Saleh v. Meese
| Decision Date | 15 September 1987 |
| Docket Number | No. 87 C 402.,87 C 402. |
| Citation | 669 F. Supp. 885 |
| Parties | Karim SALEH, Plaintiff, v. Edwin MEESE, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Mark A. Anvaripour, Anvaripour and Associates, Chicago, Ill., for plaintiff.
Jack Penca, Linda A. Wawzenski, Asst. U.S. Attys., Chicago, Ill., for defendants.
Karim Saleh ("Saleh") has filed a petition for a writ of habeas corpus (the "Petition") against Attorney General Edwin Meese and the Immigration and Naturalization Service ("INS") (collectively "Respondents"). Respondents have now filed a motion for summary judgment under Fed.R.Civ.P. ("Rule") 56, primarily asserting this Court lacks subject matter jurisdiction over the Petition (rather than dealing with its merits). For the reasons stated in this memorandum opinion and order, the Petition is indeed dismissed for want of jurisdiction.
On December 27, 1977 Saleh was admitted to the United States as a permanent resident alien, and he has remained in this country continuously since that date (Ex. 4). On September 24, 1984 he was convicted in the Circuit Court of Cook County, Illinois of (1) possession of a controlled substance with intent to deliver and (2) bribery, receiving 30 months' probation for those offenses (Exs. 1, 2). Under Immigration and Nationality Act ("Act") § 241(a)(11), 8 U.S.C. § 1251(a)(11),2 aliens convicted of narcotics offenses are deportable. On August 6, 1985 Respondents instituted deportation proceedings against Saleh under Section 1252(b) (Ex. 4).
Saleh and his attorney attended his March 26, 1986 deportation hearing before an immigration judge. Saleh admitted his deportability under Section 1251(a)(11) but asked for time to file an application for a waiver of deportation under Section 1182(c). He was given until June 2 to file such an application, and his deportation hearing was continued to November 5, 1986 (Ex. 7).
Saleh did not file a Section 1182(c) application by June 2, and he also failed to appear at the November 5 hearing.3 Because Saleh had already admitted his deportability and had failed to seek a waiver, the immigration judge ordered him deported but reserved Saleh's right to appeal that order to the Board of Immigration Appeals ("BIA") (Exs. 8, 9). Saleh never filed such an appeal from the order of deportation, and on December 18, 1986 the INS issued a warrant of deportation (Ex. 10).
After Saleh was apprehended on that warrant and taken into custody by Respondents, he began the proceedings that are directly relevant to his Petition. On December 23, 1986 he filed (1) a motion to reopen the deportation proceeding with the immigration judge under Reg. § 242.22 so that he could file his Section 1182(c) waiver application (Exs. 17-18), together with (2) a request that the immigration judge stay his deportation (Exs. 19-20). Saleh's request for a stay was denied the next day (Ex. 11), and his motion to reopen was denied January 13, 1987 (Ex. 12).
Saleh immediately appealed the denial of his motion to reopen to BIA and also asked BIA for a stay of his deportation (Reg. § 3.6(b)). His request for a stay was denied January 14, 1987 (Ex. 13), and his appeal of the immigration judge's denial of his motion to reopen is still pending.
Saleh filed his Petition January 15. According to Respondents that filing automatically stayed his deportation (see 2 Gordon & Rosenfield, Immigration Law and Procedure §§ 8.7d, 18 (rev. ed. 1987)),4 and he is now free on bond (Exs. 14-15). Nonetheless he is still technically "held in custody" in the legal sense for habeas corpus purposes (Burris v. Ryan, 397 F.2d 553, 555 (7th Cir.1968)).
On its face the Petition attacks only the order of deportation and the immigration judge's denial of Saleh's motion to reopen. Saleh says he is entitled to a waiver of his deportation under Section 1182(c)(¶¶ 4-7). He does not even mention the denial of his motions for a stay of deportation by the immigration judge or BIA (that information came to this Court only through Respondents' exhibits).
Respondents contend this Court has no jurisdiction to entertain the Petition because Section 1105a(a) gives our Court of Appeals exclusive jurisdiction over the issues raised by Saleh's Petition. They are right.
Respondents have labeled their motion as one for summary judgment under Rule 56. As already noted, the major (though not exclusive) thrust of their motion is to challenge this Court's subject matter jurisdiction. Rule 12(b)(1) rather than Rule 56 is the appropriate vehicle for challenging a court's subject matter jurisdiction (see 5 Wright & Miller, Federal Practice and Procedure: Civil § 1350, at 547 (1969)). Respondents' evidentiary submissions are just as cognizable on a Rule 12(b)(1) motion as they would be for Rule 56 purposes (id. at 549-50). Because Respondents' jurisdictional arrow hits the mark, their arguments against the merits of the Petition are moot and need not be addressed (id. at 548).
