United States District Court, S.D. New York
January 13, 2005.
CHUN SHENG LU, Petitioner,
JOHN ASHCROFT, et al., Respondents.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This is a petition for a writ of habeas corpus setting aside an
order of exclusion and granting petitioner asylum and relief
under the Convention Against Torture ("CAT").
Petitioner, a native and citizen of China, knowingly attempted
to enter the United States using a fraudulent passport. He
subsequently pled guilty to possession of a false identification
document with intent to defraud the United States. Subsequently,
petitioner filed two applications for asylum.
In 1996, the INS commenced an excludability proceeding against
petitioner. When petitioner failed to appear for the hearing, the
Immigration Judge ordered him excluded in absentia and later
denied petitioner's motion to reopen. Petitioner appealed to the
BIA. While the appeal was pending, he moved to remand for the
purpose of seeking relief under CAT. The BIA dismissed the appeal
from the denial of the motion to reopen but remanded for further
proceedings on the CAT claim.
On remand, the IJ held a hearing on the CAT claim. Petitioner
conceded the charge of excludability while the INS withdrew
certain other charges. The IJ, however, denied the CAT
application after hearing, and the BIA affirmed.
Petitioner then filed a timely petition for review of the final
order of exclusion in the Second Circuit. Lu v. U.S. DOJ, No.
03-4081. After obtaining both a stay of deportation and an
extension of time within which to file a brief, petitioner and
the government stipulated to the withdrawal of the petition with
prejudice. The stipulation was "so ordered" by the Circuit.
Petitioner then filed this proceeding. The petition lacks any merit. The stipulation withdrawing the
petition with prejudice forecloses any claim for relief that
petitioner otherwise might have had here under principles of
former adjudication. Resp. Mem. 14-17. Even if that were not so,
petitioner's quite deliberate decision to bypass Second Circuit
review of the order of exclusion would foreclose him from seeking
relief here because he failed to exhaust his judicial remedies.
Accordingly, the petition is denied. The Clerk shall close the
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