The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
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.
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
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
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 ...