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FEDOSSOV v. PERRYMAN

May 13, 1997

ALEXEI FEDOSSOV, Petitioner,
v.
BRIAN R. PERRYMAN, District Director, Immigration and Naturalization Service, Respondent.



The opinion of the court was delivered by: MAROVICH

 Petitioner Alexei Fedossov ("Fedossov"), an alien who is subject to a final order of deportation, filed a complaint for declaratory and injunctive relief along with a petition for writ of habeas corpus seeking to prevent the United States Immigration and Naturalization Service ("INS") from executing the deportation order pending a final ruling from the Board of Immigration Appeals ("BIA") on Fedossov's appeal from the denial of his motion to reopen. Respondent Brian R. Perryman, INS's District Director, now seeks dismissal of Fedossov's complaint and petition on the grounds that (1) this Court lacks subject matter jurisdiction to review Fedossov's claims; (2) Fedossov's custody pending deportation is lawful; (3) neither Fedossov's marriage to a U.S. citizen nor the existence of an approved visa petition bars execution of the final deportation order; and (4) deporting Fedossov while his BIA appeal is pending does not violate Fedossov's due process rights. For the reason set forth below, the Court grants Respondent's motion.

 BACKGROUND

 Fedossov is a native and citizen of Ukraine who entered the United States as a visitor for business on December 6, 1993; he was authorized to remain only until December 13, 1993. Subsequently, petitioner filed an application for political asylum that was denied on June 6, 1994.

 On December 14, 1994, INS issued an order to show cause against Fedossov charging him with deportability under 8 U.S.C. § 1251(a)(1)(C)(i) for remaining in the United States for a longer time than permitted.

 On September 29, 1995, Fedossov was accorded a deportation hearing before an immigration judge. At this hearing, Fedossov admitted the allegations of the order to show cause and was granted voluntary departure until January 29, 1996. The voluntary departure order provided that the order would automatically become an order of deportation if petitioner did not depart the United States by January 29, 1996 (or by a later date fixed by the district director).

 Fedossov did not depart the United States by January 29, and, consequently, the voluntary departure order became a final order of deportation.

 On January 16, 1996, petitioner married Lyudila Fedossov, a United States citizen. On March 30, 1996, an immediate relative visa petition and application for permanent residence were filed on behalf of Fedossov based on his marriage. This visa petition was approved by INS on April 1, 1997.

 On January 29, 1997, Fedossov filed both an application for a stay of deportation with the district director and a motion to reopen with the immigration judge. The district director denied Fedossov's stay application on February 4, 1997. The immigration judge denied Fedossov's motion to reopen February 26, 1997.

 On March 28, 1997, Fedossov filed an appeal from the immigration judge's denial of the motion to reopen with BIA. On April 2, 1997, BIA denied Fedossov's request for a stay of deportation pending a final decision on his appeal based on BIA's conclusion that there was little likelihood that Fedossov's appeal would be successful.

 On April 2, 1997, Fedossov filed this complaint and petition, alleging (1) that his custody pending deportation is unlawful and (2) that execution of the final deportation order should be stayed, as deporting him now would render his BIA appeal moot and would preclude him from obtaining a hearing or an adjudication on the merits of his claim.

 Respondent correctly notes that this Court now lacks subject matter jurisdiction to hear the claims raised in Fedossov's complaint and petition. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, enacted by Congress in September 1996 entirely redefined the scope and/or availability of judicial review of immigration orders and decisions. Of particular importance in this action is IIRIRA's amendment of 8 U.S.C. § 1252(g)("Section 1252(g)"), which now provides as follows:

 
(G) EXCLUSIVE JURISDICTION. Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute ...

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