§ 1251(a)(2), petitioner was found by an Immigration Judge to be
deportable for having entered the United States without inspection, and
an Order of Deportation was issued when she failed to depart voluntarily
by May 16, 1982. Petitioner waived her right to appeal the result of the
deportation hearing, and now seeks relief before this Court. For the
reasons set forth below, this Court lacks jurisdiction to consider
petitioner's request for relief.
Section 279 of the Immigration and Naturalization Act of 1952,
5 U.S.C. § 1329, confers upon a district court jurisdiction over all
causes arising under Title 8, United States Code. However, this
jurisdiction is limited by Section 106(a) of the Act, 8 U.S.C. § 1105a
(a), which confers exclusive jurisdiction upon the Courts of Appeals
to review final orders of deportation made against aliens pursuant to
Section 242(b) of the Act, S U.S.C. § 1252(b). See Foti v.
Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11
L.Ed.2d 281 (1963).
As petitioner points out, section 106(a)(9), S U.S.C. §
1105a(a)(9), makes exception to the exclusive Court of Appeals
jurisdiction by providing that any alien held pursuant to a deportation
order may obtain judicial review by habeas corpus proceedings. Habeas
corpus is an appropriate procedure to review the denial of discretionary
relief from deportation where deportability itself is not in issue.
United States ex rel. Parco v. Morris, 426 F. Supp. 976, 978 n. 4 (E. D.
Petitioner contends that because she is challenging her deportation
hearing on due process grounds and is not contesting her deportability, a
habeas corpus proceeding is appropriate. Constitutional challenges to
deportation hearings, however, have been held to be challenges to the
validity of the deportation order itself and thus within the jurisdiction
of the Courts of Appeals. See, e.g., Daneshvar v. Chauvin,
644 F.2d 1248, 1250 (8th Cir. 1981); Shodeke v. Attorney General,
391 F. Supp. 219, 222 (D.D.C. 1975).
Moreover, S U.S.C. § 1105a proscribes that review by a court is not
permitted where the alien has failed to exhaust his administrative
remedies. Te Kuei Lia v. Immigration and Naturalization Service,
483 F. Supp. 107, 108 (S.D.Tex. 1980); Besaganahalli v. United States,
442 F. Supp. 60, 61 (W.D.Pa. 1977). Petitioner in the instant case neither
appealed the decision of the Immigration Judge (as she could have pursuant
to 8 C.F.R. 242.21), nor filed for a stay of deportation pursuant to S
C.F.R. 243.4. Thus, even if her challenge were appropriate for habeas
review, her failure to exhaust administrative remedies would also
preclude review by this Court.
Accordingly, this Court being without jurisdiction to consider the
petition for writ of habeas corpus, the petition is therefore dismissed.
It is so ordered.
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