Yusov v. Shaughnessey

• Citation: 671 F.Supp.2d 523
• Decision Date: 18 November 2009
• Docket Number: No. 09 Civ. 56(LBS).,09 Civ. 56(LBS).
• Parties: Yuri YUSOV, Petitioner, v. James SHAUGHNESSEY, Supervisory Deportation Officer; U.S. Department of Homeland Security; U.S. Attorney General; U.S. Government, Respondents.
• Court: U.S. District Court — Southern District of New York

Page 523

671 F.Supp.2d 523

Yuri YUSOV, Petitioner, v. James SHAUGHNESSEY, Supervisory Deportation Officer; U.S. Department of Homeland Security; U.S. Attorney General; U.S. Government, Respondents.

No. 09 Civ. 56(LBS).

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

November 18, 2009.

Yuri Yusov, pro se.

Lev. L. Dassin, Acting United States Attorney, for the Southern District of New York, by: Sue Chen, Special Assistant United States Attorney, for Respondents.

OPINION

SAND, District Judge:

Petitioner Yuri Yusov, an alien subject to a final order of removal and currently released from custody pursuant to an order of supervision, brings this pro se petition for a writ of habeas corpus requesting release from government supervision and other relief. For the following reasons, we deny Yusov's petition for habeas corpus.

I. Background

Petitioner was born in 1960 in the town of Chernovtsi, which was then in the U.S.S.R. and is now in Ukraine. (Return Ex. 1; Return Ex. 10 ("Flynn Dec") ¶ 11.) On or about March 28, 1990, Yusov was admitted to the United States as a refugee, and he was given the status of lawful permanent resident on October 30, 1991. (Return Ex. 1; Return Ex. 2.)

On October 2, 1993, Yusov was arrested and charged with first degree assault for cutting his roommate Pavel Shevchenko multiple times with a box cutter.¹ (Pet'r's Reply Mem. 2; Return Ex. 7, at 1.) On November 21, 1994, Yusov was convicted of attempted assault in the first degree in the Supreme Court of the State of New York. (Pet. 2; Pet. Ex. 1.) Petitioner pled guilty, but he claims that he is innocent and that this plea was coerced by his Legal Aid attorney. (Pet. 2.) He was sentenced to an indefinite term of imprisonment of twenty-eight months to seven years. (Pet. 2; Pet. Ex. 1.)

Based on Yusov's conviction, on April 11, 1995, the former Immigration and Naturalization Service ("INS") issued an Order to Show Cause as to why he was not deportable as an alien who had been convicted of an aggravated felony and/or a crime involving moral turpitude.² (Return Ex. 3.) On April 16, 1996, an Immigration Judge found Yusov deportable under the Immigration and Nationality Act ("INA"), and ordered Yusov deported to Ukraine.³ (Return Ex. 4; Return Ex. 5.) Yusov timely appealed this decision, which was affirmed by Bureau of Immigration Affairs ("BIA") on February 28, 1997. (Return Ex. 6.) Yusov did not file a petition for review of the BIA's decision with the Court of Appeals for the Second Circuit. (Resp. Mem. Opp. Pet. 4.) While these deportation proceedings were pending in 1996, Yusov was released from INS detention on bond. (Return Ex. 6.)

On January 20, 2000, Yusov filed a petition for a writ of habeas corpus challenging his state conviction in the United States District Court for the Eastern District of New York. The INS deferred enforcement of the deportation order pending resolution of the habeas petition. (Return Ex. 7.) The district court dismissed Yusov's habeas petition as time-barred on August 13, 2003, and he was taken into custody by Immigration and Customs Enforcement ("ICE") for deportation. (Return Ex. 7; Flynn Dec. at ¶ 10.) The Court of Appeals for the Second Circuit denied Yusov's appeal of the district court's decision on February 20, 2004. (Return Ex. 7, at 9.)

ICE attempted to deport Yusov to Ukraine, but Ukraine refused to accept him. Yusov had left the country just before it gained independence; therefore, he was not considered a Ukrainian citizen under Ukrainian law. (Flynn Dec. ¶ 11.) Based on Yusov's claims that he is Jewish and that his grandmother was Jewish, ICE then contacted the Israeli consulate to see if Israel would accept him. (Flynn Dec. ¶ 12.) The Israeli consulate informed ICE that it could not review Yusov's immigration application until his Jewish lineage was proven through copies of birth or death certificates from the last three generations. (Flynn Dec. ¶ 12.) ICE has so far been unable to obtain the documents from the Russian authorities on its own. (Flynn Dec. ¶¶ 14-15.) Yusov told ICE that he has no desire to emigrate to Israel. (Flynn Dec. ¶ 16.)

