Velazquez v. INS, Civ. No. 3-95-001.

• Decision Date: 06 February 1995
• Docket Number: Civ. No. 3-95-001.
• Citation: 876 F. Supp. 1071
• Parties: Oscar Salas VELAZQUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Carl Houseman, District Director, St. Paul, Minnesota District, Respondent.
• Court: U.S. District Court — District of Minnesota

876 F. Supp. 1071

Oscar Salas VELAZQUEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Carl Houseman, District Director, St. Paul, Minnesota District, Respondent.

Civ. No. 3-95-001.

United States District Court, D. Minnesota, Third Division.

February 6, 1995.

Michael H. Davis, Ingber and Aronson, P.A., Minneapolis, MN, for petitioner.

Mary Trippler, Asst. U.S. Atty., Minneapolis, MN, for respondent.

MEMORANDUM OPINION AND ORDER

KYLE, District Judge.

Introduction

This matter is before the Court on Petitioner Oscar Salas Velazquez's ("Velazquez") Amended Petition for Writ of Habeas Corpus.¹ Velazquez has been ordered to surrender himself to Respondent, the United States Immigration and Naturalization Service ("INS"), for deportation to Mexico. Velazquez seeks to bar his deportation. He claims the INS unlawfully denied his Petition for an Extreme Hardship Waiver brought pursuant to Section 216(c)(4)(A) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1186a(c)(4)(A), and that he was denied effective assistance of counsel throughout his final deportation hearing and subsequent appeals to the Board of Immigration Appeals ("BIA") and the Eighth Circuit Court of Appeals. In his Amended Petition for Writ of Habeas Corpus, Velazquez requests an order (1) declaring him eligible to apply for a Section 216(c)(4)(A) hardship waiver, (2) directing the INS to reopen his deportation case and process his Section 216(c)(4)(A) application, and (3) enjoining the INS from deporting him pending final resolution of that application. A hearing on the merits of Velazquez's Amended Petition for Writ of Habeas Corpus was held before this Court on January 30, 1995. This Memorandum Opinion and Order follows.

Background

Velazquez is a citizen of Mexico and a native of Mexico City. He originally entered the United States in November, 1984, as a visitor for pleasure. On October 1, 1986, he "married" Jennifer Brady, a citizen of the United States. On the basis of this marriage, he was, on January 28, 1987, granted status as a "conditional resident" which was valid until January 27, 1989. On January 31, 1989, he filed a petition to adjust his conditional resident status to that of a permanent resident alien pursuant to INA Section 216(c)(1), 8 U.S.C. § 1186a(c)(1). This petition was denied on June 30, 1989, on the ground that his marriage to Jennifer Brady was fraudulent and entered into for the purpose of evading immigration laws. Velazquez does not currently dispute that finding, and has admitted his first marriage was a "sham" marriage.

During the period of Velazquez's "sham" marriage, Velazquez began a bona fide romantic relationship with Sharron Libby, also a United States citizen. On April 20, 1990, Velazquez and Ms. Libby were lawfully married. They currently have two children, ages two and four, and reside in Plymouth, Minnesota. There is no dispute as to the genuineness of this second marriage.

On May 21, 1991, nearly two years after his petition for permanent resident status was denied, the INS issued an Order to Show Cause seeking Velazquez's deportation on the grounds that (a) his conditional resident status had expired and (b) he had procured his entry into the United States on the basis of a fraudulent marriage. Velazquez contested his deportability and moved for various forms of relief, including an adjustment of resident status based on his second marriage. The Immigration Judge denied Velazquez's motions.

The INS subsequently conducted a deportation hearing before an Immigration Judge on February 11, 1992. The Immigration Judge determined that Velazquez's first marriage was fraudulent and ordered that he be deported. (Respondent Opp. Mem., Ex. A at 139-166.) During this hearing, Velazquez also filed a Petition for Suspension of Deportation pursuant to INA Section 244(a)(1), 8 U.S.C. § 1254(a)(1), claiming that he had resided in the United States for over seven continuous years, that he had good moral character, and that his deportation would cause extreme hardship to himself, his citizen wife, and their two citizen children. (Amend. Pet. for Writ of Habeas Corpus, Ex. A.) The Immigration Judge denied that Petition.

Velazquez appealed the Immigration Judge's decision to the BIA. On June 25, 1993, the BIA affirmed the Immigration Judge's decision and entered a final Order of Deportation. Accordingly, on July 27, 1993, the INS issued a warrant for Velazquez's arrest and deportation.

Following the BIA's final decision, Velazquez filed a petition for review with the Eighth Circuit Court of Appeals. On September 12, 1994, the Court of Appeals affirmed the BIA's decision. Salas Velazquez v. I.N.S., 34 F.3d 705 (8th Cir.1994). Velazquez was arrested by INS agents on December 7, 1994. He was thereafter released on a $5,000.00 immigration bond and ordered to report for deportation to Mexico on January 4, 1995.

