Ulysse v. Department of Homeland Sec.

• Decision Date: 15 August 2003
• Docket Number: No. 6:03-cv-1048-Orl-31KRS.,6:03-cv-1048-Orl-31KRS.
• Citation: 291 F.Supp.2d 1318
• Parties: Marie Jose ULYSSE, Alien No. A 75 355 963, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Bureau of Customs and Immigration Enforcement, Bureau of Citizenship and Immigration Services, Executive Office for Immigration Review, Board of Immigration Appeals, Respondents.
• Court: U.S. District Court — Middle District of Florida

291 F.Supp.2d 1318

Marie Jose ULYSSE, Alien No. A 75 355 963, Petitioner, v. DEPARTMENT OF HOMELAND SECURITY, Bureau of Customs and Immigration Enforcement, Bureau of Citizenship and Immigration Services, Executive Office for Immigration Review, Board of Immigration Appeals, Respondents.

No. 6:03-cv-1048-Orl-31KRS.

United States District Court, M.D. Florida, Orlando Division.

August 15, 2003.

COPYRIGHT MATERIAL OMITTED

Yveline Francisque Paul, Paul & Assoc., P.A., Tampa, FL, for petitioner.

Roberto H. Rodriguez, Jr., U.S. Attorney's Office, Orlando, FL, for respondents.

ORDER

PRESNELL, District Judge.

This cause comes before the Court on Respondents' Response to the Court's Order of August 4, 2003 (Doc. 11) and Respondents' Motion for Clarification of Order of August 4, 2003 and for Modification of Said Order (Doc. 13). In that response, the Respondents indicate that they will not release Petitioner from detention because they are within the ninety (90) day removal period under 8 U.S.C. § 1231(a)(1). The Court held a hearing on the detention on August 14, 2003. Having carefully considered the petition and papers filed in this case, the argument of counsel, the applicable law, and being otherwise advised in the premises, the Court finds, for the reasons stated herein, that the Petition for Writ of Habeas Corpus should be granted and Petitioner released from custody.

I. BACKGROUND¹

Petitioner, Marie Jose Ulysse, is a citizen of Haiti who arrived in the United States on November 28, 1995, without inspection by the Immigration and Naturalization Services ("INS"), the United States Customs, or the United States Border Patrol. (Resp.Br.(Doc.7), at Ex. A). In 1992, Ulysse's husband died, leaving her to care for their minor son, Kevin Charles.² In April, 1995, Ulysse began a relationship in Haiti with Geel Odolphe, a United States citizen.³ Odolphe and Ulysse conceived a child. After Ulysse's arrival in the United States, she resided with Odolphe and his two daughters from his previous marriage in Tampa, Florida. On January 24, 1996, Ulysse gave birth to Odolphe's daughter, Ernslie Mica Ulysse. Shortly thereafter, as a result of difficulties in Ulysse's and Odolphe's relationship, Ulysse moved out of Odolphe's home with all three of Odolphe's children. After the couple separated, Odolphe continued to financially support Ulysse and his three children.

On May 16, 2000, the INS, seeking to remove Ulysse from the United States for entering the country without being admitted or paroled, or arriving at a place other than designated by the Attorney General, served Ulysse with a notice to appear. Ulysse appeared before an Immigration Judge on July 6, 2000. At Ulysse's request the hearing was continued to September 29, 2000, so that she could obtain counsel. After appearing on September 29, 2000, the hearing was again continued in order for Ulysse to hire counsel. Ulysse appeared before the Immigration Judge on November 30, 2000 with her counsel Kevin Mart.⁴ At that time, Ulysse admitted that she entered the country without inspection and conceded removability. Haiti was designated for Ulysse as the country of removal.

On April 9, 2001, the Immigration Judge held a hearing on Ulysse's petition for political asylum. After the hearing, the Judge rendered an order, denying Ulysse's petition for political asylum and ordering her removed. On May 4, 2001, Ulysse filed a timely notice of appeal with the Bureau of Immigration Appeals ("BIA"). Unbeknownst to Ulysse, the BIA dismissed her appeal on March 14, 2002 for her then counsel's failure to file a brief.⁵ Because she was unaware of the dismissal, Ulysse did not seek review of the BIA's decision with the Eleventh Circuit Court of Appeals within the thirty-day appeal period.

Sometime in early 2003, Odolphe and Ulysse rekindled their romantic relationship. On June 3, 2003, Ulysse and Odolphe married. That same day, Ulysse moved from her Tampa apartment back to Odolphe's home. On June 6, 2003, Ulysse received a letter, addressed to her apartment address,⁶ from the Department of Homeland Security ("DHS"),⁷ Bureau of Immigration and Customs Enforcement ("BICE"), indicating that she had an interview on July 10, 2003. Specifically, the letter stated, "A review of your application for Asylum indicates that you may merit reconsideration. Please bring a photo ID with you for this interview." (Petition for Writ of Habeas Corpus (Doc. 1), at attach. E). On July 10, 2003, Ulysse arrived at the Tampa BICE office. However, instead of discussing reconsideration of her application, BICE placed Ulysse in custody.

