Morisath v. Smith

• Decision Date: 24 December 1997
• Docket Number: No. C97-1239Z.,C97-1239Z.
• Citation: 988 F.Supp. 1333
• Court: U.S. District Court — Western District of Washington
• Parties: Boupone MORISATH, A25-095-794, Plaintiff, v. Richard SMITH, District Director of Immigration & Naturalization Service, et al., Defendants.

988 F.Supp. 1333

Boupone MORISATH, A25-095-794, Plaintiff, v. Richard SMITH, District Director of Immigration & Naturalization Service, et al., Defendants.

No. C97-1239Z.

United States District Court, W.D. Washington.

December 24, 1997.

Robert Pauw, Gibbs & Houston, Seattle, WA, for Plaintiff.

Christopher Lee Pickrell, U.S. Attorney's Office, David B. Hopkins, U.S. Dept. of Justice, Hugh G. Mullane, U.S. Dept. of Justice, Office of Immigration Litigation, Washington, DC, for Defendants.

ORDER

ZILLY, District Judge.

THIS MATTER comes before the Court on respondents' motion to dismiss for lack of subject matter jurisdiction, docket no. 5 and petitioner's motion for release from custody, docket no. 10. Having considered the motions together with all documents filed in support and opposition, as well as the parties' oral arguments, the Court enters the following order:

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Boupone Morisath is a twenty-two year old native and citizen of Laos. Mr. Morisath entered the United States as a refugee when he was five years old. He has lived in the United States since that time.

In January of 1994, Mr. Morisath was arrested by police in Anchorage, Alaska. He was driving a vehicle from which a passenger fired a gun. There were reports that the shooting was gang related. Information, pp. 5-6, INS reply memorandum, Ex. 1, docket no. 12. Mr. Morisath entered a plea of nolo contendre to the charges of Assault in the Third Degree and Misconduct Involving a Weapon.

In April of 1995, Mr. Morisath was sentenced to a two-year jail term, with eighteen months of his sentence suspended. Judgment and Order of Commitment/Probation, INS Reply Memorandum, Ex. 1, docket no. 12. In July of 1995, after Mr. Morisath was released from jail, the Immigration and Naturalization Service (the "INS") established bond in the amount of $10,000. Mr. Morisath posted a bond and was released from custody.

The INS initiated deportation proceedings against Mr. Morisath, alleging that he should be deported from the United States because of the conviction against him. Mr. Morisath conceded deportability. On February 14, 1996, the immigration judge found that Mr. Morisath could not seek a waiver of deportation pursuant to INA 212(c) because of his firearms conviction, especially because it involved a crime against a person. The Immigration Judge further found that Mr. Morisath was ineligible for either asylum or withholding of deportation because he has been convicted of a particularly serious crime. The Immigration Judge ordered Mr. Morisath's deportation to Laos. Petitioner alleges that the Immigration Judge, in making his determination, failed to allow Mr. Morisath an opportunity to present testimony concerning the facts and circumstances of his arrest.

Mr. Morisath filed a timely appeal with the Board of Immigration Appeals (the "BIA"). On May 28, 1997, the BIA dismissed Mr. Morisath's appeal. The Board found Mr. Morisath to be statutorily ineligible for 212(c) relief. BIA Decision, INS Reply Memorandum, Ex. 3, docket no. 12. The Board held that Mr. Morisath's crime was presumed to be a particularly serious crime for purposes of the asylum and withholding statutes. The BIA applied the analysis from Matter of Q-T-M-T, Interim Decision 3300 (BIA 1996) which states:

an alien convicted of an aggravated felony, as defined in the AEDPA, who has been sentenced to less than 5 years imprisonment, is subject to a rebuttable presumption that he or she has been convicted of a particularly serious crime, barring eligibility for withholding under section 243(h)(1) of the Act.

With regard to Mr. Morisath's conviction, the BIA found:

The record of conviction in this case reflects that the respondent was convicted of felony assault for driving an automobile while a passenger fired a handgun into another vehicle in an apparent gang shooting. Crimes, such as this one, involving physical injury or potentially life threatening acts are more likely to be considered particularly serious. While the respondent argues he was not a member of a gang, we do not find any particular aspect of the applicant's case that would cause us to conclude that he does not pose a danger to the community and that this denial of withholding of deportation would cause us to be out of compliance with the Protocol.

BIA Decision, p. 3, INS Reply Memorandum, Ex. 3, docket no. 12.

The INS took Mr. Morisath into custody in July. The INS is awaiting appropriate travel documents from Laos for Mr. Morisath's deportation.¹ Mr. Morisath remains in detention in the Seattle INS detention facility.

