Ogundipe v. U.S. Dept. of Homeland Security

• Decision Date: 24 October 2003
• Docket Number: No. 01-CV-4261.,01-CV-4261.
• Citation: 295 F.Supp.2d 513
• Parties: Lanre OGUNDIPE Petitioner v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al Respondents
• Court: U.S. District Court — Eastern District of Pennsylvania

295 F.Supp.2d 513

Lanre OGUNDIPE Petitioner v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al Respondents

No. 01-CV-4261.

United States District Court, E.D. Pennsylvania.

October 24, 2003.

Joseph Hohenstein, Philadelphia, PA, Sandra Greene, York, PA, for Petitioner.

Seth Weber, Susan R. Becker, U.S. Attorney's Office, Philadelphia, PA, for Respondent.

Sandra L. Greene, York, PA, Pro se.

MEMORANDUM AND ORDER

ANITA B. BRODY, District Judge.

A. Introduction

Petitioner Lanre Ogundipe has filed a petition for writ of habeas corpus alleging violations of due process, and alleging that the government has failed to properly adjudicate his claims for relief.¹ "Federal courts retain jurisdiction under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation or removal." Beshli v. Dep't of Homeland Sec., 272 F.Supp.2d 514 (E.D.Pa.2003) (See Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001)) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses.") (citing Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). The scope of review of such claims is, however, limited to questions of law. Catney v. INS, 178 F.3d 190, 195 (3d Cir.1999)[*11] ("Following passage of AEDPA and IIRIRA, we no longer have jurisdiction to review a denial of discretionary relief to a criminal alien."); cf. St. Cyr, 533 U.S. at 312, 121 S.Ct. 2271 (noting that scope of review in habeas corpus cases is "far narrower" than that authorized by Administrative Procedure Act (citing Heikkila v. Barber, 345 U.S. 229, 236, 73 S.Ct. 603, 97 L.Ed. 972 (1953)).)

B. Chronology

• Petitioner Lanre Ogundipe is a native and citizen of Nigeria who entered the United States on a student visa in December, 1982. This visa authorized him to remain in the United States until January 31, 1987.

• On October 17, 1986, Petitioner was convicted in the United States District Court for the Middle District of Louisiana of fraudulent acquisition and unauthorized use of a credit card in violation of 18 U.S.C. § 1029(a)(2), and conspiracy to violate 8 U.S.C. §§ 1341 and 1029. For these crimes, Petitioner was sentenced to three years in prison, five years of probation, and ordered to pay restitution.

• On November 2, 1986, Petitioner was convicted in Louisiana state court on three separate counts of issuing worthless checks, a crime for which Petitioner was sentenced to three years imprisonment.

• On November 1, 1989, Petitioner was deported back to Nigeria. The Immigration and Nationality Service ("INS") stated two reasons for his deportation: (1) he had violated immigration laws by staying beyond the time authorized on his visa; and (2) he had been convicted of two crimes involving moral turpitude (the state and federal Louisiana convictions for unauthorized use of a credit card and issuing worthless checks).

• After his deportation, Petitioner illegally re-entered the United States. On June 13, 1991, Petitioner was arrested in Decatur, Georgia on charges of theft by deception, financial transaction card fraud, forgery, and giving a false name to the police.

• On January 16, 1992, Petitioner was arrested for illegal re-entry after deportation. He was convicted of that crime in the United States District Court for the Northern District of Georgia on April 23, 1992.

• On November 21, 1992, Petitioner was deported for a second time back to Nigeria.

• One month after this second deportation, in December, 1992, Petitioner again illegally re-entered the United States through San Ysidro, California..

• On August 26, 1993, Petitioner married his current wife, Victoria Adegbola Ogundipe, in Kalamazoo, Michigan. Ms. Ogundipe later became a lawful permanent resident and then a United States citizen.

• In 1997 and 1998, Petitioner applied to adjust his status to a lawful permanent resident, and also filed an Application for Permission to Reapply for Admission into the United States After Deportation or Removal.

• On September 21, 2000, Petitioner was convicted of bank fraud in violation of 18 U.S.C. § 1344(1) in the United States District Court for the Western District of Michigan. He was sentenced to twenty-one months imprisonment. This conviction constitutes an aggravated felony for purposes of the immigration laws pursuant to 8 U.S.C. § 1101(a)(43)(G) (theft involving loss in excess of $10,000).

• On November 16, 2000, the INS initiated the current deportation proceedings by issuing a Notice of Intent to Reinstate Prior Deportation Order, which became final on February 28, 2001.