Velazquez has now retained new legal counsel who argues that Velazquez received ineffective assistance of counsel throughout his immigration proceedings. Pursuant to the advice of his new counsel, Velazquez filed, on December 27, 1994, a Petition to Remove the Conditions on Residence based on an "extreme hardship" provision contained in INA Section 216(c)(4)(A), 8 U.S.C. § 1186(c)(4)(A). (Pet. for Writ of Habeas Corpus, Ex. 2.) On December 29, 1994, the INS District Director denied this Petition, (Id., Ex. 1), concluding that Velazquez was "not eligible to file for removal of conditions as set forth in Section 216 of the INA," that "after careful review of the entire record, it is concluded that there are not sufficient equities to overcome Velazquez's extremely serious immigration violations," and that "even if Velazquez was eligible to file this Section 216(c)(4)(A) petition, it is concluded that persuasive evidence of extreme hardship has not been introduced in this proceeding." (Id. at 5, 10, 8.)

On January 3, 1995, Velazquez filed a Petition for Writ of Habeas Corpus accompanied by a Motion for a Temporary Restraining Order and Preliminary Injunction in this Court seeking to enjoin his deportation and to order the BIA to process his hardship waiver application. The INS has agreed to defer Velazquez's deportation until the earlier of March 15, 1995, or this Court's ruling on the pending Motion and Petition.

On January 20, 1995, Velazquez filed a motion with the BIA seeking to reopen deportation proceedings. (Petitioner's Reply Mem., Ex. A.) In this Motion, Velazquez requests review of his hardship waiver application and reconsideration of his application for suspension of deportation based on allegedly new and substantial evidence of extreme hardship as well as his claim of ineffective assistance of counsel. (Id.)

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 2241.

Discussion

Velazquez seeks a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241-2255 to enjoin his deportation. Challenges to deportation proceedings are cognizable under the federal habeas statute. 8 U.S.C. § 1105a(a)(10) ("any alien held in custody² pursuant to an order of deportation may obtain judicial relief thereof by habeas corpus proceedings"). In order to succeed on the merits of a habeas petition, Velazquez must demonstrate that the current (or impending) restraint on his liberty is in violation of federal law. 28 U.S.C. § 2241.

In this case, Velazquez predicates his habeas petition on two grounds. First, he asserts that his Fifth and Sixth Amendment³ rights were violated during his deportation proceedings, contending that the acts and omissions of his counsel during these proceedings, including the failure to file a Section 216(c)(4)(A) hardship waiver, constituted ineffective assistance of counsel. Second, Velazquez contends that the INS District Director's denial of his December 27, 1994 hardship waiver petition was arbitrary, capricious, and an abuse of discretion.

I. Jurisdiction

The INA specifically limits federal jurisdiction to reconsider INS final decisions. Federal district courts do not have subject matter jurisdiction to review final deportation orders. Instead, the Courts of Appeal are vested with exclusive jurisdiction to review decisions made during a deportation hearing. 8 U.S.C. § 1105a(a); Stajic v. I.N.S., 961 F.2d 403, 404 (2nd Cir.1992); JAA v. I.N.S., 779 F.2d 569, 571 (9th Cir. 1986); see also Wellington v. I.N.S., 710 F.2d 1357, 1360 (8th Cir.1983) (explaining that the Court of Appeals has "exclusive jurisdiction over final orders of deportation, orders entered during deportation proceedings, and orders incident to a motion to reopen such proceedings").

In his Amended Petition, Velazquez claims he was denied effective assistance of counsel at his deportation hearing and subsequent appeals. Velazquez alleges that his prior counsel failed to adequately develop a record of extreme hardship and failed to file the proper hardship waiver application during his final deportation hearing.⁴ Velazquez claims his due process rights were violated through these omissions.

Velazquez cannot challenge his final deportation hearing and its appeal in this Court. In order to prevail on an ineffective assistance of counsel claim, Velazquez must show his deportation hearing was fundamentally unfair because of his counsel's deficient representation. Castaneda-Suarez v. I.N.S., 993 F.2d 142, 144 (7th Cir.1993). As noted, however, in order to expedite final deportation proceedings, Congress has placed review of final deportation orders, and orders entered during those proceedings, with the Courts of Appeal. This Court therefore does not have subject matter jurisdiction to review Velazquez's ineffective assistance of counsel claim insofar as it relates to the BIA's final deportation order.⁵

Velazquez's claim that the INS District Director wrongfully denied his petition for an extreme hardship waiver is, however, properly before the Court. Although district courts do not...