Sitcha v. Macdonald, CIV.A. 04-30090-MAP.
| Decision Date | 31 March 2005 |
| Docket Number | No. CIV.A. 04-30090-MAP.,CIV.A. 04-30090-MAP. |
| Citation | 365 F.Supp.2d 103 |
| Parties | Richard SITCHA Petitioner v. Frederick MACDONALD, High Sheriff of the Franklin County House of Corrections, et al. Respondents |
| Court | U.S. District Court — District of Massachusetts |
Karen L. Goodwin, United States Attorney's Office, Springfield, MA, for Frederick MacDonald, Tom Ridge, Bruce Chadbourne, Respondent.
John P. McKenna, John P. McKenna & Associates, PC, Springfield, MA, for Richard Sitcha (A95 461 653) c/o Andrew Cohen, Petitioner.
MEMORANDUM AND ORDER REGARDING RESPONDENTS' MOTION TO DISMISS (Docket No. 8)
Petitioner, Richard Sitcha, is a native of Cameroon who is currently detained by the respondent Sheriff at the request of the Department of Homeland Security, for remaining in the United States after his visa expired. In 2002, Sitcha sought asylum in this country, arguing that if he returned to Cameroon he would be tortured or killed. Initially, the Immigration Judge ("IJ") allowed this application. However, after granting the Department of Homeland Security's motion to reopen the case based on new evidence, the IJ reversed this decision, denied Sitcha's petition for asylum, and issued a final order of deportation.
Sitcha appealed this decision to the Board of Immigration Appeals ("BIA"), which upheld the IJ's final decision. Following the BIA's ruling, petitioner did not seek review in the United States Court of Appeals of the BIA's holding within 30 days, as contemplated by 8 U.S.C. § 1252(b)(1). Instead, after allowing the time for appeal to lapse, he filed a petition for habeas corpus in this court pursuant to 28 U.S.C. § 2241, alleging due process violations on the part of the IJ.
The respondents have moved to dismiss the petition, arguing that the court lacks jurisdiction because Sitcha failed to pursue the required appeal to the Court of Appeals. For the reasons discussed herein, the court will allow the respondents' Motion to Dismiss.
As this is a motion to dismiss, the court will recite the facts taking the allegations in the complaint as true and drawing all reasonable inferences in the petitioner's favor. Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993).
In January 2001, nine persons disappeared after being taken into custody by local police in Sitcha's village in Cameroon. The mother of two of the disappeared persons asked Sitcha to investigate. His inquiries led him to believe that the nine individuals, who came to be known as the "Bepanda Nine," had been killed. Sitcha told the parents of the missing persons what he had heard and advised them to protest the incident.
Sitcha contends that he worked mainly behind the scenes to aid the parents of the Bepanda Nine, though he did help in drafting fliers for a demonstration. He also attended the protest demonstration and was arrested by the police. Sitcha told the authorities that he was merely a passerby and not involved in the demonstration, and after his wife produced his identification card Sitcha was released without charges. In addition to these activities, Sitcha authored a report which named individuals, including police officials, who may have known about the disappearance of the Bepanda Nine. He gave this report to someone from the Catholic Church on March 9, 2001. On March 26, 2001, men with a warrant searched his house and found a copy of the Bepanda Nine report. As a result, Sitcha was arrested and severely tortured.
Sitcha was charged with instigating trouble against the government and revealing government secrets. However, the prosecutor granted Sitcha a temporary release. He spent several days in a hospital and then hid in the rectory of a church. A priest advised him to leave Cameroon for his own safety. On April 9, 2001, Sitcha applied for a visa at the United States Embassy. He did not reveal his injuries or the fact that he had been tortured. Sitcha was granted a visa and traveled to the United States at the end of April 2001.
Sometime the following year, Sitcha was arrested and detained by the Department of Homeland Security for overstaying his visa. He filed a petition for asylum, claiming that if he were returned to Cameroon, he would be tortured or killed because of his political activities. On January 16, 2003, an IJ held a hearing to determine whether Sitcha was eligible for the protected status of a refugee.
At his hearing, Sitcha contended that, because of his involvement in investigating and protesting the disappearance of the Bepanda Nine, his name had been placed on a death list. In addition to his testimony, Sitcha submitted some documentary support of his account, including letters and newspaper articles.
