Sulaiman v. Attorney General

• Citation: 212 F.Supp.2d 413
• Decision Date: 30 July 2002
• Docket Number: Civil Action No. 01-6830.
• Parties: Dan Ismaila SULAIMAN, Petitioner, v. ATTORNEY GENERAL, Immigration And Naturalization Service, and Bureau Of Immigration Appeals, Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

212 F.Supp.2d 413

Dan Ismaila SULAIMAN, Petitioner, v. ATTORNEY GENERAL, Immigration And Naturalization Service, and Bureau Of Immigration Appeals, Respondents.

Civil Action No. 01-6830.

United States District Court, E.D. Pennsylvania.

July 30, 2002.

Dan Sulaiman, Leesport, PA, pro se.

Stephen J. Britt, U.S. Attorney's Office, Philadelphia, PA, James G. Sheehan, Philadelphia, PA, for Respondent.

MEMORANDUM

DuBOIS, District Judge.

I. INTRODUCTION

Petitioner, Dan Sulaiman, is a Nigerian alien currently detained in the Berks County Prison, Leesport, Pennsylvania. He is subject to a deportation order as a result of a 1996 conviction for bank fraud in the Eastern District of New York and an Immigration & Naturalization Service ("INS") determination that he entered the United States illegally. Although petitioner is not eligible for asylum because of his conviction of an "aggravated felony," he seeks relief from deportation to Nigeria under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec.10, 1984, 23 I.L.M. 1027 (1984), as modified, 24 I.L.M. 535 (1985) ("Convention Against Torture"). Currently before the Court are petitioner's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a number of related filings.

Upon consideration of the factual record and applicable law, the Court concludes that petitioner's legal claims are without merit and dismisses his petition for writ of habeas corpus.

II. FACTUAL AND PROCEDURAL BACKGROUND

On November 26, 1996 petitioner was convicted in the Eastern District of New York for bank fraud in violation of 18 U.S.C. § 1344, sentenced to twelve months of incarceration with five years of supervised release and ordered to pay $176,911.92 in restitution. In re Sulaiman, Bureau of Immigration Appeals, A73 663 971 (December 10, 2001) (Appended to petition for writ of habeas corpus) ("BIA Decision") at 1. The INS detained him upon completion of his sentence in June 2000,¹ Government's Response at 1, and sought to remove him from the United States on two grounds: his criminal conviction, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I), and the INS determination that he entered the country illegally, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i).² Id.

In August 2001 petitioner filed a request with an Immigration Judge seeking political asylum and protection under Article III of the Convention Against Torture. He claimed that he would be arrested and tortured upon arrival in Nigeria because of his membership in a privileged family, political affiliations and status as a criminal deportee from the United States. In re Sulaiman, Oral Decision of the Immigration Judge, A73 663 971 (August 10, 2001) (appended to petition for writ of habeas corpus) ("Oral Decision of Immigration Judge") at 25. At a hearing on August 10, 2001 the Immigration Judge found petitioner ineligible for asylum as an aggravated felon, but granted him "deferral of removal"³ based on his contention that he would be subjected to torture as a deported criminal who "tarnish[ed] the name of Nigeria" abroad.⁴ Id. at 28. Petitioner appealed to the Bureau of Immigration Appeals seeking a "withholding" of removal, which would grant him lawful status in the United States, on the ground that bank fraud was not an aggravated felony. BIA Decision at 2. The INS cross-appealed arguing that petitioner's testimony about the prospect of being tortured in Nigeria was insufficient. Id. On December 10, 2001 the Bureau of Immigration Appeals ("BIA") upheld the Immigration Judge's finding that petitioner was convicted of an aggravated felony and consequently not eligible for asylum, but overturned the part of the decision granting Convention Against Torture protection on the grounds that petitioner failed to meet his burden of proving that it was "more likely than not" that he would be tortured. BIA Decision at 2-3. Pursuant to that decision, petitioner was ordered removed to Nigeria. Id. at 3.

On December 21, 2001 petitioner filed the pending petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. As will be explained below, infra § III.B., this Court does not have jurisdiction over petitioner's challenge to the Bureau of Immigration Appeals' factual determinations regarding the likelihood of torture upon his return to Nigeria. It does, however, have jurisdiction to address any claims that his deportation process violated the Constitution or federal law. The Court construes petitioner's argument as containing four such claims: (1) BIA illegally failed to consider evidence of the possibility of future torture, (2) Convention Against Torture protection is mandatory as a matter of law, (3) BIA applied an erroneous legal standard and (4) INS has violated petitioner's procedural and substantive due process rights.

