Purveegiin v. U.S. I.N.S. Processing Center, 98 Civ. 7934(SAS).
| Citation | 73 F.Supp.2d 411 |
| Decision Date | 08 October 1999 |
| Docket Number | No. 98 Civ. 7934(SAS).,98 Civ. 7934(SAS). |
| Parties | Batsaihan PURVEEGIIN, Petitioner, v. UNITED STATES I.N.S. PROCESSING CENTER, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Batsaihan Purveegiin, York, PA, pro se.
Aaron M. Katz, Assistant United States Attorney, New York, NY, for Respondent.
Petitioner Batsaihan Purveegiin ("Purveegiin" or "Petitioner"), proceeding pro se, brings this application for a writ of habeas corpus, 28 U.S.C. § 2241, seeking review of an order denying his application for asylum and withholding of removal (hereinafter "deportation").1 Petitioner alleges that he will face persecution if he is returned to his native country, Mongolia. Respondent United States INS Processing Center ("INS" or "Government") argues, inter alia, that the Court lacks subject matter jurisdiction to review the petition. For the reasons stated below, the petition is DENIED.
Purveegiin, a native and citizen of Mongolia, entered the United States in 1991 as a nonimmigrant exchange student to study painting at The Art Students League in New York City. See Purveegiin's Brief to the Board of Immigration Appeals ("BIA") dated March 26, 1998, attached to Purveegiin's Petition for a Writ of Habeas Corpus ("Pet.Brief"), at 1.
In order to pay for his studies, petitioner borrowed approximately $22,000 from the Mongolian Government. Pet. Brief at 1. Petitioner was expected to repay the loan while attending school. Pet. Brief at 1. Once in the United States, petitioner found he was unable to pay the loan. Pet. Brief at 2. The Mongolian Government denied his request for a deferment and threatened Purveegiin with immediate arrest upon his return "for stealing the money of the Mongolian people." Pet. Brief at 2, 5; see also Return, record of Purveegiin's INS proceedings certified by the Executive Office for Immigration Review of the United States Department of Justice, attached to declaration of Assistant United States Attorney Aaron M. Katz dated May 27, 1999 ("R."), at 248-50. In April 1992, Purveegiin dropped out of The Art Students League and did not continue his studies at any other school. Pet. Brief at 2; R. at 222. From 1993-1997, Purveegiin was homeless; during this time, Purveegiin was convicted of several crimes. Pet. Brief at 2; R. at 387, 460-71.
While in the United States, Purveegiin met with members of the Mongolian delegation to the United Nations where he denounced the Mongolian People's Revolutionary Party ("MPRP") and vowed to fight against the MPRP while in the United States. Pet. Brief at 2. Purveegiin maintains he will face persecution if he is returned to Mongolia based on the political opinions and criticisms he expressed to MPRP members. Pet. Brief at 6. Purveegiin fears persecution because the MPRP has regained control of the Mongolian government and its members now occupy high positions within the Mongolian government. Pet. Brief at 8.
Purveegiin further maintains that he will be arrested not for defaulting on the loan, but for expressing his political opinion against the MPRP. R. at 270-71. Purveegiin claims he will be "at risk from starvation within the Mongolian prison system." Pet. Brief at 6. He argues that he has established his fear of persecution is wellfounded because: (i) he holds a political opinion, (ii) the MPRP is aware of his political opinion, (iii) the MPRP now has the means to carry out the persecution. Pet. Brief at 6, 8-10.
On March 26, 1993, Purveegiin was convicted and sentenced to three years probation after pleading guilty to second-degree menacing in violation of N.Y. Penal Law § 120.14(1). Government's Memorandum of Law in Opposition to Pet. ("Gov't Memo"), at 3; R. at 460. On August 18, 1995, Purveegiin was conditionally discharged and sentenced to one day of community service after pleading guilty to petit larceny. Gov't Memo at 4; R. at 461. On November 17, 1995, Purveegiin was resentenced on the menacing conviction to four months incarceration for violating probation. Gov't Memo at 4; R. at 460-61. He was also sentenced to 60 days after pleading guilty to third-degree attempted assault in violation of N.Y. Penal Law §§ 110.00 & 120.00(1). Gov't Memo at 4; R. at 461. On April 14, 1997, Purveegiin was convicted of second-degree criminal impersonation in violation of N.Y. Penal Law § 190.25(1) and sentenced to seven months incarceration after pleading guilty. Gov't Memo at 4; R. at 465. He was also convicted of third-degree sexual abuse in violation of N.Y. Penal Law § 130.55 and sentenced to three months incarceration after pleading guilty. Gov't Memo at 4; R. at 467, see also R. at 157, 272-74
In 1997, the INS issued a Notice to Appear charging Purveegiin as deportable because (a) he failed to maintain the conditions of his student status, 8 U.S.C. § 1227(a)(1)(C)(i) (Supp. II 1996), R. at 507-09, and (b) he was convicted of crimes involving moral turpitude. 8 U.S.C. § 1227(a)(2)(A)(i) & (ii) (Supp. II 1996). R. at 397, 460-71. Petitioner conceded his deportability, see R. at 186-87, and applied for asylum and withholding of deportation on the ground that he would face persecution based on his political beliefs. Pet. Brief at 2; R. at 188, 383-89. See also Section II(B), infra.