Section 1105a(a) gives the courts of appeals "sole and exclusive" jurisdiction for:
As the statutory language and structure make clear, the rule under Section 1105a(a) vests the courts of appeals with exclusive jurisdiction to review final orders entered during Section 1252(b) deportation proceedings; the Section 1105a(a)(9) habeas jurisdiction of district courts is a partial exception to that rule.5
"Final orders" under Section 1105a(a) include "all determinations made during and incident to the administrative proceeding" (Foti v. INS, 375 U.S. 217, 229, 84 S.Ct. 306, 314, 11 L.Ed.2d 281 (1963)) and "all matters on which the validity of the final order is contingent" (INS v. Chadha, 462 U.S. 919, 938, 103 S.Ct. 2764, 2777, 77 L.Ed.2d 317 (1983)). If a literal reading were given to the exception in Section 1105a(a)(9), allowing for initial judicial review in district courts via habeas proceedings, it would apply to every alien (such as Saleh) held in custody—even if a "final order" were involved. But because of the congressional purpose that led to the vesting of exclusive jurisdiction in the courts of appeals, controlling case law has supplied a judicial gloss that converts the Section 1105a(a)(9) exception into a narrow one, applicable only to certain discretionary determinations under the Act not made during the course of a deportation proceeding (compare Foti, 375 U.S. at 227, 84 S.Ct. at 313 with Cheng Fan Kwok v. INS, 392 U.S. 206, 216-17, 88 S.Ct. 1970, 1976, 20 L.Ed.2d 1037 (1968); see also Fleurinor v. INS, 585 F.2d 129, 135-36 (5th Cir.1978)).
Saleh's Petition does not fit into the narrow opening created by Section 1105a(a)(9). He challenges (1) Respondents' decision to arrest and deport him and (2) their denial of his motion to reopen. Neither of those matters is properly raised in habeas proceedings. Our Court of Appeals is the exclusive forum for any attack on the order of deportation (Terrado v. Moyer, 820 F.2d 920, 922 (7th Cir.1987) (per curiam)), including an appeal from the denial of a motion to reopen (Diaz-Salazar v. INS, 700 F.2d 1156, 1159 (7th Cir.1983), citing Giova v. Rosenberg, 379 U.S. 18, 85 S.Ct. 156, 13 L.Ed.2d 90 (1964)).6
Saleh attempts to escape the overwhelming weight of authority by pointing to Salehi v. District Director, INS, 796 F.2d 1286 (10th Cir.1986) and Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982). Saleh argues that because those cases allowed district courts to consider "general" attacks on INS procedures in deportation proceedings, this Court has jurisdiction to consider his Petition. Saleh misconstrues the holdings in Salehi and Haitian Refugee Center and ignores the actual thrust of his own Petition.
In Haitian Refugee Center a plaintiff class of Haitian refugees sought review in a district court of the validity of the expedited procedures being used by INS to process their asylum applications. INS argued the courts of appeals have exclusive jurisdiction over such matters under Section 1105a(a). That argument was rejected (676 F.2d at 1033 (footnote 22 omitted)):
Notwithstanding any surface appeal to the government's argument, we are convinced that insofar as the first three counts set forth matters alleged to be part of a pattern and practice by immigration officials to violate the constitutional rights of a class of aliens they constitute wrongs which are independently cognizable in the district court under its federal question jurisdiction.
But in the very next sentence and in the following footnote (both of which Saleh ignores) Haitian Refugee Center said the courts of appeals have exclusive jurisdiction over alleged procedural irregularities in an individual deportation hearing when those irregularities would provide a basis for reversing an individual order. Indeed, even as to what the opinion termed "a wholesale, carefully orchestrated, program of constitutional violations" (id.) the court went on to say (id. at 1033 n. 23):
We caution that in the latter situation the district court has no authority to review on the merits any ultimate determination by the INS on the issue of deportability or any discretionary relief sought before the immigration judge during the deportation proceeding.
In Salehi several illegal aliens filed habeas corpus petitions in which they alleged (796 F.2d at 1288):
They were denied due process because the INS regulations do not provide for an automatic hearing and a stay of deportation upon the filing of a motion to reopen...
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