Walters v. Ashcroft

• Decision Date: 03 November 2003
• Docket Number: No. 02-CIV-9577 (KMW).,02-CIV-9577 (KMW).
• Citation: 291 F.Supp.2d 237
• Parties: Ricky Martin Lloyd WALTERS, Petitioner, v. John ASHCROFT, Attorney General of the United States, et al., Respondents.
• Court: U.S. District Court — Southern District of New York

Page 237

291 F.Supp.2d 237

Ricky Martin Lloyd WALTERS, Petitioner, v. John ASHCROFT, Attorney General of the United States, et al., Respondents.

No. 02-CIV-9577 (KMW).

United States District Court, S.D. New York.

November 3, 2003.

COPYRIGHT MATERIAL OMITTED

Alex Solomiany, Miami, FL, for Petitioner.

Michael M. Krauss, New York City, for Respondents.

OPINION & ORDER

KIMBA M. WOOD, District Judge.

Ricky Martin Lloyd Walters ("Petitioner") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, to vacate a final order of deportation entered by the Board of Immigration Appeals ("BIA") on March 26, 1997, and to reinstate a November 7, 1995 order of the BIA granting Petitioner relief from deportation under former section 212(c) of the Immigration and Nationality Act ("INA") (8 U.S.C. § 1182(c)) (repealed 1996).¹ Petitioner raises constitutional and statutory challenges to the March 26, 1997 BIA decision, which (1) granted a motion to reconsider filed by the INS, (2) vacated the November 7, 1995 BIA decision, and (3) ordered Petitioner deported. Respondents argue that the Court lacks personal jurisdiction over all Respondents, and that the petition is meritless. For the reasons set forth below, the Court finds that it has personal jurisdiction over Respondent John Ashcroft, and that Petitioner was denied due process by the BIA's March 26, 1997 order granting the INS' motion to reconsider and vacating the BIA's prior decision without proper authority. Petitioner's application for a writ of habeas corpus is granted.

I. Background

Petitioner is a citizen of the United Kingdom.² He was admitted to the United States as a lawful permanent resident ("LPR") on April 16, 1976. On March 22, 1991, in the Supreme Court of the State of New York, Petitioner pled guilty to, and was convicted of, two counts of attempted murder in the second degree and eight counts involving firearms violations. Petitioner was sentenced to an indeterminate term of imprisonment with a maximum term of ten years imprisonment and a minimum term of three and one-third years imprisonment. On November 29, 1993, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause and Notice of Hearing, charging Petitioner with deportability for having been convicted of a firearms offense, INA § 241(a)(2)(C), and an aggravated felony (crime of violence), INA § 241(a)(2)(A)(iii). Petitioner's removal hearing took place in New York before Immigration Judge Alan Vomacka ("IJ") on five dates between March 1 and June 19, 1995.

Petitioner contested deportability before the IJ, but was found deportable on the basis of having been convicted of (1) at least one firearms offense, and (2) an aggravated felony. See June 19, 1995 Oral Decision of the Immigration Judge ("IJ Decision") at 3 (Return at 142). Petitioner applied for two forms of discretionary relief from deportation: a waiver pursuant to § 212(c) and a waiver pursuant to § 212(h). In order to be statutorily eligible for § 212(c) relief, an alien must demonstrate that he (1) is a lawful permanent resident of the United States, (2) has maintained an unrelinquished domicile in the United States of seven consecutive years, and (3) has not served a term of five years in prison.³ On June 19, 1995, the IJ found Petitioner eligible for,⁴ and deserving of, relief under INA § 212(c), and identified "unusual and outstanding equities ..." in Petitioner's case. See IJ Decision at 28 (Return at 167).⁵ The IJ granted Petitioner a waiver of excludability along with adjustment of status, allowing Petitioner to retain his status as a lawful permanent resident until such time as a final order of deportation was entered against him. The INS filed a timely appeal of the IJ's decision, and argued to the BIA that the IJ erred in finding Petitioner deserving of discretionary relief under § 212(c). The INS did not at that time argue that Petitioner was not eligible for relief, because it remained undisputed that Petitioner had been eligible at the time that the IJ made his decision. Sometime after the parties submitted briefing to the BIA, and certainly by the time the BIA ruled on the INS appeal, Petitioner had served five years in prison.⁶ Addressing the sole question before it on appeal (that is, the question of whether Petitioner was deserving of § 212(c) relief), the BIA dismissed the INS appeal on November 7, 1995, finding that "the granting of section 212(c) relief appears to be in the best interest of the country." See November 7, 1995 BIA Decision at 9 (Return at 60).

