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January 23, 2003


The opinion of the court was delivered by: Jack B. Weinstein, Senior United States District Judge.


I. Introduction

This case raises a troubling question respecting the authority of this court under Article III of the Constitution to adjudicate the matter. See generally Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). One party — the petitioner — has been deported and his whereabouts are unknown. The other party — the government — has succeeded in its aim to remove the petitioner from the United States and has no interest in the litigation. If petitioner were to be contacted, a live controversy might exist. See, e.g., United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983) (deportation does not render Fourth Amendment Challenge moot because of the collateral consequences of the underlying conviction); United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) (deportation does not render motion to dismiss indictment charging illegal reentry moot because of collateral consequences of indictment). Because the court of appeals has directed this court to answer abstract questions it posed in a remand, this memorandum, order, and judgment is issued.

Chun Man So ("Mr. So" or "petitioner") sought a writ of habeas corpus in this district in November 2000 challenging the Board of Immigration Appeals' ("BIA") refusal of his request for a change in venue; the BIA's denial on its merits of his application for discretionary relief under former Immigration and Nationality Act section 212(c), 8 U.S.C. § 1182(c) ("212(c)"); and his lengthy detention. Janet Reno ("Attorney General") and the Immigration and Naturalization Service ("INS") were named as respondents. That petition was dismissed by this court after a hearing in May 2001. Petitioner appealed to the Second Circuit. The Second Circuit remanded to this court in August 2002 with directions to clarify the basis for its ruling. Mandate, So v. Reno (2d Cir. 2002) (No. 01-2344).

For the reasons noted orally on the record at the hearings held in May 2001 and January 2003, and discussed further in this memorandum, order, and judgment, this court can offer no relief to Mr. So. Although immigration law in this country is often characterized by its lack of clarity, the court of appeals for the Second Circuit has provided a seemingly definite and unambiguous answer to the question at issue here. The scope of habeas review does not extend to the review of factual or discretionary decisions made by immigration judges and the BIA. See Sol v. INS, 274 F.3d 648 (2d Cir. 2001). Discretionary decisions include those decisions challenged here — requests for a change in venue and rulings on the merits of applications for 212(c) relief.

Despite what appears to have been since the beginning a clear outcome unfavorable to petitioner, the non-dispositive issues raised by the court of appeals in its remand must, of course, be addressed. This court was directed to "clarify" the basis for its ruling in light of Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000); Sol v. INS, 274 F.3d 648 (2d Cir. 2001); and Zadvydas v. Davis, 533 U.S. 678 (2001). In addition, the court of appeals for the Second Circuit posed two specific questions: (1) whether the petition was filed in the proper venue or whether transfer to another venue would be appropriate; and (2) if the petition is in the proper venue, whether the Attorney General is appropriately cited as custodian and therefore a proper respondent in habeas cases brought by individuals in the custody of the INS.

Since Mr. So was deported in December 2001, this court must first consider whether Mr. So continues to satisfy the "in custody" requirement of 28 U.S.C. § 2241 and whether his removal renders the petition moot.

In summary, this court finds that (1) petitioner satisfies the "in custody" clause, (2) the case is not moot as a result of Mr. So's deportation with the exception of the claim pertaining to his detention, (3) venue in the Eastern District of New York is proper, and (4) the Attorney General is an appropriate respondent. This court can provide Mr. So no relief since the scope of habeas review does not extend to discretionary decisions of immigration judges and the BIA such as those challenged here.

II. Facts

Petitioner Chun Man So is a citizen of China. He was admitted to the United States on January 29, 1982 and was a lawful permanent resident in New York. Also residing in New York were his wife, twin daughters, mother, father, sister, and a brother, all of whom are United States citizens. Other members of Mr. So's family are legal permanent residents. In July 1993, Mr. So was convicted in the Eastern District of New York of the use of a communications facility for distribution of heroin and was sentenced to 48 months in prison and one year of supervised release. 21 U.S.C. § 843(b); United States v. So (E.D.N.Y. July 26, 1993) (No. 93 CR 331).

In August 1996, the immigration judge in Oakdale found Mr. So deportable as charged and ineligible for any relief from removal. Mr. So filed a timely appeal from that decision with the BIA. The BIA dismissed his appeal in March 1997. Following the BIA's decision, Mr. So was again detained in the Oakdale facililty.

While in custody in Louisiana, Mr. So filed a petition for a writ of habeas corpus in the Eastern District of New York naming Janet Reno and the INS as respondents. See Amended Order and Judgment, So v. Reno (E.D.N.Y. May 25, 1999) (Nos. 97 CV 4081 & 99 CV 2737). In June 1999, this court issued an order and judgment finding him eligible to apply for 212(c) relief from deportation pursuant to the Second Circuit's decision in Henderson v. I.N.S., 157 F.2d 106 (2d Cir. 1998), cert. denied sub. nom., Reno v. Navas, 526 U.S. 1004 (1999). Id. It ordered the Executive Office for Immigration Review ("EOIR") to schedule petitioner for a 212(c) hearing within 60 days. Id.

The EOIR remanded the case to an immigration judge in Oakdale to conduct the section 212(c) hearing. Mr. So filed a motion for a change of venue to New York, but that motion was denied. See In re Chun Man So (BIA May 16, 2000) (File No. A35 804 445). A full hearing was held before the immigration judge in October 1999. Despite the decision of this court that under the law in the Second Circuit Mr. So was entitled to apply for discretionary relief under section 212(c), the immigration judge issued a decision holding that it was bound by the Fifth Circuit law and therefore Mr. So was statutorily ineligible for Section 212(c) relief under Requena-Rodriguez v. Pasquarell, 190 F.3d 299 (5th Cir. 1999). Oral Decision of the Immigration Judge, In re Chun Man So (EOIR Oct. 15, 1999) (File No. A 35 804 445).

