Tinoco v. Ridge
| Decision Date | 03 March 2005 |
| Docket Number | No. 04 CV 2501-DMS(JFS).,No. 04 CV 2502-DMS(JFS).,No. 04 CV 2523-DMS(JFS).,04 CV 2501-DMS(JFS).,04 CV 2502-DMS(JFS).,04 CV 2523-DMS(JFS). |
| Citation | 359 F.Supp.2d 1042 |
| Court | U.S. District Court — Southern District of California |
| Parties | Luis A. TINOCO, Petitioner, v. Tom RIDGE, Secretary, United States Department of Homeland Security; Bureau of Immigrations and Customs Enforcement; John Ashcroft, Attorney General, Respondents. |
Luis A Tinoco, San Diego, CA, pro se.
US Attorney CV, U.S. Attorneys Office Southern District of California Civil Division, San Diego, CA, for respondent.
ORDER: (1) CONFIRMING JURISDICTION; (2) DENYING PETITION-IN-PART; AND (3) ORDERING ADDITIONAL BRIEFING
The Court now considers Petitioner Luis A. Tinoco's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner, who brings this case pro se, is currently in the custody of the Department of Homeland Security ("DHS"), and has been ordered removed from the United States to his native country of Nicaragua. For the reasons discussed below, the Court confirms it has jurisdiction over this matter, denies the petition in part, and orders additional briefing on the remainder of the petition.
According to Respondents, Petitioner is a 62 year old native citizen of Nicaragua, who illegally entered the United States in July of 1985. Since that time, Petitioner has allegedly remained in this country without lawful status.
On August 30, 2002, Petitioner was convicted in the Los Angeles County Superior Court for selling or furnishing methamphetamine, in violation of Cal. Health & Safety Code § 11379(a). Petitioner appealed his conviction, which was affirmed on January 28, 2004, by the California Court of Appeal, Second Appellate District. The California Supreme Court denied review on April 21, 2004. On January 21, 2005, Petitioner filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Central District of California, the Honorable Florence-Marie Cooper presiding.
The DHS initiated removal proceedings against Petitioner, based in part on the earlier State court conviction. On October 2, 2003, the DHS filed a Notice to Appear before the United States Immigration Court, charging Petitioner with several violations of the Immigration and Nationality Act ("INA"). Specifically, the DHS charged Petitioner with: (1) being unlawfully present in the United States for longer than a year, pursuant to 8 U.S.C. § 1182(a)(9)(C)(i)(I); (2) entering the United States unlawfully, pursuant to 8 U.S.C. § 1182(a)(6)(A)(i); and (3) conviction of a controlled substance offense, pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(II).
In the proceedings before the Immigration Judge ("IJ"), Petitioner requested relief from removal under the Convention Against Torture, 8 C.F.R. § 208.17. After a hearing on May 20, 2004, the IJ denied Petitioner's request for relief, and ordered Petitioner removed to Nicaragua. Petitioner reserved the right to appeal the IJ's decision to the Board of Immigration Appeals ("BIA"). On November 18, 2004, the BIA affirmed the IJ's order of removal.
Petitioner now claims that the BIA's decision was incorrect and must be reversed for several reasons, including the BIA's reliance on Petitioner's 2002 State court conviction in which collateral review is still pending. On December 15, 2004, Petitioner filed an application in this Court for emergency stay of deportation pending appeal, pursuant to 28 U.S.C. § 2241 (filed as Case No. 04cv2501). On December 16, 2004, Petitioner filed a second case in this Court, styled as a "Petition for Review" (filed as Case No. 04cv2502), and captioned in the "United States Court of Appeals for the Ninth Circuit." This second case originally had been assigned to the Honorable Irma E. Gonzalez, but subsequently was reassigned to this Court. The Court consolidated these actions on December 21, 2004. The Court also waived the filing fee, issued a temporary stay of deportation, and issued a briefing schedule on the merits of the Petition.
On December 17, 2004, Petitioner filed a third case in this Court, his second Section 2241 Petition (filed as Case No. 04cv2523). This case originally was assigned to the Honorable Marilyn L. Huff, but subsequently was reassigned to this Court. The Court consolidated these three actions on January 11, 2005.
Respondents filed their return to the Petition on January 14, 2005. Petitioner filed no traverse. The Court decides this matter on the papers submitted and without oral argument, pursuant to Civ. L.R. 7.1(d)(1).
