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April 9, 2003


The opinion of the court was delivered by: Joan H. Lefkow, United States District Judge


On March 20, 2003, petitioner, Hector J. Bonilla, filed an emergency petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 against the "District Director" (the "Director") of the United States Department of Homeland Security ("DHS").*fn1 Petitioner seeks release from custody and a stay of his removal from the United States to his country of citizenship, El Salvador, until the Board of Immigration Appeals ("BIA") renders a decision on his "Motion to Reopen" his immigration case. For the reasons set forth below, the court dismisses the habeas petition for lack of subject matter jurisdiction.


On or about December 14, 1992, petitioner entered the United States through San Diego, California without inspection. The Immigration and Naturalization Service ("INS"), now the Department of Homeland Security ("DHS"), initiated removal proceedings against petitioner at some unspecified point but which petitioner asserts was before April 1, 1997, when the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") amendments to the Immigration and Nationality Act ("INA") became effective. On April 8, 1998, an immigration judge in Houston, Texas denied petitioner's request for political asylum and granted him the opportunity to depart the United States voluntarily by August 7, 1998. (Gov't Ex. 1.) The immigration judge's order further stated,

Remaining in the United States beyond the authorized date other than because of exceptional circumstances beyond your control will result in your being ineligible for certain forms of relief under the Immigration and Nationality Act for five years from the date of the scheduled departure or the date of the unlawful entry, respectively.
(Id.) The "certain forms of relief" included voluntary departure, suspension of deportation or voluntary departure, and adjustment of status or change of status.

The record does not show that petitioner appealed this order to the BIA. Furthermore, petitioner admits that he did not voluntarily leave the United States. Based on these facts, the initial order of voluntary departure converted into a final removal order. Indeed, on or about July 13, 1999, the INS attempted to enforce the removal order but petitioner did not appear for his scheduled departure. (Gov't Ex. 2.)

In the meantime, petitioner represents that he filed an application for Temporary Protected Status ("TPS") with the INS based on his El Salvadoran citizenship. Petitioner submits a "Federal Register Notice on Salvadoran TPS," issued March 9, 2001, that allows individuals to apply for TPS between March 9, 2001 and September 9, 2002. The notice states that the Attorney General designated a TPS program because (1) El Salvador has endured three earthquakes resulting in substantial but temporary disruption of living conditions; (2) El Salvador temporarily is unable to handle the return of its nationals; (3) the government of El Salvador requested TPS designation; and (4) the Attorney General's permission to allow nationals of El Salvador to remain temporarily in the United States is not contrary to national interest. (Pet. Ex. 2.) Subsequently, the Attorney General extended the TPS program until September 9, 2003, with an application filing period between September 9, 2002 and November 12, 2002. See "Extension of the Designation of El Salvador Under the Temporary Protected Status Program," 67 FR 46000, 2002 WL 1473076 (F.R.).

Petitioner represents without evidence that he was granted TPS, including employment authorization and additional extensions, until 2002. According to petitioner, he renewed his TPS application sometime in 2002. When he did not hear back from the INS, he went to the INS Indianapolis office to inquire about his application status. There, the INS took petitioner into custody based on the final removal order. Petitioner attaches an exhibit to show that he filed a new TPS application in mid-March 2003, listing his address as "Care of Gilma Bonilla," at 3185 Eagledale Drive, Indianapolis, Indiana 46222.

The Director denies that the INS ever approved TPS for petitioner and that petitioner has a TPS application on file. Rather, he provides an exhibit showing that the INS sent petitioner a letter, dated December 13, 2001 and addressed to petitioner at 3185 Eagledale St., Indianapolis, Indiana 46222, that stated petitioner failed "to submit additional evidence in support of the application or petition." (Gov't Ex. 4.) The letter provided that petitioner had 30 days to file a new application with a new fee, which petitioner failed to do. Based on its evidence, the Director asserts that petitioner only attempted to submit an application but never received TPS.


Petitioner claims that the court should grant his habeas petition because his new TPS application will be deemed abandoned if the Director deports him. Petitioner also rests his habeas petition on the fact that he has been in the United States for over 10 years and he will apply for lawful permanent resident ("LPR") status because he is the beneficiary of a visa petition filed by his father.

The Director responds that the habeas petition is no more than a disguised challenge to a final removal order and thus this court lacks jurisdiction under 8 U.S.C. § 1252(g) ("no court shall have jurisdiction to hear any cause or claim by or on behalf of an alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders. . . ."). The Director concedes that "[a]n exception to this statutory preclusion is permitted only in rare cases that present substantial constitutional issues or bizarre miscarriages of justice." Chapinski v. Ziglar, 278 F.3d 718, 721 (7th Cir. 2002). The Director asserts that petitioner does not meet either of these exceptions because petitioner's own failure to depart voluntarily from the United States or appeal the immigration judge's order to the BIA led to the conversion of the initial order for voluntary departure into a final removal order.

Petitioner argues that this court has jurisdiction because his removal proceedings occurred prior to the enactment of the IIRIRA amendments to the INA. "While the IIRIRA amendments generally apply only to removal proceedings instituted on or after its effective date of April 1, 1997, . . . § 1252(g) is fully retroactive[.]" Fedorca v. Perryman, 197 F.3d 236, 240 (7th Cir. 1999).*fn2 Under § 1252(g), because petitioner seeks habeas relief in the form of a stay of his removal order, this court lacks subject matter jurisdiction to review the habeas petition. See, e.g., Fedorca, 197 F.3d at 239-40 ("Fedorca seeks as relief only a stay of deportation pending his appeal to the BIA — or in other words, review of the decision to execute his deportation, which is barred by §§ 1252(g)."); Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786, 786 (7th Cir. 2002) ("A request for a stay of removal `arises from' the Attorney General's decision (reflected by the bag-and-baggage letter) to execute a removal order.").*fn3

Petitioner, however, argues that his petition presents facts that demonstrate a bizarre miscarriage of justice. See Chapinski, 278 F.3d at 721. The court recognizes that, despite the removal order preventing a change in status, petitioner contends that he received TPS and simply failed to renew it. If petitioner initially received TPS, then he initially was not subject to detention and removal during that time period. See 8 U.S.C. ยง 1254a(a)(1)(A) (stating the Attorney General may grant the alien TPS and "shall not remove the alien from the United States during the period in which such status is in effect") and (d)(4) (stating an alien provided TPS "shall not be detained by the Attorney General on the basis of the alien's immigration status"). Nonetheless, petitioner concedes that he ...

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