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Al-Bareh v. CHERTOFF

May 7, 2008

LOUI HASHIM AL-BAREH, PLAINTIFF,
v.
MICHAEL CHERTOFF, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Petitioner Loui Hashim Al-Bareh's ("AlBareh") petition for a writ of habeas corpus. For the reasons stated below, we deny the petition.

BACKGROUND

Al-Bareh came to the United States from Iraq after allegedly participating in a revolt against the Saddam Hussein regime. Al-Bareh obtained refugee status and became a Lawful Permanent Resident of the United States in 2000. After allegedly spending some time working for a military contractor and serving as an interpreter for the U.S. Army in Iraq, Al-Bareh was convicted of wire fraud for his role in a welfare fraud scheme. Al-Bareh's conviction was for an aggravated felony which subjected Al-Bareh to apprehension, mandatory detention, and placement in removal proceedings. Al-Bareh alleges that he was detained as of June 1, 2007. During his removal proceedings before an Immigration Judge ("IJ"), Al-Bareh applied for the relief of Restriction of Removal (also known as "Withholding of Removal") and for the relief of protection under the Convention Against Torture, contending that he would be persecuted or tortured if he was removed to Iraq. A hearing was held before the IJ on August 16, 2007, on the issue of Al-Bareh's deportability and relating to Al-Bareh's request for relief.

On January 25, 2008, Al-Bareh filed the instant habeas petition. On February 13, 2008, the IJ issued a written decision terminating Al-Bareh's Lawful Permanent Resident status, ordering Al-Bareh removed as an aggravated felon, and granting AlBareh's request for the relief of Withholding of Removal as to the country of Iraq based on the fact that Al-Bareh would face persecution if he returned to Iraq. After the IJ issued the decision, neither Al-Bareh nor the Government filed an appeal within the 30-day period allowed for the filing of an appeal. Since then, the Government has continued to detain Al-Bareh while making efforts to remove AlBareh to a country other than Iraq.

The instant petition alleges unlawful detention of Al-Bareh by the Government and asks the court to: (1) grant his petition for a writ of habeas corpus and order the Government to show cause why Al-Bareh is being detained in violation of the laws and Constitution of the United States, (2) find that the continued detention of AlBareh violates the laws and Constitution of the United States, (3) order the Government to release Al-Bareh from custody, (4) order the Government to conduct a bond hearing, (5) grant declaratory and injunctive relief, and (6) grant any other relief necessary.

Even though the IJ issued an opinion granting Al-Bareh's request for Withholding of Removal subsequent to the filing of the instant petition for habeas corpus, Al-Bareh has persisted with the instant petition.

LEGAL ANALYSIS

The Immigration and Nationality Act ("INA") is found in Chapter 8 of the United States Code. Pursuant to 8 U.S.C. § 1226(a), an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. An alien who is convicted of an aggravated felony is considered to be a "deportable alien" and "shall, upon the order of the Attorney General, be removed. . . ." 8 U.S.C. § 1227(a); 8 U.S.C. § 1227(a)(2)(A)(iii). Under 8 U.S.C. § 1226(c)(1)(B), the Attorney General shall take into custody and detain certain deportable criminal aliens, including aliens who have been convicted of an aggravated felony as provided in 8 U.S.C. § 1227(a)(2)(A)(iii). 8 U.S.C. § 1226(c)(1)(B). Generally, a deportable alien is entitled to removal proceedings conducted by an immigration judge who must decide whether or not the alien will be removed from the United States and whether or not the alien is entitled to any form of relief. 8 U.S.C. 1229a(a)(1). An alien who is deportable can file for various forms of relief including an application for Restriction of Removal ("Withholding of Removal") and Protection under the Convention Against Torture. 8 U.S.C. § 1231(b)(3). An alien is entitled to Withholding of Removal to a specific country if the immigration judge finds that the alien's "life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). A grant of Withholding of Removal relief does not nullify a final order of removal. If an alien is granted the relief of Withholding of Removal, it is country-specific, which means that the Government cannot deport the alien to that specific country. However, the Government can deport the alien to any one of the following countries:

(1) "[t]he country from which the alien was admitted to the United States,"

(2) "[t]he country in which is located the foreign port from which the alien left for the United States or for a foreign territory contiguous to the United States,"

(3) a "country in which the alien resided before the alien entered the country from which the alien entered the United States,"

(4) "[t]he country in which the alien was born,"

(5) "[t]he country that had sovereignty over the alien's birthplace when ...


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