Roman v. Ashcroft

• Decision Date: 13 August 2003
• Docket Number: No. 02-3253.,02-3253.
• Citation: 340 F.3d 314
• Parties: Julio E. ROMAN, Petitioner-Appellee, v. John ASHCROFT et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

340 F.3d 314

Julio E. ROMAN, Petitioner-Appellee, v. John ASHCROFT et al., Respondents-Appellants.

No. 02-3253.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2003.

Decided and Filed: August 13, 2003.

Petition for Rehearing Denied En Banc: January 14, 2004. Pursuant to Sixth Circuit Rule 206

ARGUED: Alison R. Drucker, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION LITIGATION, CIVIL DIVISION, Washington, D.C., for Appellants.

David W. Leopold (argued and briefed), David Wolfe Leopold & Associates, Cleveland, Ohio, for Petitioner-Appellee.

ON BRIEF: Alison R. Drucker, UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION LITIGATION, CIVIL DIVISION, Washington, D.C., for Appellants.

Kathleen L. Midian, Asst. U.S. Atty., U.S Attorney's Office, Cleveland, OH, Alison R. Drucker (argued and briefed), U.S. Department of Justice, Immigration Litigation, Civil Division, Washington, DC, for Respondents-Appellants.

David W. Leopold, DAVID WOLFE LEOPOLD & ASSOCIATES, Cleveland, Ohio, for Appellee.

Before MOORE and GIBBONS, Circuit Judges; SCHWARZER, Senior District Judge.^*

MOORE, J., delivered the opinion of the court, in which SCHWARZER, D.J., joined. GIBBONS, J. (pp. 329-330), delivered a separate opinion concurring in the result.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Respondents-Appellants United States Attorney General, John Ashcroft; former Acting Commissioner of the Immigration and Naturalization Service ("INS"), Kevin Rooney; former Cleveland District Director of the INS, Robert L. Brown; and New Orleans District Director of the INS, Christine G. Davis (collectively "the government") appeal the district court's judgment granting Petitioner-Appellee Julio E. Roman ("Roman") habeas corpus relief. Roman, an Ohio resident, was convicted of federal crimes in the Northern District of Ohio and incarcerated in Kentucky. The INS charged Roman with being removable on three grounds related to his federal convictions, and Roman was transferred from a federal prison in Kentucky to an INS detention facility in the Western District of Louisiana.

In July 2000, an immigration judge ("IJ") found Roman removable and statutorily ineligible for discretionary relief from removal pursuant to § 212(h) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(h). The Board of Immigration Appeals ("BIA") affirmed this decision on appeal. Roman filed a § 2241 petition for a writ of habeas corpus,¹ arguing that § 212(h) violates the Fifth Amendment Equal Protection Clause. Although Roman was being detained in the Western District of Louisiana at the time, he filed the habeas corpus petition in the district where he resided prior to his incarceration and where he was convicted of the crimes underlying his removal — the Northern District of Ohio. The government moved to dismiss Roman's application because the district court lacked personal jurisdiction over the respondents and because § 212(h) does not violate the Equal Protection Clause. The district court concluded that it had personal jurisdiction over the Attorney General, and granted Roman a writ of habeas corpus on grounds that § 212(h) violates the Equal Protection Clause. The district court then ordered the case remanded to the BIA to allow Roman to pursue § 212(h) relief. The government timely appealed.

Because Roman's action must be brought in the district court having jurisdiction over "the person having custody of the person detained," 28 U.S.C. § 2243, we VACATE the district court's decision to grant Roman habeas corpus relief and REMAND to the district court with instructions to determine whether the Cleveland District Director and the INS Commissioner are proper respondents to Roman's petition. In the event that the district court concludes that these officials are not proper respondents, we instruct the district court to transfer the action to the Western District of Louisiana.

I. FACTS AND PROCEDURE

Roman is a 46-year old native and citizen of the Dominican Republic. He has been a lawful permanent resident of the United States since October 29, 1996, and was last admitted to the United States on February 8, 1997. Roman is married and has six children who are United States citizens.

On September 30, 1999, Roman pleaded guilty in the Northern District of Ohio to fraud and misuse of visas, permits, and other documents, in violation of 18 U.S.C. § 1546(a), and misuse of social security numbers, in violation of 42 U.S.C. § 408(a)(7)(C). Roman was sentenced to 15 months of imprisonment for these two felonies and served 13 months of the sentence.

