Powell v. Jennifer, 96-CV-72211-DT.

• Decision Date: 22 August 1996
• Docket Number: No. 96-CV-72211-DT.,96-CV-72211-DT.
• Citation: 937 F. Supp. 1245
• Parties: Donovan Anthony POWELL v. Carol JENNIFER, et al.
• Court: U.S. District Court — Eastern District of Michigan

937 F. Supp. 1245

Donovan Anthony POWELL v. Carol JENNIFER, et al.

No. 96-CV-72211-DT.

United States District Court, E.D. Michigan, Southern Division.

August 22, 1996.

Clarence B. Tucker, Detroit, Michigan, for petitioner.

L. Michael Wicks, Asst. U.S. Atty., Detroit, Michigan, for defendant.

OPINION AND ORDER REGARDING PETITION FOR HABEAS CORPUS RELIEF

ROSEN, District Judge.

I. INTRODUCTION

On May 13, 1996, Petitioner Donovan Anthony Powell ("Petitioner") filed a petition for a writ of habeas corpus, requesting that this Court stay his deportation pending further action by the Immigration and Naturalization Service ("INS"). Specifically, Petitioner awaits a decision by the INS Board of Immigration Appeals ("BIA") on his motion to stay his deportation and to reopen administrative proceedings. Petitioner has also sought a stay of deportation from the INS District Director in Detroit, Michigan; as explained below, this request forms the basis for this Court's purported habeas jurisdiction.

This matter is replete with novel jurisdictional and legal questions, many of which arise from the recent enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), signed into law on April 24, 1996. In particular, the AEDPA restricts this Court's habeas jurisdiction in deportation matters, and also affects the relief that Petitioner seeks from the INS.

The Court conducted an initial hearing on this matter on May 13, 1996, and instructed the parties to submit supplemental briefs addressing the implications of the AEDPA with regard to: (1) Petitioner's claim for relief, and (2) this Court's jurisdiction. A further hearing was held on June 19, 1996. Upon considering the arguments advanced by counsel at the two hearings and the materials submitted by the parties, the Court is now prepared to rule on the habeas petition. For the reasons set forth below, the Court finds that it lacks jurisdiction over this matter, and accordingly dismisses the petition for a writ of habeas corpus.

II. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Donovan Anthony Powell ("Petitioner") has lived in the United States since his arrival from Jamaica in 1970, at the age of six. Since that time, Petitioner has maintained his status as a permanent resident alien. Petitioner is a high school graduate, attended college at Purdue University, and is employed as an accountant trainee. In addition, he is the father of four children, all of whom are U.S. citizens.

Petitioner became the subject of deportation proceedings by virtue of three felony convictions. In February, 1988, Petitioner was convicted in Washtenaw County Circuit Court of delivering and manufacturing cocaine. In March, 1990, Petitioner was convicted in Oakland County Circuit Court of carrying a concealed weapon. This same 1990 incident apparently resulted in Petitioner's federal conviction in December, 1991, for being a felon in possession of a firearm.

As a result of these convictions, the INS issued an Order to Show Cause on March 24, 1992, alleging that Petitioner was deportable under § 241(a)(2)(B)(i) and § 241(a)(2)(C) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1251(a)(2)(B)(i) (providing that drug convictions render an alien deportable); 8 U.S.C. § 1251(a)(2)(C) (providing that certain firearms convictions render an alien deportable). At a hearing before an Immigration Judge ("IJ") on September 10, 1993, Petitioner admitted the allegations and conceded deportability, but requested relief pursuant to § 212(c) of the INA, 8 U.S.C. § 1182(c).¹ However, the IJ rejected that request, holding that Petitioner was ineligible for § 212(c) relief due to his previous firearms conviction.²

On September 16, 1993, Petitioner appealed the IJ's determination to the INS Board of Immigration Appeals ("BIA"). On January 11, 1996, the BIA affirmed the findings of the IJ and dismissed Petitioner's appeal. The BIA's brief written opinion further noted that Petitioner had not demonstrated eligibility for the avenue of relief recognized in a prior BIA decision, Matter of Gabryelsky, Int.Dec. 3213, 1993 WL 495142 (B.I.A. Nov. 3, 1993).³

Following the denial of Petitioner's appeal, he began to pursue the avenue of relief approved in Gabryelsky. Specifically, Petitioner obtained an "approved" Immigrant Visa Petition, and prepared documents requesting both an adjustment of status pursuant to § 245 and a waiver of admissibility for his narcotics offense pursuant to § 212(c). Next, on March 20, 1996, Petitioner filed a motion to reopen deportation proceedings with the BIA. In conjunction with this motion to reopen, Petitioner requested that the BIA stay his deportation pending its resolution of his motion. On May 13, 1996, the same day Petitioner commenced this action, he also requested a stay of deportation from the District Director of the INS District Office in Detroit, Michigan.⁴

