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LEE v. ASHCROFT

July 15, 2002

YUEN SHING LEE, PETITIONER,
V.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, IMMIGRATION AND NATURALIZATION SERVICES, RESPONDENTS.



The opinion of the court was delivered by: Sterling Johnson, United States District Judge

  MEMORANDUM AND ORDER

Presently before the Court is Petitioner Yuen Shing Lee's ("Petitioner") pro se application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241 ("§ 2241"), challenging his final order of removal. Petitioner contends that he cannot be deported as an alien because he is either eligible for derivative citizenship or is a "national" of the United States. This Court finds that Petitioner does not qualify for derivative citizenship under Section 320(a) of the Immigration and Nationality Act ("the INA"), 8 U.S.C. § 1431, as it existed at the time of his father's naturalization on January 24, 1978, or under the Child Citizenship Act of 2000, H.R. 2883, P.L. 106-395 ("the CCA"). However, the Court finds that Petitioner is a national of the United States, and thus cannot be deported under the INA. Accordingly, his § 2241 Petition is hereby GRANTED.

FACTUAL BACKGROUND

Petitioner was born in Hong Kong on February 8, 1961 and entered the United States as a lawful permanent resident on February 7, 1973. (Nandan Decl., Ex. A.) He has resided in this country ever since. Petitioner's father became a naturalized United States citizen on January 24, 1978, when Petitioner was sixteen years old. (Id., Ex. B.) His mother was naturalized on May 19, 1983. (Id., Ex. C.) There is no indication that his parents were legally separated or divorced at the time his father became a citizen. Petitioner registered for Selective Service on September 9, 1980 (Pet.'s Addendum, dated Feb. 6, 2002, Ex. 1), and filed an application for citizenship on July 13, 1998 (Pet.'s Letter, dated March 28, 2001, Ex. 2).

On December 16, 1998, Petitioner was indicted on four counts of mail fraud, and ultimately pled guilty. On September 23, 1999, he was convicted of conspiracy to commit mail fraud and mail fraud, in violation of 18 U.S.C. § 371 and 1341, and was sentenced to 6 months incarceration.

On May 5, 2000, the Immigration and Naturalization Service ("the INS") issued to Petitioner a Notice to Appear and charged Petitioner with removability from the United States as an aggravated felon, pursuant to §§ 237(a)(2)(A)(III), 101(a)(43)(M)(i) and 101(a)(43)(U) of the INA. Petitioner contested his removability with the Office of Immigration Review, and filed a pro se motion seeking derivation of citizenship through the naturalization of his father (Nanden Decl., Ex. G.) Immigration Judge Charles A. Wiegand, III denied the motion on December 22, 2000. (Id., Ex. H.) Subsequently, Petitioner filed an interlocutory appeal with the Board of Immigration Appeals ("the BIA"), which the BIA declined to entertain. (Id., Ex. J.) Petitioner has also filed an application for political asylum, claiming fear of persecution for violation of China's one-child policy. (Id., Ex. A.) Petitioner was detained, pending his deportation, in the INS facility in Oakdale, Louisiana for two years. He was released from physical custody on May 31, 2002.

Petitioner filed the instant § 2241 petition on February 13, 2001, contending that he cannot be deported under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227 (a)(2)(A)(iii), because he is a citizen or a national of the United States.

DISCUSSION

I. Jurisdiction

The United States Attorney argues that Petitioner's case should be dismissed or transferred to the Western District of Louisiana, on the grounds that a district court must have jurisdiction over the custodian of a petitioner in order to entertain a habeas corpus action. See Chukwurah v. United States, 813 F. Supp. 161, 168 (E.D.N.Y. 1993); see also Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994). The Court must consider two factors in analyzing venue in habeas petitions brought under 28 U.S.C. § 2241:1) whether the court has personal jurisdiction over the petitioner's custodians, and 2) whether the petitioner satisfies traditional venue considerations. Mojica v. Reno, 970 F. Supp. 130, 165 (E.D.N.Y. 1997). The Government asserts that Petitioner Lee's custodian is the warden of the Federal Detention Center in Louisiana where he had been held while awaiting deportation. Petitioner contends that he is under the authority of the Attorney General of the United Statcs, who is thus his actual custodian and the proper respondent in this case.

