Safarian v. Reno

• Decision Date: 23 April 1997
• Docket Number: Civil Action No. 96-3138.
• Citation: 968 F.Supp. 1101
• Parties: Robert Sedrak SAFARIAN, Jr. v. Janet RENO, Attorney General of the United States.
• Court: U.S. District Court — Eastern District of Louisiana

Page 1101

968 F.Supp. 1101

Robert Sedrak SAFARIAN, Jr. v. Janet RENO, Attorney General of the United States.

Civil Action No. 96-3138.

United States District Court, E.D. Louisiana.

April 23, 1997.

Sedrak Safarian, Jr., New Orleans, LA, pro se.

Kathryn Weekley Becnel, U.S. Attorney's Office, New Orleans, LA, for Janet Reno and U.S. Immigration and Naturalization Service.

DUVAL, District Judge.

Before the Court are four motions, (1) a Motion for Leave to Proceed in forma pauperis, (2) a Petition for Writ of Habeas Corpus by a Person in Federal Custody, pursuant to 28 U.S.C. § 2241, and (3) a Motion for Enlargement on Bond, and (4) a Motion to Return Petitioner to the District of Nevada.

Having reviewed the memoranda, the pleadings, and the relevant law, this Court finds that it does not have jurisdiction over these claims and therefore, Petitioner's Motions are DENIED.

FACTS:

Petitioner, Sedrak Safarian Jr. ("Safarian"), is a native and citizen of Armenia. Safarian has resided in the United States since December 19, 1974, when he was conditionally admitted as a refugee from Communist Armenia pursuant to Section 203(a)(7) of the Immigration and Nationality Act; 8 U.S.C. § 1201(a). On April 1, 1980, Safarian became a lawful permanent resident of the United States retroactive to December 19, 1974.

As an adult, Safarian has been convicted of seven crimes and has spent over seven years in incarceration. On November 18, 1988, Safarian was convicted, upon a plea of guilty, to second degree burglary of a vehicle, attempted grand auto theft, and possession of cocaine. Safarian was convicted for possession of cocaine a second time on March 26, 1991 and a third time on August 6, 1992.

The INS commenced deportation proceedings after Safarian was released from incarceration following his 1988 conviction, by issuing an Order to Show Cause on June 4, 1990. Safarian was charged with deportability pursuant to section 241(a)(11) of 8 U.S.C. § 1251(a)(11) because he was an alien who was convicted of a violation involving a controlled substance. Safarian posted a $2,000.00 bond and was released from custody. While deportation proceedings were pending, Safarian was incarcerated for his second cocaine related offense. When Safarian was released in 1992, the INS took him into custody and Safarian was released on $4,000.00 bond.

Safarian's conviction for his third cocaine related offense interrupted the deportation proceedings a second time, and they were administratively closed. Upon Safarian's release from incarceration, the INS took him into custody and reopened immigration proceedings. On December 20, 1994 the INS lodged an additional charge of deportability against Safarian under 8 U.S.C. § 1251(a)(2)(A)(iii), because Safarian was convicted a second time of possession of cocaine, making him an aggravated felon. Bond was set at $10,000.00, but later reduced to $7,000.00. Safarian's brother posted bail, and Safarian was released from custody on January 28, 1995. Safarian failed to appear at his June 20, 1995 deportation hearing.

When the INS regained custody of Safarian, he was held without bond. Safarian's final deportation hearing was held on November 15, 1995, at which time an order of deportation was entered against Safarian. Safarian filed, but later withdrew, his appeal and the deportation order became final on December 20, 1995.¹ Since that time, INS has been unable to obtain the necessary travel documents required to effectuate his deportation to Armenia.

Safarian is currently confined in the Orleans Parish Prison in New Orleans, Louisiana where he has been housed since August 20, 1996. Safarian has been recommended for placement in the About Face Program conducted the Orleans Parish Prison, which would permit his supervised release. Although Safarian's name is on a waiting list, he has not been admitted to this program because only a limited number of participants are accepted.

Safarian filed a Writ of Habeas Corpus under 28 U.S.C. § 2241 on September 11, 1996, while temporarily housed at the North Las Vegas Detention Center. The present action was transferred to this Court by the United States District Court in Nevada.

Safarian does not challenge the validity of his deportation order, but seeks to have this Court order him released from INS custody pending deportation. Safarian claims that the INS had until June 20, 1996, to effect deportation and that in that time, the INS has been unable to do so (Safarian has been in INS custody awaiting deportation for roughly 20 months). Safarian claims that the INS's failure to deport within six months of the final order of deportation requires his immediate unrestricted release, or in the alternative, a release with conditions under 8 U.S.C. § 1252(c)(1996).

