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JACQUES v. RENO

October 29, 1999

CHARLES MICHEL JACQUES, PETITIONER,
v.
JANET RENO, U.S. ATTORNEY GENERAL; DORIS MEISSNER, INS COMMISSIONER; AND SCOTT BLACKMAN, DISTRICT DIRECTOR, RESPONDENTS.



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

MEMORANDUM

BACKGROUND:

Once again, we are asked to address the question of whether U.S. district courts have jurisdiction over habeas corpus petitions related to detention of aliens during deportation proceedings. We have addressed this question previously. Edwards v. Blackman ["Edwards I"], 48 F. Supp.2d 477 (M.D.Pa. 1999) (finding that district court lacked jurisdiction under 28 U.S.C. § 2241 to review decision of INS to deny release on bond pending deportation proceedings); Edwards v. Blackman ["Edwards II"], 56 F. Supp.2d 508 (M.D.Pa. 1999) (denying motion for reconsideration). We adhere to our previously expressed view, and will examine the question in detail to address the numerous opinions which have been expressed to the contrary.

On July 19, 1999, petitioner Charles Michel Jacques, an INS detainee being held at the Snyder County Prison, Selinsgrove, Pennsylvania, commenced this action with the filing of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. According to the petition, Jacques is a native of Haiti who has resided in the United States since September 6, 1984; he became a lawful permanent resident on December 1, 1989.

On September 12, 1997, Jacques was convicted in the United States District Court for the Eastern District of Michigan of possession with intent to distribute cocaine, and sentenced to a period of incarceration of 36 months. As a result of the controlled substance conviction, the INS has determined that Jacques is deportable under 8 U.S.C. § 1227(a)(2)(B)(i), despite a plea agreement whereby the government recommended that Jacques not be deported.

An immigration judge determined that the conviction was for a particularly serious crime that barred Jacques from withholding of removal under 8 U.S.C. § 1231(b)(3)(B)(ii). On February 17, 1999, the immigration judge ordered Jacques deported to Haiti.

On appeal, the Board of Immigration Appeals (BIA) reversed, concluding that the record did not support a finding that Jacques had been convicted of a particularly serious crime. On July 9, 1999, the BIA remanded to the immigration judge so that Jacques could apply for withholding of removal.

During the proceedings before the immigration judge and the BIA, Jacques has been detained. He filed the instant petition shortly after remand by the BIA alleging that he was being held indefinitely, in violation of his substantive due process rights. Jacques is proceeding pro se. According to Jacques' objections to the report and recommendation, the immigration judge has denied his application for withholding of removal and entered an order of deportation.

Before the court is the report and recommendation of U.S. Magistrate Judge J. Andrew Smyser, which recommends that the petition be dismissed for failure to exhaust administrative remedies. In so recommending, Magistrate Judge Smyser specifically concluded that the court has jurisdiction, despite the recent amendments to the Immigration and Nationality Act.

DISCUSSION:

I. STANDARD

A district court is required to review de novo those portions of a magistrate judge's report to which objections are made. Commonwealth of Penna. v. United States, 581 F. Supp. 1238, 1239 (M.D.Pa. 1984); 28 U.S.C. § 636(b)(1). When no objections are filed to the report of a magistrate judge, a court has discretion to review that report as it deems appropriate. A magistrate judge's finding or ruling on a motion or issue properly becomes the holding of the court unless objections are filed. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). However, the district court may not grant a motion for summary judgment, Fed.R.Civ.P. 56, or a motion to dismiss under Fed.R.Civ.P. 12(b)(6) solely because the motion is unopposed; such motions are subject to review for merit. Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991); Anchorage Associates v. Virgin Islands Board of Tax Review, 922 F.2d 168, 174 (3d Cir. 1990).

Jacques has filed objections to the report and recommendation which relate to the failure to exhaust administrative remedies. Because we find that we lack jurisdiction, we do not address the objections. They will, however, be overruled as moot.

II. STATUTES AT ISSUE

The government argued before the magistrate judge that the court lacks jurisdiction to hear the petition. The relevant statutory provisions read:

(c) Detention of criminal aliens

(1) Custody

      The Attorney General shall take into custody any
    alien who —
      (A) is inadmissible by reason of having
      committed any offense covered in section
      1182(a)(2) of this title,
      (B) is deportable by reason of having committed
      any offense covered in section 1227(a)(2)(A)(ii),
      (A)(iii), (B), (C), or (D) of this title,
      (C) is deportable under section
      1227(a)(2)(A)(i) of this title on the basis of an
      offense for which the alien has been sentence[d]
      to a ...

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