Saint Fort v. Ashcroft

• Decision Date: 30 September 2002
• Docket Number: No. CIV.A.02-11291-RGS.,CIV.A.02-11291-RGS.
• Citation: 223 F.Supp.2d 343
• Parties: Kelly SAINT FORT v. John ASHCROFT, Attorney General, et al.,
• Court: U.S. District Court — District of Massachusetts

223 F.Supp.2d 343 Kelly SAINT FORT
v.
John ASHCROFT, Attorney General, et al., No. CIV.A.02-11291-RGS. United States District Court, D. Massachusetts. September 30, 2002.

Allan M. Tow, Boston, MA, for Kelly Saint Fort, Plaintiff.

Frank Crowley, Immigration & Naturalization, Special Assistant U.S. Attorney, Boston, MA, for John Ashcroft, Attorney General, James Zigler, Steven J. Farquharson, Defendants.

MEMORANDUM AND ORDER ON PETITIONER'S MOTION FOR WRIT OF HABEAS CORPUS

STEARNS, District Judge.

On August 1, 2002, the court stayed petitioner Kelly Saint Fort's removal and directed the respondent Attorney General to file an opposition to his petition for writ of habeas corpus. On September 11, 2002, the respondent moved to dismiss the petition on grounds that Saint Fort had failed to exhaust his administrative remedies. On September 23, 2002, Saint Fort filed his opposition to the motion to dismiss. Having considered the pleadings, and the relevant decisions of the immigration courts, this court rules as follows.

Petitioner is a twenty-six year old citizen of Haiti who immigrated legally with his family to the United States at age twelve. In 1999, Saint Fort was convicted of second degree assault and receiving stolen

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property. He was sentenced to concurrent prison terms of two to four years. As both crimes met the statutory definition of an aggravated felony, Saint Fort was found by an Immigration Judge (IJ) to be subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). The IJ, however, also determined that if Saint Fort were to be returned to Haiti, he would "more likely [than not] be imprisoned as a criminal from the United States and be detained and placed in prison, and be tortured." IJ Oral Decision of Nov. 6, 2001, at 4. The IJ therefore found Saint Fort eligible for a deferral under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85(CAT).¹ As is apparent from his oral ruling, the IJ based his finding on State Department Human Rights Reports, a prior decision of the Board of Immigration Appeals (BIA),² and Saint Fort's testimony, which the IJ deemed credible.

The Attorney General appealed, and the BIA reversed the IJ's decision. The BIA cited an intervening decision, In Re J-E-, 23 I. & N. Dec. 291 (BIA 2002), holding that "substandard prison conditions in Haiti do not constitute torture within the meaning of 8 C.F.R. § 208.18(a) where there is no evidence that the authorities intentionally and deliberately detain deportees in order to inflict torture." The BIA then summarily concluded that Saint Fort had presented no evidence that he would be tortured if returned to Haiti.

DISCUSSION

The Attorney General's principal argument is that this court lacks jurisdiction to hear the petition because Saint Fort had failed to exhaust his administrative remedies as required by 8 U.S.C. § 1252(d)(1). The statutory exhaustion requirement is jurisdictional, as the Attorney General contends. See Athehortua-Vanegas v. I.N.S., 876 F.2d 238, 240 (1st Cir. 1989); Sousa v. I.N.S., 226 F.3d 28, 31 (1st Cir.2000). The question remains, however, whether the unexhausted remedies identified by the Attorney General that were available to Saint Fort — a motion to reopen his case before the BIA, or a motion to reconsider³ — trigger this jurisdictional bar. The remedies required to be exhausted are those that in the plain language of § 1252(d) are available to an alien "as of right." A motion to reconsider would not seem to fall into the category of a remedy of right as it need not be considered by the court on its merits. See Luis v. I.N.S., 196 F.3d 36, 41 (1st Cir.1999).

The suggested motion to reopen presents a closer question. The motion to reopen is intended to avoid a harsh application of the statutory exhaustion rule when an alien fails to raise an issue before the BIA through no fault of his own, either because of a structural error in the BIA proceedings themselves or because of an unforeseeable change in circumstances. See Bernal-Vallejo v. I.N.S., 195 F.3d 56, 64 (1st Cir.1999) (ineffective assistance on the part of counsel before the BIA). It...