The immigration judge nevertheless held a hearing on the merits of Mr. So's 212(c) application so that it if the BIA disagreed with the ineligibility holding the entire case would be before it. On the basis of that hearing, the immigration judge found that "the seriousness of respondent's crime as well as his other involvement with drug trafficking overcomes the positive equities that the respondent has demonstrated." Id. at 13. Even assuming that Mr. So was statutorily eligible, she would deny a 212(c) application in her discretion as not in the best interest of the United States. Id.

On appeal, the BIA reversed the immigration judge's decision finding Mr. So statutorily ineligible for section 212(c) relief on the grounds that Second Circuit law and this court's June 1999 decision applied as the law of the case. In re Chun Man So (BIA May 16, 2000) (File No. A35 804 445). The immigration judge's failure to grant a change of venue to New York was found to be harmless error since Mr. So had not shown prejudice as a result of that denial. Id. at 2. Mr. So's application for relief under 212(c) was denied by the BIA on its merits: "We agree with the Immigration Judge's recitation and weighing of the various factors present here, and we agree that the negative factors in the case outweigh the favorable factors. The respondent has not provided evidence which might lead to a different discretionary outcome." Id.

In October 2000, after Mr. So had been in INS custody for well over three years, he requested and was denied supervised release. See Decision to Continue Detention Following File Review (INS October 19, 2000) (File No. A35 804 445). In November 2000, Mr. So again filed a habeas corpus petition naming the Attorney General and INS as respondents before this court. See 28 U.S.C. § 2241 (2002). At a hearing in May 2001, Mr. So appeared by telephone since he was still in INS custody in Louisiana. Transcript of Proceedings on May 17, 2001, at 2 ("Transcript May 17, 2001"). An attorney who had previously represented Mr. So in his immigration proceedings, Jack Sachs, Esq., also was present by telephone at that hearing even though Mr. So's habeas petition was filed pro se, apparently without the aid of Mr. Sachs. Id. at 2-3; Verified Petition for Writ of Habeas Corpus, So v. Reno (Feb. 4, 2001) (No. 00 CV 6964). Mr. Sachs was not representing Mr. So at the hearing; Mr. So spoke for himself. See Transcript May 17, 2001.

After hearing both the government and Mr. So, this court concluded that, although it might have reached a different conclusion than the BIA if it were hearing the case in the first instance, an administrative decision had been properly made after a hearing, the opportunity to submit evidence, and an appeal. Id. at 8. This court further noted on the record that it believed it then had no basis to intervene on the question of the length of Mr. So's detention. Id. at 8-9.

A notice of appeal was filed to the court of appeals for the Second Circuit by Mr. So, still appearing pro se. The government was not contacted by the court of appeals, did not receive a scheduling order, did not file a brief, and was not involved in the appellate process in any way. Transcript of Proceedings on January 6, 2003, at 5-6 ("Transcript Jan. 6, 2003").

In August 2002 the court of appeals remanded the case to this court for it to clarify the basis for its ruling as described above. It stated:

Appellant appeals from the judgment of the district court dismissing his 28 U.S.C. § 2241 petition for lack of jurisdiction. Upon due consideration, it is ORDERED that the judgment is VACATED and the case is remanded to the district court to clarify the basis for its ruling in light of this Court's decisions in Calcano-Martinez v. INS, 232 F.3d 328 (2d Cir. 2000) (holding that Article III courts continue to have habeas jurisdiction under § 2241 over legal challenges to final removal orders; however, Court of Appeals lacks jurisdiction under the Immigration and Nationality Act ("INA") § 242(a)(2)(C) over petitions for review filed by certain criminal aliens challenging final orders of removal), and Sol v. INS, 274 F.3d 648 (2d Cir. 2001) (finding that federal jurisdiction under § 2241 does not extend to review of discretionary determinations by an immigration judge or the Board of Immigration Appeals), and the United States Supreme Court decision in Zadvydas v. Davis, 533 U.S. 678 (2001) (holding that an indefinite detention of deportable aliens constituted a due process violation). The district court may wish to consider, with briefing from the parties if necessary, whether the petition was filed in the proper venue and whether transfer to another venue would be appropriate, and if inappropriate, whether the Attorney General is appropriately cited as custodian, and thus respondent, in alien habeas cases. See Henderson v. INS, 157 F.3d 106 (2d Cir. 1998).

In December 2001, while Mr. So's appeal was still pending in the court of appeals for the Second Circuit, he was deported to China from the Oakdale, Louisiana facility. Neither this court nor the Assistant United States Attorney in charge of the case were aware of Mr. So's deportation.

Upon receiving the mandate from the Second Circuit in August 2002, this court ordered counsel appointed for the petitioner and directed the parties to brief the relevant issues. This court requested that Mr. So be made available to participate by telephone at a hearing. In a letter dated December 31, 2002, the warden of the Federal Detention Center in Oakdale informed the court of Mr. So's deportation in December 2001. The hearing occurred on January 6, 2003 without Mr. So's attending by telephone; apparently he was unavailable someplace in China.

III. Preliminary Questions

A. Law

1. Requirements of 28 U.S.C. § 2241

Section 2241(c)(1) of Title 28 of the United States Code provides that district courts may consider habeas petitions from prisoners "in custody under or by color of the authority of the United States." The "in custody" requirement is satisfied if the petitioner files the habeas petition before being deported. See Gonzalez v. INS, 2002 WL 31444952 (S.D.N.Y. 2002) (petitioner satisfies "in custody" requirement of 28 U.S.C. § 2241 so long as in physical custody at the time the petition is filed even if later deported); cf. Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (incarceration of petitioner ...

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