Naidoo v. I.N.S.
| Decision Date | 29 March 1999 |
| Docket Number | No. 98-CV-1045.,98-CV-1045. |
| Citation | 39 F.Supp.2d 755 |
| Court | U.S. District Court — Western District of Louisiana |
| Parties | Alan Rejandra NAIDOO v. IMMIGRATION & NATURALIZATION SERVICE, et al. |
Jose W. Vega, Oakdale, LA, for Petitioner.
Katherine W. Vincent, Lafayette, LA, for Respondent.
There being no objection to the proposed findings of fact and conclusions of law in the Report and Recommendation of the Magistrate Judge previously filed herein these findings and conclusions are accepted. Alternatively, an independent review of the record has led this court to conclude that the proposed findings and conclusions are entirely correct. Accordingly, it is
ORDERED that Petitioner's application for writ of habeas corpus be DENIED and DISMISSED as this court is without jurisdiction to consider his challenges or to grant the relief he seeks.
THUS DONE AND SIGNED in Chambers at Lake Charles, Louisiana, this 29th day of March, 1999.
Currently before the court is a petition for writ of habeas corpus filed on behalf of petitioner, Alan Rejandra Naidoo. By this petition, Petitioner challenges his removal order and the denial of discretionary relief as well as the constitutionality of the provisions of the Immigration & Nationality Act which limit judicial review. This matter has been referred to the undersigned Magistrate Judge for review, report, and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B).
Petitioner is a native and citizen of South Africa, who entered the United States on August 26, 1976, at New York, New York, as a non-immigrant student. He adjusted his status to that of a lawful permanent resident on October 6, 1978. See Government Exhibit A.
On April 6, 1988, Petitioner was convicted in the United States District Court, Eastern District of California, of the offense of Possession with Intent to Distribute Cocaine, in violation of 21 U.S.C. § 841(a)(1), and sentenced to a term of imprisonment of fifteen (15) years. See Government Exhibit B. Petitioner's conviction was affirmed by the Ninth Circuit Court of Appeals on April 10, 1992. United States v. Naidoo, 1992 WL 72862 (9th Cir.1992) (unpublished). See Government Exhibit BI. Petitioner was incarcerated for this conviction from the date of his arrest April 24, 1987, until expiration of sentence on March 8, 1996.
By Order to Show Cause dated November 24, 1995, Petitioner was charged with being deportable pursuant to 8 U.S.C. § 1251(a)(2)(B)(i)1 which generally provides that at any time after entry, an alien who has been convicted of a violation of any law or regulation relating to a controlled substance is deportable. See Government Exhibit C.
Upon Petitioner's release from the custody of the Bureau of Prisons (BOP) on March 8, 1996, he was taken into INS custody. See Government Exhibit D. The INS determined that Petitioner should be detained without bond pending a final determination of deportability. See Government Exhibit E. However, Petitioner requested a bond hearing before an Immigration Judge, and on March 8, 1996, an Oakdale Immigration Judge set an immigration bond for Petitioner's release pending immigration proceedings at $20,000. See Government Exhibit F. Petitioner posted bond and was released from INS custody that same day. See Government Exhibit G.
On March 8, 1996, an immigration judge found Petitioner deportable as charged in the Order to Show Cause, ineligible for discretionary relief from deportation under 8 U.S.C. § 1182(c)2, and he ordered Petitioner deported to South Africa. See Government Exhibit H.
Petitioner appealed this decision to the Board of Immigration Appeals (BIA). On May 8, 1998, the BIA denied and dismissed Petitioner's appeal. See Government Exhibit I.
Petitioner filed a Petition for Review in the United States Court of Appeals for the Fifth Circuit requesting a stay of deportation and review of the order of deportation and denial of discretionary relief from deportation. On June 17, 1998, the Fifth Circuit denied Petitioner's motion for stay of deportation and dismissed the petition for lack of jurisdiction. See Government Exhibit K.
Petitioner has also filed a Petition for Review in the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has issued a stay of deportation which was in effect at the time that the respondent filed a response. See Government Exhibit L. The court is uncertain of the status of this stay.
Petitioner filed this application for habeas corpus relief on June 8, 1998 seeking to have the court (1) find that it has jurisdiction to review his claims, (2) stay his deportation, (3) find that his removal order is unlawful; and (4) declare the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) unconstitutional to the extent it denies judicial review.