JURISDICTION:

Congress recently amended the Immigration and Nationality Act ("INA") by enacting the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, 1277 ("AEDPA") on April 24, 1996, and by enacting the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 ("IIRIRA") on September 30, 1996. Both of these Acts affect the jurisdiction of a district court to review certain immigration actions.

AEDPA

Prior to the enactment of the AEDPA, 8 U.S.C. § 1105a(a)(10) provided that "[A]ny alien held in custody pursuant to an order of deportation may obtain judicial review thereof by habeas corpus proceedings." The availability of this statutory grant of habeas corpus review was expressly revoked by Section 401(e) of the AEDPA.² Thus, as of April 24, 1996 there is no longer a statutory provision in the INA providing jurisdiction for habeas corpus petitions brought by aliens challenging discretionary decisions regarding their final deportation orders.³ See, Moore v. INS, 956 F.Supp. 878, 880-82 (D.Neb. 1997). Safarian filed his petition for Writ of Habeas Corpus after the enactment date of the AEDPA, and the habeas corpus review formerly allowed under 8 U.S.C. § 1105a(a)(10) is not available here. See, Duldulao v. Reno, 958 F.Supp. 476, 478-79 (D.Hawai'i 1997); Vakalala v. Schiltgen, No. C-97-0492SI, 1997 WL 102501 at *2 (N.D.Cal. Feb.26, 1997).

Under the AEDPA, Congress removed from circuit courts and district courts the jurisdiction to review final orders of deportation, and removed the statutory provisions allowing habeas corpus review of discretionary deportation decisions, however, federal courts were not completely divested of jurisdiction to conduct habeas corpus reviews. Anwar v. INS, 107 F.3d 339, 342 (5th Cir. 1997). Even under the AEDPA federal courts retained jurisdiction for issues such as due process challenges that did not involve administrative deportation decisions. Id. The AEDPA did not contain the "clear and convincing evidence in the statute" necessary for courts to find that Congress intended to preclude constitutional questions from review. Id. Sections 440 and 401 of the AEDPA, only repealed the availability of habeas corpus under 8 U.S.C. § 1105a(a)(10), they did not contain any express language repealing habeas corpus review under 28 U.S.C. § 2241 or any other provision of law.

In other cases, the INS agreed that, although the AEDPA repealed the previous statutory authorization for habeas corpus review of final deportation orders, any habeas review required by the Constitution remained available See, Veliz v. Caplinger, No. 96-1508, 1997 WL 61456 at*2 (E.D.La. Feb 12, 1997) citing, Kolster v. INS, 101 F.3d 785, 790-91 (1st Cir.1996); Moore, 956 F.Supp. at 882-83.

IIRIRA:

The power of judicial review was further restricted by the enactment of the IIRIRA on September 30, 1996. Section 306 of the IIRIRA rewrote 8 U.S.C. § 1252 which governs judicial review of immigration matters. Section 1252 limits the review of immigration matters as follows:

— With the exception of orders issued without hearing denying an alien entry into the United States pursuant to § 1225(b)(1), final orders of removal are reviewable only by the court of appeals pursuant to 28 U.S.C. § 158. 8 U.S.C. § 1252(a)(1).

— Subsection (b) provides that review of `all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in judicial review of a final order under this section.' 8 U.S.C. § 1252(b)(9).

— Section § 1252(b)(6) provides that any pending motions to reopen or reconsider a removal order are to be consolidated with the review of the final order itself.

— Denials of discretionary relief (including INS decisions regarding voluntary departure and the adjustment of status based on marriage or other family relationship), orders issued against criminal aliens, and exclusion orders of immigration judges based solely on certification that an alien has an excludable disease are not subject to judicial review by any court. 8 U.S.C. § 1252(a)(2).

— Habeas relief is available only for review of orders of an immigration officer under § 1225(b)(1), and then is limited to determinations of whether (A) petitioner is an alien, (B) whether petitioner was removed pursuant to § 1225(b)(1); and (C) whether petitioner can prove he is an alien lawfully admitted for permanent residence, has been admitted as a refugee, or has been granted asylum. 8 U.S.C. § 1252(e)(2).

Section § 1252(f) restricts the courts' ability to enter injunctive relief in favor of an alien. Specifically, no court may enjoin the removal of an alien pursuant to a final order `unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law.'

Benziane v. INS, 960 F.Supp. 238, 240 (D.Colo.1997). These limited review provisions are further restricted by the following language under § 1252(g):

Except as provided in this section and...