On November 14, 1997, Purveegiin (represented by counsel, see R. at 200) testified before Immigration Judge Walter A. Durling, Jr. ("IJ").2 Pet. Brief at 2; R. at 200-79. The IJ also received into evidence INS charging documents, Purveegiin's asylum application, letters, and background materials from the United States Department of State and Amnesty International on Mongolia. Pet. Brief at 5; R. at 155-56, 197-98, 201.
At the hearing, Purveegiin testified that the Mongolian Ambassador's son drugged him and stole his legal documents and bank card. R. at 233. Following this incident, Purveegiin became short-tempered and stopped attending art school. R. at 237-38. He also testified that his mail was opened at the United Nations Consulate, R. at 241, and that he suspected his telephone was wiretapped. R. at 245-46.
Purveegiin testified that Mongolian Secret Service agents warned him he would be arrested for his anti-Communist remarks and for failing to pay the loan. R. 248-50, 251. He also testified that he received a threat of arrest from the Minister of Economy. R. at 251. Purveegiin described a letter he received from his mother stating that she was warned by an unnamed government official that Purveegiin would face "problems" if he continued to curse and fight with the Mongolian United Nations representative. R. at 251-53, 255-59 (). Purveegiin explained that his mother's letter also alluded to the house arrest of his former employer and coworkers for assisting him in New York. R. at 259-60. Purveegiin testified that the Foreign Minister will have him arrested because "I don't like [Mongolian Party people] and I tell him openly." R. at 262.
Purveegiin testified that he suspected the Mongolian Government was involved in his father's death of food poisoning in 1995. R. at 265-66. He contends that he faces arrest, not for his outstanding loan but because he told politically influential members of the Communist Party that he would "struggle" against them. R. at 268-70.
On November 25, 1997, the IJ issued a written opinion denying Purveegiin's application for asylum and withholding of deportation. R. at 150-58. Although the IJ determined that Purveegiin's fears were subjectively genuine and credible, R. at 153, he found that Purveegiin failed to establish that he would face persecution based on his political opinion. R. at 154-57. The IJ referred to documents from the State Department and Amnesty International which "did not indicate that it is a crime to criticize the government, politically or otherwise." R. at 157. Because the IJ found that Purveegiin did not sustain his burden, he did not consider whether Purveegiin's convictions would also make him ineligible for asylum relief.
On December 17, 1997, Purveegiin (represented by counsel, see R. at 115, 134) appealed the IJ's decision to the BIA, R. at 121-23, 131-34. See also R. 73-86 (Pet. Brief).
On June 30, 1998, the BIA affirmed the IJ's findings and denied Purveegiin's application for asylum and withholding of deportation.3 R. at 49-54. The BIA determined that Purveegiin failed to establish past persecution or that Purveegiin had a well-founded fear of future persecution. R. at 51-52. Instead, the BIA found that Purveegiin's fear of persecution was based on a financial or personal dispute and, as such, did not encompass the statutory grounds available for asylum or withholding of deportation. R. at 52.
On July 10, 1998, Purveegiin filed a claim with the INS for relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("Torture Convention"), Dec. 10, 1984, art. 3, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985), ratified by the United States on Oct. 21, 1994, 34 I.L.M. 590, 591 (1995).4 See Gov't Memo at 5-6; see also R. at ¶ 3 & Exhibit B at 1-2.
On September 15, 1998, the Court received Purveegiin's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("Pet.").5 Venue is proper in the Southern District of New York, notwithstanding Purveegiin's current confinement at a Pennsylvania county jail, because the INS commenced its proceedings against Purveegiin while he was in custody in New York City.6 R. at 507.
Liberally construing petitioner's prolix claims,7 he appears to challenge the validity of his state court convictions, alleges bias on the part of the state courts and INS officials based on his skin color, and contends that he presented sufficient evidence of persecution to warrant a grant of...
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