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May 12, 2004.

ATANAS A. GENOV, Petitioner,
JOHN ASHCROFT, Attorney General of the United States, THOMAS RIDGE, Secretary of Homeland Security, District Director, Bureau of Citizenship and Immigration Services, successor agency to U.S. Immigration and Naturalization Service, Board of Immigration Appeals, Respondents

The opinion of the court was delivered by: REBECCA PALLMEYER, District Judge


Petitioner Atanas A. Genov has filed a petition for writ of habeas corpus, mandamus, and declaratory and injunctive relief to prevent his deportation to Bulgaria. Genov alleges that he was denied effective assistance of counsel in violation of his Fifth Amendment due process rights, and that neither the Immigration and Naturalization Service ("INS") nor the new Department of Homeland Security ("DHS") had authority to deny his request for administrative stay of deportation. For the reasons set forth here, Genov's petition is denied.


  Genov, a Bulgarian national, first entered the United States on a visitor's visa on April 16, 1990. (Petition, at 2.)*fn1 Shortly thereafter on May 14, 1990, he filed a request for political asylum. (Ex. N to Petition.) In June 1993, Genov moved in with Rumiana Nikolova ("Rumiana"), also a Bulgarian national, in Lombard, Illinois. At the time, Rumiana was married to Rumen Panaiotov, who was residing in Bulgaria. Rumiana had applied for asylum in the United States in April 1993 and had asked her husband, whom she described as violent and well-connected in Bulgaria, for a divorce. (Rumiana Aff., Ex. D to Petition ¶¶ 1, 2.) Panaiotov refused but later obtained a divorce himself in June 1994. Rumiana learned of that divorce two years later, after she was granted asylum in the United States on February 23, 1996. (Petition, at 2-3, 10.)

  On February 12, 1997, Genov's request for political asylum was denied and the INS issued an Order to Show Cause. (Ex. N to Petition.) Genov retained Attorney David Butbul to represent him before the Immigration Court. On Butbul's advice, Genov filed an asylum application and an application for suspension of deportation under § 203(a) of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Pub.L. No. 105-100, 111 Stat. 2160, 2196-98. (Petition, at 9.)*fn2 Section 203 of NACARA amended § 240A of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA"), Pub.L. 104-208, 110 Stat. 3009, 3009-627, which in turn amended § 244(a) of the Immigration and Nationality Act (" INA"), 8 U.S.C. § 1254(a). Under NACARA § 203(a), any alien who entered the United States on or before December 31, 1990, who filed an application for asylum on or before December 31, 1991, and whose country of origin was a signatory to the Warsaw Pact, including Bulgaria, may apply for suspension of deportation under former § 244 of the INA. Section 244 sets forth the following requirements for an alien to avoid deportation: (1) physical presence in the United States for a continuous period of seven years prior to filing for relief; (2) good moral character during that period; and (3) evidence that deportation would result in "extreme hardship to the alien, or to [the alien's] spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence." 8 U.S.C. § 254(a) (1994). See Useinovic v. I.N.S., 313 F.3d 1025, 1034 (7th Cir. 2002); Buzdygan v. I.N.S., 259 F.3d 891, 892 (7th Cir. 2001). Throughout the immigration proceedings, Butbul knew that Genov was living with Rumiana and that they had a stable relationship. (The court is uncertain whether he was also aware that Rumiana was no longer married.) Butbul nevertheless advised Genov that marrying Rumiana would not affirmatively benefit his application for suspension of deportation under NACARA. (Petition, at 10.) Genov now believes, however, that "Rumiana could have established the requirement of extreme hardship to [Genov], by reason of her fear of returning to Bulgaria and the precarious state of her health." (Id.) In any event, on February 27, 1998, Rumiana appeared before Immigration Judge Craig M. Zerbe and testified that she was Genov's fiancee. When Butbul asked her why she and Genov were not yet married, Rumiana explained that they "didn't want the others to think that we get married just for the sake of the green card," and that Genov wanted children but she was having difficulties getting pregnant. (Ex. E to Petition, at 63-64.) The same day, Genov similarly testified that he and Rumiana had discussed getting married but that early in their relationship, she was waiting for divorce papers, and that "later, I don't know, I just have some feeling that she's delaying this a little bit probably because she has some fertility problems and maybe she wants to make sure first that she will be able to have a child." (Ex. F to Petition, at 22-24.) After hearing the testimony, Judge Zerbe issued an oral ruling denying Genov's application for suspension of deportation. (Ex. G to Petition.) As part of his ruling, Judge Zerbe acknowledged that Genov had an "important relationship" with Rumiana but noted that the relationship could not impact his decision on "extreme hardship" to any substantial degree because it was not a legal relationship. (Id. at 9.)

