to support a favorable exercise of discretion by the court. IJ's Written Decision at 2.
Eltayeb then appealed the IJ's decision to the BIA. The BIA dismissed the appeal, affirming the IJ's finding that Eltayeb had not met the burden of showing exceptional circumstances regarding his failure to attend the hearing. BIA's Written Decision at 2. Eltayeb failed to file a petition for review with the United States Court of Appeals for the Second Circuit within 60 days, as provided in 8 U.S.C. § 1252b(c)(4). Instead, he filed this petition for a writ of habeas corpus in the United States District Court for the Northern District of New York on December 19, 1995, one week before the 60 day period had lapsed.
At that time, he was in INS custody in Albany, New York. The INS has since released Eltayeb and stayed his deportation awaiting disposition of this petition.
1. Subject matter jurisdiction
As an initial matter, this Court must consider its jurisdiction to adjudicate the petition. Respondent asserts that the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA")
in April, 1996, has removed this Court's subject matter jurisdiction. When Eltayeb filed this petition in December, 1995, 8 U.S.C. § 1105a(a)(10) allowed "any alien held in custody pursuant to an order of deportation [to] obtain judicial review thereof by habeas corpus proceedings," and § 1105a(a)(2) provided for judicial review of all final orders of deportation by the appropriate circuit court. Section 401(e) of the AEDPA deleted the habeas provision previously found in 8 U.S.C. § 1105a(a)(10). However, section 440(a) of the AEDPA amended § 1105a(a)(10), which now reads: "Any final order of deportation against an alien who is deportable by reason of having committed a criminal offense covered in section 1251(a)(2)(A)(iii), (B), (C), or (D) . . . shall not be subject to review by any court."
As a result, respondent contends that this Court lacks jurisdiction over Eltayeb's habeas petition because the AEDPA precludes judicial review of final orders of deportation against aliens deportable for having committed a controlled substance offense.
To accept respondent's assertion that habeas proceedings are no longer available to deportable aliens is to ignore grave constitutional issues. The Constitution prohibits Congress from suspending the writ of habeas corpus "unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. Art. I, § 9, cl. 2. While Congress has plenary power over matters of immigration, that power is "subject to judicial intervention under the 'paramount law of the Constitution.'" Carlson v. Landon, 342 U.S. 524, 537, 96 L. Ed. 547, 72 S. Ct. 525 (1952) (quoting Fong Yue Ting v. United States, 149 U.S. 698, 713, 37 L. Ed. 905, 13 S. Ct. 1016 (1893)). The AEDPA's amendments to the INA were a congressional attempt to speed the process by which aliens who have been convicted of certain criminal offenses are deported. However, because resident aliens enjoy constitutional protection, see Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 97 L. Ed. 576, 73 S. Ct. 472 (1953), it is necessary that the deportation scheme remain within constitutional bounds. To interpret the AEDPA as barring all habeas review available to such aliens would raise serious questions concerning the Constitution's Suspension Clause.
Therefore, assuming that Congress intended to remove the habeas provision from § 1105a, the question remains whether § 2241 concurrently provides habeas review to deportable aliens.
"Where two statutes are 'capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.'" Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 81 L. Ed. 2d 815, 104 S. Ct. 2862 (1984) (quoting Morton v. Mancari, 417 U.S. 535, 551, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974)). 28 U.S.C. § 2241 provides that a district court may entertain an application for a writ of habeas corpus if the petitioner is "in custody under or by color of the authority of the United States." This "in custody" requirement has been defined as actual, physical custody and also as release on bail or personal recognizance following actual, physical custody. See United States ex rel. Marcello v. District Dir. of the INS, New Orleans, 634 F.2d 964, 967 (5th Cir. 1981). Released on his own recognizance, Eltayeb meets this "in custody" requirement.
Eltayeb filed this petition pursuant to both 8 U.S.C. § 1105a(a)(10) and 28 U.S.C. § 2241. This Court concludes, as have other district courts, that habeas review continues to be available under § 2241. See, e.g., Dunkley v. Perryman, 1996 U.S. Dist. LEXIS 11634, No. 96 C 3570, 1996 WL 464191, at *2-*3 (N.D. Ill. Aug. 9, 1996); Mbiya v. INS, 930 F. Supp. 609, 612 (N.D. Ga. 1996). As noted, to find otherwise would raise serious questions whether resident aliens suffer deprivation of their constitutional rights.
2. Personal jurisdiction
Respondent concedes that he is the custodian against whom the writ would issue, but argues that this Court lacks personal jurisdiction over him and should therefore transfer this petition to the Western District of New York.