On December 8, 1995, the INS filed with the BIA a Motion to Reopen Deportation Proceedings and to Reconsider. The INS argued in the motion that the BIA "should have denied the respondent's request for § 212(c) relief because he was not statutorily eligible for § 212(c) relief by the date of the Board's decision in that he had served a term of imprisonment of at least 5 years." See Government's Motion to Reopen Deportation Proceedings and to Reconsider, ("INS Motion to Reconsider") at ¶ 8 (Return at 41). In support of this argument, the INS attached a letter that INS Trial Attorney Suzanne McGregor received on October 23, 1995. Id. at ¶ 6 (Return at 41-42). The letter was sent by John R. O'Keefe, Superintendent of Gouverneur Correctional Facility in Gouverneur New York, and stated, inter alia: "We are in receipt of your request dated October 13, 1995 regarding the above-noted individual who is presently in our custody." See Letter to INS Trial Attorney Suzanne McGregor, dated October 19, 1995 (Return at 43). Superintendent O'Keefe informed Ms. McGregor that as of the date of his letter, October 19, 1995, Petitioner had served 5 years, 14 days in prison. Id. Although it was received two weeks before the BIA ruled, the government concedes that it did not present this evidence of Petitioner's time spent in prison to the BIA's attention prior to the November 7 ruling.

On March 26, 1997, the BIA issued a decision granting the INS Motion to Reconsider and vacating the BIA's November 7, 1995 decision. The BIA held that "as of October 19, 1995, the respondent had served a total of 5 years, 14 days in prison, and therefore was ineligible for a section 212(c) waiver." See March 26, 1997 BIA Decision (Return at 6).⁷

On April 25, 1997, Petitioner filed, in the United States Court of Appeals for the Second Circuit, a petition for review of the March 26, 1997 BIA decision. On June 12, 1998, the Second Circuit dismissed the petition for lack of jurisdiction, finding that "[b]ecause Walters was found deportable based on aggravated felony and firearms convictions," the court was barred from reviewing his final order of removal. Walters v. INS, 159 F.3d 1349 (table), 1998 WL 537197 (2d Cir. June 12, 1998) (unpublished). It appears that sometime thereafter, Petitioner departed the country.

On June 1, 2002, INS officers in Bradenton, Florida detained Petitioner when he attempted to re-enter the country. The INS again served Petitioner with an Order to Show Cause and Notice to Appear, charging him with being inadmissible for (1) his prior crimes, and (2) his post-removal re-entry. On July 12, 2002, an IJ in Florida found Petitioner inadmissible on both grounds and ineligible for any form of relief, and ordered that he be removed to the United Kingdom. Petitioner appealed the IJ's decision to the BIA. Before the BIA ruled on that appeal, Petitioner filed a petition for habeas corpus in the Middle District of Florida on August 13, 2002. This petition was denied on September 10, 2002 because the Petitioner had not yet exhausted his administrative remedies.⁸ On November 25, 2002, the BIA summarily affirmed the IJ's decision. On December 3, 2002, Petitioner filed a petition for review in the United States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit dismissed the petition for lack of jurisdiction on January 30, 2003.

The instant petition and motion for a stay of removal were filed with this Court on December 2, 2002. On December 27, 2002, this Court granted a stay of removal. The Court now addresses the merits of the petition.

II. Personal Jurisdiction

The Court must decide, as a threshold matter, whether it has personal jurisdiction over the Respondents. 28 U.S.C. § 2243 states that "the writ ... shall be directed to the person having custody of the person detained." The government argues that the only proper respondent in this case is the INS Miami District Director, due to the fact that the Petitioner is currently detained in Bradenton, Florida, where his most recent removal hearings were held. Because this Court would apparently not have personal jurisdiction over the Miami District Director, the Respondents argue that the petition must be dismissed. Petitioner argues, however, that Attorney General John Ashcroft is a proper respondent in a habeas petition brought by an alien challenging a final order of removal.

The Court notes that the Supreme Court and the Second Circuit have both reserved judgment on this precise question.⁹ See Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948) (stating "we do not reach the question whether the Attorney General is the proper respondent"); Henderson v. INS, 157 F.3d 106, 130 (2d Cir.1998) ("We decline at this time to resolve the issue of whether the Attorney General is a proper respondent for habeas actions brought by aliens facing deportation."). The circuit courts that have addressed this issue have split. Two circuits have held that although courts should generally apply the "immediate custodian" rule and assert habeas jurisdiction only over the person who exercises "day-to-day control" over the detainee, "extraordinary circumstances" may justify exceptions to the immediate custodian rule. See Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir.2000) (suggesting that extraordinary circumstances might include a situation in which the location of the detainee is undisclosed,...