The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge
Petitioners seek a writ of habeas corpus and a stay of removal from the United States. The Court issued an interim stay pending the submission of further papers. The Court now has before it an amended petition and attached exhibits.
Petitioners are husband and wife and citizens of Guyana. Petitioner Nardai Mangru's brother, Dindyal Rampersaud, evidently was in the United States and appears to have applied in 1988 for a preference classification for his sister. The INS forwarded the petition to the U.S. Consulate in Georgetown, Guyana. (Am. Pet. Ex. 1) The notice made perfectly clear that a visa could be issued only by the Consul, that the number of visas that might be issued was limited, and that visa applications would be considered in chronological order according to the sequence in which petitions were filed for persons of the same classification. (Id.) The record is silent as to what if anything further occurred in respect of issuance of a visa to Nardai Mangru save that counsel represented that she and her husband at some point obtained visitor's visas, entered the United States and illegally overstayed the visitor's visas. (Tr., Jan. 16, 2003, at 3)
At some point prior to 1999, petitioners went to Canada at Niagara Falls. (See id.) When they sought to return, they were apprehended at the border in Buffalo, New York, and placed in removal proceedings in Buffalo. (Id. at 2-3) Although neither the petition nor the exhibits so states, counsel represented to the Court that they had applied for adjustment of their status prior to their apprehension and that the application was pending in New York City. (Id. at 3-4, 10)
Petitioners made three motions before the Immigration Judge ("IJ") in the removal proceeding to change venue from Buffalo to New York City. The first was denied on September 29, 1999 due to petitioners' failure to comply with a rule. The second and third were denied on November 2, 1999 and August 8, 2000 for the same reason as well as the IJ's finding that a transfer would cause inordinate and unnecessary delay. (Am. Pet. Ex. 4) The hearing ultimately proceeded. Petitioners filed no applications for relief before the IJ. (Id.) Petitioners have conceded, however, that the IJ had the power to entertain their applications for adjustment of status, but that they chose to make no such application in the removal proceedings. (Tr., Jan. 16, 2003, at 9)
On August 18, 2000, the IJ rendered a decision finding the petitioners removable as charged, granted their application for voluntary departure provided they left the country on or before October 17, 2000, and ordered that they be removed in the event they failed to depart voluntarily by that date. (Am. Pet. Ex. 3)
Instead of departing, petitioners appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), contending that the denial of their motion to change venue was reversible error. Although it found that the IJ's decisions on the venue motions were "deficient," the BIA concluded that petitioners had not been prejudiced because they could have presented — and indeed, were obliged to present — their adjustment applications in the removal proceeding. (Id. Ex. 4, at 2) (applications for adjustment of status by persons in removal proceedings "shall be made and considered only in those proceedings. 8 C.F.R. § 245.2."). Accordingly, in a decision dated October 25, 2002, the BIA dismissed the appeal.
Petitioners now challenge the removal order, contending that the IJ erred in denying the change of venue. They seek also to explain their failure to apply for adjustment of status before the IJ on the ground that Nardai Mangru's brother, whose visa petition had been the predicate for the adjustment of status application, had withdrawn the petition, which would have rendered an application to the IJ for adjustment futile. Counsel therefore did not make that application because, in his words, petitioners' "only immediate hope was to have us delay the case by changing venue." (Tucker Reply Aff. at 2.) The papers before the Court suggest also that the brother attempted to reinstate his visa petition after the BIA rendered its decision. (Am. Pet. Ex. 5)
Finally, attached to the original petition is a notice to petitioner Nardai Mangru, dated December 9, 2002, to surrender for deportation on January 13, 2003. (Pet. Ex. 3) It is undisputed that she did not do so.
There are many defects with petitioners' petition.
To begin with, the amended petition, which is inartful at best, charitably read, asserts essentially that the BIA acted improperly in dismissing petitioners' appeal on the ground that the alleged error by the IJ in denying the change of venue was not prejudicial. This was an inherently discretionary judgment by the BIA, review of which is not within the jurisdiction of the district courts. See Sol v. INS, 274 F.3d 648, 651-52 (2d Cir. 2001), cert. denied, 122 S.Ct. 2624 (2002); see also Romero-Morales v. INS, 25 F.3d 125, 130 (2d Cir. 1994). In any case, the Court lacks jurisdiction over the petition of Nardai Mangru because her failure to appear for deportation on January 13, 2003 renders her a "fugitive from justice," so she is not in custody and therefore is ineligible for habeas relief. See Ofosu v. McElroy, 98 F.3d 694, 703 (2d Cir. 1996); Bar-Levy v. U.S. Dep't of Justice, 990 F.2d 33, 35 (2d Cir. 1993).
Even if the Court had jurisdiction over the petition, the petition is frivolous. It is undisputed that petitioners were ineligible for adjustment of status at any time between the withdrawal of the brother's visa petition in 1996 through October 25, 2002, the date of the BIA's decision. In consequence, the question whether the removal hearing should have taken place in Buffalo or in New York City is entirely academic — petitioners would not have been entitled to adjustment irrespective of the venue. Indeed, this is pretty much admitted by their counsel, who candidly acknowledges that the effort to change ...