Xiaoyuan Ma v. Holder

• Court: U.S. District Court — Northern District of California
• Writing for the Court: EDWARD J. DAVILA
• Decision Date: 16 May 2012
• Docket Number: Case No. 5:12-cv-0536 EJD
• Citation: Xiaoyuan Ma v. Holder, Case No. 5:12-cv-0536 EJD (N.D. Cal. May 16, 2012)
• Parties: XIAOYUAN MA, Petitioner, v. ERIC HOLDER; et. al., Respondent.

XIAOYUAN MA, Petitioner,

v.ERIC HOLDER; et. al., Respondent.

Case No. 5:12-cv-0536 EJD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: May 16, 2012

ORDER GRANTING

RESPONDENT'S MOTION TO

DISMISS

[Docket Item No. 5]

Presently before the Court is a Petition filed by Petitioner, Xiaoyuan Ma ("Petitioner"). Petitioner has previously filed a motion to reopen a final removal order before the Board of Immigration of Appeals ('BIA'). That motion is currently pending before the BIA. See, Petition, at ¶ 26. Dkt Item No. 1.

In this Court, Petitioner seeks a writ of habeas corpus granting a stay of deportation during the BIA's adjudication of her motion to reopen. See id. Petitioner alleges that the Court has jurisdiction over this case under the Habeas Corpus statute, 28 U.S.C. § 2241. Respondent argues that, regardless of whether Petitioner's claims fall within 28 U.S.C. § 2241, Congress has stripped the Court of jurisdiction over Petitioner's claims by way of 8 U.S.C. § 1252.

Pursuant to Local Civil Rule 7-1(b), the Court concludes that this motion and petition are appropriate for determination without oral argument. Having reviewed the relevant portions of therecord - including the Petition and the Parties' briefs - the Court concludes that it lacks jurisdiction over this case. Respondent's motion to dismiss will therefore be granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a citizen of the People's Republic of China. See id., at ¶ 1. Since November, 2003, Petitioner has resided with her current husband and five children in Daly City, California. See id.

Petitioner was originally admitted to the United States on February 10, 1995, as a conditional permanent resident based on a prior marriage. See id., at ¶ 14. That marriage eventually ended in divorce and Petitioner's conditional residency was terminated. See id. She remarried in September, 1997, and again obtained conditional residency status. See id., at ¶ 15. However, Citizenship and Immigration Services ("CIS") terminated her status for a second time after Petitioner failed to appear for an immigration interview. See id., at ¶ 17. She and her second husband thereafter divorced on September 23, 2003. See id.

Petitioner married her current husband on November 14, 2003. See id.,at ¶ 18. She applied for an adjustment of her immigration status based on her marriage on December 23, 2003, but her application was denied by CIS on November 7, 2005, due to a finding of marriage fraud. See id. Petitioner was then summoned to appear by the Department of Homeland Security on December 29, 2005, and appeared before the San Francisco Immigration Court with former counsel, Justin Wang. See id., at ¶ 19. During those proceedings, Petitioner conceded removability but requested asylum and relief under the Convention Against Torture. See id. Her requests were denied after an evidentiary hearing on August 30, 2006. The BIA dismissed her administrative appeal on January 9, 2008. See id, at ¶¶ 21, 22. A petition for review was denied by the Ninth Circuit Court of Appeals on November 29, 2011. See id., at ¶ 23.

On August 26, 2011, Petitioner consulted with her present counsel who filed a motion to reopen with the BIA due to ineffective assistance of counsel. See id., at ¶¶ 24, 25. Petitioner argues that her former counsel (Wang) prevented her from applying for cancellation of removal based on "exceptional and extremely unusual hardship" to her children pursuant to 8 U.S.C. § 1229b(b)(1).See id., at ¶¶ 3, 4, 24, 25. That motion is currently pending before the BIA. Highly relevant to this case is the fact that the deportation order has not been stayed pending the BIA's decision. See id., at ¶ 26. ¹

On February 21, 2012 this Court issued an Order Granting Request for Stay of Deportation Proceedings and an Order to Show Cause. See, Dkt Item No. 2. Given the extensive administrative record, the Court sought submissions from the parties that have now been reviewed for determination without oral argument.

II. DISCUSSION

This case presents the issue of whether habeas relief should be granted within the context of immigration law. Determining the scope of habeas relief in this context is not without difficulty; ever more so by the "myriad of jurisdiction-stripping provisions enacted by Congress." See, Kambo v. Poppell, No. 5:07-CV-0800, 2007 WL 3051601 *3 (W.D.Tex.2007); 2007 U.S. Dist. LEXIS 77857 *3 (W.D. Tex. Oct. 18, 2007). Because of these provisions, it is little wonder that immigration law has been described by some courts as "second only to the Internal Revenue Code" in terms of its complexity. See, Castro-O'Ryan v. U.S. Dep't of Immigration and Naturalization, 847 F.2d 1307, 1312 (9th Cir.1988). See also, Soberanes v. Comfort, 388 F.3d 1305, 1312 (10th Cir.2004) (stating that the intersection of immigration and habeas "marks an evolving and challenging area of the law.") Indeed, statutory provisions of the past two decades have perforated the Suspension Clause to such an extent that appellate courts are now the primary vehicle for adjudicating cases such as the present. Assessing when a district court is divested of jurisdiction - so that an appellate court can entertain relief - is the crux of the present case.

