Ijoma v. INS

• Decision Date: 16 November 1993
• Docket Number: No. 4:CV 93-3182.,4:CV 93-3182.
• Citation: 854 F. Supp. 612
• Parties: Enebiene P. IJOMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. District Court — District of Nebraska

854 F. Supp. 612

Enebiene P. IJOMA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 4:CV 93-3182.

United States District Court, D. Nebraska.

November 16, 1993.

Enebiene P. Ijoma, pro se.

Thomas R. Hickey, Omaha, NE, for petitioner.

Paul W. Madgett, U.S. Atty., Omaha, NE, for respondent.

MEMORANDUM OPINION AND ORDER

KOPF, District Judge.

This matter is before the Court on the Magistrate Judge's Report and Recommendation (filing 18). No objections to such report and recommendation have been filed as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.

I have reviewed the Magistrate Judge's Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4 and I find after de novo review that the Report and Recommendation should be adopted. Inasmuch as Judge Piester has fully, carefully and correctly found the facts and applied the law I need only state that this court has jurisdiction to review petitioner's status adjustment application denial and thus respondent's motion to dismiss for lack of jurisdiction must be denied.

IT IS ORDERED that the Magistrate Judge's Report and Recommendation is adopted (filing 18) and respondent's motion to dismiss (filing 16) is denied.

MEMORANDUM AND RECOMMENDATION

PIESTER, United States Magistrate Judge.

Respondent has filed a motion to dismiss for lack of jurisdiction in response to a previous order of this court.¹ Liberally construing the allegations of the petition, Carlson v. State of Minnesota, 945 F.2d 1026, 1029 (8th Cir.1991) (pro se petitions are to be liberally construed in favor of petitioner), I shall recommend that Respondent's motion to dismiss be denied, and Petitioner's request to have his status adjustment application reviewed by this court be allowed to proceed.

I. BACKGROUND

Petitioner is a native citizen of Nigeria who entered the United States on August 7, 1982 as a nonimmigrant student.² On March 22, 1983, Petitioner married a United States citizen. On August 15, 1983, Petitioner's wife filed an immediate relative visa petition on his behalf. This petition was accompanied by Petitioner's application for adjustment of status to a permanent resident.³ The Respondent responded by requesting further documentation and initiating an investigation. A child was born to the couple September 3, 1983.

On August 8, 1984, Petitioner pleaded nolo contendere to Insufficient Fund Check in Lancaster County Court, Nebraska, and was fined $125.00. On February 6, 1985, Petitioner pleaded nolo contendere on No Account Check in the same court, and was fined $100.00. On May 5, 1986, Petitioner was convicted of second offense Insufficient Fund Check and sentenced to a confinement for one year.

On May 26, 1986, Respondent issued an Order to Show Cause why Petitioner should not be deported under Section 241(a)(4) of the Immigration and Nationality Act ("Act"), 8 U.S.C. 241(a)(2)(A)(i).⁴ Specifically, the Order alleged that Petitioner's bad check conviction rendered Petitioner deportable under Section 241(a)(4), in that the conviction constituted a crime "involving moral turpitude" within the meaning of the statute, and that he had been sentenced to a year or more for the crime. On October 8, 1986, Petitioner began serving his one year bad check sentence. On June 11, 1987, Petitioner was placed in Respondent custody after completing that sentence.

On June 12, 1987, Petitioner's immediate relative petition submitted by his wife in 1983 was denied by Respondent on the basis that Petitioner's marriage was contracted primarily to obtain immigration benefits. Petitioner did not appeal this determination. On the same day Petitioner's application to adjust status to a permanent resident was also denied by Respondent on the grounds of: 1) no approved visa petition; and 2) Petitioner's inadmissibility based on his Section 241(a)(4) violation based on the bad check conviction. Petitioner alleges that he refiled his application to adjust status to a permanent resident "immediately after this denial." It is not clear from the file the status of this second application.

Deportation proceedings commenced in Omaha, Nebraska, but the case was transferred by a change in venue order August 12, 1987, changing venue to the Immigration Court in Denver, Colorado, as Petitioner had been incarcerated in the Wakanutt ? Facility maintained by Respondent in Aurora, Colorado. On September 14, 1987, Petitioner's wife filed another immediate relative visa petition on his behalf. It is not clear from the file the status of this second visa petition.

