Mokarram v. U.S. Attorney General, No. 07-13660 (11th Cir. 3/2/2009), No. 07-13660.
| Decision Date | 02 March 2009 |
| Docket Number | No. 07-13660. |
| Parties | PEDRAM MOKARRAM, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.
DO NOT PUBLISH
Petitioner seeks review of Respondent Department of Homeland Security's ("DHS") July 11, 2007, Order of Deportation pursuant to the Visa Waiver Program ("VWP") provision in § 217 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1187. Petitioner contends that he was wrongfully removed without the opportunity for a hearing on the grounds that, when he entered the United States, he did not waive his rights to a hearing under 8 U.S.C. § 1187, INA § 217. Respondent challenges the district court's transfer of the petition to this Court under 28 U.S.C. § 1631, arguing that it was not in the "interest of justice." Respondent further argues that Petitioner waived his right to a hearing when he entered the country under the VWP and that, in any event, his right to due process was not violated when he was removed without a hearing.
For the reasons stated below, the Court holds that Mokarram's petition was properly transferred to this Court from the district court in which it was originally filed and that, in the absence of a waiver of his right to due process, Mokarram was entitled a hearing prior to removal. Accordingly, we affirm the decision of the district court, vacate the Order of Deportation, and remand this matter to the DHS for further proceedings.
Pedram Mokarram entered the United States of America in Charlotte, North Carolina, on December 7, 1988, at the age of 12. He was accompanied by a friend of a relative who was neither Petitioner's guardian nor relative. The record related to Mokarram's entry is scant, but it includes a page from a Form I-94 Departure Record bearing the printed name "Pedrom Mokaram," a stamp, and additional handwriting, presumably that of an immigration officer, which indicate that he was admitted under Class "WT" until March 5, 1989.1 The record also contains a copy of Mokarram's British passport, stamped to indicate that Mokarram was admitted to the United States in Charlotte, North Carolina, on December 7, 1988, as Class "WT," as well as a computer print-out of unknown provenance which again indicates that Mokarram was granted entry to the United States under admission class "WT."2
Petitioner remained in the United States unmolested until, on June 30, 2007, local law enforcement stopped him in Charlotte, North Carolina, for state traffic law violations. DHS placed a detainer on Petitioner and, after disposition of the state law charges, picked him up at the Etowah County Jail in Gadsden, Alabama.
An Order of Deportation was entered on July 11, 2007, stating in relevant part that it had been determined that Mokarram had violated the conditions of his December 7, 1988, admission to the United States because "[a]fter admission as a nonimmigrant under Section 217 of said act, [Mokarram] remained in the United States longer than authorized" and had "waived [his] right to contest any action for deportation, except to apply for asylum, having been admitted under Section 217 of the [INA]."
On July 11, 2007, DHS also issued to Petitioner a Notice of Intent to Deport for Violation of the Terms of Your Admission Under Section 217 of the INA. That document provides, in relevant part, as follows:
The Immigration and Naturalization Service has determined that you entered the United States pursuant to Section 217 of the Immigration and Nationality Act. Accordingly, you executed a Form I-791 Visa Waiver Pilot Program Information Form, that explained to you the conditions of admission under the Visa Waiver Pilot Program.3 When you signed Form I-791, you also waived your right to contest deportability before an Immigration Judge and the Board of Immigration Appeals, and to any judicial review of any and all of the above decisions.
Finally, on July 11, 2007, DHS issued a Warrant under Section 217, commanding that Mokarram be taken into custody and deported.