Here, Respondent argues that the Court lacks jurisdiction to entertain Petitioner's relief based upon several lines of attack. To address the first of these contentions, the Court turns to the threshold issue of whether Petitioner is 'in custody' to allow for subject matter jurisdiction under 28 U.S.C. § 2241.A. Whether Petitioner, who is subject to removal orders and the government's Intensive Supervised Appearance Program ('ISAP'), shown she is 'in custody' so to invoke the writ of habeas corpus?

To bring a petition for writ of habeas corpus, a person must satisfy the "in custody" requirement under 28 U.S.C. § 2241. See, Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir.2001); Sheikh v. Chertoff, No. C 03-05604, 2006 WL 463506, 2006 U.S. Dist. LEXIS 10110, (N.D.Cal. Feb. 23, 2006). Federal courts lack jurisdiction to grant habeas relief where the petitioner seeking that relief is not in fact "in custody" at the time the petition is filed. Id. Relevantly, section 2241(c)(3) provides that the "writ of habeas corpus shall not extend to a prisoner unless ... [she] is in custody in violation of the Constitution or laws or treaties of the United States."

Although Petitioner is not, literally, a prisoner of the INS, courts have long recognized that the writ is available to those who suffer such a curtailment of liberty as to render them "in custody" for the purposes of 28 U.S.C. § 2241(c). See, Jones v. Cunningham, 371 U.S. 236, 239-40, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Williamson v. Gregoire, 151 F.3d 1180, 1182 (9th Cir.1998); and Williams v. INS, 795 F.2d 738, 744 n. 3 (9th Cir.1986).

In Williams 795 F.2d 744, the Ninth Circuit made clear that the Supreme Court's expansion of "custody" in the criminal context applies to habeas petitions in the immigration context. In the present case, neither party seems to contend this point. What is in contention is whether Petitioner - who is subject to removal orders and the government's Intensive Supervised Appearance Program ('ISAP') - is 'in custody' for the purposes of the habeas petition. Critical to the disposition of this issue is the principle held in Nakaranurack v. United States, 68 F.3d 290 (9th Cir.1995). There, the Ninth Circuit stated:

We have broadly construed "in custody" to apply to situations in which an alien is not suffering any actual physical detention; i.e., so long as he is subject to a final order of deportation, an alien is deemed to be "in custody" for purposes of the INA, and therefore may petition a district court for habeas review.

Numerous cases have cited the above principle with approval - and while the context of those cases may vary; the principle remains the same - even in spite of the jurisdiction-strippingprovisions of Congress. See, Simmonds v. INS, 326 F.3d 351, 354 (2d Cir.2003) (holding that a "final order of removal is sufficient, by itself, to establish the requisite custody"); Ramos-Birueta v. INS, 2000 WL 1359593 at*1 (9th Cir. Aug. 11, 2000). (holding that so long as the petitioner is "subject to a final order of deportation, an alien is deemed to be 'in custody' for purposes of the INA." Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir.2001) (same); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.1994) (same); Mustata v. U.S. Dep't of Justice, 179 F.3d 1017, 1021 n. 4 (6th Cir.1999) (holding a final deportation order places an alien constructively "in custody" because of "the specialized meaning those words have in the context of an immigration-related habeas petition"); Khotesouvan v. Morones, 386 F.3d 1298, 1299 n. 2 (9th Cir.2004) (holding that "habeas review is.. .for 'any alien held in custody pursuant to an order of deportation[.],"); Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 735 (5th Cir.2005); Cucalon v. Rice, 317 Fed. Appx. 602, 603-04 (9th Cir.2008); Borrero v. Wells, No. CV 309-096, 2010 WL 3292696,*3, Fn3, 2010 U.S. Dist. LEXIS 85366, *7, Fn3. (S.D.Ga. May 25, 2010) (finding that an "individual does not have to be in physical custody to satisfy this requirement; rather, the "in custody" requirement is satisfied when an individual is subject to a final order of removal."); Nganga v. District Director, Cleveland United States Immigration and Customs Enforcement, No. 1:10 CV1059, 2010 WL 2891564, *2, 2010 U.S. Dist. LEXIS 73348, *4-5 (N.D.Ohio 2010) (finding that habeas jurisdiction existed because petitioner was subject to a removal order, but the scope of the habeas jurisdiction was limited by 8 U.S.C. § 1252(g)).

In light of the foregoing authorities, several circuits - including the Ninth Circuit - have held that a person does not have to be physically detained to satisfy the "in custody" requirement of ...