United States District Court, S.D. New York
April 30, 2004.
MEI YING FONG, Petitioner, -against- JOHN ASHCROFT, Attorney General of the United States of America, Respondent
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER
FOR RETURN OF ALIEN
Petitioner Mei Ying Fong petitions for habeas corpus to order her
returned to the United States. She complains that the Bureau of
Immigration and Customs Enforcement ("ICE") removed her from the United
States in less than 72 hours from the time she was arrested, contrary to
applicable Regulations and in violation of a court order, and that she
will be prejudiced in seeking relief from ICE unless she is returned to
the United States. I grant her petition.
Mei Ying Fong is a 56-year-old Chinese citizen. She entered the United
States on December 18, 1995, on a temporary non-immigrant visitor's visa,
which permitted her to stay in the country for six months, until June 17,
On March 12, 1996, before her visa expired, Fong applied for asylum,
claiming that she would be placed in danger if she were to return to China.
She alleged that she had released a woman from custody to prevent a
forced abortion of her seven-month old fetus under the government's
one-child policy, that she was jailed for three months by the Chinese
government, and that she feared future retaliation if she were to return
Fong's affidavit in support of her petition for habeas corpus alleges
that her application for asylum was prepared by Mandy Chen, a travel
agent, that she did not authorize him to file the application, and that
despite assuring Fong that her application would not be submitted, he
nevertheless submitted it on March 20, 1996. Fong alleges that Chen set
down on the application a false address, One East Broadway, #3C, as
Fong's, and also recorded the travel agency's address, 17 East Broadway,
2nd Floor, and that consequently she did not receive any of the notices
that were given in response to the application.
The INS scheduled an interview with Fong regarding her asylum
application for April 25, 1996, but adjourned it to May 28, 1996 at Fong's
request. Fong claims in her affidavit that the travel agency forged the
request for adjournment and that she never saw or signed it. She did not
appear on May 28, 1996, and her application for asylum was denied.
Almost a year and a half later, on October 31, 1997, the INS issued
Fong a Notice to Appear in Removal Proceedings (NTA). The NTA failed to
state the date, time, or place of any scheduled hearings. A hearing on
Fong's removal was held on February 11, 1998, although there is no
evidence that Fong was given notice of that hearing date. Fong did not
appear, and the Immigration Judge issued an in absentia removal order,
ordering that Fong be removed from the United States for the reasons
stated in the NTA. The record does not reflect that notice of the order
of removal was given to Fong. Over a year and a half later, on September 23, 1999, the INS gave
notice to Fong to appear for deportation on November 2, 1999, mailing the
notice to One East Broadway, #3C, the address listed as Fong's on the
asylum application. Fong did not appear, and nothing occurred with regard
to her deportation until September 17, 2003, in the context of an
altogether different proceeding.
On June 17, 2002, Fong's daughter, Oi Ying Chan, an American citizen,
filed an 1-130 petition to classify Fong as the immediate relative of a
United States citizen. Based on that petition, Fong filed, on October 10,
2002, a Form 1-485, an application for an adjustment of her immigration
status to that of a lawful permanent resident. On June 23, 2003, ICE, a
successor to the INS,*fn2 gave notice to Fong to appear in its New York
office on August 21, 2003, for a hearing on the adjustment application,
mailing the notice to the address that Fong had listed on her adjustment
application, 90-26 51st Avenue, Elmhurst, New York.
Fong failed to appear on August 21, 2003, but she requested a
rescheduling, and she duly appeared on the rescheduled date, September
17, 2003. No hearing on Fong's adjustment application was held. Instead,
ICE took Fong into custody for the purpose of removing her from the
On the evening of September 17, 2003, the day she was taken into
custody, Fong's counsel filed the instant habeas corpus petition under
28 U.S.C. § 2241, bringing it by Order to Show Cause. I received it in
Chambers the morning of September 18, 2003, and, in order to hear the
government as well, scheduled a hearing for 3:00 p.m. the same day.
Sometime after 1:00 p.m., however, the Assistant United States Attorney informed
my Chambers by telephone that Fong was to be put on an airline scheduled
for departure to Hong Kong at 1:55 p.m. that same day. When it appeared
that an informal effort to defer her departure until after the 3:00 p.m.
hearing would not succeed, at 1:35 p.m., I signed the Order to Show
Cause, ordering a temporary stay of petitioner's removal pending a
hearing. But the order was not heeded; ICE officials informed the parties
that the plane was sealed and ready for take-off. The airplane departed
on schedule, at 1:55 p.m., with Fong aboard.
