The opinion of the court was delivered by: MATTHEW KENNELLY, District Judge
MEMORANDUM OPINION AND ORDER
Bozena Dorgan, formerly known as Bozena Smelko, is a Polish
citizen who came to the United States in 1985 and applied for
admission as a visitor for pleasure. Upon questioning by
immigration officials, however, she stated that she wanted to
find a job in this country. As a result, she was placed into
exclusion proceedings for seeking to immigrate to the United
States without a proper visa. At some point, Ms. Dorgan was later
"paroled" (released) from custody during the pendency of the
After the exclusion proceedings were instituted, Ms. Dorgan,
represented by an attorney, applied for political asylum. This
application was also considered as a request to withhold
deportation. In January 1986, an immigration judge found Ms.
Dorgan to be excludable and deportable and denied her application
for asylum and to withhold deportation. Ms. Dorgan, still
represented by counsel, appealed to the Board of Immigration
Appeals. Her appeal was dismissed in January 1992. Ms. Dorgan took no further action to
pursue her claims.
In April 1992, the Immigration and Naturalization Service
attempted to locate Ms. Dorgan through the Postal Service at her
last known residence address but was advised that she had moved
and left no forwarding address. In February 1996, the INS
attempted to locate Ms. Dorgan by mail through her last known
employer but was told she no longer worked there. The record does
not reflect any other efforts by the INS to locate Ms. Dorgan or
enforce the order of exclusion.
In 2000, Ms. Dorgan married Emmett Dorgan, a United States
citizen. Sometime in 2002, Mr. Dorgan evidently filed an
immediate relative visa petition on Ms. Dorgan's behalf. He died,
however, before the petition could be adjudicated.
Mr. Dorgan had executed a will in 2001 making Ms. Dorgan the
primary beneficiary of his estate. According to the petition in
the present case, other relatives of Mr. Dorgan have contested
the will and may have reported Ms. Dorgan to the immigration
authorities. In October 2004, Ms. Dorgan was arrested by a
fugitive unit of the Illinois State Police, and she was
transferred to the custody of the Bureau of Immigration and
Customs Enforcement. On November 1, 2004, that agency executed a
warrant of removal, and arrangements were made to transport Ms.
Dorgan to Poland on November 18, 2004.
On November 8, 2004, Ms. Dorgan's daughter, Kelly
Smelko-Zamora, a United States citizen, filed an immediate
relative visa petition and an application to adjust Ms. Dorgan's
status. On November 16, 2004, Ms. Dorgan, joined by Ms.
Smelko-Zamora and two of Ms. Dorgan's grandchildren, filed a
petition seeking an emergency stay of deportation and a writ of
habeas corpus. The petitioners allege that Ms. Dorgan's right to
due process of law will be violated if she is deported before the application for adjustment of her
status can be adjudicated.
On November 17, 2004, the Court granted the petitioners'
request for an emergency stay to preserve the status quo pending
determination of the habeas corpus petition. Respondents, the
Secretary of the Department of Homeland Security and the Chicago
Field Office Director of BICE, have moved to dismiss the
petition. For the reasons stated below, the Court grants
The consequences to Ms. Dorgan, her daughter, and her
grandchildren associated with her deportation are harsh. By
operation of 8 U.S.C. § 1182(a)(9)(B), once she has been removed
from the United States, she will be inadmissible to return for
ten years. But this is a consequence of her own actions,
specifically her unlawful entry into the United States and her
decision to stay her following the deportation decision. If Ms.
Dorgan had voluntarily departed the country following the
dismissal of her appeal by the BIA in 1992, the ten year
ineligibility period would have expired by now.
The first issue before the Court is to determine exactly what
the petitioners are asking the Court to review. The Court cannot
properly review the immigration judge's 1986 decision that Ms.
Dorgan was excludable and deportable, or the Board of Immigration
Appeals' 1992 decision to dismiss her appeal from the immigration
judge's order. Under 8 U.S.C. § 1252(g), this Court lacks
jurisdiction to review these decisions. See, e.g., Bhatt v.
Board of Immigration Appeals, 328 F.3d 912, 914 (7th Cir. 2003).
Petitioners cannot avoid this bar by characterizing their request
as a habeas corpus petition. Id.
Ms. Dorgan had been subject to deportation for over twelve
years, and had been arrested and was awaiting removal from this country, when her daughter
filed the pending immediate relative visa petition and the
application to adjust status. It is true that Ms. Dorgan's
removal would effectively end the proceedings on those
applications. But this Court lacks jurisdiction to compel the
government to initiate proceedings that might lead to relief from
the order of removal. Though the Supreme Court held in INS v.
St. Cyr, 533 U.S. 289 (2001), that the changes to the
Immigration and Nationality Act that included § 1252 did not
foreclose all use by aliens of the habeas corpus statute, St.
Cyr "does not disturb the holding of Reno v. American-Arab
Anti-Discrimination Committee, 525 U.S. 471 (1999), that
8 U.S.C. § 1252(g) blocks review in the district court of . . .
decisions to `commence proceedings, adjudicate cases, or execute
removal orders.'" Sharif v. Ashcroft, 280 F.3d 786, 787 (7th
Cir. 2002) (quoting § 1252(g)). A request to stay Ms. Dorgan's
removal arises from the decision to execute the removal order and
is therefore barred by § 1252(g).*fn1
Neither Zadvydas v. Davis, 533 U.S. 688 (2001), nor the
Supreme Court's recent decision in Clark v. Martinez,
___ U.S. ___, 2005 WL 50099 (Jan. 12, 2005), suggest that this Court has
jurisdiction to consider a challenge to Ms. Dorgan's removal from
the United States. In Zadvydas, the Supreme Court acknowledged
that § 1252 eliminates federal court jurisdiction to review
certain types of orders, including decisions to execute removal
orders, but held that this provision did not preclude courts from
considering challenges to the government's authority to detain a
person subject to a removal order after the statutory period for
executing the removal had expired. Zadvydas, 533 U.S. at 688.
Clark v. Martinez followed Zadvydas in this regard and adds nothing to the analysis of habeas corpus jurisdiction.
In this case, the petitioners are not challenging the
government's authority to detain Ms. Dorgan, but rather its
authority to remove her from the country. Zadvydas and Clark
v. Martinez do not confer jurisdiction over such a claim.
Even if the Court had habeas corpus jurisdiction, the
applications that are pending before the immigration authorities
on Ms. Dorgan's behalf are requests for discretionary relief.
Such requests do not give rise to a liberty or property interest
that is constitutionally protected, a prerequisite to habeas
corpus relief on due process grounds. See, e.g., Dave v.
Ashcroft, 363 F.3d 649, 652 (7th Cir. 2004) (a petitioner has no
liberty or property interest in obtaining purely discretionary
relief in immigration proceedings). One could imagine a situation
in which the authorities stalled a seasonable application for
adjustment of status and then obtained a removal order to
effectively moot the request for adjustment. In such a case, a
district court might conceivably retain some residual
jurisdiction to compel a ...