Motta v. District Director, INS

• Decision Date: 29 November 1994
• Docket Number: Civ. A. No. 94-11819-DPW.
• Citation: 869 F. Supp. 80
• Parties: Antonio Jose Pacheco MOTTA, Petitioner/Plaintiff, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent/Defendant.
• Court: U.S. District Court — District of Massachusetts

869 F. Supp. 80

Antonio Jose Pacheco MOTTA, Petitioner/Plaintiff, v. DISTRICT DIRECTOR, IMMIGRATION AND NATURALIZATION SERVICE, Respondent/Defendant.

Civ. A. No. 94-11819-DPW.

United States District Court, D. Massachusetts.

November 28, 1994.

Judgment November 29, 1994.

COPYRIGHT MATERIAL OMITTED

Joseph S. Callahan, Fall River, MA, for plaintiff Antonio Jose P. Motta.

Frank Crowley, Immigration & Naturalization, Sp. Asst. U.S. Atty., Boston, MA, for defendant District Director, I.N.S.

MEMORANDUM AND ORDERS

WOODLOCK, District Judge.

An inattentive semi-retired lawyer represented the Petitioner in deportation proceedings. The lawyer let the administrative appeal date lapse, apparently while he wintered in Florida. He then filed the notice of appeal about a month late. Some 53 months thereafter the Board of Immigration Appeals, in a one-page decision, denied the appeal as "clearly untimely." Acting pursuant to habeas corpus jurisdiction, I will stay Petitioner's deportation until he has been provided with what an ineffective attorney and an unseasonably insensible administrative process have conspired to deny him: a resolution on the merits of his appeal.

I.

Petitioner/Plaintiff Antonio Jose Pacheco Motta is a citizen of Portugal who entered the United States as a permanent resident on February 20, 1974. He was charged with being deportable under 8 U.S.C. § 1182(a)(2)(A)(I) (Supp. V 1994) (Section 241(a)(2)(A) of the Immigration and Nationality Act (hereinafter "INA")) as an alien who has been convicted of two crimes of moral turpitude.

A deportation hearing was held on October 13, 1989.¹ Petitioner conceded deportability but sought a discretionary waiver under 8 U.S.C. § 1182(c) (Supp. V 1994) (Section 212(c) of INA).² On January 19, 1990, Immigration Judge Bagley denied Petitioner's request for relief. Although the Immigration Judge informed Petitioner's attorney, M. David Scheinman, that the deadline for filing an appeal was January 29, 1990, (A.R. at 63, 64, 145), Attorney Scheinman did not file the appeal until February 21, 1990, (A.R. at 58). Attorney Scheinman died on April 17, 1992. (A.R. at 54). Almost four and one-half years after the appeal was actually filed, the Board of Immigration Appeals (hereinafter "BIA"), in a one-page decision, dismissed the appeal on July 15, 1994, as "clearly untimely." (A.R. at 57).

Petitioner retained new counsel, Joseph S. Callahan, in September of 1994. On September 6, 1994, Petitioner filed his first Motion to Reopen and Request for Stay of Deportation with Immigration Judge Sheppard. (A.R. at 25). Petitioner also filed an Application for Stay of Deportation with Respondent, the District Director of the Immigration and Naturalization Service (hereinafter "INS"). (A.R. at 9). Respondent immediately denied Petitioner's application.³ (A.R. at 1-3).

Petitioner filed a complaint for declaratory and injunctive relief, and a petition for writ of habeas corpus, with this Court on September 9, 1994. That same day, Immigration Judge Sheppard denied Petitioner's Motion to Reopen and Request for Stay of Deportation. (A.R. at 4-6). On September 19, 1994, Petitioner filed an appeal with the Board of Immigration Appeals challenging Immigration Judge Sheppard's refusal to reopen Petitioner's case. Petitioner also sought a stay of deportation from Respondent. Also, on September 19, the Respondent filed a motion to dismiss this proceeding. Respondent denied Petitioner's second application for a stay on September 20, 1994, apparently without Petitioner's knowledge because on September 21, 1994 Petitioner filed an Amended Complaint stating that his request for a stay had not yet been acted upon.

II. Jurisdiction

Petitioner's "Amended Complaint for Declaratory and Injunctive Relief and Petition for Writ of Habeas Corpus (With Stay Deportation)" is grounded on his claim that he was denied due process under the Fifth Amendment as a result of ineffective assistance of counsel. Based on this claim, Petitioner argues that Respondent should have granted his requests for a stay of deportation under Section 212(c) of the INA, which authorizes discretionary relief from deportation under certain circumstances.⁴

