The opinion of the court was delivered by: McCLURE, District Judge.
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
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.
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.
(c) Detention of criminal aliens
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 ...