Tavares v. Ashcroft
| Decision Date | 23 May 2005 |
| Docket Number | No. CIV.03-1873 (JP). |
| Citation | 371 F.Supp.2d 61 |
| Parties | Jose TAVARES, Plaintiff, v. John ASHCROFT, et al., Defendants |
| Court | U.S. District Court — District of Puerto Rico |
José R. Gaztambide-Añeses, Esq., San Juan, PR, for Plaintiff.
Rebecca Vargas-Vera, Esq., United States Attorney's Office, San Juan, PR, for Defendant.
The Court has before it Respondents' "Motion to Dismiss" (docket No. 4) and Petitioner's response thereto (docket No. 8). Petitioner José Tavares, a resident alien of Cape Verdean nationality, has filed a Writ of Habeas Corpus alleging that his order of deportation should be stayed because of several alleged violations of his due process rights by the immigration judge that presided over his case. Respondents argue that the immigration judge did not violate Petitioner's rights, and that the Writ should be dismissed with prejudice. For the reasons stated below, the Court hereby GRANTS Defendant's "Motion to Dismiss."
According to the Supreme Court, a "court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema, N. A., 534 U.S. 506, at 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Moreover, according to the First Circuit, the Court must "treat all allegations in the complaint as true and draw all reasonable inferences therefrom in favor of the plaintiff." Rumford Pharmacy, Inc. v. City of East Providence, 970 F.2d 996, 997 (1st Cir.1992). In addition, a "complaint sufficiently raises a claim even if it points to no legal theory or even if it points to the wrong legal theory as a basis for that claim, as long as relief is possible under any set of facts that could be established consistent with the allegations." González-Peréz v. Hospital Interamericano De Medicina Avanzada, 355 F.3d 1, at 5 (1st Cir.2004). Finally, under Federal Rule of Civil Procedure 8(f), "[a]ll pleadings shall be so construed as to do substantial justice."
On August 15, 2003, Petitioner José Tavares filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241, a complaint for declaratory and injunctive relief, and a motion for an emergency stay of deportation. Petitioner, a citizen of Cape Verde who entered the United States through Boston, Massachusetts, on October 19, 1974, at the age of 16, was initially admitted as an immigrant, P2-2 (son of a United States resident). He was placed in deportation proceedings in 1991 as a result of criminal convictions in 1988 for assault and 1990 for possession of a controlled substance. At a deportation hearing on March 17, 1994, proceedings were terminated when an immigration judge ("IJ") granted him a § 212(c) waiver of deportability. After a subsequent conviction for possession of a controlled substance (cocaine) in July of 1995, deportation proceedings were again initiated. Petitioner appeared at a November 6, 2001 hearing before an IJ with his attorney, Anna Vásquez, Esq., and once again sought a § 212(c) waiver of deportability. The case was continued for attorney preparation. At a subsequent hearing, the case was scheduled for hearing on the merits of the § 212(c) application, to be held on September 9, 2002.
Petitioner appeared at the September 9, 2002, hearing, but Attorney Vásquez did not. The IJ attempted to contact Attorney Vásquez, but was unsuccessful. The IJ continued the case for one week, until September 16, warning that the case would go forward on that date whether or not Petitioner appeared with an attorney. Petitioner appeared at the September 16 hearing with a new attorney, José Gatzambide, Esq. Attorney Gatzambide requested a continuance in order to prepare for the § 212(c) hearing. The IJ granted the continuance, scheduling a hearing for November 13, 2002. The hearing was held, and the IJ issued a ruling denying Petitioner's request for relief from removal under § 212(c) and ordering Petitioner's removal to Cape Verde, citing the lack of documentation provided in support of the application. Petitioner Tavares then filed an appeal, which was denied by the Board of Immigration Appeals ("BIA") on May 30, 2003. Petitioner Tavares filed the instant action on August 15, 2003.
Respondents in this matter argue that Attorney General John Ashcroft and Secretary of the Department of Homeland Security, Tom Ridge, are not proper respondents in this case. The Court agrees. In Vázquez v. Reno, 233 F.3d 688 (1st Cir.2000), the First Circuit ruled that an alien seeking a writ of habeas corpus contesting legality of his detention by the INS was required to name as the respondent the individual having day-to-day control over the facility in which he was being detained, and not the Attorney General, absent extraordinary circumstances. See also 28 U.S.C.A. § 2243. The proper respondent in this action is David Randler, Deputy Field Office Director of the Bureau of Immigration and Customs Enforcement, who is also a named respondent in this action. Pursuant thereto, the Court hereby DISMISSES WITH PREJUDICE all claims against Respondents John Ashcroft and Tom Ridge.