While Roman was serving his sentence, the INS issued a Notice to Appear and lodged an additional charge against Roman. Pursuant to INA § 237, 8 U.S.C. § 1227, the INS charged Roman with being removable on three grounds: (1) conviction relating to document fraud, see INA § 237(a)(3)(B)(iii); (2) conviction of a crime involving moral turpitude committed within five years of entry for which a sentence of one year or longer may be imposed, see INA § 237(a)(2)(A)(i); and (3) conviction of an aggravated felony, see INA § 237(a)(2)(A)(iii).

Roman was transferred from the Lexington Federal Medical Center in Lexington, Kentucky, to the Oakdale Detention Center in Oakdale, Louisiana, and passed into INS custody. At his removal hearing in Oakdale, Roman admitted to the INS's factual allegations but denied that he was removable. According to Roman, because he adjusted his status in 1991, he was not deportable for committing a crime involving moral turpitude within five years after his admission to the country. Roman also argued that he was not removable because his document fraud was a first offense undertaken solely to assist close family members, which does not constitute an aggravated felony. See INA § 101(a)(43)(P), 8 U.S.C. § 1101(a)(43)(P). The IJ did not allow Roman to testify about his conviction of document fraud.

On August 11, 2000, the IJ entered a decision rejecting Roman's arguments that he was not deportable for committing a crime involving moral turpitude and that he had not committed an aggravated felony. The decision implied that the five-year period mentioned in the moral turpitude ground of removal started running from the date of Roman's last entry, February 8, 1997. Moreover, because the criminal plea agreement stated that Roman possessed false documents for approximately thirty persons, the IJ rejected Roman's contention that he engaged in document fraud solely to assist close family members.

The IJ found Roman removable, denied Roman's request for cancellation of removal pursuant to INA § 240A(a), 8 U.S.C. § 1229b(a), and ordered Roman removed to the Dominican Republic. The IJ did not address the possibility of discretionary relief from removal pursuant to § 212(h). The BIA affirmed the IJ's decision and denied Roman's motion to reopen to apply for cancellation of removal.

Meanwhile, in May 2001, Roman filed a pro se petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. He named four respondents — the Attorney General, the INS Commissioner, the former INS District Director in Cleveland, Ohio, and the INS District Director in New Orleans, Louisiana. Roman alleged that his due process rights were violated by the retroactive application of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), that his procedural due process rights were violated because the IJ did not allow him a meaningful opportunity to be heard on the merits of his requests for § 240A or § 212(h) relief, and that his right to equal protection of the laws was violated because these forms of relief "discriminate[] between members of a class based on a distinction that is not rationally related to [their] purpose." Joint Appendix at 17 (Habeas Pet.).

Roman filed a motion seeking a stay of removal, and the district court enjoined the INS from executing a final order of removal pending the outcome of judicial proceedings. The case was briefly held in abeyance while the court awaited the Supreme Court's disposition of INS v. St Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

The government moved to dismiss Roman's petition in July 2001. The government challenged personal jurisdiction and venue, noted Roman's failure to exhaust administrative remedies with respect to § 212(h),² and argued that § 212(h) does not violate the Equal Protection Clause.

In September 2001, the district court issued an order granting the government's motion to dismiss for want of personal jurisdiction as to the New Orleans District Director and denying the motion as to the Attorney General. Roman v. Ashcroft, 162 F.Supp.2d 755, 758, 759 (N.D.Ohio 2001) [Roman I]. The order did not discuss whether the INS Commissioner and Cleveland District Director were appropriately named as respondents. Id. at 758. Concluding that it had jurisdiction over the action, the district court directed the government to show cause why Roman's writ should not issue. Id. at 765.

In January 2002, the district court granted Roman a writ of habeas corpus, holding that § 212(h) violated the Equal Protection Clause by differentiating between legal permanent residents and other aliens. Roman v. Ashcroft, 181 F.Supp.2d 808, 814 (N.D.Ohio 2002) [Roman II]. The district court also found that the IJ's failure to give Roman an opportunity to be heard at his deportation hearing was harmless error. Id. at 816. The case was remanded to the BIA to allow Roman to pursue his claim for a discretionary waiver of removal, pursuant to § 212(h). Id.

The government timely appealed the district court's September 2001 and January 2002 orders.

II. JURISDICTION OVER ROMAN'S HABEAS CORPUS PETITION

The district court confined its analysis of the government's motion to dismiss for lack of personal jurisdiction to the New Orleans District Director and the Attorney General....