Thereafter, Ulysse and Odolphe hired new counsel for Ulysse. On July 16, 2003, Ulysse's counsel filed a Motion to Reopen and Motion for Stay Pending Deportation with the BIA and the Immigration Court. (Doc. 1, at Ex. 2, attach.). The Motion to Reopen was based upon a change in circumstances, to wit: Ulysse's marriage to Odolphe and hardship to their daughter, Ernslie Mica Ulysse, ineffective assistance of counsel, and the manner in which Ulysse was taken into custody by BICE. Counsel and Odolphe also filed all of the requisite paperwork with BCIS to adjust Ulysse's status to that of conditional resident alien.

On July 24, 2003, Ulysse filed a Petition for Writ of Habeas Corpus (Doc. 1) with this Court and served copies on DHS, BIA, BICE, BCIS, and the Immigration Court (collectively referred to as "Respondents"). At approximately 4:30 p.m., shortly after being served with Ulysse's Petition for Writ of Habeas Corpus, the BIA denied Ulysse's motion to stay deportation. (Resp.Br.(Doc.7), at Ex. F). Later that same day, this Court stayed Ulysse's deportation pending the determination of whether this Court had jurisdiction to hear Ulysse's claims.

Both Ulysse and Respondents filed briefs on the jurisdictional issue in anticipation of the hearing, which was held on August 4, 2003. At the hearing, Ulysse's attorney indicated that she had filed a motion to reopen the case with the Respondents based upon a change in circumstances and the alleged ineffective assistance of Ulysse's former counsel during Ulysse's asylum petition and subsequent appeal. However, Ulysse's counsel expressed concern that the Respondents would deport Ulysse before ruling on the pending motion to reopen. Accordingly, the Respondents' counsel agreed to the continuance of this Court's stay of deportation (Doc. 2) until such time as Ulysse could exhaust her administrative remedies on the motion to reopen and, if necessary, prosecute an appeal of any adverse ruling to the Eleventh Circuit Court of Appeals and await a decision on such appeal.⁸

Additionally, during the hearing to determine jurisdiction, the Court inquired as to the Respondents' position on whether Ulysse would be released from custody pending exhaustion of her administrative remedies and any subsequent appeal. On August 8, 2003, Respondents notified this Court, in writing, that they were without authority under 8 U.S.C. § 1231(a)(2) to release Ulysse during the 90-day removal period because Ulysse was under a final order of removal. (Resp. Response (Doc. 11), at 1, 2-3). The Court scheduled a follow-up hearing on the matter for August 14, 2003.

II. ANALYSIS

Ulysse's Petition for Writ of Habeas Corpus raises two distinct types of claims: (1) a claim challenging the removal order and seeking relief therefrom; and, (2) a claim that her detention is unlawful because it is in contravention of the plain reading of the statute in that the removal period expired in 2002. Respondents claim that this Court lacks jurisdiction over either of these claims.

Federal courts retain jurisdiction to review the decisions and actions of federal agencies through petitions for habeas corpus relief under 28 U.S.C. § 2241. I.N.S. v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (rejecting the government's argument that sections of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Responsibility Act of 1996⁹ stripped courts of jurisdiction over § 2241 habeas corpus petitions); Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ("[Section] 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention."); Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir.2003) (aliens detained by INS can petition for writs of habeas corpus under 28 U.S.C. § 2241); see Chmakov v. Blackman, 266 F.3d 210, 215 (3rd Cir.2001) (holding that "Congress has preserved the right to habeas review for both criminal and noncriminal aliens."); see also Boz v. United States, 228 F.3d 1290, 1292 (11th Cir.2000) (IIRIRA does not preclude habeas review of the legality of the length of detention). The St. Cyr Court held that "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." 533 U.S. at 301, 121 S.Ct. 2271; Rosales-Garcia, 322 F.3d at 394.

However, the scope of a district court's jurisdiction is limited to consideration of pure questions of law and constitutional questions; it does not extend to the review of the factual findings or the discretionary decisions made by executive officers and the agencies under their control. Calcano-Martinez v. I.N.S., 232 F.3d 328, 342 (2d Cir.2000) (holding that federal courts retain jurisdiction to review "purely legal statutory and constitutional claims"); Sanusi v. I.N.S., 2003 WL 21696945, *1 (E.D.N.Y. July 15, 2003). Such discretionary decisions may only be reviewed for violations of the Constitution or laws and treaties of the United States. 28 U.S.C. § 2241(c)(3); see Duldulao v. United States Parole Commission, 461 F.Supp. 1138, 1141 (S.D.Fla.1978); Sanusi, 2003 WL 21696945, at *1; Sulaiman v. Attorney General, 212 F.Supp.2d 413, 416 (E.D.Pa.2002) ("Only...