A prisoner seeking a writ of habeas corpus must bring the petition against his custodian. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-495, 35 L. Ed. 2d 443, 93 S. Ct. 1123 (1973). Generally, the custodian is the person having day-to-day control over the prisoner. See Guerra v. Meese, 252 U.S. App. D.C. 1, 786 F.2d 414, 416 (D.C. Cir. 1986). Since Eltayeb was released on his own recognizance from the Albany facility, the INS District Director having control of the area in which he was incarcerated and presently resides is his proper custodian. See United States ex rel. Sadiku v. INS, 1995 U.S. Dist. LEXIS 4650, No. 95 C 1487, 1995 WL 215050, at *3 (N.D. Ill. Apr. 11, 1995) (stating that custodian is either the INS District Director responsible for the district of confinement or the warden of the detention facility). Respondent concedes that he is the custodian, but asserts that because he is located outside of the Southern District, this Court may not direct a writ against him.
However, the Supreme Court has held that "[28 U.S.C.] § 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ 'within its jurisdiction . . . .'" Braden, 410 U.S. at 495. Rule 4(e)(1) of the Federal Rules of Civil Procedure allows this Court to serve process on individuals in accordance with the laws of New York; those laws establish jurisdiction over persons located within the state. See United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1127-28 (2d Cir. 1974). Thus, this Court is as able as a court in the Western District to assert jurisdiction over the respondent.
In the interests of judicial efficiency, this Court declines to again transfer Eltayeb's petition. See note 1, supra.
It is clear that "with respect to aliens subject to orders of deportation for having committed crimes enumerated by Congress, the Constitution requires only that the writ of habeas corpus extend to those situations in which the petitioner's deportation would result in a fundamental miscarriage of justice." Mbiya, 930 F. Supp. at 612. This Court agrees that a narrow application of § 2241 is necessary to accommodate the balance between an alien's constitutional right to habeas review and Congress' power over matters of immigration. As Eltayeb has not established the threat of a fundamental miscarriage of justice in this case, he is not entitled to relief.
1. Due process claim
Eltayeb claims that he was denied due process when the order of deportation was entered against him in absentia. Due process requires that a party whose rights are to be affected have notice and an opportunity to be heard. See Fuentes v. Shevin, 407 U.S. 67, 80, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972). "The requirement that an alien be given a 'reasonable opportunity' to be present at a deportation hearing is satisfied so long as the alien receives notice of the date and place of the hearing." Thomas v. INS, 976 F.2d 786, 789 (1st Cir. 1992). Eltayeb concedes that he received notice of his deportation hearing, which also notified him that his failure to appear, absent exceptional circumstances, could result in an in absentia deportation order. Both he and his counsel failed to attend the scheduled hearing.
In order to reopen a case following an in absentia hearing, 8 C.F.R. § 3.2 requires that a motion to reopen "state the new facts ... and shall be supported by affidavits or other evidentiary material." When Eltayeb filed the motion to reopen with the IJ, he failed to include any evidence or personal affidavits to support a claim of exceptional circumstances regarding his failure to attend the hearing. Upon appealing the IJ's decision to the BIA, he had an opportunity to comply with § 3.2 by offering support for his claim. He again failed to do so. Lastly, Eltayeb failed to appeal his order of deportation to the Second Circuit as then provided by 8 U.S.C. § 1105a(a)(2). Eltayeb's failure to comply with the statutory provisions does not amount to a denial of due process. Therefore, he is not entitled to habeas relief under the fundamental miscarriage of justice standard.
2. Abuse of discretion
"The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board . . . ." 8 CFR § 3.2(a); see also INS v. Phinpathya, 464 U.S. 183, 188 n.6, 78 L. Ed. 2d 401, 104 S. Ct. 584 (1984). An abuse of discretion occurs when a decision is made without rational explanation, departs from established policies, or invidiously discriminates against a particular race or group. See Hajiani-Niroumand v. INS, 26 F.3d 832, 835 (8th Cir. 1994). Eltayeb claims that the IJ and the BIA abused their discretion in denying his motion to reopen and in concluding that he had not shown "exceptional circumstances" for his failure to appear, as required by 8 U.S.C. § 1252b. Section 1252b(c)(3) provides in pertinent part:
Such an [in absentia] order may be rescinded only - (A) upon a motion to reopen filed within 180 days after the date of the order of deportation if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (f)(2) of this section) . . . .
Section 1252b(f)(2) provides:
The term "exceptional circumstances" refers to exceptional circumstances (such as serious illness of the alien or death of an immediate relative of the alien, but not including less compelling circumstances) beyond the control of the alien.