Counsel appeared in court that afternoon without Fong, and again on
December 22, 2003 and February 9, 2004. I now grant the petition, for the
reasons discussed below.
The Illegality of Fong's Removal
1. Denial of Due Process Removal in Contravention of Regulations
The Bureau's governing regulations provide that "[a]n alien taken into
custody either upon notice to surrender or by arrest shall not be
deported less than 72 hours thereafter without his or her consent."
8 C.F.R. § 241.22. Fong was taken into custody on September 17, 2003,
and removed from the United States the day after, well short of the
72-hour period provided by the regulations. The government argues that
the 72-hour requirement applies to cases of exclusion, not removal, and
Fong was removed, not excluded, from the United States. The government's
argument is without merit.
The 72-hour requirement is encoded in two sections of the Code of
Federal Regulations: 8 C.F.R. § 241.22, dealing with aliens subject
to exclusion, and id. § 241.33(b), dealing with aliens subject to
deportation. Prior to 1996, immigrations hearings were classified as
either "deportation" or "exclusion" proceedings. In 1996, Congress passed
the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which
eliminated this distinction, effective April 1, 1997, in favor of a
single set of "removal" proceedings. See IIRIRA § 304(a), Pub.L. No.
104-208, 110 Stat. 3009 (codified at 8 U.S.C. § 1229a (1999));
Rojas-Reyes v. INS. 235 F.3d 115, 120-21 (2d Cir. 2000) (IIRIRA
"classif[ied] as `removal' proceedings the previously separate
`deportation' and `exclusion' proceedings"); United States v. Pantin,
155 F.3d 91, 92 (2d Cir. 1998). The existing regulations governing
deportations of "Excluded Aliens" and "Aliens in the United States" were
carried forward, but only "For Hearings Commenced Prior to April 1,
1997." See 8 C.F.R. § 241.20, 241.30. In addition, a third set of
regulations was promulgated, governing removal proceedings generally
under IIRIRA, without distinction between those aliens who formerly would
have been classified as excludable and those who had entered the United
States lawfully but had otherwise become subject to deportation. See id.
The new set of Regulations did not provide a time period before which
an alien who had come into the government's custody could not be removed.
The government argues that there is no longer a 72-hour requirement for
hearings commenced after April 1, 1997. I decline to accept the argument.
Congress intended by the IIRIRA to merge the separate provisions for
excludable and deportable Aliens. There is no suggestion in the statutory
or regulatory history that a change to the 72-hour rule was intended. The
government's argument, that there should be no time limit whatever before
the government can physically remove an alien from the United States,
would raise serious due process implications. Presumably, under the
government's argument, the agency could make a determination of removal
and then deport the alien two minutes later, leaving the alien no
opportunity even to file an appeal. There is no question that the policy embodied in the 72-hour
requirement of 8 C.F.R. § 241.22 and 241.33(b) gives expression to the
Fifth Amendment's due process mandates. Indeed, the INS said so itself;
in adopting the rule, the INS explained that it was intended "to ensure
that due process is accorded the detainee." 51 Fed. Reg. 23,041 (June
25, 1986). Just as the Constitution requires the government to afford
notice of any action against an alien, so too it requires an opportunity
for the alien to be heard. Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306, 314 (1950); Fuentes-Argueta v. INS. 101 F.3d 867, 872 (2d
Cir. 1996); United States v. Perez-Valdera. 899 F. Supp. 181, 184
(S.D.N.Y. 1995). The opportunity to be heard must be "meaningful,"
Nazarova v. INS. 171 F.3d 478, 482 (7th Cir. 1999), that is, an
"opportunity . . . granted at a meaningful time and in a meaningful
manner." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). A nearly instantaneous
removal cannot provide such an opportunity. And, as the Second Circuit
has made clear, Montilla v. INS. 926 F.2d 162 (2d Cir. 1991); Waldron v.