Petitioner's deportation hearing began September 16, 1987. At this time Respondent lodged an additional Order to Show Cause against Petitioner, alleging that he had failed to maintain the conditions of his status as a nonimmigrant as set forth in Section 241(a)(9) of the Act, 8 U.S.C. § 1251(a)(9).⁵ The matter went before an immigration judge in Aurora, who rendered a decision dated September 23, 1987. The judge rejected the deportation order based on Section 241(a)(4) (crime involving moral turpitude), finding that the Nebraska statute underlying Petitioner's second offense insufficient fund check conviction lacked the necessary language of allegation and proof of fraudulent intent. See In the Matter of Ijoma, File No. A 24 874 499, at 11. However, the judge sustained the deportation order based on Section 241(a)(9) of the Act, finding abundant evidence that while Petitioner had attended "some school" since his admission, he had not remained a full-time student at all times as required by Section 241(a)(9). See id. at 11-14. Consequently, Petitioner was adjudicated to be in noncompliance with the conditions under which he was admitted, and the lodge charge for deportation was sustained.

Petitioner appealed to the Board of Immigration Appeals ("BIA") on a number of grounds. The BIA sustained the immigration judge's decision, concluding that Petitioner was deportable under section 241(a)(9) of the Act. Petitioner did not seek review of Respondent's denial of his immediate relative petition or application to adjust status to a permanent resident, and the BIA did not reach the ultimate merits of these denials.

On May 28, 1993, Petitioner filed a petition for writ of habeas corpus in this court. In this initial petition, Petitioner challenged both his denied application for adjustment status to permanent resident and his order of deportation arguing, inter alia, that the Respondent lacked sufficient evidence to support a deportation decision. It appears these two actions are intertwined, as Petitioner stated that his application for adjustment to permanent resident status was rejected at least in part on the basis of the bad check conviction underlying his order of deportation.⁶ In a later filing, however, Petitioner implies that he is only seeking review of his application for adjustment status to permanent residence, hence his "Motion for Review of Denial of Status Adjustment."

In this court's first memorandum and order I noted that although Petitioner filed his action on a printed 28 U.S.C. § 2254 form, I would consider his claims under § 1105(a), as raised under 28 U.S.C. § 2241 habeas jurisdiction.⁷ With respect to his substantive claims, I concluded that he had no right to counsel during his administrative actions, but that Respondent would have to respond to Petitioner's Fifth Amendment and inadequate evidence claims. See Filing 6. I appointed Petitioner counsel under 18 U.S.C. § 3006A(a)(2)(B).

Respondent denied Petitioner's Fifth Amendment and inadequate evidence claims, as well as suggested that this court lacked jurisdiction. First, Respondent argued that Petitioner was not in its custody, but rather the State of Nebraska, citing 8 U.S.C. § 1105a(2).⁸ Second, Respondent argued that U.S. Immigration (Omaha office) was not a proper respondent, citing no support or authority.⁹ In light of Respondent's contention of lack of jurisdiction, I ordered that Respondent be given 15 days to file a motion to dismiss on the grounds noted in its response, viz., that Petitioner was not in its custody, but rather the State of Nebraska's, in the absence of which that defense would be waived. Respondent responded by claiming that Respondent had only a detainer lodged against Petitioner, and that Petitioner was not therefore in custody of Respondent. See Filing 16.¹⁰ Respondent also argued that while a district court has proper habeas jurisdiction to review certain INS orders and actions, such review is generally limited to matters ancillary to final orders of deportation, rather than such final orders themselves, generally reviewed by a federal court of appeals. See id.

Petitioner responded to this court's order by filing a "Motion for Review of Denial of Status Adjustment." See Filing 15. In his motion, Petitioner suggests that he was invoking jurisdiction "which may be seperate sic from the Habeas Corpus Petition" he had originally filed, apparently in response to Respondent' suggestion that it was not a proper habeas respondent. Petitioner then requested that the court "review the denial of Application for status adjustment to that Permanent Resident Alien." Petitioner then cited a number of decisions in support of the general proposition that a district court had jurisdiction to review a denial of status adjustment.

II. DISCUSSION

A. PROPER FEDERAL FORUM

Federal court of appeal review of a BIA decision is limited to issues within the jurisdiction of the BIA; only the order of deportation and the issue of deportability fall under such jurisdiction, not ancillary matters such as a status adjustment application. Conti v. I.N.S., 780 F.2d 698, 702 (7th Cir. 1985) (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968); 8 U.S.C. § 1105a (§ 106 of the Act)); Wellington v. I.N.S., 710 F.2d 1357, 1360 (8th Cir.1983). District courts have jurisdiction to review such ancillary decisions, however,...