According to the Transitional Changes in Judicial Review in § 309(c)(4)(C) of IIRIRA, Mr. Morisath had thirty days from the date of the BIA's decision within which to seek judicial review in the Ninth Circuit. Mr. Morisath has not sought such review. Mr. Morisath has, however, filed a Soriano motion² to reopen with the BIA. Mr. Morisath also filed an application for bond in accordance with 8 C.F.R. 236.1(d)(1) with the INS District Director. On August 6, 1997, this request for release was denied. In the letter denying Mr. Morisath's release, the INS District Director informed Mr. Morisath that he could appeal the decision to the Board of Immigration Appeals within 10 days and cited 8 C.F.R. 236.1(d)(3)(i). See id. There is no evidence that Mr. Morisath has appealed the INS District Director's denial of Mr. Morisath's request for release on bond.

On July 29, 1997, petitioner Mr. Morisath filed in this Court a Petition for Writ of Habeas Corpus and Complaint for Mandamus and for Declaratory Judgment and Injunction. Mr. Morisath names Richard Smith, District Director of the INS; the INS; and Janet Reno, Attorney General of the United States, as defendants.

In response to this Petition, the INS has moved to dismiss the habeas petition for lack of subject matter jurisdiction.

Petitioner has moved for release from custody.

II. DISCUSSION

A. The Jurisdiction Issue

Whether the Court has jurisdiction to consider petitioner's claims is the threshold issue in this case. Respondent INS's argument is that if any court has jurisdiction, it is the Court of Appeals. Petitioner asserts that this Court has jurisdiction to hear petitions for habeas corpus. The Court concludes that it does have jurisdiction to consider petitioner Morisath's petition for habeas corpus.

Significant changes to immigration law have recently been enacted through the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009-570 (codified at 8 U.S.C. § 1101, et seq.). President Clinton signed the AEDPA on April 24, 1996 and IIRIRA on September 30, 1996. IIRIRA went into effect on April 1, 1997.³ Respondent INS argues that provisions from both of these acts divest district courts of jurisdiction to consider habeas corpus petitions.

1. AEDPA § 440(a)

Prior to the enactment of the AEDPA and IIRIRA, petitioners could file pursuant to the Immigration and Nationality Act ("INA") § 106(a), 8 U.S.C. § 1105a(a), for judicial review of BIA decisions. Although INA § 106(a) provided that judicial review of a final order of deportation was to take place in the Court of Appeals, an alien held in custody pursuant to an order of deportation could obtain judicial review of the order of deportation through habeas corpus proceedings. INA § 106(a)(10), 8 U.S.C. § 1105a(a)(10). This habeas review was conducted in the district courts. See Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). AEDPA § 440 amended INA § 106 as follows:

(a) Judicial Review. — Section 106 of the Immigration and Nationality Act (8 U.S.C. 1105a(a)(10)) is amended to read as follows:

"(10) Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 241(a)(2)(A)(iii), (B), (C), or (D), or any offense cover by section 241(a)(2)(A)(ii) for which both predicate offenses are covered by section 241(a)(2)(A)(i), shall not be subject review by any court.⁴"

This provision has been held to apply retroactively. See, e.g., Duldulao v. INS, 90 F.3d 396, 399 (9th Cir.1996).

Several courts of appeals have concluded that pursuant to this language, they no longer have jurisdiction under § 106 of the INA, as amended by AEDPA 440(a), to review final orders of deportation entered against aliens convicted of certain criminal offenses. See, e.g., Boston-Bollers v. INS, 106 F.3d 352, 355 (11th Cir.1997) (stating that "we hold that section 440(a)(10) deprives this court of jurisdiction over [the] petition"); Kolster v. INS, 101 F.3d 785, 786 (1st Cir. 1996) (dismissing petition for review for lack of jurisdiction); Salazar-Haro v. INS, 95 F.3d 309, 311 (3d Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1842, 137 L.Ed.2d 1046 (1997); Hincapie-Nieto v. INS, 92 F.3d 27, 28 (2d Cir.1996); Qasguargis v. INS, 91 F.3d 788, 789-90 (6th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1080, 137 L.Ed.2d 215 (1997); Duldulao v. INS, 90 F.3d 396, 400 (9th Cir.1996); Mendez-Rosas v. INS, 87 F.3d 672, 673 (5th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 694, 136 L.Ed.2d 617 (1997). Nevertheless, many courts of appeals have left open the possibility that habeas corpus review remains available, in some court, despite AEDPA § 440(a). See Duldulao v. INS, 90 F.3d 396 (9th Cir.1996) (noting that while AEDPA § 440(a) rendered petitioner's final order of deportation immune to direct attack, the issue remained open as to whether § 440(a) precluded collateral habeas review)⁵; American-Arab Anti-Discrimination Committee v. Reno, 119 F.3d 1367, 1374 (9th Cir.1997) (noting that the limitations of IIRIRA and the AEDPA, as incorporated by IIRIRA, on habeas review remain unclear; "[s]ome form of statutory habeas relief may remain...