The respondent has answered this petition and has moved for dismissal claiming that this court lacks jurisdiction to grant Petitioner the relief that he seeks and that the Constitution does not require judicial review of a deportation order.
The procedural history recounted above clearly indicates that Petitioner's deportation proceedings were pending at the time that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) were enacted.3 These two Acts made sweeping changes to the Immigration and Nationality Act (INA). Relevant for the purposes of this evaluation are the changes which limited the class of aliens who are entitled to apply for discretionary relief and the broad statutory changes which limit judicial review of immigration matters. The claims presented in this petition are primarily directed towards the application of the amended law to Petitioner's case.
In his petition for writ of habeas corpus, Petitioner challenges the denial of discretionary relief under 8 U.S.C. 1182(c)4 and the elimination of judicial review of deportation/removal orders for certain criminal aliens.
Initially this court notes that Petitioner's criminal conviction and fifteen (15) year sentence caused him to be ineligible for discretionary relief under 8 U.S.C. § 1182(c) as it existed prior to the passage of AEDPA.5 Thus, the change in the law occasioned by § 440(d) of AEDPA6 had no substantive effect on Petitioner's eligibility for discretionary relief. Nevertheless, before the passage of AEDPA and IIRIRA, Petitioner could have sought judicial review of his deportation order and the denial of discretionary relief in the court of appeals. Currently, the statutory provisions preclude judicial review of deportation orders by aliens convicted of certain criminal offenses, including controlled substance violations. Thus, this court will focus on Petitioner's argument that the amendments to the INA eliminating judicial review for criminal aliens such as Petitioner are unconstitutional.
Prior to the amendments, 8 U.S.C. § 1105a(a)7 provided that "the sole and exclusive procedure for ... the judicial review of all final orders of deportation" was by filing a petition for review in the appropriate court of appeals. The INA also provided a habeas corpus provision codified at 8 U.S.C. § 1105a(a)(10)8 which stated as follows:
Any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings.
Habeas corpus was also available to aliens in exclusion proceedings as the INA provided that "aliens may obtain judicial review of [an exclusion] order by habeas corpus proceedings and not otherwise." 8 U.S.C. § 1105a(b).
Section 401(e) of AEDPA struck the text of former 8 U.S.C. § 1105a(a)(10), and § 440(a) of AEDPA replaced the former § 1105a(a)(10) with the following language:
Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in 1251(a)(2)(A)(iii), (B), (C), or (D) of this title, or any offense covered by section 1251(a)(2)(A)(ii) of this title for which both predicate offenses are, without regard to the date of their commission, otherwise covered by section 1251(a)(2)(A)(i) of this title, shall not be subject to review by any court.9
Courts of appeals have held that § 440(a) of AEDPA became effective upon enactment of AEDPA and applied to pending applications for review. See Mendez-Rosas v. INS, 87 F.3d 672 (5th Cir.1996); Hincapie-Nieto v. INS, 92 F.3d 27 (2d Cir.1996); Duldulao v. INS, 90 F.3d 396 (9th Cir.1996); Salazar-Haro v. Immigration & Naturalization Service, 95 F.3d 309 (3rd Cir.1996).
Shortly after the enactment of AEDPA, Congress amended the INA again with the passage of IIRIRA. IIRIRA contained two sets of provisions: (1) non-codified transitional provisions and (2) permanent provisions. Both the transitional and permanent provisions of IIRIRA further amended the judicial review provisions of the INA.
Specifically, § 309(c)(4) of IIRIRA set forth the transitional rule governing judicial review. IIRIRA's transition rules are applicable to all pending cases in which a final order of exclusion or deportation is entered more than 30 days after the date of IIRIRA's enactment. See IIRIRA § 309(c)(4). These transitional rules generally provide that a petition for review of a final order of exclusion or deportation shall be filed in the court of appeals. IIRIRA § 309(c)(4)(d).10 However, such review does not extend to certain criminal aliens. The jurisdiction-limiting provision found in IIRIRA § 309(c)(4)(G) states as follows:
there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [8 U.S.C. § 1182(a)(2)] or [8 U.S.C. § 1251(a)(2)(A)(iii), (B), (C), or (D)] (as in effect as of the date of enactment of this Act...
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