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KOURTEVA v. I.N.S.

March 27, 2001

VESSILKA KOURTEVA, PETITIONER,
V.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



The opinion of the court was delivered by: Chesney, District Judge.

  ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS

INTRODUCTION

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 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.

DISCUSSION

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.

DISCUSSION

A. Standard of Review

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 Immigrant 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).

B. Legal Analysis

1. Jurisdiction

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 appeals 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 ...


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