Riley v. Greene

• Citation: 149 F.Supp.2d 1256
• Decision Date: 09 May 2001
• Docket Number: No. CIV.A. 00-D-1775.,CIV.A. 00-D-1775.
• Parties: Jeremy E. RILEY, Applicant, v. Joseph R. GREENE, Respondent.
• Court: U.S. District Court — District of Colorado

149 F.Supp.2d 1256

Jeremy E. RILEY, Applicant, v. Joseph R. GREENE, Respondent.

No. CIV.A. 00-D-1775.

United States District Court, D. Colorado.

May 9, 2001.

COPYRIGHT MATERIAL OMITTED

Jeremy E. Riley, ASurora, CO, pro se.

Michelle E. Gorden, U.S. Dept. of Justice, Office of Immigration Lit., Washington DC, Mark S. Pestal, U.S. Attorney's Office, Denver, CO, for Immigration and Naturalization Service, Joseph R. Greene.

ORDER OF DISMISSAL

DANIEL, District Judge.

Applicant Jeremy E. Riley is in the custody of the United States Immigration and Naturalization Service (INS) at the Wackenhut Detention Facility at Aurora, Colorado. Mr. Riley has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1994) challenging the final order of deportation issued by the INS. On December 18, 2000, I ordered Respondent to show cause why the habeas corpus application should not be granted. On February 8, 2001, Respondent filed a response seeking dismissal of the action for lack of jurisdiction and denial of Applicant's request for release. On March 12, 2001, Mr. Riley filed a rebuttal to the response.

I must construe the application and other papers filed by Mr. Riley liberally because he is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, I should not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. After reviewing the entire file, I find that an evidentiary hearing is not necessary. The application and associated motions will be denied for the reasons stated below.

I. Factual and Procedural Background

Mr. Riley is a native of Egypt and a citizen of Lebanon. He was admitted into the United States on or about July 12, 1985, as a nonimmigrant visitor. He was authorized to stay until January 11, 1986. On August 2, 1990, he was charged with deportability for overstaying his tourist visa. He applied for asylum and withholding of deportation which were denied on January 16, 1991, by the immigration judge. He appealed the judge's decision, and deportation proceedings were stayed on April 15, 1991, by the Board of Immigration Appeals (BIA) pending determination of whether Mr. Riley qualified for temporary protected status. In July 1994 the INS moved to reinstate the appeal. On November 28, 1998, the BIA reinstated and dismissed the appeal. The BIA ordered Mr. Riley to voluntarily depart within thirty days of the order or of granting an extension, and if he did not voluntarily depart to be deported as set forth by the immigration judge. Mr. Riley did not appeal the BIA's decision to the United States Court of Appeals for the Tenth Circuit, nor did he voluntarily depart. On August 30, 1999, a warrant of deportation was issued based on Mr. Riley's final deportation order. When Mr. Riley did not appear for deportation by September 21, 1999, he was arrested and transferred to the Wackenhut Detention Facility in Aurora, Colorado, where he currently is held.

II. Standard of Review

A. Jurisdiction

Respondent first asks that the application be dismissed for lack of jurisdiction. In support of this argument Respondent cites the Immigration and Nationality Act (INA) § 242(g), 8 U.S.C. § 1252(g) (Supp. IV 1998) that was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), and Reno v. American-Arab Anti-Discrimination Committee, et al., 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) ("AADC").

Specifically, Respondent contends that under § 242(g) there is no jurisdiction in any federal court to consider the Attorney General's decisions to commence proceedings, adjudicate cases or execute removal orders, except as provided otherwise under § 242 of the INA. Respondent further contends that because the application is only an attempt by Mr. Riley to delay, and further frustrate the INS's efforts to enforce a final deportation order issued against him, it is not judicially reviewable. Respondent cites to AADC; Bhatt v. Reno, 204 F.3d 744, 748 (7th Cir.1999) (affirming the district court's holding that § 242(g) barred federal court jurisdiction to review the alien's habeas corpus action, which was filed after the INS issued a letter directing him to report for deportation, when the alien had already obtained full administrative and judicial review of his challenges to the final deportation order); and Mapoy v. Carroll, 185 F.3d 224, 228 (4th Cir.1999) (holding that § 242(g) precluded jurisdiction to review the petitioner's "thinly veiled attempt to evade the dictates" of the statute, when he filed suit challenging deportation and seeking release from detention after the INS issued a letter ordering him to report for deportation, and his administrative deportation proceedings were complete).