The IJ initially determined, based on petitioner's testimony, that he had established the fact of past persecution in Cameroon based on his imputed political opinions. Consequently, the petitioner met the definition of a refugee (i.e. a person who has suffered past persecution and has a well-founded fear of future persecution on account of his membership in a particular social or political group). The IJ concluded, despite some misgivings regarding the petitioner's credibility and the plausibility of his account, that overall his testimony was credible. Accordingly, the IJ granted Sitcha's application for asylum on January 16, 2003.
On March 3, 2003, the Department of Homeland Security filed a motion to reopen the case based on new evidence. The IJ reopened the case and, on September 18, 2003, held a hearing on the matter. At this hearing, the government submitted a report from an assistant counselor attached to the American Embassy in Cameroon. The counselor testified at the hearing via telephone that, based on his investigation, Sitcha had played no role in the investigations into the matter of the Bepanda Nine. The counselor's conversations with attorneys associated with the families of the Bepanda Nine and with a Catholic priest who conducted an investigation into the incident revealed that none of them had ever heard of Richard Sitcha.
Given his earlier concerns, the IJ found that this new evidence undercut vital aspects of his determination regarding Sitcha's credibility. The IJ reversed his earlier finding and concluded that Sitcha was not a credible witness. Thus, at the end of the September 18, 2003 hearing, the IJ issued a new finding to the effect that Sitcha failed to establish past persecution; the IJ denied petitioner's application for asylum, and he ordered Sitcha to be removed to Cameroon. Consequently, the petitioner was placed in custody pending deportation.
During the proceedings before the IJ, Sitcha was represented by Attorney Anthony Collins. On Sitcha's behalf, Attorney Collins filed an appeal with the BIA of the IJ's denial of Sitcha's application for asylum. In this appeal, Attorney Collins advanced several arguments. First, he contended that the IJ had erred in granting the government's motion to reopen because it did not meet certain requirements set forth in 8 C.F.R. § 1003.23(b)(3). Second, he claimed that Sitcha's due process rights had been violated because the IJ did not hold a hearing on the Department of Homeland Security's motion to reopen. Finally, he asserted that the IJ based his decision to reverse the earlier credibility finding on unreliable hearsay evidence.
After the filing of this appeal, but before the BIA issued its decision, two events occurred of significance. First, on February 2, 2004, Sitcha was assaulted by his cellmate. Petitioner spent a day in the clinic at the prison recovering from his injuries and was then was placed for one or two days in an isolation cell. He claims that he suffered greatly because of this attack and that it took an enormous toll on his physical and emotional well-being. Second, Sitcha fired his attorney. On February 10, 2004, petitioner sent a letter addressed to the clerk of the BIA in which he stated that he had lost confidence in his attorney and that he would not acknowledge any acts taken by the attorney on his behalf after October 31, 2003.
On February 25, 2004, the BIA issued its decision rejecting all of the arguments offered on Sitcha's behalf and dismissing his appeal. On February 27, 2004, Attorney Collins sent petitioner a copy of the BIA's decision, as well as a cover letter advising him to seek legal advice regarding his options. Sitcha now contends that he did not read this letter or the attached decision from the BIA. He claims that he believed that, having terminated the services of Attorney Collins and notified the BIA that he would not recognize any action taken on his behalf by Attorney Collins (including, apparently, the appeal to the BIA of the IJ's decision), the documents did not pertain to him or his case. Also on February 27, the petitioner authored another letter, this time to a "trial attorney" at the Department of Homeland Security, enclosing a motion for release.
Following an unsuccessful appeal to the BIA, an alien has thirty days to seek review by a court of appeals. 8 U.S.C. § 1252(b). Because, he now says, of his confusion about the appeal mechanism, his limited English, and the residual trauma from the beating he had suffered three weeks earlier, petitioner never sought review of the BIA's decision by the Court of Appeals.
In lieu of a review by the Court of Appeals, Sitcha filed a pro se application for a writ of habeas corpus in this court on May 11, 2003.1 His petition raises the same arguments advanced by his attorney before the BIA: the regulatory violation underlying the IJ's decision to reopen and the deficient evidentiary support for his altered credibility findings. Respondents, as noted, have moved to dismiss Sitcha's petition arguing that this court lacks jurisdiction and that he has failed to state a claim upon which relief may be granted.
II. DISCUSSION
Respondents assert that this court lacks jurisdiction over Sitcha's petition...
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