INS, 17 F.3d 511 (2d Cir. 1994), immigration regulations which are
derived from and intended to protect constitutional rights are to be
liberally applied. Waldron indicates that I must accord greater weight to
a regulation grounded in "a fundamental right derived from the
Constitution or a federal statute, . . . even when the regulation
requires more than would the specific provision of the Constitution or
statute that is the source of the right." LI at 518; see also Zadvydas
v. Davis, 533 U.S. 678, 689-90 (2001) (immigration statute which sets no
time limits must be read in a manner reflecting due process
In Gonzalez-Julio v. INS. 34 F.3d 820 (9th Cir. 1994), a ten-day
deadline for filing appeals to the Board of Immigration Appeals was held
to violate the Due Process clause as applied to Hawaiian residents. The
Court of Appeals ruled, quoting from the Supreme Court decision in Logan, that "it is fundamentally unfair to require [the
alien] to file an appeal within such a short period of time because he is
forced to mail his notice of appeal from Hawaii and he has no control
over the mail nor over when the Office of the Immigration Judge files the
appeal after receipt." Id. at 823. Ten days was thus deemed insufficient
time to request an opportunity to be heard, even though the alien was
aware of the immigration court's adverse decision and could have been
prepared to appeal it.
Fong came to the Bureau believing that she would be pursuing her
application for an adjustment in status. That was the purpose stated in
the Bureau's notice. Regardless whether her arrest and placement into
custody was lawful (to be discussed later in this opinion), she was
entitled to due process in her right to challenge the Bureau's actions
against her. The 72-hour rule existed to preserve such rights. The
Bureau's failure to abide by those regulations, or to offer a
constitutionally "meaningful" substitute, Logan, 455 U.S. at 437,
violated Fong's right to due process of law.
In cases where the immigration agency failed to adhere to its own
regulations, and the regulations in question were derived from and
intended to bolster constitutional principles, Montilla and Waldron hold
that relief is automatically warranted, and the alien need not show
We conclude, therefore, that when a regulation is
promulgated to protect a fundamental right derived
from the Constitution or a federal statute, and
the INS fails to adhere to it, the challenged
deportation proceeding is invalid and a remand to
the agency is required. This may well be so even
when the regulation requires more than would the
specific provision of the Constitution or statute
that is the source of the right.
Waldron, 17 F.3d at 518; see also Montilla, 926 F.2d at 169. Prejudice,
however, is clear, for Fong's removal impedes her ability to consult with
counsel and pursue administrative remedies. Indeed, the government concedes that she
has such remedies, for it complains that she failed to exhaust them. She
could also, for instance, contest her removal order, administratively and
by habeas corpus, or advance her adjustment application. This will be the
purpose of Fong's return to this country. In this case, the Bureau failed
to adhere to the 72-hour requirement, which was promulgated in order to
protect the due process rights of prospective deportees. Accordingly, I
must invalidate Ms. Fong's removal.
2. Violation of This Court's Order
I issued an order staying Fong's removal on September 18, 2003, at 1:35
p.m., twenty minutes before her scheduled departure. The government was
aware of my order, having informed me of her scheduled departure time in
order that the 3:00 p.m. hearing that I had scheduled would not become
academic. According to the government, the only reason that the Order was
not complied with was that the airplane had been "sealed" and was ready
"It is well settled that the courts of the United States have the
inherent and statutory (28 U.S.C. § 1651) power and authority to enter
such orders as may be necessary to enforce and effectuate their lawful
orders and judgments, and to prevent them from being thwarted and
interfered with by force, guile, or otherwise." Mississippi Valley Barge
Line Co. v. United States, 273 F. Supp. 1, 6 (E.D. Miss. 1967)
(three-judge panel), aff'd 389 U.S. 579 (1968). The decision of the
immigration officials not to remove Fong from the airplane while it
(presumably) was still at the gate "thwarted and interfered with" the
lawful order of the district court. Id. That decision by the immigration
officials also disregarded the Bureau's governing regulations, which
require ICE to give effect to a federal court's stay of an order of
removal. 8 C.F.R. § 241.3(c). As the Assistant United States Attorney stated at
the hearing that went forward at 3:00 p.m. on September 18, the district
court had the authority to order Fong returned to the United States to
continue her legal proceedings, in compliance with the stay Order of
September 18, 2003. See also United States v. New York Telephone Co.,
434 U.S. 159, 172 (1977) ("This Court has repeatedly recognized the power
of a federal court to issue such commands under the All Writs Act as may
be necessary or appropriate to effectuate and prevent the frustration of
orders it has previously issued in its exercise of jurisdiction otherwise
obtained"); Henderson v. Office of Thrift Supervision, 135 F.3d 356, 260
(5th Cir. 1998) (quoting Mississippi Valley).*fn3 Fong should promptly
be returned to the jurisdiction of this court, to comply with the Order
of this court.
