Saba v. I.N.S., C 98-3196 JL (PR).
| Decision Date | 08 February 1999 |
| Docket Number | No. C 98-3196 JL (PR).,C 98-3196 JL (PR). |
| Court | U.S. District Court — Northern District of California |
| Parties | Perfecto N. SABA, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
William R. Gardner, San Francisco, CA, for Petitioner.
Robert Yeargin, U.S. Attorney's Office, San Francisco, CA, for Respondent.
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Perfecto Saba, his brother Samson, and their sisters Anita and Mariam ("Petitioners") filed a petition for a writ of habeas corpus and an application for stay of deportation. All parties consented in writing to the jurisdiction of the magistrate judge to whom the case was assigned. The matter was heard by this court on November 18, 1998. William Gardner appeared on behalf of Petitioners. Robert Yeargin, Special Assistant United States Attorney, appeared on behalf of Respondent.
After considering the briefing and arguments of counsel and the record in this case,
IT IS HEREBY ORDERED that this court vacates the order of deportation and remands this case to the immigration court to re-open proceedings and to evaluate Petitioners' eligibility for adjustment of status.
The Saba family has had an eventful journey on the road to a better life. The mother and father, Anh-Tuyet and Protacio, fled Vietnam with their oldest child, Regina,1 and emigrated to the Philippines, where two more children, Anita and Perfecto, were born. Presumably in search of work, the family ventured to Saudi Arabia, where two more children, Samson and Mariam, were born. Mr. and Mrs. Saba arrived in the United States in 1986. The five Saba children stayed in the Phillippines when their parents first came to the United States.2 The oldest sibling, Regina, now 27 years old, took care of the four younger children, who are the Petitioners in this proceeding, while the parents were away.
On April 9, 1991, the children entered the United States on six-month visitors' visas. They were to depart by October 8, 1991.
On October 4, 1991, Petitioners applied for political asylum.
On May 14, 1993, the Immigration and Naturalization Service ("INS") denied the application for political asylum because the Petitioners could not establish either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, as required by 8 U.S.C. § 1158.3
On June 4, 1993, the INS initiated deportation proceedings.
On November 3, 1993, Petitioners renewed their asylum application.
On September 25, 1995, they withdrew their asylum application in open court. The Immigration Judge ("IJ"), the Hon. Bette Kane Stockton, ordered Petitioners to depart voluntarily by September 6, 1996. The order of voluntary departure would automatically convert to an order of deportation if Petitioners did not depart by the specified date. Mrs. Saba signed the voluntary departure form. Counsel was present at this proceeding.
On June 18, 1996, Mrs. Saba became a naturalized citizen. No action was taken at this time to adjust the status of the children.
On September 6, 1996, the last day for voluntary departure, Petitioners belatedly moved, through counsel, to re-open deportation proceedings to apply for adjustment of status to that of lawful permanent residents under § 245 of the Immigration & Nationality Act. They also requested an extension of time to depart voluntarily. The extension request was denied.
On October 22, 1996, the IJ granted the motion to re-open the deportation proceedings, stating that it was
On November 16, 1996, however, the IJ vacated the October 22 order and entered a new order denying the motion to re-open deportation proceedings,4 stating that she had erred in the initial order by inadvertently failing to notice the written advisal of the consequences of the failure to depart with the signature of Mrs. Saba on the reverse of the form.5
On January 15, 1997, the last day to file an appeal to the Board of Immigration Appeals ("BIA"), Petitioners appealed the IJ's decision to the Board. The notice of appeal was signed by Miguel Gadda, one of Petitioners' attorneys.
On January 22, 1997, the Board rejected the appeal because it was not accompanied by either the $110.00 fee or a Fee Waiver form.
On January 31, 1997, Petitioners' counsel resubmitted the appeal with the fee.
On November 25, 1997, Mr. Saba also became a naturalized citizen.
