying subject matter jurisdiction, if there are "collateral consequences" attendant to the alien's deportation that create concrete legal disadvantages. Zegarra-Gomez v. INS, 314 F.3d 1124, 1125. (9th Cir.2003). The court found that there were collateral consequences when a deportation affects the aliens ability to return to the United States: "As his inability to return is a concrete disadvantage imposed as a matter of law, the fact of his deportation did not render the pending habeas petition moot." Id. at 1127. Under Zegarra-Gomez, the fact that Dr. Handa was subsequently deported after his habeas petition was filed does not deprive the Court of jurisdiction. The remedy Dr. Handa seeks is directly related to the collateral consequence of being deported: his inability to return to the United States for ten years.
Although recognizing the applicability of Zegarra-Gomez to this action, the Government nonetheless contends that the Court lacks jurisdiction to hear Dr. Handa's petition. First, the Government argues that Dr. Handa must exhaust all available judicial and administrative remedies before seeking relief under 28 U.S.C. § 2241, notwithstanding the Zegarra-Gomez decision. Government cites Castro-Cortez v. INS, 239 F.3d 1037, 1047 (9th Cir.2001) and Batyuchenko v. Reno & INS, 56 F.Supp.2d 1164, 1164 (W.D.Wash.1999) in support, which both acknowledge that a petitioner must exhaust available administrative remedies before proceeding under 28 U.S.C. § 2241. The Government argues that Dr. Handa has an administrative remedy available to him under 8 C.F.R. § 217.2(b)(2), which provides that an immigrant may apply for a waiver of inadmissibility for a visa. However, the "administrative remedy" the Government speaks of is not the same type of remedy courts generally refer to. In Castro-Cortez and Batyuchenko when the courts discussed "administrative remedies" they were referring to direct appeals. See Castro-Cortez, 239 F.3d at 1047; Batyuchenko, 56 F.Supp.2d at 1164. As discussed below, Dr. Handa waived his right to a direct appeal regarding any findings of his inadmissibility or deportability by choosing to enter the United States under the VWP. Accordingly, the Governments' argument is not persuasive because Dr. Handa does not have an "administrative remedy" available to exhaust.
Second, the Government argues that Dr. Handa waived his right to appeal the decision regarding his inadmissibility or deportability.1 The Governments' argument has merit. As a condition to entering the United States under the VWP, Dr. Handa was required to execute a waiver: "I hereby waive any rights to review or appeal of an immigration officer's determination as to my admissibility, or to contest, other than on the basis of an application for asylum, any action in deportation." Government Appendix, docket no. 10, p. 47; Governments' Motion to Dismiss, docket no. 9, Exhibit 1, p. 2. (emphasis added). It is undisputed that Dr. Handa has not applied for asylum. The Government contends that a Court order declaring that Dr. Handa was "inadmissible" rather than "deportable" would require the court to review the immigration officer's determination of Dr. Handa's deportability, which is the type of review Dr. Handa waived as a condition to entering under the VWP.
The District Court in Tsukamoto v. Radcliffe, 29 F.Supp.2d 660 (D.Haw.1998) addressed a similar issue. In 1992, the plaintiff, a Japanese citizen, was stopped by customs agents at Honolulu International Airport. Id. Plaintiff entered the United States...
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Handa v. Clark, 04-35293.
...on July 17, 2003. The district court denied Handa's petition for lack of jurisdiction, and, in the alternative, on the merits. Handa I, 312 F.Supp.2d at 1375. This appeal STANDARD OF REVIEW We review the district court's denial of Handa's petition for a writ of habeas corpus de novo. Ferrei......