3. Inadequate Notices as Violations of Fong's Due Process Rights
Notice and hearing are fundamental aspects of the constitutional
requirement of due process of law under the Fifth Amendment. The Supreme
Court has framed the requirement as follows: "An elementary and
fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections."
Mullane, 339 U.S. at 314. The requirement of notice and hearing applies
to in absentia deportation proceedings. See Fuentes-Argueta, 101 F.3d at 872;
Perez-Valdera, 899 F. Supp. at 184.
Thus, pursuant to 8 U.S.C. § 1229(a)(1), the agency is required to give
an alien in removal proceedings written notice, either in person or by
mail, in the form of a "Notice to Appear." The NTA must state "[t]he time
and place at which the proceedings will be held,"
8 U.S.C. § 1229(a)(1)(G)(i), and give notice of any changes in the time
or place of the proceedings. Id. § 1229(a)(2). If such notice has been
provided, and the alien does not appear, the alien "shall be ordered
removed in absentia if the Service establishes by clear, unequivocal, and
convincing evidence that the written notice was so provided and that the
alien is removable." Id. § 1229a(b)(5)(A).
Clearly, the Bureau failed to meet its requirements under the statute.
The NTA did not state the time and place of the removal proceedings
against Fong. There is no evidence in the administrative record that Fong
was given notice of the February 11, 1998 scheduled removal hearing. The
notice thus was not "reasonably calculated" to afford Fong an opportunity
to be present at her hearing. Mullane, 339 U.S. at 314. This deficiency
alone is sufficient to vitiate Fong's order of deportation.
The statute provides for one exception to the notice requirement. The
NTA must specify, under § 1229(a)(1)(F), that the alien is required
to provide his or her address and telephone number to the Agency. If it
does, and if the alien fails to do so, § 1229a(b)(5)(B) provides that
no notice is necessary. That exception is essentially repeated in §
1229(a)(1)(F)(iii) and (a)(2)(B). The government argues that Fong did not
satisfy this requirement. This argument misses the point, however; the
point is not that no notice was provided, but that the notice was
deficient, because it did not state the date, time, and place of the
hearing. Even if the alien's failure to provide an address obviates the Agency's requirement to mail
an NTA to the appropriate location, it does not dispense with the
Agency's obligation to notify the alien of the time and place of any
scheduled proceedings. See, e.g., In re G-Y-R, 23 I&N Dec. 181, 2001 BIA
Lexis 20, at *15-*16, *21-*24 (BIA 2001) (alien's § 1229(a)(1)(F) address
obligation does not cure defective notice; alien's 8 U.S.C. § 1302
address obligation is irrelevant in this context, because § 1302 does not
list this as a consequence of failing to register).
The government acknowledged at oral argument that I had the authority
to grant Fong's habeas corpus petition and order her returned to the
United States, if not for the issue of exhaustion. "Obviously, it's
within the Court's power to order her returned to the United States.
It's, however, we think something that in this circumstance may well be
beyond the Court's jurisdiction to do so, given her failure to exhaust
the remedies that were available to her to challenge her removal order."
Tr. Feb. 9, 2004, at 22. The government thus acknowledges that Fong's
deportation does not render the issue moot. See Swaby v. Ashcroft,
357 F.3d 156 (2d Cir. 2004) (habeas corpus petition not mooted by
petitioner's deportation, even where ruling in petitioner's favor on the
ultimate merits may not be likely). The government also acknowledges that
jurisdiction over a habeas corpus appeal of a removal order is normally
appropriate under 28 U.S.C. § 2241. See Zadvydas, 533 U.S. at 687-88:
Calcano-Martinez v. INS, 232 F.3d 328, 337 (2d Cir. 2000).
The government argues that to challenge an in absentia deportation
order for lack of notice, an alien must first move the Immigration Court
to reopen the proceedings, and the denial of such a motion must be
appealed to the Board of Immigration Appeals. Because the filing of a motion to reopen automatically stays removal of the alien,
see 8 C.F.R. § 1003.23(b)(4)(ii), the government argues that even had
Fong filed her motion during her detention, instead of filing her habeas
corpus petition, it would have been effective to stay her deportation,
and that therefore her failure to file a motion to reopen constituted a
failure to exhaust. Thus, the government argues, Fong's failure to
exhaust bars her from seeking habeas relief under 28 U.S.C. § 2241.