Respondents also argue that Petitioner's claims are outside the scope of habeas jurisdiction, inasmuch as Petitioner is asking for a review of the facts and evidence presented in his case by the reviewing court rather than asserting an issue of law that would warrant habeas review. The Court agrees in part with Respondents.
In St. Fort v. Ashcroft, 329 F.3d 191 (1st Cir.2003), the First Circuit explained the scope of habeas review:
The scope of habeas review is not the same as the scope of statutory judicial review in the courts of appeal. Heikkila v. Barber, 345 U.S. 229, 236, 73 S.Ct. 603, 97 L.Ed. 972 (1953). At a minimum, habeas review encompasses constitutional claims that are at least colorable. United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268, 74 S.Ct. 499, 98 L.Ed. 681 (1954). This includes an assessment of whether a particular set of facts amounts to a constitutional violation. E.g., Zadvydas v. Davis, 533 U.S. 678, 699, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Habeas also encompasses colorable claims that an alien's statutory rights have been violated. Id. at 688, 121 S.Ct. 2491, 150 L.Ed.2d 653; Carranza v. INS, 277 F.3d 65, 71 (2002). Included in this category are issues of the proper construction of a statute, which is an issue of law. Goncalves, 144 F.3d at 124-25. As a result, if a statute makes an alien eligible to be considered for a certain form of relief, he may raise on habeas the refusal of the agency to even consider him. But he may not challenge the agency's decision to exercise or not exercise its discretion to grant relief. Carranza, 277 F.3d at 71 (citing Goncalves, 144 F.3d at 125). We have also said generally that "pure issue[s] of law" may be raised in habeas. Goncalves, 144 F.3d at 113; see also Ruckbi v. INS, 285 F.3d 120, 124 n. 6 (1st Cir.2002); Carranza, 277 F.3d at 72. The entire content of that phrase has not been worked out. In INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the Supreme Court referred to the use of habeas to correct "errors of law, including the erroneous application ... of statutes." 533 U.S. at 302, 121 S.Ct. 2271, 150 L.Ed.2d 347. St. Fort, 329 F.3d at 203.
Respondents essentially argue that since the decision in the present case was a discretionary one made under § 212(c) of the Immigration and Nationality Act ("INA") in an effort by Petitioner Tavares to obtain relief from deportation, the Court therefore has no habeas jurisdiction to review that decision because, according to the St. Fort ruling, an alien may not challenge an agency's decision to exercise or not exercise its discretion to grant relief; he may only challenge the refusal of the agency to consider him for that relief. As Respondents put it, Petitioner's claims are outside the scope of habeas jurisdiction, inasmuch as Petitioner is asking for a review of the facts and evidence presented in his case by the reviewing court rather than asserting an issue of law that would warrant habeas review. The Court agrees with Respondents. Because the type of claims that are available to aliens on habeas are restricted, this Court's jurisdiction in this case is limited solely to the aspects of Petitioner's claims which can be considered "questions of pure law."1 Carranza, 277 F.3d at 73. Because what constitutes a "question of pure law" is still an unsettled area of the law, the Court will examine all of Petitioner's claims of due process violations, even though it would appear that only Petitioner's claim that the IJ violated his due process rights by applying the incorrect legal standard in ruling on his § 212(c) petition would seem to be the only one that can undoubtedly be termed a pure question of law.
Petitioner's writ of habeas corpus essentially argues that Petitioner's constitutional due process rights were violated in three ways: 1) that the IJ and BIA's refusal to grant Petitioner's motion to continue the deportation hearing; 2) that the IJ "essentially prejudged" Petitioner's case; and 3) that the IJ committed reversible errors of law in denying the § 212(c) petition. The Court addresses these arguments in order.
Petitioner claims that the IJ's denial of his November 14, 2002, request for a continuance violated his due process rights in that the IJ abused her discretion when it did not provide a meaningful continuance for Petitioner's new counsel to adequately prepare for the § 212(c) hearing. Respondents argue that Petitioner did receive a meaningful continuance in that a continuance was...
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