On January 23, 1998, the BIA dismissed the appeal as untimely because a completed appeal had been due on or before January 15, 1997, but was not correctly filed until January 31, 1997. The IJ's order of December 16, 1996 became final at this time.
On April 9, 1998, Petitioners were ordered to leave the country on May 4, 1998.
On April 29, 1998, Petitioners requested a stay of deportation until November 3, 1998, on the basis that they would miss more than a year of school if they were deported to the Phillippines.
A stay was granted until August 1, 1998. The four young Petitioners signed a statement to the effect that the stay was granted to permit them to finish the school year and that they would depart the United States before the stay expired. Their parents signed a statement that they understood that their children must leave the United States and would make arrangements for the children's travel.
Petitioners did not leave the U.S. on August 1, 1998.
On August 18, 1998, through counsel, they filed a petition in U.S. District Court for a writ of habeas corpus and a stay of deportation.6
On August 24, 1998, Petitioners were ordered to surrender for deportation on September 21, 1998. They did not.
On September 24, 1998, this court issued an order to show cause and stay of deportation to permit hearing of the petition.
Throughout the Immigration proceedings Miguel D. Gadda and his associate, William R. Gardner, represented the Petitioners. William Gardner prepared and argued the habeas petition and motion for stay of deportation.
In 1996, Congress twice significantly revised the Immigration and Nationality Act's ("INA") judicial review provisions, first through the Antiterrorism and Effective Death Penalty Act ("AEDPA"), enacted April 24, 1996, and again through the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which was enacted in September 1996, and which took final effect on April 1, 1997. The pertinent provision, entitled "Exclusive Jurisdiction," states:
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 [the INA].
INA § 242(g) (emphasis added); 8 U.S.C. § 1252(g).
Interpreting 8 U.S.C. § 1252(g), the U.S. Court of Appeals for the Ninth Circuit has held that district courts do not have jurisdiction to hear claims by aliens involving orders of deportation or removal. Hose v. INS, 141 F.3d 932, 935 (9th Cir. 1998). Only a court of appeals may review final orders of removal, pursuant to the exception in § 1252. 141 F.3d at 935. See also Arrozal v. Immigration and Naturalization Service, 159 F.3d 429 (9th Cir. 1998) () District courts are not included in the exception and are divested of jurisdiction to hear appeals from BIA decisions.
In Hose the petitioner attempted to enter the United States at the Honolulu Airport. An INS officer approved her visa on the basis of her apparent marriage to a United States citizen and allowed her to proceed to the Customs area. While she was there, an INS officer questioned the petitioner's brother. The officer began to suspect that petitioner's marriage was a sham when he discovered that petitioner's brother was married to petitioner's mother-in-law. Believing that petitioner had entered into a fraudulent marriage to gain entry to the U.S., the officer brought her back to the INS area, canceled her visa and designated her for exclusion proceedings. Petitioner was later charged with attempting to enter the United States without a valid visa. Petitioner appealed the order of exclusion to the BIA but failed to seek judicial review in the court of appeals. Instead, she filed a habeas petition in the district court, but the district court dismissed her case for lack of subject matter jurisdiction due to the newly enacted Congressional statutes. The petitioner in Hose appealed the dismissal, and the court of appeals affirmed, holding that § 242(g) divested the district courts of jurisdiction to hear any claim by any alien involving an immigration order. 141 F.3d at 935. This includes habeas corpus review under 8 U.S.C. § 2241. Id. at 936. However, the court of appeals may consider a timely petition for review. Ibid.
Under 28 U.S.C. § 2241, writs of habeas corpus may otherwise be granted by the district courts if the petitioner is in "custody in violation of the Constitution or laws or treaties of the United States." In the case at bar, Petitioners failed to appear for deportation. Respondent's Return alleges that the Petitioners are thus putative fugitives. The court of appeals has previously held that escape from federal custody disqualifies a petitioner from seeking legal remedies, see Katz v. United States, 920 F.2d 610, 612 (9th Cir.1990); Hussein v. INS,...
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