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JOHN ASHCROFT, Attorney General of the United States; DEBORAH ACHIM, Field Office Director, U.S. Department of Homeland Security, Immigration and Customs Enforcement, Chicago District Office, Respondents.

The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge


Petitioner Sailesh Akkaraju is a citizen of India. He came to the United States in 1991 as a non-immigrant student. He is the husband of co-petitioner Shelly Akkaraju, a United States citizen. In 1998, Mr. Akkaraju pled guilty in federal court to conspiracy to commit bank and interstate transportation fraud and was sentenced to 20 months in prison. The Immigration and Naturalization Service ("INS") determined that this crime was an "aggravated felony" under 8 U.S.C. § 1101(a) and therefore commenced deportation proceedings against Mr. Akkaraju when he was released from prison. On May 14, 2002, the INS issued an order of deportation. Pet., Ex. 3, ¶ 7. Mr. Akkaraju appealed the order to the Board of Immigration Appeals ("BIA") and made a motion for relief from deportation under section 212(h) of the Immigration and Nationality Act. Id. The BIA dismissed his appeal and denied a subsequent motion to reopen his case. Pet. ¶ 22. Mr. Akkaraju is currently seeking review in the Court of Appeals of the BIA's refusal to reopen his case. Govt. Ex. 4.

In 2003, Mr. Akkaraju filed a petition seeking a stay of removal and a writ of habeas corpus, which Judge Grady dismissed on September 25, 2003. Govt. Ex. 1. He subsequently filed another petition for habeas corpus, which he withdrew on December 5, 2003. Govt. Ex. 2. Mr. Akkaraju and his wife Shelly filed the present habeas corpus petition on November 20, 2003. In December 2003, Mr. Akkaraju was deported to India, his home country. Resp. at 2. Because he was deported based on conviction of an aggravated felony, Mr. Akkaraju is prohibited from entering the United States for ten years.


  1. Jurisdiction

  The government originally argued that the Court lacked jurisdiction over the Akkarajus' habeas corpus petition on mootness grounds. The Court ruled that the case was not moot because, although Mr. Akkaraju currently resides in India, he was in custody in the United States at the time he filed the petition. Akkaraju v. Ashcroft, No. 03 C 8352, Order of April 30, 2004.

  The government now argues that the Court lacks jurisdiction as a result of the BIA's decision to deny Mr. Akkaraju's motion to reopen his case, a discretionary decision over which a district court has no jurisdiction. Resp. at 6. The Court disagrees. Mr. Akkaraju still has standing under Article III to bring a habeas corpus petition due to the ongoing collateral consequences of his deportation. Max-George v. Reno, 305 F.3d 194, 196 (5th Cir. 2000) ("[Petitioner's] ongoing Article III injury is that he cannot be admitted into the United States within ten years of the date of his removal under 8 U.S.C. § 1182(a)(9)(A)(ii) as a `collateral consequence' of his deportation."). Therefore, this Court has jurisdiction to entertain a claim of constitutional violation in connection with deportation raised by way of a petition for a writ of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 305 (2001) (the Antiterrorism and Effective Death Penalty Act of 1996 does not preclude habeas review of constitutional claims in the district courts).

  2. Sailesh Akkaraju's due process claims

  The heart of Mr. Akkaraju's petition is a due process claim in which he contends that he is entitled to a hearing before the government can deny him relief from deportation under section 212(h) of the Immigration and Nationality Act, 8 U.S.C. § 1182. Section 212(h) allows the Attorney General, in his discretion, to waive deportation of an immigrant if the immigrant is married to a citizen and if "it is established to the satisfaction of the Attorney General that the alien's denial of admission would result in extreme hardship" to the spouse. It appears that Mr. Akkaraju applied to the BIA for this relief but was denied in a written decision. Pet., Ex. 3, ¶ 13. Mr. Akkaraju is not asking this court to review the written decision that denied him § 212(h) relief.*fn1 Instead, he claims that he had a due process right to a hearing on his petition for § 212(h) relief and that a mere written decision on the issue is constitutionally insufficient. Pet. ¶ 57.*fn2 Without a hearing, Mr. Akkaraju argues, the Attorney General is left to exercise "unbridled power" without any procedural protections that would ensure proper review of each immigrant's case. Id. ¶¶ 54-55.

  The government has focused on what it perceives to be the Akkarajus' other claims and has not directly responded to Mr. Akkaraju's due process claim. It states only that:
[p]etitioners' insistence upon a "hearing" is not based upon a constitutional right, a statutory right nor a regulatory right . . . He [Salish] was afforded due process in his immigration hearing before the immigration judge, he had the right to appeal his case, and he maintains the right to his appeal before the Seventh Circuit, despite his removal to India.
Resp. at 7. The government cites no authority supporting its contention that Mr. Akkaraju had no right to a hearing. The Court is unwilling simply to assume the accuracy of the government's contention and will require further briefing, as discussed later in this decision.

  Mr. Akkaraju has made other claims which cannot be brought in this Court. Much of his submission is taken up by arguments why he should not be deported. Challenges to a deportation order, however, may only be brought in a circuit court of appeals. Bhatt v. BIA, 328 F.3d 912, 914 (7th Cir. 2003). And, in fact, Mr. Akkaraju filed such an appeal in the Seventh Circuit.

  Similarly, Mr. Akkaraju argues that his conviction for bank fraud should not be classified as an aggravated felony under 8 U.S.C. § 1101. This is part and parcel of his claim that deportation was inappropriate and thus can be decided only by a court of appeals.

  3. Shelly Akkaraju's due process claim

  Petitioner Shelly Akkaraju recognizes that a citizen spouse has no constitutional right to have her alien husband remain in the United States. Pet. ¶ 31; see, e.g., Anetekhai v. INS, 876 F.2d 1218, 1222 n. 5 (5th Cir. 1989); Almario v. Attorney General, 872 F.2d 147, 151 (6th Cir. 1989). She claims, however, that she has a due process right to hearing before her husband can be deported. She bases this claim on the constitutional protection of freedom of association. The Supreme Court has recognized a right of intimate association, which includes the right to marry. Roberts v. U.S. Jaycees, 468 U.S. 609 (1984). Mrs. Akkaraju argues that by deporting her husband, the government is burdening her constitutionally-protected right to marital association and therefore must provide her with a pre-deportation hearing. Pet. ¶ 31. In support of this contention, she cites Manwani v. INS, 736 F. Supp. 1367 (W.D.N.C. 1990). Mrs. Akkaraju's reliance on Manwani is misplaced. The court in that case dealt with a section of the immigration code that imposed a two-year foreign residency requirement on all aliens who enter into marriages during the pendency of deportation proceedings. The court held that because this rule imposed a penalty for entering into marriage, it could not be imposed ...

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