After submitting a number of filings relating to the habeas corpus proceeding, petitioner filed a Motion for Appointment of Counsel. Thereafter, based upon his allegation that he was "almost deported," petitioner filed an "Emergency Request" seeking the Court's intervention to prevent his deportation before the resolution of the pending habeas corpus petition. The Court granted petitioner's Emergency Request in an Order dated May 28, 2002 and directed that any deportation of petitioner be stayed pending further order of the Court. Finally, petitioner filed a document asserting that his detention was unconstitutional and requesting a bail hearing.

As discussed below, the Court concludes that none of petitioner's substantive claims for relief are meritorious. Accordingly, the Court denies the petition for habeas corpus, the request for a bail hearing, and the motion for appointment of counsel.

III. RELEVANT LAW

A. SUBSTANTIVE IMMIGRATION LAW

Aliens are not eligible for asylum in this country if the Attorney General determines that they have been convicted of an aggravated felony⁵ or other "particularly serious crime." 8 U.S.C. § 1158(b)(2)(B). Nevertheless, aliens may still be eligible for protection under the Convention Against Torture. Congress has not specifically enacted legislation implementing the Convention, but has compelled the "appropriate agencies" to do so through regulations. United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture, Pub.L. 105-277, Div. G., Title XXII, § 2242, Oct. 21, 1998, 112 Stat. 2681-822. The Attorney General did so in February 1999 at 8 C.F.R. § 208. The regulations state, in part:

If the immigration judge determines that the alien is more likely than not to be tortured in the country of removal, the alien is entitled to protection under the Convention Against Torture. Protection ... will be granted either in the form of withholding of removal or in the form of deferral of removal. An alien entitled to such protection shall be granted withholding of removal unless the alien is subject to mandatory denial of withholding of removal .... If an alien entitled to such protection is subject to mandatory denial of withholding of removal ... the alien's removal shall be deferred ....

8 C.F.R. § 208.16(c)(4).

B. FEDERAL COURT REVIEW OF ADMINISTRATIVE IMMIGRATION DECISIONS

Despite the limitations on federal court review of executive branch deportation decisions set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), it is well established that this Court retains jurisdiction under 28 U.S.C. § 2241(c) to decide habeas petitions filed by criminal aliens subject to deportation. Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir.2001) (citing Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr., 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)) ("Both the Supreme Court and this Court have determined that notwithstanding the provisions of AEDPA or IIRIRA, district courts retain jurisdiction to hear habeas petitions filed by aliens subject to deportation for having committed certain criminal offenses."). The scope of review of such claims, however, is limited to questions of law. Sol v. INS, 274 F.3d 648, 651 (2d Cir.2001) (holding that "federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the IJ and BIA."); Bowrin v. U.S. INS, 194 F.3d 483, 490 (4th Cir.1999) ("Only questions of pure law will be considered on § 2241 habeas review. Review of factual or discretionary issues is prohibited."); Bradshaw v. INS, 2002 WL 1160832, at *1 (E.D.Pa. June 3, 2002) (citing Sol, 274 F.3d at 651); see also St. Cyr, 533 U.S. at 312, 121 S.Ct. 2271 (citing Heikkila v. Barber, 345 U.S. 229, 236, 73 S.Ct. 603, 97 L.Ed. 972 (1953)) (noting that scope of review in habeas corpus cases is "far narrower" than that authorized by the Administrative Procedure Act).⁶

IV. DISCUSSION

Because of this Court's limited review, the issue in this case is whether BIA's decision to deny petitioner's deferral of removal violated the Constitution or the laws of the United States. As such, the Court will not consider petitioner's challenge to the merits of the agency decision. The Court will, however, address the four legal claims set forth in the petition and later submissions.

A. PETITIONER'S CLAIM THAT BIA VIOLATED 8 C.F.R. § 208.16(c)(3)

Petitioner claims that BIA "failed to give due consideration to this other evidence that is submitted and recognized by the board (BIA) itself but also just relied on the 1999 Country Report." Petition at 6. The "other evidence" to which petitioner refers consists of voluminous materials he presented to show the likelihood that he would be tortured in Nigeria. Although petitioner describes this alleged failure as an "abuse of discretion," the Court construes the argument to constitute a legal challenge under 8 C.F.R. § 208.16(c)(3). That section requires BIA to consider ...