The BIA has yet to resolve Petitioner's motion to reopen his deportation proceedings. Additionally, neither the BIA nor the District Director has acted on Petitioner's requests for a stay of deportation. This collective failure to act, as well as a letter from the INS District Office in Detroit instructing Petitioner to report for his deportation on May 13, 1996, led Petitioner to seek habeas corpus relief in this Court. Petitioner's primary concern is that he will be deported before the BIA decides his motion to reopen.⁵ Thus, he asks this Court to order that his deportation be stayed until the BIA resolves his pending motion.⁶

III. ANALYSIS

A. With the Enactment of the AEDPA, This Court Lacks Habeas Jurisdiction Over This Matter Absent a Fundamental Miscarriage of Justice.

As always, before this Court may proceed to the merits of a case, it must first establish its jurisdictional basis for acting. The recent enactment of the AEDPA complicates the jurisdictional inquiry in this matter. Before turning to the changes brought about by the AEDPA, however, it is first instructive to review the scope of this Court's jurisdiction over deportation proceedings as it stood prior to the enactment of that statute.

The Immigration and Nationality Act ("INA") expressly provides for judicial review of final deportation orders.⁷ In particular, § 106 of the INA provides that the Hobbs Act, 28 U.S.C. § 2341 et seq., "shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." 8 U.S.C. § 1105a(a); see also Stone v. INS, ___ U.S. ___, ___ - ___, 115 S.Ct. 1537, 1542-43, 131 L.Ed.2d 465 (1995). However, § 106 also sets forth ten exceptions to the general rule that the Hobbs Act governs judicial review; two of these exceptions are relevant to the instant matter. First, judicial review of final orders of deportation must be sought from the Court of Appeals, rather than the District Court. 8 U.S.C. § 1105a(a)(2). Next, § 106, as it stood prior to enactment of the AEDPA, expressly provided that "any alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." 8 U.S.C.A. § 1105a(a)(10) (West Supp.1996).⁸

Since habeas corpus proceedings necessarily commence in the District Court, see 28 U.S.C. § 2241, the habeas provision of § 106 acts as an exception to that section's more general rule that the Court of Appeals is the proper forum for review of deportation orders. In addition, because § 106 provides an express avenue for judicial review of final orders of deportation, it necessarily follows that habeas review should be confined to INS determinations other than final orders of deportation. In recognition of this statutory "division of labor," courts have routinely found that District Court habeas jurisdiction is limited to review of denials of stays of deportation. See, e.g., Galaviz-Medina v. Wooten, 27 F.3d 487, 492 (10th Cir.1994) (stating that an alien "cannot challenge the merits of his deportation order in district court"); Dibi v. Moyer, 801 F.Supp. 214, 219 (E.D.Wis.1992) (holding that a INS District Director's denial of a stay of deportation is not a "final order of deportation," and thus is a proper subject of a habeas proceeding); Narayan v. Ilchert, 799 F.Supp. 1047, 1049-50 (N.D.Cal.1992) (holding that the BIA's denial of a stay is a proper subject of a habeas proceeding).⁹

In sum, under the law prior to enactment of the AEDPA, this Court clearly would have been able to exercise habeas jurisdiction over the District Director's denial of a stay of deportation. However, even under the prior version of § 106, Petitioner still would face one hurdle. In this case, the District Director apparently has not yet taken action on Petitioner's request for a stay.¹⁰ Thus, there is no denial upon which this Court may rest its jurisdiction. This lack of a denial poses a serious problem; absent any action by the District Director, it is difficult for this Court to identify an abuse of discretion by the District Director. Rather, the Court is left to speculate that the District Director might deny a stay of deportation, and that her reasons for doing so might be inadequate.

Petitioner argues, however, that "time is of the essence" in this case, since he faces fairly imminent deportation. Thus, he contends that the District Director's failure to act quickly constitutes an effective "denial" of his request for a stay. In support of this contention, Petitioner points to a statement by the Sixth Circuit that "the BIA's failure to exercise its discretion may well be an abuse of discretion." Gonzalez v. INS, 996 F.2d 804, 811 (6th Cir.1993); see also Dabone v. Karn, 763 F.2d 593, 597 n. 2 (3d Cir.1985) (finding that the BIA's lack of action upon a motion to reopen that was pending for eleven months constituted an "effective denial" of the motion).

The Court readily accepts the proposition that, at some point, a failure to act should count as an effective denial; a contrary...