On March 22, 2004, Yusov was released from ICE detention pursuant to an order of supervision because ICE was unable to deport him within the time prescribed by law. (Return Ex. 9.) In the order, the supervisory Deportation Officer ordered that Yusov "be placed under supervision and permitted to be at large" subject to certain conditions. (Return Ex. 9.) The order required Yusov to appear in person at ICE's request; to submit to medical or psychiatric examinations at ICE's request; to provide information under oath regarding his nationality, circumstances, habits, associations, and activities; to refrain from travel outside the New York/New Jersey metropolitan area for more than 48 hours without first notifying ICE; to give ICE written notice of any change of residence or employment within 48 hours of the change; to assist ICE in obtaining necessary travel documents; and not to commit any crimes. (Return Ex. 9.) The order threatened him with revocation of employment authorization and/or incarceration for violation of these conditions. It also instructed Yusov to report in person to the New York ICE office every week; this requirement was later relaxed to allow Yusov to report every three months. (Flynn Dec. ¶ 17.)

Petitioner filed the instant habeas petition on January 6, 2009. He seeks (1) "liberation from indefinite ... custody;" (2) a declaration of his good moral character; (3) restoration of his status of legal permanent resident; and (4) a "[r]ecommendation for naturalization, or an Order to facilitate his naturalization." (Pet. 9; Pet'r's Reply Br. 10.)

II. Discussion

The Court notes at the outset that Petitioner only seeks review of "violations of [his][c]onstitutional rights since September 2003." (Pet'r's Reply Mem. 5.) Yusov has clarified that the discussion of his conviction for attempted assault was "background information about the circumstances that resulted in his unlawful perpetual bondage," but argues that "this Court is still empowered by the U.S. Constitution to review [the] constitutionality of Petitioner['s] ... indefinite custody[, i.e., his release under an order of supervision.]" (Pet'r's Reply Mem. 6.) Nor could we review his state conviction in the instant petition, as an alien is not permitted to attack collaterally the criminal conviction underlying his deportation order in a habeas proceeding challenging that order.⁴ See, e.g., Arriaga v. Mukasey, 521 F.3d 219, 224 (2d Cir.2008).

The Court is without power to consider Yusov's request to recommend or facilitate his naturalization. District courts retain jurisdiction in matters of naturalization only in circumstances of "denial and delay." Ajlani v. Chertoff, 545 F.3d 229, 236 (2d Cir.2008); see also 8 U.S.C. §§ 1421(c), 1447 (permitting federal court review of denials of applications for naturalization and delays of over 120 days in rendering a decision after a naturalization examination). Petitioner does not allege that he has applied for citizenship, so we lack jurisdiction to consider this request.

Yusov's requests to restore his status as a lawful permanent resident and to declare him to be of good moral character are in effect a request to review the BIA's deportation order. Because the Immigration Judge found that Yusov's conviction was for an "aggravated felony," Yusov is by statute deemed ineligible to be found a person of "good moral character," which is a prerequisite for naturalization. See 8 U.S.C. § 1101(f)(8). The same order of removal terminated his lawful permanent resident status, as an alien loses that status upon the administrative finalization of the alien's removal order. See 8 C.F.R. § 1001.1(p).

However, the REAL ID Act of 2005, 8 U.S.C. § 1252 ("REAL ID Act"), stripped district courts of jurisdiction to review removal orders. See De Ping Wang v. Department of Homeland Sec., 484 F.3d 615, 616 (2d Cir.2007) ("[D]istrict courts may no longer review removal orders via habeas corpus." (citing 8 U.S.C. § 1252)). Pursuant to the REAL ID Act, review of a removal order may only be sought in the appropriate court of appeals. Id. Nor may we transfer the instant petition to the Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631. While we must transfer a petition that was "mistakenly, but timely, filed in the district court," De Ping Wang, 484 F.3d at 616 (citing Paul v. INS, 348 F.3d 43, 46-47 (2d Cir.2003)), Yusov's petition for review was not timely. A petition for review of an order of removal must be filed "not later than 30 days after the date of the final order of removal." 8 U.S.C. § 1252(b)(1). Compliance with the time limit is a "strict jurisdictional prerequisite." See Zaluski v. INS, 37 F.3d 72, 73 (2d Cir.1994) (per curiam). Yusov's order of removal became final when the BIA dismissed his appeal on February 28, 1997, more than twelve years ago.⁵ (Flynn Dec. ¶ 9.) As such, we may not transfer his petition for review of the final order of removal to the Court of Appeals for the Second Circuit. See De Ping Wang, 484 F.3d at 617.

It is unclear if Yusov raises claims regarding the conditions of his ICE detention, from which he was released in March 2004; to the extent this is the case, a habeas petition is not the appropriate vehicle to raise these claims. See Copes v. McElroy, No. 98 Civ. 2589(JGK), 2001 WL 830673, at *6 (S.D.N.Y. July 23, 2001) ("[I]t is well-settled that a habeas petition is the appropriate means to challenge the actual fact or duration of one's confinement, ... whereas a civil rights claim is the proper means to challenge the conditions of one's confinement.") (citations and internal quotations omitted); see also Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

a. Post-removal-period Supervision...