So v. Reno
| Decision Date | 24 January 2003 |
| Docket Number | No. 00 CV 6964(JBW).,00 CV 6964(JBW). |
| Parties | Chun Man SO, Petitioner, v. Janet RENO, U.S. Attorney General, Immigration and Naturalization Service, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Ellyn I. Bank, New York City, for petitioner.
Scott Dunn, Patrick Shen, U.S. Attorney's Office, Brooklyn, NY, for respondents.
AMENDED MEMORANDUM, ORDER, AND JUDGEMENT
This case raises a troubling question respecting the authority of this court under Article III of the Constitution to adjudicate the matter. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). One party—the petitioner—has been deported and his whereabouts are unknown. The other party— the government—has succeeded in its aim to remove the petitioner from the United States and has no interest in the litigation. If petitioner were to be contacted, a live controversy might exist. See, e.g., United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (); United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir.2002) (). Because the court of appeals has directed this court to answer abstract questions it posed in a remand, this memorandum, order, and judgment is issued.
Chun Man So ( sought a writ of habeas corpus in this district in November 2000 challenging the Board of Immigration Appeals' ("BIA") refusal of his request for a change in venue; the BIA's denial on its merits of his application for discretionary relief under former Immigration and Nationality Act section 212(c), 8 U.S.C. § 1182(c) ("212(c)"); and his lengthy detention. Janet Reno ("Attorney General") and the Immigration and Naturalization Service ("INS") were named as respondents. That petition was dismissed by this court after a hearing in May 2001. Petitioner appealed to the Court of Appeals for the Second Circuit. That court remanded to this court in August 2002 with directions to clarify the basis for its ruling. Mandate, So v. Reno (2d Cir.2002) (No. 01-2344).
For the reasons noted orally on the record at the hearings held in May 2001 and January 2003, and discussed further in this memorandum, order, and judgment, this court can offer no relief to Mr. So. Although immigration law in this country is often characterized by its lack of clarity, the court of appeals for the Second Circuit has provided a seemingly definite and unambiguous answer to the question at issue here. The scope of habeas review does not extend to the review of factual or discretionary decisions made by immigration judges and the BIA. See Sol v. INS, 274 F.3d 648 (2d Cir.2001). Discretionary decisions include those decisions challenged here—requests for a change in venue and rulings on the merits of applications for 212(c) relief.
Despite what appears to have been since the beginning a clear outcome unfavorable to petitioner, the non-dispositive issues raised by the court of appeals in its remand must, of course, be addressed. This court was directed to "clarify" the basis for its ruling in light of Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir.2000); Sol v. INS, 274 F.3d 648 (2d Cir.2001); and Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). In addition, the court of appeals for the Second Circuit posed two specific questions: (1) whether the petition was filed in the proper venue or whether transfer to another venue would be appropriate; and (2) if the petition is in the proper venue, whether the Attorney General is appropriately cited as custodian and therefore a proper respondent in habeas cases brought by individuals in the custody of the INS.
Since Mr. So was deported in December 2001, this court must first consider whether Mr. So continues to satisfy the "in custody" requirement of 28 U.S.C. § 2241 and whether his removal in and of itself renders the petition moot.
In summary, this court finds that (1) petitioner satisfies the "in custody" clause, (2) the case is not moot as a result of Mr. So's deportation with the exception of the claim pertaining to his excessive detention, (3) venue in the Eastern District of New York is proper, and (4) the Attorney General is an appropriate respondent. This court can provide Mr. So no relief since the scope of habeas review does not extend to discretionary decisions of immigration judges and the BIA such as those challenged here.
Petitioner Chun Man So is a citizen of China. He was admitted to the United States on January 29, 1982 and was a lawful permanent resident in New York. Also residing in New York were his wife, twin daughters, mother, father, sister, and a brother, all of whom are United States citizens. Other members of Mr. So's family are legal permanent residents. In July 1993, Mr. So was convicted in the Eastern District of New York of the use of a communications facility for distribution of heroin and was sentenced to 48 months in prison and one year of supervised release. 21 U.S.C. § 843(b); United States v. So (E.D.N.Y. July 26, 1993) (No. 93 CR 331).
Upon the completion of Mr. So's term of imprisonment in 1996, INS initiated deportation proceedings based on the 1993 conviction. See 8 U.S.C. §§ 1227(a)(2)(A)(iii) (); 1227(a)(2)(B)(.i) (). He was sent to a federal detention facility in Oakdale, Louisiana, but was subsequently released on bond pending a decision in his removal proceedings.
In August 1996, the immigration judge in Oakdale found Mr. So deportable as charged and ineligible for any relief from removal. Mr. So filed a timely appeal from that decision with the BIA. The BIA dismissed his appeal in March 1997. Following the BIA's decision, Mr. So was again detained in the Oakdale facility.
While in custody in Louisiana, Mr. So filed a petition for a writ of habeas corpus in the Eastern District of New York naming Janet Reno and the INS as respondents. See Amended Order and Judgment, So v. Reno (Nos. 97 CV 4081 & 99 CV 2737). In June 1999, this court issued an order and judgment finding him eligible to apply for 212(c) relief from deportation pursuant to the decision in Henderson v. I.N.S., 157 F.3d 106 (2d Cir.1998), cert, denied sub. nam., Reno v. Navas, 526 U.S. 1004, 119 S.Ct. 1141, 143 L.Ed.2d 209 (1999). Id. It ordered the Executive Office for Immigration Review ("EOIR") to schedule petitioner for a 212(c) hearing within 60 clays. Id.
The EOIR remanded the case to an immigration judge in Oakdale to conduct the section 212(c) hearing. Mr. So filed a motion for a change of venue to New York, but that motion was denied. See In re Chun Man So (BIA May 16, 2000) (File No. A35 804 445). A full hearing was held before the immigration judge in October 1999. Despite the decision of this court that under the law in the Second Circuit Mr. So was entitled to apply for discretionary relief under section 212(c), the immigration judge issued a decision holding that it was bound by the Fifth Circuit law and therefore Mr. So was statutorily ineligible for Section 212(c) relief under Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir.1999). Oral Decision of the Immigration Judge, In re Chun Man So (EOIR Oct. 15, 1999) (File No. A 35 804 445).
The immigration judge nevertheless held a hearing on the merits of Mr. So's 212(c) application so that if the BIA disagreed with the ineligibility holding the entire case would be before it. On the basis of that hearing, the immigration judge found that "the seriousness of respondent's crime as well as his other involvement with drug trafficking overcomes the positive equities that the respondent has demonstrated." Id. at 13. Even assuming that Mr. So was statutorily eligible, she would have denied a 212(c) application in her discretion as not in the best interest of the United States. Id.
On appeal, the BIA reversed the...
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