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SO v. RENO
January 23, 2003
CHUN MAN SO, PETITIONER,
JANET RENO, U.S. ATTORNEY GENERAL, IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.
The opinion of the court was delivered by: Jack B. Weinstein, Senior United States District Judge.
MEMORANDUM, ORDER, AND JUDGMENT
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
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
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
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.
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
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
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 ...