The question of whether the Attorney General is a proper custodian of an alien detained in an INS facility has divided the courts of the Southern and Eastern Districts of New York. See Alcaide-Zelava v. McElroy, Nos. 99 Civ. 5102, 99 Civ. 9999, 2000 WL 1616981, at *4-*5 (S.D.N.Y. Oct. 27, 2000) (citing and comparing cases, including Arias-Agramonte v. Commissioner of INS, No. 00 Civ. 2412, 2000 WL 1059678, at *7-*9 (S.D.N.Y. Aug. 1, 2000) (discussing split in authority and citing cases); compare Arias-Agramonte v. Commissioner of INS, No. 00 Civ. 2412, 2000 WL 1617999, at *5-*9 (S.D.N.Y. Oct. 30, 2000) (Attorney General is proper respondent and district court has personal jurisdiction over Attorney General); Pena-Rosario v. Reno, 83 F. Supp.2d 349, 362 (E.D.N.Y. 2000) (Attorney General is proper respondent); Mojica v. Reno, 970 F. Supp. at 166 (same); Nwanko v. Reno, 828 F. Supp. 171, 173-176 (E.D.N.Y. 1993) (same); with (Guerrero-Musla v. Penn, No. 97 Civ. 2779, 1998 WL 273038, at *1 (S.D.N.Y. May 28, 1998) (Attorney General is not proper respondent); Carvajales-Cepeda v. Meissner, 966 F. Supp. 207, 209 (S.D.N.Y. 1997) (same); Wang v. Reno, 862 F. Supp. 801, 812-813 (E.D.N.Y. 1994) (same)). The Second Circuit, while specifically declining to resolve this "difficult question," has also conducted a thorough analysis of the issue. Henderson v. INS, 157 F.3d 106, 122-28 (2d Cir. 1998).

This Court finds that the reasons articulated supporting the Attorney General as an appropriate respondent are more persuasive. First, the Attorney General has the power to produce, detain, or release such petitioners and is the ultimate decision-maker on matters concerning the INS and Petitioner's removal. See 8 U.S.C. § 1103 (a)(1) ("The attorney General shall be charged with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens."); see also Henderson, 157 F.3d at 126 ("[T]he Attorney General has the power to produce the petitioners, remains the ultimate decisionmaker as to matters concerning the INS, and is commonly designated a respondent in these cases, even when personal jurisdiction over the immediate custodian clearly lies."). Further, Congress has designated the Attorney General as the legal custodian of aliens. 8 U.S.C. § 1222 (a) [1226(c)(1)] ("The Attorney General shall take into custody any alien who [is deportable or inadmissible for having committed a crime]."). Additionally, "there is a compelling practical concern that the government can `seriously undermine the remedy of habeas corpus' by detaining so large a number of aliens in one facility that the local district court is overwhelmed by a flood of habeas petitions." Alcaide-Zelaya, 2000 WL 1616981, at *4.

Furthermore, in such cases, the location of custody, and the identity of the day-to-day custodian, frequently change when detainees are transferred among INS facilities, all of which are under the control of the Attorney General. See Arias-Agramonte, 2000 WL 1617999, at *8. This potential problem is made manifestly clear by the circumstances of the instant case. Here, Petitioner was released from custody on May 31, 2002. Therefore, he is no longer in the physical custody of the warden. Yet the Attorney General continues to maintain "custody" over Petitioner so long as the removal order remains pending. 8 U.S.C. § 1126 (b) ("The Attorney General at any time may revoke a bond or parole . . ., rearrest the alien . . . and detain the alien.").

Petitioner's release from custody does not moot his petition. The federal habeas corpus statutes, including § 2241, require that a petitioner be in "custody" at the time of filing of the petition. See 28 U.S.C. § 2241(c)(3); see also Canela v. United States Dep't of Justice, No. 00 Civ. 8735, 2001 WL 664633 at *3 (S.D.N.Y. June 12, 2001). "Custody" in this context has been interpreted broadly, to include being "subject to restraints `not shared by the public generally.'" Hensley v. Mun. Ct, 411 U.S. 345, 351 (1973) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)); see also Spencer v. Kemna, 523 U.S. 1, 7 (1998) (discussing the extent to which collateral consequences of convictions may meet the "case or controversy" requirement). Although he has since been released from physical custody, Petitioner continues to suffer the consequences of the outstanding order of removal, including the imminent fear of deportation and permanent exclusion from the United States, which are sufficient to meet the "case or controversy" requirement of Article II, § 2, of the Constitution. See Chong v. District Director, INS, 264 F.3d 378, 385 (3d Cir. 2001) (holding that sufficient collateral consequences flow from an order of removal to make a § 2241 petition a live case or controversy); see also Chadha v. INS, 634 F.2d 408, 417 (9th Cir. 1980) (holding that the fear of deportation under the INA ...


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