Section 1252(g) provides that:

Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

The Supreme Court has narrowly interpreted § 1252(g) to apply only to the three discrete actions of the Attorney General specified in the statute including the acts of commencing proceedings, adjudicating cases, or executing removal orders. See AADC, 525 U.S. at 482, 119 S.Ct. 936. The Supreme Court in AADC found that there are many other decisions or actions that may be part of the deportation process including the refusal to reconsider a final deportation order. AADC, 525 U.S. at 482, 119 S.Ct. 936. Mr. Riley asserts violations of his right to due process in the INS's refusal to grant him supervised release pending deportation and its refusal to grant his motion to reopen the deportation proceedings. Mr. Riley's claims, therefore, do not challenge the Attorney General's decision to commence proceedings against him, to adjudicate his case, or to execute the removal order.

Moreover, the writ of habeas corpus traditionally has been available to aliens in deportation proceedings. See Jurado-Gutierrez v. Greene, 190 F.3d 1135, 1146 (10th Cir.1999), cert. denied, 529 U.S. 1041, 120 S.Ct. 1539, 146 L.Ed.2d 352 (2000). Pursuant to Felker v. Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) and Ex parte Yerger, 75 U.S. (8 Wall.) 85, 19 L.Ed. 332 (1868), any repeal of traditional habeas corpus jurisdiction pursuant to 28 U.S.C. § 2241 must be explicit. See, e.g., Mahadeo v. Reno, 226 F.3d 3, 10 (1st Cir.2000). Section 1252(g) contains no explicit language sufficient to repeal the court's traditional habeas corpus jurisdiction.

Therefore, I have jurisdiction in this action under § 2241 and may proceed to review the merits of the claims asserted.

Mr. Riley asserts that his due process rights have been violated and that he is being subjected to cruel and unusual punishment. Specifically Mr. Riley sets forth three claims: (1) that he is unjustifiably denied discretionary supervised release; (2) that he is being punished excessively for refusing to depart to the Arab World which he views as hostile and foreign; and (3) that he is being denied discretionary relief from deportation even though he is entitled to relief in light of his unique circumstances.

B. Supervised Release

I first will consider Mr. Riley's supervised release claim. Respondent contends that due to Mr. Riley's refusal to cooperate with the INS's efforts to enforce his final deportation order, the INS has full statutory authority and discretion to detain him until the final order is executed and he is removed from the United States pursuant to INA § 242(c), 8 U.S.C. § 1252(c), and INA § 241(a), 8 U.S.C. § 1231(a)(1)(C) (Supp. IV 1998). (Resp. at 11.)

Mr. Riley alleges that he has been detained since September 1999 pending final deportation. (Am. Pet. at 7.) He further alleges that he is no threat to the community, and that he is settled in the community and not a flight risk. (Id. at 6.) He also claims that he is a stable, dependable person and has made a good-faith effort to comply with the deportation order by petitioning the Canadian government for an immigrant visa. (Id. at Attach. p. 1.) He further claims that if he is not released within a month from the filing of the instant application he will have to file bankruptcy and will be homeless and in need of government assistance. (Id.)

Respondent maintains that since Mr. Riley's deportation proceedings commenced in 1990 the proceedings are governed by § 242 of the INA, 8 U.S.C. § 1252 (1994). Respondent further maintains that Mr. Riley's post-order detention is governed by the pre-amended immigration laws governing post-order detention, as set forth in § 242 of the INA. Mr. Riley does not dispute this position. I therefore will analyze Mr. Riley's claim under 8 U.S.C. § 1252 (1994).

Section 1252(c) (1994) states:

When a final order of deportation under administrative processes is made against any alien, the Attorney General shall have a period of six months from the date of such order, or, if judicial review is had, then from the date of the final order of the court, within which to effect the alien's departure from the United States, during which period, at the Attorney General's discretion, the alien may be detained, released on bond in an amount and containing such conditions as the Attorney General may prescribe, or released on such other condition as the Attorney General may prescribe. Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or other release during such six-month period upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular...