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LU v. ASHCROFT

United States District Court, S.D. New York


January 13, 2005.

CHUN SHENG LU, Petitioner,
v.
JOHN ASHCROFT, et al., Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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. Id. 17-18.

  Accordingly, the petition is denied. The Clerk shall close the case.

  SO ORDERED.

20050113

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