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HALABI v. ASHCROFT

United States District Court, Southern District of New York


April 2, 2003

AHMED HALABI, PETITIONER,
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, IMMIGRATION & NATURALIZATION SERVICE, BY ITS DISTRICT DIRECTOR OF THE NEW YORK DISTRICT, BOARD OF IMMIGRATION APPEALS EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, RESPONDENTS.

The opinion of the court was delivered by: Denise Cote, United States District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Ahmed Halabi ("Halabi") challenges his deportation from the United States pursuant to 28 U.S.C. § 2241. The Government has moved to dismiss for lack of jurisdiction, or in the alternative, on the merits. The petition is denied.

Halabi became a lawful permanent resident of the United States in November 1989. He is a citizen of Lebanon. In 1991, he was convicted in federal court of an aggravated felony, to wit, conspiracy to distribute heroin, and sentenced to five years' imprisonment. The INS commenced deportation proceedings against Halabi in 1996, and hearings were held over a three year period.

On June 23, 1999, Halabi and his counsel appeared before an Immigration Judge ("IJ") and presented an application for asylum and for withholding of removal under the Immigration and Nationality Act ("INA") and under the Convention Against Torture ("CAT"). Halabi claimed that, as a Muslim, he would be tortured by the Druze if he returned to Lebanon to live with his wife and children. The proceedings were adjourned to November 19, 1999, at 9:00 a.m., for a hearing on the application. Halabi was advised orally and in writing of the new hearing date and time. He indicated that he understood the notice and through counsel waived a reading of the consequences for failure to appear at the hearing. He was given a written notice of the consequences, including that the IJ could enter an order of deportation in absentia. A July 29 memorandum that Halabi filed in support of his application noted that the hearing was scheduled for November 19.

Neither Halabi nor his attorney appeared at the November 19 hearing. As deportability had already been established, Halabi was ordered deported to Lebanon as an alien who had committed an aggravated felony after entry. On December 1, Halabi moved to reopen the proceedings on the ground that there had apparently been problems with the postal service that had interfered with him receiving the copy of the written notice of the November 19 hearing date from his attorney. Halabi's counsel affirmed that he had mailed both the written notice of the hearing date and a follow-up letter to his client; he did not explain his own absence from the hearing.

On June 6, 2000, the IJ denied the motion to reopen on the ground that Halabi could not demonstrate that exceptional circumstances prevented him from appearing at the November 19 hearing. 8 U.S.C. § 1252b(f)(2). The IJ noted that Halabi had been advised orally and in writing of the hearing date. The Board of Immigration Appeals ("BIA") affirmed on November 5, 2001.

On June 26, 2002, Halabi filed this petition on the ground that it is more likely than not that he will be subject to torture by a public official and is therefore entitled to protection under CAT. On November 1, the Government moved to dismiss. The petitioner's response to the motion was due on December 27, 2002. None has been received and there has been no request for an extension.

This Court is without jurisdiction to review discretionary determinations of the Attorney General in connection with deportation orders. See Reynoso v. Ashcroft, 01 Civ. 1084 (DLC), 2002 WL 467576, at *2 (S.D.N.Y. Mar. 28, 2002). It is undisputed that a denial of a motion to reopen deportation proceedings after an in absentia order of deportation has been entered is a discretionary decision. INS v. Doherty, 502 U.S. 314, 322-23 (1992); Zhao v. United States Dep't of Justice, 265 F.3d 83, 93 (2d Cir. 2001).

Even if there were jurisdiction to review this determination, the Government has shown that there was no abuse of discretion in the decision not to reopen the deportation proceedings. An abuse of discretion exists where the BIA has acted in an "arbitrary or capricious manner." Zhao, 265 F.3d at 93. Based on the record presented to this Court there has been no showing that either the IJ or the BIA acted in an arbitrary or capricious manner. Halabi and his attorney each had actual notice of the hearing date and neither appeared at the hearing. Neither has presented a sufficient explanation for their absence.

Conclusion

The petition for a writ of habeas corpus is denied. Because Halabi's petition has been considered pursuant to 28 U.S.C. § 2241, the certificate of appealability requirement does not apply. See Murphy v. United States, 199 F.3d 599, 601 n. 2 (2d Cir. 1999) (noting that certificate of appealability requirement is inapplicable to petitions filed pursuant to 28 U.S.C. § 2241).

The Clerk of Court shall close the case.

SO ORDERED:

20030402

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