Milosevic v. Ridge
| Decision Date | 29 December 2003 |
| Docket Number | No. CIV.A.1:CV-03-0993.,CIV.A.1:CV-03-0993. |
| Citation | 301 F.Supp.2d 337 |
| Parties | Slobodan MILOSEVIC, and Robin Milosevic, his wife, Plaintiffs v. Thomas RIDGE, Secretary, U.S. Department of Homeland Security, et al., Defendants |
| Court | U.S. District Court — Middle District of Pennsylvania |
Daniel M. Pell, York, PA, for Petitioners.
Daryl Ford Bloom, U.S. Attorney's Office, Harrisburg, PA, for Respondents and Thomas Marino.
Thomas Marino, United States Attorney's Office, Scranton, PA, pro se.
Slobodan Milosevic, a citizen of Serbia subject to a final order of removal that would return him to his native country, has filed a counseled, amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking an order requiring the Board of Immigration Appeals (Board) to reopen his appeal of the removal order so that he can adjust his status on the basis of his marriage to an American citizen, the marriage occurring after the Board had denied his appeal.1
To clear the way for such an order, Petitioner must remove the statutory bar to adjustment of status when an alien does not voluntarily depart the United States when directed to do so. To this end, Petitioner raises equal-protection and due-process challenges to the Board's position that a motion to reopen a Board decision does not toll the period within which the alien must depart. Petitioner also claims that his former counsel was ineffective for filing a motion to reopen an agency decision, not realizing the decision had not dealt with Petitioner's marital status.
The petition will be denied.
Petitioner is an ethnic Serb who is a native and citizen of Serbia, which used to be a part of the former Yugoslavia. He entered the United States as a nonimmigrant visitor for pleasure on January 25, 1992, and overstayed his visa.2 (Doc. 5, ex. C, p. 2).
On September 3, 1997, the INS issued a Notice to Appear which alleged that Petitioner was removable under 8 U.S.C. § 1227(a)(1)(B), INA § 237(a)(1)(B), because he had remained in the United States beyond March 23, 1992, without authorization. . Petitioner conceded he was removable and applied for asylum, withholding of removal, or in the alternative, voluntary departure. (Doc. 5, ex. C, p. 2). Petitioner maintained that he would be imprisoned upon his return to the former Yugoslavia because he had fled to Austria in the spring of 1991 rather than be conscripted into military service.
The immigration judge concluded that there was no reasonable possibility of Petitioner's punishment if deported. Consequently, on February 12, 1999, he denied the applications for asylum and withholding of removal. However, the immigration judge granted Petitioner's request for voluntary departure for the maximum amount of time permitted, which was sixty days from the date of the order. See 8 C.F.R. § 240.26(e)(2003).
Still represented by former counsel, Petitioner appealed to the Board, which on August 21, 2002, affirmed the immigration judge's decision and permitted Petitioner to voluntarily depart from the United States within thirty days of its order of affirmance, or within any extension granted by the INS district director. (Doc. 5, exhibit D). The Board's decision also advised Petitioner, in pertinent part, that failure to voluntarily depart would make him ineligible for relief for ten years under 8 U.S.C. § 1255(a), which authorizes (among other adjustments of status) adjustment of status for marriage to a United States citizen.
Former counsel then sent two letters to the INS district director, seeking an extension of the departure period. By letter, dated September 20, 2002, , the last day of the departure period, former counsel requested deferred departure for Milosevic and also indicated a stay of removal would be filed, although there is no evidence in the record that such a stay was sought (at least not by former counsel). By letter, dated October 11, 2002, former counsel requested that the district director confer the status of "Deferred Action" on Petitioner.3 (Id., second page). There is no indication that the INS took any action in regard to these letters.
On October 30, 2002, Petitioner's wife, Robin Leslie Bastardi-Milosevic, filled out a Petition for Alien Relative (Form I-130) to obtain a visa for her husband. .4 The Form stated that they were married on October 22, 2002. Id. Agency records indicate the Form was received on November 26, 2002. .
