The opinion of the court was delivered by: Chesney, District Judge.
ORDER DENYING PETITION FOR
A WRIT OF HABEAS CORPUS
This pro se petition for a writ of habeas corpus, brought by a former
detainee of the Immigration and Naturalization Service ("INS") pursuant
to 28 U.S.C. § 2241, challenges an INS removal order against the
petitioner. Following an initial review of the complaint, the court
(Zimmerman, M.J.) found that petitioner stated cognizable claims for
relief, ordered respondent to show cause why the petition should not be
granted, and denied petitioner's motion for a stay of removal under
8 U.S.C. § 1252(f). A subsequent motion for a stay was denied,
respondent's motion to dismiss the petition was denied, and respondent
was again ordered to show cause why the petition should not be granted.
Respondent has filed a response and petitioner has not filed a traverse.
Petitioner, a native of Bulgaria, was admitted to the United States in
October, 1990. On February 23, 1998, she was convicted of petty theft
with a prior and sentenced to two years in prison. Because of this
conviction, the INS initiated removal proceedings in 1999 pursuant to
8 U.S.C. § 1227 (a)(2)(A)(iii), which provides for removal of an
alien who has been convicted of an aggravated felony. An INS Immigration
Judge found petitioner removable on this basis on October 1, 1999. The
Bureau of Immigration Appeals ("BIA") agreed and dismissed her claim. The
BIA also found that because circumstances in Bulgaria had changed, there
was no reasonable likelihood of future torture and her removal was not
barred by the United Nations Convention Against Torture ("UNCAT"). See
8 C.F.R. § 208.16; 208.17; 208.18 (2000). Petitioner's motion for a
stay of removal in this court was denied because petitioner did not show
"by clear and convincing evidence" that her removal was illegal. See
8 U.S.C. § 1252 (f)(2). Petitioner was removed by the INS to Bulgaria
in September, 2000.
This court may entertain a petition for writ of habeas corpus from a
person "in custody in violation of the Constitution or laws or treaties of
the United States." 28 U.S.C. § 2241 (c)(3). The court shall "award
the writ or issue an order directing the respondent to show cause why the
writ should not be granted, unless it appears from the application that
the applicant or person detained is not entitled thereto."
28 U.S.C. § 2243. Summary dismissal is appropriate only where the
allegations in the petition are vague or conclusory, palpably
incredible, or patently frivolous or false. See Hendricks v. Vasquez,
908 F.2d 490, 491 (9th Cir. 1990).
Petitioner's case must be analyzed under the permanent provisions of
the Illegal Immigration Reform and Imigrant Responsibility Act of 1996,
Pub.L. No. 104-238, 110 Stat. 3009-625 (as amended by Act of October 11,
1996, Pub.L. No. 104-302, 110 Stat. 3657) ("IIRIRA") because immigration
proceedings were commenced against her in 1999, after the effective date
of IIRIRA's permanent provisions. See Kalaw v. INS, 133 F.3d 1147,
1149-50 (9th Cir. 1997) (IIRIRA's permanent provisions pertain to removal
proceedings initiated after April 1, 1997).
Respondent contends that the petition should be dismissed for lack of
jurisdiction. Section 1252(a)(2)(C) of Title 8 of the United States Code
provides in part: "Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of removal against an
alien who is removable by reason of having committed a criminal offense
covered in [8 U.S.C. § 1227 (a)(2)(A)(iii) . . .]." This section
governs the jurisdiction of the federal courts of appeal to review BIA
decisions, but it does not abrogate the district court's federal habeas
corpus jurisdiction under 28 U.S.C. § 2241. See Flores-Miramontes v.
I.N.S., 212 F.3d 1133, 1135-36, 1143 (9th Cir. 2000). Because petitioner
was removable "by reason of having committed a criminal offense covered
by 8 U.S.C. § 1227 (a)(2)(A)(iii)", 8 U.S.C. § 1252 (a)(2)(C) may
bar her from filing a petition for direct review in the Court of
Appeals. See id. at 1143 n. 16 (declining to decide whether §
1252(a)(2)(C) precludes the Court of Appeals from exercising jurisdiction
over a claim challenging the merits of an INS denial of relief from
removal). However, that section does not preclude review of the claims in
this court under § 2241.
As explained above, § 2241 provides habeas jurisdiction over
alleged violations of the Constitution or laws or treaties of the United
States. Petitioner's three claims in this petition are: (1) her removal
is prohibited under UNCAT; (2) she received ineffective assistance of
counsel in violation of the Sixth Amendment as to the state court
conviction leading to the "removal order; and (3) her indefinite
detention in county jail pending removal without an individualized bond
hearing deprived her of due process. The second and third claims allege
violations of the federal constitution, and the first claim asserts a
violation of federal law. See U.S. Const. Amends. V, VI;
8 C.F.R. § 208.16 (c); 208.17 (UNCAT adopted into federal law and may
be basis for relief from removal); see also Flores-Miramontes, 212 F.3d
at 1135-36 (holding due process challenge to BIA procedure falls within
district court's habeas jurisdiction). Respondent asserts that there is
federal habeas jurisdiction under § 2241 only over ...