Robledo-Gonzales v. Ashcroft

• Decision Date: 25 July 2003
• Docket Number: No. 02-2475.,02-2475.
• Citation: 342 F.3d 667
• Parties: Roman ROBLEDO-GONZALES, Petitioner-Appellant, v. John D. ASHCROFT, Attorney General of the United States, Commissioner, Immigration and Naturalization Service, Board of Immigration Appeals, District Director, et al.,<SMALL><SUP>1</SUP></SMALL> Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

342 F.3d 667

Roman ROBLEDO-GONZALES, Petitioner-Appellant, v. John D. ASHCROFT, Attorney General of the United States, Commissioner, Immigration and Naturalization Service, Board of Immigration Appeals, District Director, et al.,¹ Respondents-Appellees.

No. 02-2475.

United States Court of Appeals, Seventh Circuit.

Argued January 24, 2003.

Decided July 25, 2003.

COPYRIGHT MATERIAL OMITTED

Mary L. Sfasciotti (argued), Chicago, IL, for Petitioner-Appellant.

Papu Sandhu (argued), Department of Justice, Civil Division, Immigration, Litigation, Washington, D.C., for Respondent-Appellee.

Before RIPPLE, EVANS and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Roman Robledo-Gonzales sought a writ of habeas corpus seeking release from incarceration and other relief on the basis that the deportation order underlying his conviction was contrary to law. The district court denied Mr. Robledo-Gonzales relief. For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I BACKGROUND

A. Facts

1. Deportation Proceedings

Mr. Robledo-Gonzales first entered the United States without inspection in 1980 and later became a lawful permanent resident. In 1993, Mr. Robledo-Gonzales pleaded guilty to a charge of possession with intent to deliver narcotics. He was sentenced to four years' imprisonment.

After his conviction, the INS instituted deportation proceedings against Mr. Robledo-Gonzales as an alien convicted of an aggravated felony. During a hearing before an Immigration Judge ("IJ"), Mr. Robledo-Gonzales applied for relief pursuant to 8 U.S.C. § 1182(c) (also referred to as § 212(c)).² The IJ denied Mr. Robledo-Gonzales' application for § 212(c) relief, and Mr. Robledo-Gonzales appealed the IJ's decision to the Board of Immigration Appeals ("BIA").

While the appeal was pending before the BIA, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. 104-308, 110 Stat. 3009 (1996), which substantially curtailed the ability of certain aliens to apply for discretionary relief and to seek judicial review of adverse administrative decisions. Relevant to this case, § 440(d) of AEDPA barred § 212(c) relief to individuals who had been convicted of certain drug offenses.

Also while Mr. Robledo-Gonzales' appeal was pending before the BIA, the Attorney General considered the effect of the § 440(d) bar on aliens whose petitions for discretionary relief were pending at the time of AEDPA's passage. See Matter of Soriano, Interim Dec. No. 3289, 1996 WL 426888 (Feb. 21, 1997). In Soriano, the Attorney General determined that § 440(d) of AEDPA precluded § 212(c) relief even for petitioners whose immigration cases were pending on the date of AEDPA's enactment.

On March 24, 1997, the BIA affirmed the IJ's denial of discretionary relief to Mr. Robledo-Gonzales. Specifically, the BIA cited Soriano and held that § 440(d) of AEDPA prevented it from granting Mr. Robledo-Gonzales the discretionary relief that he was seeking.

Shortly thereafter, the INS issued a warrant of deportation, and Mr. Robledo-Gonzales self-deported on May 16, 1997. Mr. Robledo-Gonzales never appealed the BIA's order, nor did he seek to challenge his deportation in any way.

2. Criminal Proceedings

Mr. Robledo-Gonzales illegally reentered the Country only one year later. In February 2001, Mr. Robledo-Gonzales was apprehended and charged with violation of 8 U.S.C. § 1326(a) and (b) — illegal reentry. After Mr. Robledo-Gonzales had been charged, the Supreme Court handed down its opinion in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), in which the Court reached a different conclusion than had the Attorney General concerning the availability of § 212(c) relief after AEDPA. The Court stated:

We find nothing in IIRIRA unmistakably indicating that Congress considered the question to apply its repeal of § 212(c) retroactively to such aliens [as St. Cyr]. We therefore hold that § 212(c) relief remains available for aliens, like respondent, whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect.

Id. at 326, 121 S.Ct. 2271. Mr. Robledo-Gonzales moved to dismiss his indictment on the basis of the St. Cyr decision, but his motion was denied. Mr. Robledo-Gonzales then filed the present action.³ Mr. Robledo-Gonzales also filed a motion to reopen his deportation proceedings with the BIA on the same basis. See R.6, Ex.A.