On January 27, 2003, the INS sent Petitioner a letter informing him that a "petition/application" he had filed, identified under "File Receipt Number EAC0227753189," had been denied as abandoned because Petitioner had failed to supply information requested within the allowable time period. On February 27, 2003, Petitioner's former counsel, thinking that the agency had denied the Form I-130 visa application, filed a motion with the INS to reopen, attaching proof of Petitioner's marriage. .5
In the meantime, still represented by former counsel, Petitioner filed with the Board a motion to reopen the removal proceedings against him on November 19, 2002, the last day of the ninety-day period for doing so. See 8 C.F.R. § 3.2(c)(2)(2003). . We do not have the motion before us, but we will assume, as the parties do, that the motion requested reopening based on Petitioner's marriage justifying an adjustment of his status. We will also assume, as the parties do, that at some point it was represented to the Board (erroneously) that the Form I-130 application had been denied but that a motion to reopen the application was pending.
In July 2003, the Board denied Petitioner's motion to reopen the removal proceedings because he had not shown a prima facie eligibility for reopening for adjustment of status, relying (mistakenly) on the denial of the Form I-130 on the basis of abandonment.6 The Board recognized that there was a pending motion to reopen but "unless and until the DHS decision is reversed, the respondent has failed to establish prima facie eligibility for adjustment of status." . This denial was sent to Petitioner's current counsel.
In fact, the Form I-130 application had not been denied on January 27, 2003; it was, and still is, pending.7 The application that had been denied on that day, identified by its receipt number in accord with agency practice, was Petitioner's application for work authorization.8
Milosevic did not voluntarily depart the United States by the September 20, 2002, deadline for doing so (thirty days from the date of the Board's affirmance of the removal order), and he is now an ICE detainee at the York County Prison, York, Pennsylvania, whose removal we stayed pending our resolution of his 2241 petition.9
The problem he now faces is that the mere filing of a motion to reopen with the Board does not toll the period for voluntary departure while the motion is pending. See In re Shaar, 21 I. & N. Dec. 541, 1996 WL 426889 (BIA 1996) (en banc), aff'd, Shaar v. INS, 141 F.3d 953 (9th Cir.1998). Further, as noted, there is a statutory ten-year bar for seeking adjustment of status if the alien does not voluntarily depart when permitted to do so by the Board. See 8 U.S.C. § 1229c(d). The consequence for Milosevic is that while his marriage might have allowed him to remain in the country as a legal permanent resident, he now appears barred from seeking such adjustment for the next ten years.
Milosevic instituted these habeas proceedings to adjudicate the validity of that bar. Petitioner's amended 2241 petition makes the following claims.10 First, the Board's position that a motion to reopen does not toll the period of voluntary departure violates the Due Process Clause of the Fifth Amendment because, unlike a motion to reopen, an appeal to the Board does toll the departure period, and there is no rational reason for distinguishing between an appeal and a motion to reopen since both are procedural avenues aimed at bringing meritorious claims before the agency. Second, the Board's tolling position violates the equal-protection component of the Fifth Amendment because one alien may have his motion to reopen decided before the departure period expires simply by chance while another, like Petitioner, would be forced to leave the country if the Board does not address his motion before the departure deadline. Third, former counsel was ineffective in not recognizing that the January 27, 2003, denial was for a work application, not the Form I-130 visa application. As we read the petition, this (apparently) prejudiced Petitioner because the time for filing with the Board a motion to reopen on the correct factual basis has now expired and, in any event, former counsel used up Petitioner's one motion to reopen allowed to him as of right. Finally, Milosevic also makes a nonconstitutional claim, one under the Administrative Procedure Act (APA). See 5 U.S.C. §§ 701-706. This claim duplicates the equal-protection and due-process claims set forth above and seeks "an adjudication" that those rights were violated by the Board's position that a motion to reopen does not toll the period for voluntary departure. (Doc. 11, ¶ 35).
As relief, Petitioner requests: (1) a remand to the Board directing it to reopen Petitioner's case so that he can adjust his status; (2) tolling of the period for voluntary departure up to and including the date the Board reopens Petitioner's case; and (3) a stay of removal "until all proceedings are complete." (Id., ¶¶ 29 and 36).
In opposition, Respondents make the following arguments. First, since the Form I-130 application is still pending, Petitioner has not exhausted his administrative remedies, and the petition should therefore be dismissed. Second, Petitioner's equal-protection claim fails because he did...
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