Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

BOYD v. IMMIGRATION AND CUSTOMS ENFORCEMENT

United States District Court, E.D. New York


November 10, 2004.

ROGELIO BOYD, Petitioner,
v.
IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

The opinion of the court was delivered by: NINA GERSHON, District Judge

OPINION AND ORDER

Petitioner, who is currently detained in the custody of United States Immigration and Customs Enforcement ("ICE"), has filed two virtually identical petitions for a writ of habeas corpus under 28 U.S.C. § 2241. Pursuant to an order dated June 21, 2003, the petitions have been consolidated. Claiming that he is a United States citizen, petitioner challenges the validity of an order of deportation entered against him. For the reasons set forth below, this court lacks subject matter jurisdiction over the petitions. Accordingly, they are dismissed.

FACTS

  Petitioner was born in Panama on June 3, 1965. He entered the United States as a non-immigrant visitor for pleasure on March 13, 1982. Initially, he was authorized to remain here until April 20, 1982. His authorization was later extended to October 20, 1982. Petitioner remained in the United States beyond that date. The Immigration and Naturalization Service ("INS")*fn1 commenced deportation proceedings against petitioner on May 12, 1983. On September 1, 1983, the immigration judge ("IJ") issued a decision ordering that petitioner be deported if he did not leave the country voluntarily by September 7, 1983 ("Order of Deportation"). Petitioner failed to leave voluntarily and was deported to Panama on September 9, 1983. He later re-entered the United States illegally.

  On October 12, 1993, petitioner was convicted in New York State Supreme Court, Kings County, of rape in the first degree, and sentenced to three and one-half to ten and one-half years in prison. On December 19, 2003, petitioner was convicted in the Southern District of New York of illegally re-entering the United States, and sentenced to three months in prison.

  On October 29, 2003, the Department of Justice ("DOJ") gave petitioner notice of its intent to reinstate the Order of Deportation. Following adjudication by an immigration officer, DOJ issued a decision and order on January 23, 2004 reinstating the Order of Deportation.*fn2 Since the end of his prison term for the federal conviction, petitioner has been detained in the custody of ICE. On March 22, 2004, and again on April 19, 2004, petitioner filed petitions for a writ of habeas corpus, which were consolidated before this court. The only issue raised in the petitions is that of petitioner's citizenship. Petitioner asserts that he is a United States citizen pursuant to Section 303 of the INA, codified at 8 U.S.C. § 1403, which confers citizen status on the children of certain United States citizens residing in Panama. An order granting petitioner a temporary stay of deportation was entered on April 22, 2004.

  DISCUSSION

  The INA requires a habeas corpus petitioner to exhaust all available administrative remedies before seeking judicial review by a federal court. 8 U.S.C. § 1105a(c) (1995) (repealed Sept. 30, 1996); Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52 (2d Cir. 2004).*fn3 Failure to exhaust administrative remedies deprives a district court of subject matter jurisdiction over a habeas corpus petition. Theodoropoulos v. Immigration and Naturalization Service, 358 F.3d 162, 168 (2d Cir. 2004). The statutory exhaustion requirement is excusable only when "manifest injustice" would otherwise result. Marrero Pichardo, 374 F.3d at 53. Petitioner has failed to exhaust the administrative remedies available to him as of right. In general, there are two administrative avenues for presenting a claim of citizenship. First, a person may raise such claim during the course of removal proceedings. If the claim is denied and all administrative appeals exhausted, the claimant may seek judicial review in the Court of Appeals. 8 U.S.C. § 1105a(a)(5) (1995) (repealed Sept. 30, 1996); 8 U.S.C. § 1252(b)(5) (2004). (Thus, even if petitioner had satisfied the exhaustion requirement, this court would not have jurisdiction to hear his case. When a claim of citizenship arises in the context of a removal proceeding, original jurisdiction lies in the Court of Appeals exclusively. See Austin v. Immigration and Naturalization Service, 308 F. Supp. 2d 125, 127 (E.D.N.Y. 2004).) Second, a person may submit an application for a certificate of citizenship to CIS on Form N-600. 8 U.S.C. § 1452; 8 C.F.R. § 341.1. If the application is denied and all administrative appeals exhausted, the applicant may seek judicial review in a district court. 8 U.S.C. § 1503. See generally Anees v. Ashcroft, 2004 WL 1498075 (D. Conn. 2004). Petitioner did not present his claim of citizenship to the IJ during the original deportation proceedings; he did not appeal the IJ's decision to the Board of Immigration Appeals ("BIA"); he did not present his claim of citizenship to the immigration officer who adjudicated the reinstatement of the deportation order; and he has never submitted an application for a certificate of citizenship to CIS or any of its predecessor agencies. He may not seek collateral review of a deportation order that was not appealed to the BIA, and he may not present his claim of citizenship in federal court without ever having presented it to the agency for consideration.

  No manifest injustice will result from enforcement of the exhaustion requirement in this case. Unlike in Marrero Pichardo, petitioner has not resided in the United States for a substantial period of time with his family; rather, most of petitioner's time in this country has been spent in prison. See Marrero Pichardo, 374 F.3d at 54. Significantly, there is no basis in the record from which to conclude that petitioner's "claim is virtually certain to succeed" if considered on the merits. Id. In addition, the government did not delay in raising the exhaustion issue. Id.

  Accordingly, the court is deprived of jurisdiction in this matter by petitioner's failure to exhaust administrative remedies. The consolidated petitions for a writ of habeas corpus are, therefore, dismissed. In light of this outcome, the court need not address the other jurisdictional impediments asserted by the government.

  CONCLUSION

  For the foregoing reasons, the consolidated petitions for a writ of habeas corpus are hereby dismissed, and the temporary stay of deportation is lifted. The Clerk of Court is directed to close these cases.

  SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.