Homayun v. Cravener

• Decision Date: 19 March 1999
• Docket Number: No. Civ.A. H-98-2737.,Civ.A. H-98-2737.
• Citation: 39 F.Supp.2d 837
• Parties: Masud HOMAYUN, Petitioner, v. Richard CRAVENER, Respondent.
• Court: U.S. District Court — Southern District of Texas

39 F.Supp.2d 837

Masud HOMAYUN, Petitioner, v. Richard CRAVENER, Respondent.

No. Civ.A. H-98-2737.

United States District Court, S.D. Texas.

March 19, 1999.

Peter D. Williamson, Peter D. Williamson and Associates, Houston, TX, for Masud Homayun, petitioner.

Howard E. Rose, Office of U.S. Attorney, Houston, TX, for Richard Cravener, District Director Immigration and Naturalization Service Houston, respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

I. Introduction

Petitioner Masud Homayun ("Homayun") challenges his continued confinement pursuant to an order of the Board of Immigration Appeals ("BIA") that he be deported to his native country of Afghanistan. Having reviewed the pending motions, the submissions of the parties the pleadings, and the applicable law, this court is of the opinion that Homayun's petition for writ of habeas corpus (# 1) and motion for summary judgment (# 6) should be granted in part and the matter remanded to the BIA for a decision on the appeal of his waiver of deportation and that Respondent Richard Cravener's ("Cravener") motion to dismiss (# 4) and cross-motion for summary judgment (# 16) should be denied.

II. Background

Homayun is a native and a citizen of Afghanistan. As a child in 1984, he sought refuge in the United States with his mother and sisters. He was approved for refugee status by the United States Department of Justice on September 3, 1984, and became a permanent resident alien of the United States on September 25, 1985. Between 1990 and 1991, Homayun was convicted of six charges of theft and one charge of credit card abuse, for which he was sentenced to ten years imprisonment for each offense, with the sentences to run concurrently. For at least five of those offenses, Homayun initially received deferred adjudication and was placed on probation beginning October 12, 1990. Within ten days of being released on probation, he committed two additional offenses resulting in the revocation of his probation and conviction of all seven offenses. During the same time period, he was also convicted of the offense of unauthorized use of a motor vehicle. On January 7, 1992, the deputy district director of the Immigration and Naturalization Service ("INS") issued an order to show cause why Homayun should not be deported as a result of his convictions under § 241(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1251, which provided that an alien is subject to deportation if convicted of two or more crimes involving moral turpitude. Before the immigration court, Homayun filed for relief from deportation, for asylum and withholding of deportation, and for a waiver of deportation under § 212(c) of the INA, codified at 8 U.S.C. § 1182(c) (since replaced by a similar provision, 8 U.S.C. § 1229b(b)). On June 4, 1992, the immigration judge ("IJ") found Homayun deportable, denying him asylum and the withholding of deportation. The IJ, after balancing such factors as the existence and nature of Homayun's criminal record, evidence of bad character, evidence of hardship that could occur to Homayun or his family in the event of his deportation, and his young age, granted Homayun a waiver of deportation under § 212(c), permitting him to remain in the United States. The INS appealed the decision to the BIA, and briefs were filed by both parties in 1992, but the case was not reviewed until March 1997.

On March 19, 1997, the BIA held that due to an intervening change in the law — § 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") — the § 212(c) waiver was no longer available to Homayun and ordered that he be deported to Afghanistan. On April 29, 1997, Homayun moved to reopen the deportation proceedings. His motion was granted, but on August 1, 1997, he was again ordered to be deported. Homayun appealed this decision to the Fifth Circuit on August 28, 1997, which dismissed the case on December 9, 1997, for want of jurisdiction under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA").

On October 21, 1997, Homayun filed another motion to reopen, which was denied on October 13, 1998. On April 7, 1998, the INS entered an order that Homayun be deported on May 11, 1998. He obtained a stay of deportation, and on August 19, 1998, Homayun filed his petition for writ of habeas corpus on the grounds that the BIA decision that Homayun is statutorily ineligible for relief under § 212(c) is an unlawful retroactive application of the law and violates his right to equal protection under the United States Constitution. He also claims that "the retroactive application of the expanded definition of `aggravated felony' to Homayun's crimes, by the IIRIRA, which makes him ineligible for relief from deportation violates Homayun's rights to due process of law." Finally, he seeks a declaration that he is eligible to apply for protection from deportation to Afghanistan under the Convention Against Torture, a United Nations treaty to which the United States is party. He also seeks attorneys' fees under the Equal Access to Justice Act, costs of court, and any other appropriate relief.

