Kanivets v. Riley
| Decision Date | 03 October 2003 |
| Docket Number | No. CIV.A. 03-5377.,CIV.A. 03-5377. |
| Citation | 286 F.Supp.2d 460 |
| Parties | Oleg KANIVETS, Petitioner v. William RILEY et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Lawrence H. Rudnick, Philadelphia, PA, for Oleg Kanivets, Petitioner.
Richard M. Bernstein, U.S. Attorney's Office, Philadelphia, PA, for Bill Riley, as Regional Director Immigration and Customs Enforcement Department of Homeland Security, or His Successor or Assigns, Board of Immigration Appeals, Executive Office of Immigration Review, Respondents.
Before the court is Oleg Kanivets' requests that the court stay his removal from the United States while the court considers his Petition for a writ of habeas corpus under 28 U.S.C. § 2241. Upon consideration of the proposed findings of fact and conclusions of law and the arguments offered by both parties at a hearing, the court grants Petitioner's request for a stay of removal.
Petitioner Oleg Kanivets is of Russian ethnicity and is a citizen and national of the Kyrgyz Republic, known informally as Kyrgyzstan. On January 21, 1998, Kanivets left Kyrgyzstan for the United States, where he had authorization to stay for approximately one year. On July 9, 1999, Kanivets applied for asylum and withholding of removal, claiming that he had a wellfounded fear of persecution in Kyrgyzstan based on his Jewish ancestry and religion. To support his claim of past persecution on account of religion in Kyrgyzstan, Kanivets testified that Kyrgyz men had physically assaulted him on two occasions, threatening him both times with further harm and death if he did not leave Kyrgyzstan and go to Israel. Kanivets and his family received several letters and phone calls at home, threatening them with unless they moved to Israel. Kanivets stated that after his sister left Kyrgyzstan for Israel in 1997, the threatening notes to his family "became worse." Petitioner's Proposed Findings ¶ 2. When the apartment that Kanivets shared with his mother was vandalized, the apartment door defaced with a Star of David. Kanivets also claimed that he had been discriminated against at work because of his Jewish religious affiliation, culminating in losing his job as a dental technician in May 1997.
On September 30, 1999, Kanivets' application for asylum and withholding of removal was denied. After an appeal, an Immigration Judge ("IJ") heard testimony and denied the application on November 29, 2000. The IJ treated Kanivets' testimony as to the incidents of assault, vandalized property, and death threats as credible, but found that these incidents were not sufficient to establish that he should be granted asylum. The IJ characterized these incidents as examples of "societal violence" against Russians, who comprise ethnic minority groups in many former Soviet Socialist Republics. See IJ Opinion at 6-7. The IJ pointed to the lack of evidence from Petitioner, his expert witness, the State Department, and Amnesty International that Jewish people in Kyrgyzstan are persecuted at the hands of the government or by groups that the government is unwilling or unable to control. Id. at 3-4.
Kanivets appealed to the Board of Immigration Appeals (BIA) on December 29 2000. The BIA dismissed the appeal on October 28, 2002 without opinion. Kanivets filed a Motion to Reopen his application for asylum and withholding of removal in order to file an application for adjustment of status to permanent resident on November 21, 2002.1 When the BIA denied this Motion to Reopen on July 31, 2003, the order of removal issued against Kanivets became final. On September 11, 2003, the Immigration and Customs Enforcement ("ICE") division of the Bureau of Citizenship and Immigration Services issued a notice to Kanivets to surrender, apparently on October 8, 2003,2 to be deported to Russia after 90 days' detention. Kanivets filed this Petition for a Writ of Habeas Corpus on September 24, 2003.
This court has jurisdiction to hear Kanivets' Petition for a Writ of Habeas Corpus. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (). The Third Circuit has clarified that this holding applies to habeas petitions filed by non-criminal aliens:
Following St. Cyr, it is incontrovertible that aliens being deported on the basis of certain criminal convictions would still have that right [to seek habeas relief in district court]. We see no reason to conclude that non-criminal aliens should be treated differently. The Supreme Court has made it quite clear that there are two rationales in support of the conclusion that habeas is preserved for aliens subject to a final order of deportation. The first is "the strong presumption in favor of judicial review of administrative action ...." St. Cyr, 533 U.S. at 297-98, 121 S.Ct. at 2278. The second is "the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." Id.
Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001).
Although the government does not raise it, there may be a question as to whether Petitioner is eligible to apply for asylum under Section 2241 because when he filed his Petition he was not literally in custody. The statute provides in relevant part: "The writ of habeas corpus shall not extend to a prisoner unless (1) He is in custody under or by color of authority of the United States or is committed for trial before some court thereof ...." 28 U.S.C § 2241(c). The Supreme Court has held that for purposes of habeas corpus jurisdiction, custody is measured at the time the person filed the habeas petition. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). When Kanivets filed this Petition on September 24, 2003, he was living at home, but subject to an order from Immigrations and Customs Enforcement to surrender for detention pending deportation sometime in the following two weeks. Where a person faces potential custody, such as release on parole subject to incarceration if parole conditions are not met, courts have found that the custody requirement for habeas is satisfied. See Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973); Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 894 (2d Cir.1996); Pringle v. Ct. of Common Pleas, 744 F.2d 297, 299 (3d Cir.1984) (). Because Petitioner is subject to the ICE's Notice to surrender for detention pending deportation, the court finds that Petitioner may seek a Writ of Habeas Corpus pursuant to Section 2241.
There is disagreement among the United States Courts of Appeal as to what standard to apply when considering an alien's request to stay removal pending habeas review. The majority of circuits that have addressed the issue have applied a standard similar to that used to evaluate a request for preliminary injunctions, while at least one circuit has found that Section 242(f)(2) of the Immigration and Naturalization Act imposes a heightened standard of review. See INA § 242(f)(2), 8 U.S.C. § 1252(f)(2) (); Andreiu v. Ashcroft, 253 F.3d 477, 479-83 (9th Cir. 2001) (en banc) (); Bejjani v. I.N.S., 271 F.3d 670, 687-89 (6th Cir.2001) (same); Mohammed v. Reno, 309 F.3d 95, 97-100 (2d Cir.2002) (same); Bin Weng v. Attorney General, 287 F.3d 1335 (11th Cir.2002) (per curiam) (). This split in the circuits prompted a challenge the Eleventh Circuit's adoption of the higher "clear and convincing evidence" standard in Kenyeres v. Ashcroft, ___ U.S. ___, ___, 123 S.Ct. 1386, 1387, 155 L.Ed.2d 301 (2003). Justice Kennedy, writing alone as a Circuit Justice, found that although the United States Supreme Court should decide whether Section 1252(f)(2) applies to a stay of removal, Kenyeres was not an appropriate case to decide the issue because the petitioner would not meet even the lower standard. See Kenyeres at 1388. Recently, the First Circuit joined the Sixth, Second, and Ninth Circuits in finding that Section 1252(f)(2) does not apply in this situation. See Arevalo v. Ashcroft, 344 F.3d 1, 6, 9 (1st Cir.2003).
The Third Circuit has not addressed the issue, but at least two district courts in our circuit have held that Section 1252(f)(2) does not apply to a request to stay removal. See Kahn v. Elwood, 232 F.Supp.2d 344, 347-50 (M.D.Pa.2002) (); U.S. ex rel. Kovalev v. Ashcroft, 223 F.Supp.2d 688, 697-98 (E.D.Pa.2002) (same). This court will follow these two decisions and the majority of the circuits that have addressed the issue in holding that Section 1252(f)(2) does...
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