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HODEL v. AGUIRRE

April 29, 2003

ANTON HODEL, PETITIONER,
v.
EDUARDO AGUIRRE, DIRECTOR OF THE BUREAU OF CITIZENSHIP & IMMIGRATION SERVICES,[FN1] JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, AND TOM RIDGE, DIRECTOR OF HOMELAND SECURITY, RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Before the court is petitioner, Anton Hodel's ("Hodel"), petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.*fn2 For the following reasons, the court denies Hodel's petition for habeas corpus.

I. BACKGROUND

Hodel is a native and citizen of Austria who was admitted to the United States as a lawful permanent resident in 1956. In April 1995, Hodel pleaded guilty and was convicted for conspiracy to possess with intent to distribute marijuana. In July 1996, upon completion of his sentence, Hodel was transferred into the custody of the Immigration and Naturalization Service ("INS") pursuant to a detainer lodged by the INS in 1995. On December 9, 1997, an Immigration Judge ("IJ") ordered Hodel removed based upon the conviction. The IJ denied Hodel's request for relief from removal under § 212(c) ("§ 212(c)") of the Immigration and Nationality Act ("INA") on the basis that § 212(c) relief was not available. Hodel appealed the decision to the Board of Immigration Appeals ("BIA") and the BIA dismissed his appeal on June 15, 1998. Hodel did not file an appeal of the BIA ruling with the Seventh Circuit Court of Appeals. Thus, his removal order became final as of June 15, 1998.

On September 24, 1998, Hodel filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. On February 24, 1999, his petition was dismissed for lack of subject matter jurisdiction. On February 13, 2003, respondents sent Hodel a notification requiring him to report for his deportation on March 11, 2003. Hodel complied with this request and is currently in the custody of the Department of Homeland Security, Bureau of Customs and Immigration Enforcement pursuant to § 241 of the INA ("§ 241").

On or about March 6, 2003, Hodel filed a motion to reopen and requested a stay of deportation with the BIA based on the Supreme Court decision INS v. St. Cyr, 533 U.S. 289 (2001), which held relief under § 212(c) is available to individuals who pleaded guilty and were convicted before the effective date of the Immigration Reform and Immigrant Responsibility Act of 1996. On March 25, 2003, the BIA issued a stay of removal pending its consideration of the motion to reopen. On March 31, 2003, Hodel filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 ("§ 2241"), claiming that § 241 violates his due process rights under the Fifth Amendment, and requesting his immediate release from detention.

First, respondents argue this court lacks subject matter jurisdiction because 8 U.S.C. § 1252 (g) ("§ 1252(g)") precludes review and Hodel has failed to exhaust his administrative remedies, Second, respondents claim Hodel's challenge to his detention is not ripe for judicial review under the statutory scheme of the INA. The court will address each of respondents' arguments in turn.

II. DECUSSION

A. Subject Matter Jurisidiction

1. Section 1252(g)

Respondents argue this court lacks subject matter jurisdiction. Specifically, respondents assert this case is barred by § 1252(g) as it involves a decision of the Attorney General to execute a removal order. Section 1252(g) provides:

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 an alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252 (g). The Supreme Court narrowed the scope of § 1252(g) by finding it applies only to three discrete actions, the Attorney General's decision to "commence proceedings, adjudicate cases, or execute removal orders." Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).

This case is in a unique procedural posture as Hodel is subject to a final order of removal, but has been granted a stay of deportation by the BIA pending consideration of his motion to reopen. Thus, Hodel is not asking the court to block a decision to "commence proceedings, adjudicate cases, or execute removal orders." Instead, Hodel's petition concerns his detention while his motion to reopen is pending, which is beyond the scope of § 1252(g). See Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (finding § 1252(g) did not preclude review of claim concerning detention while the administrative process lasts); Moro v. INS, 58 F. Supp.2d 854, 859 (ND. Ill. 1999) (finding § 1252(g) inapplicable to petitioner's challenge to detention pursuant to § 1231). Further, the Supreme Court held that § 1252(g) did not deprive federal courts of habeas jurisdiction pursuant to § 2241 to review ...


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