I must begin with an analysis of my jurisdiction to act on this matter. The allocation of jurisdiction between the District Courts and the Courts of Appeals by the Immigration and Nationality Act has been a source of some confusion. Originally, the Act gave the district courts jurisdiction over all causes, civil and criminal, arising under any of the provisions of the Act. 8 U.S.C. § 1329. In 1961, Congress added Section 106(a), 8 U.S.C. § 1105a, to "abbreviate the process of judicial review of deportation orders" and prevent persons subject to deportation from "forestalling departure by dilatory tactics in the courts." Foti v. INS, 375 U.S. 217, 224, 84 S.Ct. 306, 311, 11 L.Ed.2d 281 (1963). 8 U.S.C. § 1105a(a) (Supp. V 1994) provides that the "sole and exclusive procedure" for judicial review of all final orders of deportation shall be through the Courts of Appeals. Congress sought to eliminate "the previous initial step in obtaining judicial review — a suit in a District Court —" and restrict review to the Courts of Appeals, subject only to the Supreme Court's certiorari jurisdiction. Foti, 375 U.S. at 224, 84 S.Ct. at 311.

The Supreme Court has construed the phrase "final order of deportation" to include "all determinations made during and incident to the administrative proceeding conducted by a special inquiry officer, and reviewable together by the Board of Immigration Appeals, such as orders denying voluntary departure pursuant to § 244(e) and orders denying the withholding of deportation under § 243(h)," Foti, 375 U.S. at 229, 84 S.Ct. at 314, refusals to suspend deportation under § 244(a)(5), id., and denials of motions to reopen, Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964) (per curiam), which are "`intimately and immediately associated' with the final orders they seek to challenge," Cheng Fan Kwok v. INS, 392 U.S. 206, 217, 88 S.Ct. 1970, 1976, 20 L.Ed.2d 1037 (1968) (footnote omitted). See also INS v. Chadha, 462 U.S. 919, 937-38, 103 S.Ct. 2764, 2777-78, 77 L.Ed.2d 317 (1983) (Court of Appeals has exclusive jurisdiction to review all matters upon which validity of final order of deportation is contingent).

The district courts continue to have jurisdiction over orders denying ancillary relief, which are not entered in the course of the deportation hearing or the denial of a motion to reopen. See Cheng Fan Kwok, 392 U.S. at 208, 88 S.Ct. at 1972 (holding Court of Appeals lacked exclusive jurisdiction to review District Director's denial of a stay of deportation); Emmanuel v. INS, 579 F.Supp. 1541 (D.V.I.1984); Caporali v. Whelan, 582 F.Supp. 217 (D.Mass.1984); Kemper v. INS, 705 F.2d 1150 (9th Cir.1983).

The narrative reconciliation of 8 U.S.C. § 1329 and 8 U.S.C. § 1105(a) set forth above does not resolve the question of the scope of district court habeas jurisdiction in INS cases, however. Section 1105a(a)(10) (Supp. V 1994), provides that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings."⁵ This section authorizes the district courts to entertain habeas corpus petitions, consistent with their power under 28 U.S.C. § 2241. The House Committee on the Judiciary explained:

This section clearly specifies that the right to habeas corpus is preserved to an alien in custody under a deportation order. In that fashion, it excepts habeas corpus from the language which elsewhere declares that the procedure prescribed for judicial review in circuit courts shall be exclusive. The section in no way disturbs the Habeas Corpus Act in respect to the courts which may issue writs of habeas corpus: aliens are not limited to courts of appeals in seeking habeas corpus.

H.R.Rep. No. 1086, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.A.N. 2950, 2973. See generally Williams v. INS, 795 F.2d 738, 744 n. 3 (9th Cir.1986). In Foti, the Supreme Court cited § 106(a)(9), which is now 8 U.S.C. § 1105a(a)(10), and expressly noted that "our decision in this case in no way impairs the preservation and availability of habeas corpus relief." 375 U.S. at 231 (footnote omitted).

The term "in custody" for the purposes of general habeas proceedings has been construed broadly, to include any significant restraint on liberty, such as parole Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), and release on personal recognizance, Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), at least where the Petitioner has been convicted in state court and has exhausted all available state court remedies, Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301-02, 104 S.Ct. 1805, 1809-10, 80 L.Ed.2d 311 (1984). Clearly Petitioner is in custody here by even the most stringent definition of a custody requirement.

Of course, if the district court's habeas corpus jurisdiction in 8 U.S.C. § 1105a(a)(10) for persons in custody facing deportation were to allow review of a final order of deportation that ordinarily would be within the exclusive jurisdiction of the Court of Appeals, then the "exception" of district court review could easily swallow the rule. See Daneshvar v. Chauvin, 644 F.2d 1248, 1251 (8th Cir.1981) (holding habeas corpus review available only to review a discretionary denial of stay of deportation where petitioner did not seek review of the merits of the deportation order itself); United States ex rel. Parco v. Morris, 426 F.Supp. 976, 978 n. 4 (E.D.Pa.1977) ("Habeas corpus is an appropriate procedure to review the denial of discretionary relief from deportation where deportability itself is not in issue") (citations omitted); Te Kuei Liu v. INS, 483 F.Supp. 107 (S.D.Tex.1980) (holding court lacked habeas jurisdiction to review...