In essence, Petitioner's three consolidated cases before this Court boil down to two main contentions. First, Petitioner focuses on the constitutionality of his underlying State court conviction, and the IJ's reliance on that conviction as a basis for removal. Second, Petitioner focuses on the constitutionality of the immigration proceedings themselves.
According to Respondents, Petitioner's claims must fail for two reasons. First, Respondents insist that Petitioner may not collaterally attack the validity of his 2002 State court conviction by way of a Section 2241 immigration habeas proceeding. Second, Respondents assert that under the Immigration and Nationality Act ("INA"), direct judicial review of Petitioner's claims must occur in the court of appeals (not a district court). The Court considers these issues below.
Respondent insists this Court has no jurisdiction to consider Petitioner's claims in a habeas proceeding; Petitioner must first proceed by way of direct review before the Ninth Circuit. INA § 242 operates as the INA's direct judicial review mechanism, which places original jurisdiction of direct reviews in the federal appellate courts. Generally, where INA § 242 provides for direct review, a district court may not entertain a Section 2241 habeas challenge until after the petitioner has exhausted this avenue of relief.
In this case, however, there is an additional complicating factor: the INA's "jurisdiction-stripping" provision, 8 U.S.C. § 1252(a)(2)(C), which precludes direct judicial review of "Orders against criminal aliens" by the court of appeals. Section 1252(a)(2)(C) bars appellate courts from considering, on direct review, petitions brought by aliens who are removable by reason of having committed an aggravated felony or a controlled substance crime. Because Petitioner's deportation is based, in part, on his 2002 drug conviction, Petitioner's claims seemingly implicate this proscription on direct judicial review.1
As a result, before proceeding to the merits of Petitioner's challenge, the Court has two options. First, the Court could decide that immigration petitioners must always proceed by way of direct review in the court of appeals. Only after the appellate court decides that a petitioner is barred from direct review (because of Section 1252(a)(2)(C)), is Section 2241 habeas review available in the district court. In the alternative, this Court could decide that where Section 1252(a)(2)(C) clearly precludes direct judicial review in the court of appeals, and the petitioner does not challenge any of the jurisdiction-stripping facts, a district court may exercise its habeas jurisdiction in the first instance, rather than wait for the appellate court's obligatory dismissal for want of jurisdiction. The question, then, is which court should make that initial jurisdictional decision: only the court of appeals; or, under very narrow circumstances, a district court? Before resolving this specific inquiry, some background discussion may be helpful.
In immigration cases, the interaction between INA § 242 () and Section 2241 habeas review, has been the subject of much confusion. In 1996, Congress twice amended the judicial review provisions of the INA. The first time was in the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"); the second time was in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"). The end result has been a complex and perplexing web of statutes and caselaw, which ultimately has restricted the scope of judicial review available to deported aliens.
Traditionally, aliens wishing to challenge deportation orders had two separate avenues of relief: (1) proceeding under INA § 106(a)2; or (2) proceeding under the general statutory habeas provision of Section 2241. See Magana-Pizano v. I.N.S., 200 F.3d 603, 608 (9th Cir.1999); Duldulao v. I.N.S., 90 F.3d 396, 397-98 (9th Cir.1996). Aliens could "challenge ... their deportation under either (or both) of" these review mechanisms. Gutierrez-Chavez v. I.N.S., 298 F.3d 824, 828 (9th Cir.2002). Thus, before 1996, "there existed some statutory redundancy in the source of habeas relief available for aliens in deportation proceedings." Id. INA § 106(a)(10), however, had been the preferred means of review in deportation cases, because it contained "no textual boundary on claims of error that could be raised," whereas Section 2241 habeas jurisdiction exists only to remedy violations of the Constitution, federal statutes, or treaties. See Gutierrez-Chavez, 298 F.3d at 828 (citations omitted).
In 1996, however, Congress repealed INA § 106(a) through the passage of AEDPA. As a result, the question arose whether the INA's direct judicial review mechanism, INA § 242, was to serve as the only means of judicial review available to deported aliens. Put another way, with the passage of AEDPA and IIRAIRA, it appeared Congress intended to circumscribe judicial review of deportation orders to the narrow means afforded under INA § 242. If so, any type of habeas relief would have been repealed.
The Supreme Court allayed any such concerns in 2001, when it confirmed that the INA's 1996 amendments did not repeal the availability of Section 2241 habeas relief. See INS v. St. Cyr, 533 U.S. 289, 309-11, 121 S.Ct....
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