Mokarram filed a petition for writ of habeas corpus before the United States District Court for the Northern District of Georgia on July 24, 2007, challenging DHS' efforts to remove him, as well as his detention. The Respondent challenged the jurisdiction of the district court to review the final order of removal because petition for review with the appropriate court of appeals is the "sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5). As a result, on August 3, 2007, the district court transferred the matter to this Court pursuant to 28 U.S.C. § 1631 as a Petition for Review of the final order of removal under § 217 of the INA.4 Petitioner was ultimately removed from the United States without a hearing on August 16, 2007.5
We review the district court's decision to transfer Mokarram's petition to this Court in the interest of justice under 28 U.S.C. § 1631 for an abuse of discretion. See Howell v. Tanner, 650 F.2d 610, 616 (5th Cir. Unit B July 1981) (). In addition, we review subject matter jurisdiction and constitutional challenges de novo. Lonyem v. U.S. Att'y Gen., 352 F.3d 1338, 1341 (11th Cir. 2003); Brooks v. Ashcroft, 283 F.3d 1268, 1272 (11th Cir. 2002), superseded in part by statute, Real ID Act, Pub. L. No. 109-13, 119 Stat. 231, 8 U.S.C. § 1252(a)(2)(D), as recognized in Singh v. U.S. Att'y Gen., 11th Cir. 2008, F.3d ____ (No. 08-10780, Dec. 31, 2008).
An alien admitted under the VWP and determined by an immigration officer to be deportable shall be removed. 8 C.F.R. § 217.4(b)(1). Such a removal is equivalent in all respects and has the same consequences as removal [resulting from proceedings before an immigration judge]." 8 C.F.R. § 217.4(b)(2). A petition for review with the appropriate court of appeals is the "sole and exclusive means for judicial review of an order of removal." 8 U.S.C. § 1252(a)(5).
Under 28 U.S.C. § 1631, whenever a civil action is filed in a court that lacks jurisdiction to review it, the court in which the action or appeal was filed:
. . . shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
We have held that a transfer is "in the interest of justice" where the party filed a petition "in the wrong court for very understandable reasons" and filing the petition in the appropriate court would now likely be time-barred. ITT Base Servs. v. Hickson, 155 F.3d 1272, 1276 (11th Cir. 1998) (citation and internal quotation marks omitted).
It is undisputed that, at the time Mokarram filed his petition in the Northern District of Georgia, jurisdiction over the matter lay with this Court and not with the district court. As for whether the transfer was "in the interest of justice," it is also undisputed that filing the petition in this Court would now be time-barred. Furthermore, there is no evidence showing that Mokarram was aware that a final order of removal — necessitating a petition for review with this Court under 8 U.S.C. § 1252(a)(5) — had been entered against him before filing his petition for habeas relief with the district court. Thus, he filed his petition with the district court for "very understandable reasons." Hickson, 155 F.3d at 1276. We conclude from the record that the district court did not abuse its discretion in transferring Mokarram's petition to this Court under 28 U.S.C. § 1631. Accordingly, we affirm the district court's order of transfer.
Under the VWP, certain aliens are permitted to enter the United States as a tourist for 90 days or less if they, among other things, waive any right "to contest other than on the basis of an application for asylum, any action for removal of the alien." 8 U.S.C. §§ 1187(a)(1), (b)(2). Although this statute limits judicial review, this Court retains jurisdiction to determine whether the statutory conditions limiting judicial review exist, in this case whether Mokarram waived any right he had to contest his removal. Vuksanovic v. U.S. Att'y Gen., 439 F.3d 1308, 1310 (11th Cir. 2006).
The Supreme Court has stated that "an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application." Landon v. Plasencia, 459 U.S. 21, 32, 103 S. Ct. 321, 329, 74 L. Ed. 2d 21, 32 (1982). However, "once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly." Id. Indeed, Mokarram does not allege that his constitutional rights were violated at the time of his admission into the United States, but rather at the time he was deported without a hearing. Because Mokarram, who has lived in the United States for nearly twenty years, is:
" . . . an alien who has entered the country, and has become subject in all respects to its jurisdiction, and a part of its population[,]" [he] is entitled to due process under the fifth amendment and cannot be deported "without giving him all opportunity to be heard upon the questions involving his right to be and remain in the United States."
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