• On February 26, 2001, the INS denied Petitioner's application for status as a lawful permanent resident, noting his multiple convictions and illegal re-entries after deportation. On the same day, the INS denied Petitioner's Application for Admission to the United States after deportation, noting that he is inadmissible because (1) he is an alien convicted of a crime involving moral turpitude; (2) he has a conviction record with aggregate sentences in excess of five years; and (3) he has illegally re-entered the country. An Immigration Judge in Oakdale, Louisiana, denied Petitioner's motion to reopen his immigration proceedings on October 2, 2001.

• Petitioner filed the petition for writ of habeas corpus before this Court on August 21, 2001.

• Petitioner also filed his formal request for CAT relief (the Application for Asylum and Withholding of Removal) in 2001 (the date indicated on the proposed order accompanying that application.) This document is included as part of the record and was submitted as an accompanying exhibit to the Government's Response in Opposition to Petitioner's Writ of Habeas Corpus.

• On March 12, 2003, the INS rescinded its Notice of Intent to Reinstate Prior Order of Deportation, and served Petitioner with a Notice of Intent to Place Petitioner in Administrative Removal Proceedings under § 238 of the Immigration and Nationality Act.²

• On April 3, 2003, Petitioner submitted an amended petition for writ of habeas corpus. He filed a second amended habeas petition on May 28, 2003, which adds to the first amended petition an accusation that the INS failed to follow appropriate administrative procedure.

• On September 16, 2003, I issued an order granting Petitioner's Motion for Stay of Removal.

C. Discussion

1. Due Process. Petitioner's due process challenge to his removal proceedings is fourfold.

First, Petitioner argues that he failed to receive due process because the prosecutor and judge in his administrative removal process were the same person, Joseph Sallemi. 8 C.F.R. § 238.1 prohibits the Issuing Service Officer and Deciding Service Officer in removal proceedings to be the same person. The INS acknowledged this problem and rectified it by having another officer, the Interim Deputy Field Office Director, review Petitioner's file and sign the final administrative order. As of the date of that correction, June 16, 2003, the order is fully compliant with the regulations.

Second, Petitioner complains that the expedited removal process itself that the government used to facilitate his case violates his right to due process. The government's use of the expedited removal process was proper. As reflected in the Chronology, the government previously sought deportation of Petitioner by simply reinstating a prior deportation order. On March 12, 2003, the government rescinded the notice and served Petitioner with notice to proceed under expedited removal proceedings set out in 8 C.F.R. § 238.1 (2003):

An Issuing Service Officer shall cause to be served upon an alien a Form I-851, Notice of Intent to Issue a Final Administrative Deportation Order, if the officer is satisfied that there is sufficient evidence, based upon questioning of the alien by an immigration officer and upon any other evidence obtained, to support a finding that the individual:

(i) is an alien;

(ii) has not been lawfully admitted for permanent residence, or has conditional permanent resident status under section 216 of the Act;

(iii) has been convicted ... of an aggravated felony and such conviction has become final; and

(iv) is deportable under section 237(a)(2)(A)(iii) of the Act, including an alien who has neither been admitted nor paroled, but who is conclusively presumed deportable under section 237(a)(2)(A)(iii) by operation of section 238(c) of the Act.

Petitioner meets each of the four requirements of the regulation:

(i) Petitioner is an alien;

(ii) Petitioner has not been lawfully admitted for permanent resident status.

(iii) Petitioner's conviction for bank fraud on September 21, 2000, constitutes an aggravated felony for purposes of the immigration laws pursuant to 8 U.S.C. § 1101(a)(43)(G) (theft involving loss in excess of $10,000).

(iv) Petitioner is deportable. "Any alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(2)(A)(iii).

Petitioner argues that the expedited removal process violates due process, both in general and as applied to Petitioner. Case law has approved the expedited removal process as constitutional. United States v. Benitez-Villafuerte, 186 F.3d 651, 657-8 (5th Cir.1999); Bamba v. Elwood, 252 F.Supp.2d 195, 204 (E.D.Pa.2003); Marcelus v. INS, 2002 WL 80301, at *1 (E.D.Pa. Jan. 16, 2002). Petitioner argues that his own expedited removal process can be distinguished from those discussed by the government because aliens in other expedited removal cases did not have family equities. While Petitioner's family equities are certainly sympathetic and unfortunate, there is no discretionary relief available in expedited removal proceedings. 8 U.S.C. § 1228(B)(5) ("No alien...