On August 24, 1998, Cravener moved to dismiss this action for lack of subject matter jurisdiction on the ground that Homayun brought his habeas petition more than thirty days after the deportation order was issued, in contravention of § 309(c)(4)(C) of the IIRIRA requiring that petitions for judicial review be filed within thirty days. In a supplement to his motion, Cravener alleged that § 440(a) of the AEDPA and § 309(c)(4)(G) of the IIRIRA preclude judicial review of deportation orders of aliens such as Homayun who are deportable due to their commission of certain crimes, and that 8 U.S.C. § 1252(g) precludes judicial review of deportation orders in federal district courts. He further argues that Homayun's petition does not allege a constitutional claim or a violation that amounts to a fundamental miscarriage of justice. He also contends that the AEDPA applies retroactively to preclude Homayun from § 212(c) relief. Cravener additionally maintains that the AEDPA's distinction between deportable and excludable aliens does not violate an alien's equal protection rights because the two classes are not similarly situated or, alternatively, that the distinction is based on a facially legitimate and bona fide reason. Cravener finally asserts that the expanded definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43) applies to Homayun under the express language of the statute.

On September 4, 1998, Homayun responded to Cravener's motion and moved for summary judgment on his petition, requesting that his case be remanded to the BIA for a decision on the § 212(c) appeal. In a supplement to his motion, Homayun alleges that a retroactive application of AEDPA § 440(d) also violates his due process rights under the United States Constitution. Cravener filed a cross-motion for summary judgment, arguing that even if the court has jurisdiction to review Homayun's deportation order, Homayun has failed to "establish the substantial constitutional issues needed for jurisdiction to review a criminal alien's deportation order."

III. Analysis

A. Timeliness of Petition

Cravener argues that the court lacks subject matter jurisdiction over this action because Homayun's petition was untimely filed. In support of his argument, Cravener points to IIRIRA § 309(c)(4)(C), which provides that a petition for judicial review must be filed no later than thirty days after the issuance of a final order of deportation. Homayun filed his petition for a writ of habeas corpus well over a year after the BIA issued its final order of deportation. Contrary to Cravener's contentions, however, the thirty-day period applies only to petitions for direct review of a deportation order, not to petitions for collateral review such as those for writs of habeas corpus. As the Third Circuit explained:

We can presume that Congress, in enacting AEDPA and IIRIRA, was cognizant of the Court's differentiation between "judicial review" on the one hand and writs of habeas corpus on the other. "It is always appropriate to assume that our elected representatives, like other citizens, know the law.... [I]t is not only appropriate but also realistic to presume that Congress was thoroughly familiar with these unusually important precedents from this and other federal courts and that it expected its enactment to be interpreted in conformity with them."

Sandoval v. Reno, 166 F.3d 225, 235 (3d Cir.1999) (quoting Cannon v. University of Chicago, 441 U.S. 677, 696-97, 699, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979)).

Cravener cites case law from the Fifth Circuit and the Southern District of Texas in support of his argument that the thirty-day limitations period applies to habeas petitions as well as to direct judicial review. Those cases, however, are distinguishable from the case at bar. For example, in Men Keng Chang v. Jiugni, the Fifth Circuit concluded that the petitioner's failure to file a direct appeal of a deportation order within the statutory period precluded him from later challenging the order in a habeas petition. See 669 F.2d 275, 277 (5th Cir.1982). Similarly, in Okechukwu v. United States, the Southern District of Texas held that a writ of habeas corpus was unavailable when, prior to petitioning for habeas corpus relief, the petitioner had failed to seek direct review in the appropriate court within the statutory time period. See 825 F.Supp. 139, 140, 143 (S.D.Tex.1993). Likewise, in Singh v. INS, the court found that the petitioner "never appealed the BIA's decision to the Fifth Circuit Court of Appeals," thereby "deliberately bypass[ing] the statutorily prescribed method of judicial review of his case" and precluding him "from raising those claims by habeas proceedings in this Court." See 825 F.Supp. 143, 146 (S.D.Tex.1993). Each of these cases, therefore,...