Campbell v. Chadbourne

505 F.Supp.2d 191

Arthur CAMPBELL, Petitioner, v. Bruce CHADBOURNE, Interim Field Office Director for Detention and Removal, et al., Respondents.

Civil Action No. 07-10184-PBS.

United States District Court, D. Massachusetts.

July 19, 2007.

Frank Crowley, Immigration and Customs Enforcement, Dept. of Homeland Secur, Boston, MA, for Respondent.

Mark W. Shea, Shea, Larocque & Wood LLP, Cambridge, MA, for Petitioner.

ORDER ADOPTING REPORT AND RECOMMENDATION

PATTI B. SARIS, District Judge.

"I adopt the report and recommendations as unopposed and dismiss the case."

REPORT AND RECOMMENDATION ON RESPONDENTS' MOTION TO DISMISS

June 28, 2007.

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The petitioner, Arthur Campbell ("Campbell" or "Petitioner"), has filed a petition for a writ of habeas corpus ("Petition") (Docket No. 1) challenging his detention by the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE") in connection with immigration proceedings. He has named as respondents Bruce Chadbourne, the Field Office Director for Detention and Removal at ICE, Andrea Cabral, then Sheriff of Suffolk County, and Gerard Horgan, the Superintendent of the Suffolk County House of Correction where Campbell is being held (collectively, "Respondents").

Campbell entered this country as a refugee. Despite a statutory scheme that contemplates that refugees will apply for lawful permanent resident status within one year of coming to the United States, Campbell has refused to apply for such status on the grounds that he may be deported if found not to be qualified to attain permanent resident status. Campbell contends that, as a refugee, he is not subject to deportation. He challenges his continued detention pending completion of removal proceedings, and asserts that he should be able to remain in this country indefinitely as a refugee.

The matter is presently before the court on the Respondents' Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Docket No. 4). By their motion, the Respondents assert that this court lacks subject matter jurisdiction over immigration removal cases. They further assert that the Petition must be dismissed because Campbell has failed to exhaust his administrative remedies. This court finds that although the District Court retains jurisdiction over challenges to detention such as Campbell's, Campbell should be required to exhaust available administrative remedies before seeking relief in federal court. Accordingly, this court recommends to the District Judge to whom this case is assigned that the Respondents' Motion to Dismiss (Docket No. 4) be ALLOWED.

II. STATEMENT OF FACTS

Campbell is a Liberian national who was admitted to the United States on September 19, 2000 as a refugee under section 207 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1157. (Petition ¶ 4; Return and Memorandum of Law in Support of Motion to Dismiss ("Resp.Mem.") (Docket No. 5) at 2). On May 5, 2005, Campbell entered a plea of nolo contendere in Rhode Island state court to one count each of Manufacture/Delivery/Possession with Intent to Deliver Marijuana, Conspiracy to Violate the Controlled Substances Act, and Breaking and Entering a Dwelling. (Petitioner's Opposition to Respondent's Motion to Dismiss ("Pet.'s Mem.") (Docket No. 7), Attach. A). He received a sentence of ten years on each of the charges, to serve six months, with 114 months of probation on each of the charges. (Id.). The sentences were retroactive to March 8, 2005, and were to run concurrently. (Id.).

On June 29, 2006, after having been released from custody by the State of Rhode Island, Campbell was taken into custody by ICE and removal proceedings were initiated against him pursuant to an administrative Notice to Appear.¹ (Pet.'s Mem. at 2; Resp. Mem. at 2). Subsequently, on August 22, 2006, Campbell was notified that he was to return to the U.S. Citizenship and Immigration Services ("USCIS") "for inspection and examination for admission to the United States as an immigrant" pursuant to section 209(a) of the INA, and he was directed to complete a Form. I-485 application for permanent resident status. (Resp.Mem., Attach.D). This was in accordance with immigration regulations which provide in relevant part:

(1) Every alien in the United States who is classified as a refugee under part 207 of this chapter, whose status has not been terminated, is required to apply to the Service 1 year after entry in order for the Service to determine his or her admissibility under section 212 of the [INA].

8 C.F.R. § 209.1(a)(1) (emphasis added). The application is to be made by way of a Form I-485. 8 C.F.R. § 209.1(b).

Campbell refused to complete the Form I-485 because it "would open the possibilities for the Petitioner's removal from the United States...." (Petition ¶ 11). He contends that he cannot be removed as long as he maintains his status as a refugee. (Id. ¶ 10). In light of Campbell's refusal to submit the application for permanent residence or to otherwise participate in the process, on September 28, 2006, an Immigration Judge terminated the removal proceedings without prejudice. (Id. ¶ 9; Resp. Mem. at 3). Campbell nevertheless remained in ICE custody. (See Petition ¶ 12; Resp. Mem. at 3).

On January 30, 2007, Campbell filed the instant Petition for habeas corpus challenging the lawfulness of his detention. Thereafter, on February 5, 2007, Campbell was served in-hand with a notice of interview regarding his admissibility to the United States as a permanent resident. (Pet.'s Mem. at 2; Resp. Mem., Attach. A). At the interview, which took place on February 6, 2007, Campbell refused to be placed under oath and refused to answer any questions posed by an immigration officer. (Pet.'s Mem. at 2; Resp. Mem., Attach. A). Additionally, Campbell continued to refuse to file a Form 1-485 application for permanent resident status. (Resp.Mem., Attach.A).

Following the interview, the USCIS determined that Campbell was inadmissible to the United States pursuant to INA § 212(a)(2)(A)(i)(II) and § 212(a)(2)(C)(i) due to his May 5, 2005 convictions in Rhode Island state court. (Id.). Accordingly, on February 7, 2007, the USCIS again initiated removal proceedings against Campbell pursuant to another Notice to Appear. (Resp.Mem., Attach.B). Campbell also was notified that he would be detained, pursuant to section 236 of the INA, pending a final determination on removal, and that he could request a review of the detention decision by an Immigration Judge. (Id.).

A hearing was scheduled before an Immigration Judge on February 8, 2007. (Pet.'s Mem. at 2-3; Resp. Mem. at 5). Campbell appeared but declined to seek a custody determination before the Immigration Judge. The hearing was continued to February 22, 2007 and then to March 22, 2007 so that Campbell could obtain counsel. (Pet.'s Mem. at 3). A hearing was held on March 22, 2007, at which time the Immigration Judge sustained the removal charges, and the case was reset to April 5, 2007 so that Campbell could file an application for relief from removal. (See Status Report (Docket No. 9)). On April 5, 2007, Campbell refused to allow his fingerprints to be taken, as required for an application for relief from removal. (Id.). Consequently, Campbell's application was deemed abandoned and denied, and he was ordered removed to Liberia. (Id.).

Campbell did not appeal the removal order, but he did move to reopen his removal case. (Id.). The motion was allowed on May 14, 2007 and the Immigration Judge has scheduled a hearing on Campbell's application for relief from removal for September 11, 2007.(Id.).

III. ANALYSIS

A. This Court's Jurisdiction Over Campbell's Petition The Real ID Act

The Respondents have moved to dismiss the Petition on the grounds that this court lacks jurisdiction over habeas challenges in immigration removal cases pursuant to the Real ID Act of 2005. (Resp. Mem. at 5-10). However, because Campbell is challenging the lawfulness of his detention rather than a final decision to remove him from the United States, and this court retains jurisdiction over such challenges, the Respondents are not entitled to dismissal for lack of subject matter jurisdiction based on the Real ID Act.

On May 11, 2005, Congress enacted the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 302.² Pursuant to § 106 of the Real ID Act, the Court of Appeals has exclusive jurisdiction over habeas petitions challenging a final administrative order of removal, deportation, or exclusion. See Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir.2005). However, as the First Circuit and other courts have concluded, jurisdiction to hear challenges to detention, rather than to removal decisions, remains with the District Court. Id. at 29, n. 5; Hernandez v. Gonzales, 424 F.3d 42, 42-43 (1st Cir.2005), and cases cited. See also Gemayel v. Cabral, 472 F.Supp.2d 6, 7 (D.Mass.2007) (District Court has jurisdiction over habeas corpus petition to the extent that it challenges pre-deportation detention).

In the instant case, by his Petition, Campbell is challenging his continued detention in light of his refugee status. He is not challenging a final removal order. In fact, he filed his Petition after the initial removal proceedings were terminated and before USCIS had even initiated new removal proceedings. Even at present there is no final decision as to removal. Campbell is seeking "a writ of habeas corpus directing the Respondents to release [him] from [their] physical custody and indefinite detention." (Petition at p. 6). Therefore, Campbell's Petition is properly before this court.

8 U.S.C. § 1226(e)

Although not raised by the parties, this court must also determine whether this court has jurisdiction to hear Campbell's habeas petition in light of 8 U.S.C § 1226(e). See Gonzalez v. O'Connell, 355 F.3d 1010, 1014 (7th Cir.2004) (although effect of § 1226(e) on court's authority to...