  On August 13, 1998, Genov and Rumiana were married. (Ex. A to Petition.) Rumiana was granted permanent resident alien status in October 1999, and on April 30, 2001, she filed an Immigrant Petition for Relative (1-130) on behalf of Genov, which remains pending. (Exs. B and C to Petition.) On June 5, 2002, the Board of Immigration Appeals ("BIA") summarily affirmed Judge Zerbe's decision to deny Genov's application for suspension of deportation and gave Genov 30 days to voluntarily leave the United States. (Ex. H to Petition.) Butbul failed to notify Genov that he could seek judicial review of that order with the Seventh Circuit, nor did Butbul explain that an order of deportation would issue if Genov failed to leave the country or to obtain an extension of voluntary departure. (Petition, at 12.)

  Instead, on September 4, 2002, Butbul filed a motion to reopen the immigration proceedings, noting that Genov's now wife, Rumiana, had filed an Immigrant Petition for Relative on his behalf, and arguing that since the time Genov had applied for asylum, "drastic changes [had] occurred in the home country of the Respondent [Genov] with reference to people with [the] same nationality [Macedonian] as the Respondent." (Ex. I to Petition ¶¶ 4, 5.) Butbul asked the BIA to reopen and remand the case to the Office of the Immigration Court to "review the possibility of adjustment of [Genov's] status to that of a permanent resident." (Id. at 2.) Genov claims this request was "false" because the 1-130 petition, if granted, merely qualified Genov for classification as the spouse of a permanent resident alien. As such, he would still be subject to the numerical limitations imposed on immigrant visas, and at that time, Genov says, a visa number was not immediately available to him due to a backlog in applications. (Petition, at 12-13.) See also Tak Cheong Hau v. Moyer, 576 F. Supp. 844, 846 (N.D. III. 1983) (l-130 petition "would merely qualify [petitioner], if it were granted, for classification under the second preference category as the spouse of a permanent resident alien").

  On November 7, 2002, the BIA denied the motion to reopen. The BIA first noted that though Genov claimed to be married, he failed to provide any documentary evidence regarding his wife, his marriage, or his visa petition. (Ex. J to Petition, at 1.) As for Genov's claimed fears about returning to Bulgaria as a person of Macedonian ancestry, the BIA stated that Genov failed to provide an affidavit confirming that ancestry or "describing why he now fears return to Bulgaria." (Id.) In addition, the documentary evidence attached to the motion "indicate[d] that Macedonians are not a recognized ethnic group in Bulgaria, [i.e., they] are [not] politically active, and [do not] face discrimination and harassment in Bulgaria." (Id. at 2.) Genov did not receive notice of the BIA's decision until Butbul forwarded it in a December 12, 2002 letter. (Ex. K to Petition.) By that date, Genov's 30 day period for appealing the decision to the Seventh Circuit had expired. (Petition, at 13.) On or about December 18, 2002, the INS issued a notice requiring Genov to appear for deportation to Bulgaria on January 30, 2003. (Ex. M to Petition.)