B. District Court Proceedings

In his habeas action, Mr. Robledo-Gonzales requested the following relief. First, Mr. Robledo-Gonzales sought an order that the 1997 deportation order was "null and void as unconstitutional." R.1 at 9. Mr. Robledo-Gonzales also requested an order "declaring the criminal proceedings instituted in the Northern District of Illinois... improper as unconstitutional." Id. Additionally, Mr. Robledo-Gonzales asked the district court to declare that "aliens who were unjustly and illegally deported in reliance of the Attorney General's now-defunct decision in Matter of Soriano have the right to apply for, or reassert their right to § 212(c) relief," despite an INS regulation to the contrary, 8 C.F.R. § 3.44.⁴ Id. Finally, Mr. Robledo-Gonzales sought an order requiring the BIA to reopen his deportation proceedings "to enable him to reassert his previously denied application for § 212(c) relief...." Id. at 10.

The respondents then filed a motion to dismiss the petition,⁵ and the district court granted the motion. The district court first determined that, because the BIA now had denied the motion to reopen, see R.6, Ex.1, that ruling was ripe for review. However, citing this court's decisions in Sharif v. Ashcroft, 280 F.3d 786 (7th Cir.2002), and Chowdhury v. Ashcroft, 241 F.3d 848 (7th Cir.2001), the district court concluded that Mr. Robledo-Gonzales had filed the action in the wrong court; any review of the denial of the motion to reopen should have been taken to this court.

With respect to the 1997 removal order, the district court held that the Supreme Court's decisions in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and Calcano-Martinez v. INS, 533 U.S. 348, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001), allowed it to entertain a habeas action that raised pure questions of law. However, the court rejected Mr. Robledo-Gonzales' argument that these recent Supreme Court decisions afforded every convicted alien a constitutional right to seek § 212(c) relief. Furthermore, the court noted that Mr. Robledo-Gonzales had applied for § 212(c) relief before the IJ; the IJ, however, had denied Mr. Robledo-Gonzales that relief after a full hearing. Consequently, because Mr. Robledo-Gonzales had not suffered any prejudice from the alleged deprivation, no constitutional violation had occurred.

Mr. Robledo-Gonzales timely appealed the district court's dismissal of his habeas petition.

II ANALYSIS

A. Propriety of the Petition for Habeas Corpus

The respondents maintain that Mr. Robledo-Gonzales is not currently in their custody, nor was he at the time he filed his petition for the writ of habeas corpus. Consequently, they argue, this court should dismiss the petition. We agree.

Mr. Robledo-Gonzales brings his present action pursuant to 28 U.S.C. § 2241. Although § 2241 is the substantive provision for the writ of habeas corpus, 28 U.S.C. §§ 2242 and 2243 set forth the procedure one must follow to bring a petition and to obtain the relief of the writ. Specifically, application for the writ "shall allege the facts concerning the applicant's commitment or detention, the name of the person who has custody over him and by virtue of what claim or authority, if known." 28 U.S.C. § 2242 ¶ 2. The court must then issue the writ or issue an order to show cause why the writ should not be granted. See 28 U.S.C. § 2243 ¶ 1. That document "shall be directed to the person having custody of the person detained." Id. ¶ 2. Furthermore, unless the writ raises only issues of law, "the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained." Id. ¶ 5. These procedural requirements establish that "[t]he writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). Consequently, a petition for a writ of habeas corpus must be directed to the individual or individuals who holds the petitioner in allegedly unlawful custody.

Furthermore, it is not sufficient that the named respondent simply be involved, in some manner, with the petitioner's detention. Sections 2242 and 2243 "indicate that the custodian is the person having a day-to-day control over the prisoner." Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986). Specifically, when a prisoner is serving a sentence in a federal facility, "the warden of that facility is the prisoner's custodian within the meaning of 28 U.S.C. § 2242-2243 ...." Id.

At the time the present petition was filed, Mr. Robledo-Gonzales was incarcerated awaiting trial on the charge of illegal reentry. Consequently, the proper respondent to Mr. Robledo-Gonzales' habeas petition was the warden of the facility in which Mr. Robledo-Gonzales was being held. See id.⁶ Mr. Robledo-Gonzales' petition, however, failed to name the warden of the facility in which he was being detained. Mr. Robledo-Gonzales' petition named only the Attorney General, the Commissioner of the INS and the District Director of the INS, none of whom possessed "day-to-day" control over Mr. Robledo-Gonzales at the time the petition was filed.

Despite this...