Zalawadia v. Ashcroft

• Citation: 371 F.3d 292
• Decision Date: 04 June 2004
• Docket Number: No. 03-30115.,03-30115.
• Parties: Jaysukh ZALAWADIA, Petitioner-Appellant, v. John ASHCROFT, U.S. Attorney General; James Ziglar; Lynne Underdown; Bureau of Immigration and Customs Enforcement; United States Department of Justice, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

371 F.3d 292

Jaysukh ZALAWADIA, Petitioner-Appellant, v. John ASHCROFT, U.S. Attorney General; James Ziglar; Lynne Underdown; Bureau of Immigration and Customs Enforcement; United States Department of Justice, Respondents-Appellees.

No. 03-30115.

United States Court of Appeals, Fifth Circuit.

June 4, 2004.

Matthew L. Guadagno (argued), Bretz & Coven, New York City, for Petitioner-Appellant.

Robbin K. Blaya, Terri Jane Scadron (argued), U.S. Dept. of Justice, Civil Div. Immigration Litigation, Washington, Dc, for Respondents-Appellees.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY and WIENER, Circuit Judges, and WALTER, District Judge.^*

E. GRADY JOLLY, Circuit Judge:

Jaysukh Zalawadia was deported to India while his habeas appeal challenging the legality of the deportation order was pending. This appeal requires us to determine the effect deportation of a habeas petitioner has on (1) our ability to exercise continued jurisdiction over that petition and (2) the nature and scope of habeas relief available to an alien deported under a defective deportation order. For the reasons explained below, we hold that we have habeas jurisdiction over this petition. We vacate this deportation order and also hold that, because of the limited nature of habeas, we lack authority, in this habeas action, to grant relief beyond simply vacating the defective order under which he was deported. The petitioner, whose liberty interests and rights are now no longer encumbered by the deportation order, must turn to other procedural remedies, if any, for further relief.

I

Jaysukh Zalawadia, a native and citizen of India, was admitted into the United States in September 1988. In 1995, he pleaded guilty to a charge of burglary and felony theft and was sentenced to two years probation and required to pay restitution. At the time, his guilty plea had no immediate effect on his immigration status. Under the Immigration and Nationality Act (INA) as it then existed, conviction of these offenses did not render him subject to deportation; they were not deportable "aggravated felonies" as defined by the Act¹ nor did they meet the conditions necessary to constitute deportable "crimes of moral turpitude."² These convictions did create the possibility that Zalawadia could be rendered inadmissible should he leave the country and attempt to re-enter; under INA § 212(a)(2)(A)(i)(I), 8 U.S.C. § 1182(a)(2)(A)(i)(I), a lawful permanent resident who had been convicted of a "crime involving moral turpitude" would be deemed inadmissible should that resident leave the United States and later seek reentry. However, the Supreme Court had interpreted this condition only to apply to travel outside the United States that was not "brief, casual or innocent." Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963) (holding that lawful permanent residents who travel abroad should be admitted, even if otherwise inadmissible, if their travel was "brief, casual, or innocent"). In addition, the INA contained a provision granting the Attorney General of the United States the broad discretion to admit aliens who were otherwise excludable on the basis of a prior criminal conviction. Under § 212(c) of that act, any lawfully admitted alien "who temporarily proceeded abroad voluntarily... and who [is] returning to a lawful unrelinquished domicile of seven years" was eligible for this discretionary waiver. INA § 212(c), 8 U.S.C. § 1182(c) (1994 ed.). Thus, under the law as it then existed, Zalawadia's criminal conviction would affect his immigration status only if his travel outside the United States was not "brief, casual or innocent" and even then, he would be eligible to apply for discretionary relief with the Attorney General could he prove seven years of unrelinquished domicile.

The passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996 had two specific effects on Zalawadia's immigration status. First, the IIRIRA's amendments to the INA ostensibly superseded the rule announced in Fleuti; under the amended INA, 8 U.S.C. § 1101(a)(13)(C)(v), as interpreted by the Board of Immigration Appeals (BIA), a lawful permanent resident could be barred from reentry regardless of the nature of his travel outside the country. See In re Collado-Munoz, 21 I. & N. Dec. 1061, 1997 WL 805604 (BIA Dec. 18, 1997).³ In addition, the IIRIRA specifically repealed § 212(c), replacing it with § 240A, 8 U.S.C. § 1229b. Zalawadia was no longer eligible for a discretionary waiver from the Attorney General under this new provision.⁴

Zalawadia soon felt the effects of these statutory changes. In 1998, he briefly left the country on a business trip abroad. Upon returning, because the INS had concluded that Fleuti's rule no longer applied, he was treated as an arriving alien, detained, and issued a Notice to Appear charging him with inadmissibility as a result of his 1995 convictions. In the original removal proceedings before an immigration judge, Zalawadia conceded removability but requested cancellation of his removal order pursuant to § 240A(a) of the INA — the provision that had replaced § 212(c). The immigration judge found that Zalawadia's convictions prevented him from meeting the residency requirements for cancellation of removal (seven years of unrelinquished lawful domicile) and ordered him removed.

Zalawadia filed a timely appeal to the BIA. There, apparently for the first time, he contended that he was entitled to claim eligibility for a waiver under the old Immigration and Nationality Act, § 212(c). That appeal was dismissed, because the BIA found that the IIRIRA's repeal of § 212(c) should be applied retroactively. Zalawadia's motion to reconsider and reopen was also dismissed.

Zalawadia then filed a petition for a writ of habeas corpus in federal district court.⁵ There, he contended that his detention and removal order were illegal because the BIA had improperly applied retroactively the provisions of the IIRIRA, thereby erroneously determining him to be ineligible for § 212(c) relief. The habeas petition was dismissed, as was Zalawadia's request for a stay of the removal order. Zalawadia appealed to this court, but while his appeal was pending, he was deported. We then dismissed his appeal. That dismissal did not end this case, however.

Following his deportation and our dismissal of his appeal, Zalawadia filed a petition for a writ of certiorari with the Supreme Court, which was granted. The Supreme Court vacated this court's judgment in the light of INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), a 2001 case holding, in relevant part, that the IIRIRA did not apply retroactively. We then vacated the decision of the district court and remanded for further consideration consistent with St. Cyr.

After remand, a magistrate judge recommended that Zalawadia's habeas petition be denied because he had not accrued seven years of unrelinquished lawful domicile at the time of the plea agreement in his criminal case — a precondition to eligibility for § 212(c) relief. See 8 U.S.C. § 1182(c) (1994 ed.). In short, the magistrate found that Zalawadia was not entitled to habeas relief because the order of deportation did not violate Zalawadia's rights under the statute. The district court adopted the magistrate's recommendation and this appeal followed.

II

Zalawadia now contends that the district court erred in considering the merits of his claim of eligibility for relief instead of remanding the matter to the BIA (which had not had the chance to consider his arguments on the seven-year domicile requirement), as it should have under INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).⁶ Accordingly, he urges us to grant habeas relief by reversing and vacating the district court judgment and remanding to that court with instructions that it remand the case to the BIA, directing it to consider his claims under § 212(c).

In response, the government concedes that the district court committed error in considering Zalawadia's eligibility for relief de novo; it concedes that, in accordance with Ventura, such questions are for the BIA to determine in the first instance. Irrespective of whether the district court erred in that respect, its error is irrelevant to a determination of this appeal. More fundamentally, the government contends that the district court had no habeas jurisdiction to hear this case in the first place. It asserts that because Zalawadia has been deported, he cannot satisfy the "in custody" requirement for federal habeas jurisdiction. Alternatively, the government contends that even if habeas jurisdiction does exist, Zalawadia is still not entitled to any relief as removed aliens are not authorized by statute or regulation to apply for § 212(c) relief from abroad. We disagree that we lack habeas jurisdiction. We do agree, however, that we do not have authority as a habeas court to order the relief Zalawadia seeks, albeit for different reasons than those urged by the government. We hold that relief in this habeas proceeding is limited to vacating the order of deportation.

III

As a threshold matter, we must determine whether the district court had habeas jurisdiction over this case. We hold that it did.

The government contends that habeas jurisdiction no longer exists here because Zalawadia has been deported and is no longer in custody; accordingly, it argues that he is unable to satisfy the "in custody" requirement of federal habeas jurisdiction. This argument, however, is foreclosed by our own precedent as well as the unanimous precedent of our sister circuits.

The Supreme Court has made it clear that the "in custody" determination is made at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Carafas v. LaVallee, 391...