The government's argument is based on two decisions of the Second
Circuit, Beharry v. Ashcroft, 329 F.3d 51. 56 (2d Cir. 2003). and
Theodoropoulos v. INS, 358 F.3d 162 (2d Cir. 2004). Beharry, a native of
Trinidad and a lawful permanent resident in the United States, was
convicted of robbery. In the deportation proceedings that followed his
prison sentence, he claimed that he had the right to apply for
discretionary relief under 8 U.S.C. § 1182(h). The Second Circuit held
that "because petitioner failed to exhaust his administrative remedies,
neither the district court nor this Court has subject matter jurisdiction
to consider his claim for [such] relief." Beharry, 329 F.3d at 53. The
court ruled, "[A] party may not seek federal judicial review of an
adverse administrative determination until the party has first sought all
possible relief within the agency itself." Id. at 56 (quoting Howell v.
INS, 72 F.3d 288, 291 (2d Cir. 1995)). This rule of exhaustion is
compelled both judicially and by statute. Id. at 63; see
8 U.S.C. § 1252(d)(1).*fn4
In Theodoropoulos v. INS, 358 F.3d 162 (2d Cir. 2004), another case
involving an immigrant convicted of a felony who challenged, via habeas
corpus, his order of removal, the Second Circuit held that "the
limitations imposed by [8 U.S.C.] § 1252(d)" the exhaustion statute "extend to habeas corpus review." Id. at 170. Thus,
administrative remedies must be exhausted before a habeas corpus
challenge to a removal order may be brought.
Fong's case differs from Theodoropoulos and Beharry in several ways.
First, in Theodoropoulos, the petitioner waived his right to appeal
explicitly and on the record, thus foregoing his right to exhaust his
administrative remedies. 358 F.3d at 169. In Beharry, the petitioner had
had a full opportunity to raise arguments in an administrative setting
and failed to do so. 329 F.3d at 56. Fong, in contrast, was unable to
exhaust her administrative remedies. The government, by quickly removing
her from the United States, effectively prevented her from petitioning to
reopen the in absentia removal order against her. Her efforts had to be
focused on obtaining a stay of the removal order, and on the best chance
to obtain such relief, from a United States District Court. It is
entirely unrealistic to believe, as the government now contends, that she
could have filed a motion to reopen her proceedings in those few brief
hours before her removal.*fn5 In the circumstances, an administrative
remedy cannot be said to have been "available" or "accessible." See Booth
v. C.O. Churner. et al., 532 U.S. 731, 737 (2001) (defining "available"
as "having sufficient power or force to achieve an end," "capable of use
for the accomplishment of a purpose," and that which "is accessible or
may be obtained)." For Fong, a motion to reopen was not "accessible,"
obtainable, or "capable of use," and as such lacked any "power or force
to achieve an end."*fn6 Id.: see also Beharry, 329 F.3d at 58 (cases may be outside "the parameters of" the exhaustion requirement). As the
Supreme Court indicated in INS v. St. Cyr. 533 U.S. 289, 300 (2001), when
an individual's personal liberty is at stake, this Court will not exalt
form over substance and reduce the procurement of that liberty to a game
of checking the correct box, particularly when the individual is given a
vanishingly brief time in which to procure counsel to determine which box
to check. See also Theodoropoulos, 358 F.3d at 170 (distinguishing its
holding from St. Cyr on the grounds that the latter presented "a
substantial constitutional question").
In any event, it is doubtful that exhaustion requires a motion to
reopen. In Zhang v. Reno, 27 F. Supp.2d 476, 477 (S.D.N.Y. 1998), Judge
Rakoff held that "a motion to reopen, as a discretionary remedy, does not
fall within the statutory exhaustion requirement, which provides that an
alien must exhaust only those administrative remedies available `as of
right.'" See also Charles v. Reno, 117 F. Supp.2d 412, 415 (D.N.J. 2000)
(same, under 8 U.S.C. § 1252(d)(1)). Thus, because a motion to reopen is
a discretionary remedy, it does not come under the ambit of §
1252(d)(1), and Fong did not fail the exhaustion requirement.
For all these reasons, I hold the exhaustion requirement of
8 U.S.C. § 1252(d)(1) inapplicable to this case.
For the reasons stated, I grant Fong's habeas corpus petition and order
that she be returned to the United States, thereby to allow her to pursue
such administrative remedies as may be available to her. She is entitled
to pursue whatever remedies she could have pursued in the 72 hours the regulations gave her, and such consequences that would
normally arise from pursuit of those remedies. No legal prejudice shall
flow from her removal; her claims are to be adjudicated as they would
have been prior to September 18, 2003.