  After retaining new counsel, Mary L. Sfasciotti, Genov filed a Petition for Issuance of Writ of Habeas Corpus with this court on January 19, 2003. Shortly thereafter on January 28, 2003, Genov filed with the BIA a Motion to Reopen Removal Hearing to Present Additional Evidence Bearing on Respondent's Eligibility for Suspension of Deportation that was not Presented to the Immigration Judge by Reason of Ineffective Assistance of his Former Counsel. (Ex. O to Petition.) In that motion to reopen, Genov argued that Butbul provided ineffective representation by (1) failing to advise him that marrying Rumiana could support his application for suspension of deportation; (2) failing to timely notify the BIA of Genov's marriage to Rumiana in August 1998; (3) filing a meritless motion to reopen without appropriate affidavits and documentary evidence; and (4) failing to timely notify Genov of the BIA's decision denying his application for suspension of deportation. (Id. ¶¶ 3-11.) Genov noted that he had filed a complaint against Butbul with the Attorney Registration and Disciplinary Commission, and asked that his September 4, 2002 motion to reopen not be counted towards the numerical limit on such motions. (Id. ¶¶ 12, 13.) See Chowdhury v. Ashcroft, 241 F.3d 848 (7th Cir. 2001) (quoting 8 C.F.R. § 3.2(c)(2)) ("a party may file only one motion to reopen deportation or exclusion proceedings").

  Also on January 28, 2003, Genov filed with the INS a request for an administrative stay of deportation until at least June 1, 2003. (Ex. L to Petition.) Genov explained that he owned a business that needed to be liquidated and a home that needed to be sold, and noted that he had filed a Motion to Reopen and a Writ of Habeas Corpus. (Id.) On January 30, 2003, Genov appeared at the INS offices as instructed in the December 18, 2002 notice, but he was not taken into custody at that time. (Petition, at 14-15; Ex. M to Petition.) On or about March 10, 2003, however, Cynthia J. O'Connell, Interim District Director, Interior Enforcement, Bureau of Immigration & Customs Enforcement, denied Genov's application for stay of deportation. (Ex. N to Petition.) O'Connell stated that Genov's removal proceedings had been pending for six years, which provided him "ample time to dispose of his personal property." (Id. at 2.) O'Connell further stated that the mere filing of a motion to reopen and a writ of habeas corpus "does not warrant a stay of removal." (Id.)

  On March 21, 2003, Genov filed an Amended Petition for Issuance of Writ of Habeas Corpus and for Mandamus, Declaratory and Injunctive Relief, which is currently before this court. In his amended petition ("Petition"), Genov asserts jurisdiction based not only on 28 U.S.C. § 2241, but also on the Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202; 8 U.S.C. § 1252, 1362, and 1252(f); and the All Writs Act, 28 U.S.C. § 1651. In Count I of his petition, Genov seeks a declaration that his order of deportation is "null and void" in violation of his Fifth Amendment due process rights because he did not receive effective assistance of counsel. (Petition, at 14.) He also seeks a declaration that the District Director of the INS, Cynthia O'Connell, "had no authority to determine requests for administrative stays of deportation since INS had been abolished effective March 1, 2003 by the Homeland Security Act." (Id. at 15.) Genov concedes that all tasks previously performed by the INS were supposed to become the responsibility of the Department of Homeland Security as of March 1, 2003. In Genov's view, however, because Congress did not effectively transfer power from the Attorney Genera! to the Secretary of Homeland Security to enforce and administer immigration laws regarding deportation and other discretionary matters, O'Connell's act was void. (Supp., at 15-23.)*fn3 In Count II of his petition, Genov asks the court for a mandamus ordering the BIA to "expeditiously decide his motion to reopen." (Petition, at 16.) Count III seeks to enjoin Respondents from enforcing the outstanding deportation order. (Id. at 16-17.)


  Respondents Attorney General John Ashcroft and Secretary of Homeland Security Tom Ridge object that this court lacks jurisdiction to consider Genov's Petition. Specifically, Respondents claim that Genov's requests for habeas and declaratory relief are both, at base, challenges to the removal order entered by the immigration judge and affirmed by the BIA, and that such orders must be appealed directly to the Seventh Circuit. (Return, at 2.)*fn4 Respondents also ...

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