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February 20, 2004.


The opinion of the court was delivered by: STEWART DALZELL, District Judge


After learning that he had been convicted of armed robbery, the Immigration and Naturalization Service ("INS") began removal proceedings against Frebert Bonhometre, a Haitian citizen and alien lawfully admitted for temporary residence. An Immigration Judge ("IJ") found Bonhometre removable, but the IJ did not advise Bonhometre that he could apply for relief from the removal order. Bonhometre here challenges that failure to advise as a denial of his Fifth Amendment due process rights.

Factual Background

  Frebert Bonhometre is a citizen of Haiti, but he has resided in the United States since the early 1980s. Am. Pet. ¶ 8. His common-law wife is a United States citizen, and he has three children who are United States citizens. Am. Pet. ¶ 23. On September 15, 1989, Bonhometre obtained the status of an alien lawfully admitted for temporary residence. Defs.' Mem. Opp'n Page 2 Pet. ("Def. Mem.") at 10-11 & n.3, Ex. 1.*fn1

  In December of 1994, Bonhometre was involved in an incident that ultimately resulted in his pleading guilty to armed robbery,*fn2 assault and battery,*fn3 and assault by means of a dangerous weapon*fn4 in a Massachusetts state court. See Am. Pet. ¶ Page 3 9; Def. Mem. Ex. 2. Bonhometre received a sentence of not more than three years imprisonment, and he served two years before he was released to INS custody in July, 1997. Def. Mem. Ex. 2; Pet. ¶ 11; Am. Pet. ¶ 9. About the time of his release, the INS notified Bonhometre that it would commence removal proceedings against him because he had been convicted of an aggravated felony.*fn5 See Def. Mem. Ex. 1.

  A removal hearing convened on August 18, 1997, but the IJ continued the hearing for one month so that Bonhometre, who was not represented by counsel, would have time to retain an attorney. See Def. Mem. Ex. 3 at 1-5. On September 17, 1997, the removal hearing resumed, and Joseph S. Callahan, Esq. appeared on Bonhometre's behalf. The hearing began unsteadily when Callahan explained to the IJ that he intended "to plead [Bonhometre]." Id. at 6. Justifiably confused by such a reference in a civil proceeding, the IJ inquired as to what Callahan intended and — after Callahan stammered as he struggled to explain himself — suggested that he might have meant that he hoped to "file . . . pleadings." Id. The IJ then asked whether Bonhometre denied removability and, upon learning that Callahan planned to contest removability, asked the legal basis for that Page 4 position. To such an innocuous question, Callahan responded simply, "We'll take your ruling on it, Your Honor." Id. Perhaps unsurprisingly, the IJ found that Bonhometre was removable, see id., and ordered that he be removed to Haiti, Def. Mem. Ex. 4. The IJ did not advise Bonhometre that, although he was removable, he might request relief from removal under several of the Act's provisions.

  Bonhometre appealed the IJ's removal order to the Board of Immigration Appeals ("BIA"), but the BIA dismissed his pro se appeal on March 12, 1998. Def. Mem. Ex. 5. Despite the removal order, the INS released Bonhometre in October, 2000. Pet. ¶ 11. When Bonhometre attempted to renew a work permit in May, 2003, agents from the Bureau of Immigration and Customs Enforcement ("BICE")*fn6 took him into custody. Def. Mem. at 5.

  Without the assistance of counsel, Bonhometre petitioned this Court for a writ of habeas corpus. We appointed counsel for him and directed counsel to submit an amended petition for a writ of habeas corpus. In the amended petition, Bonhometre argues that the Executive Office of Immigration Review ("EOIR")*fn7 violated his Fifth Amendment due process rights by failing to advise him that he had the opportunity to request Page 5 relief from the removal order under Section 212(c) of the Act,*fn8 Section 212(h) of the Act,*fn9 and the Convention Against Torture (the "Convention").*fn10 Without addressing the merits of Bonhometre's claim, defendants argue that we lack jurisdiction over his habeas petition and that he was not eligible for relief from removal. We address each of these contentions before reaching the constitutional issue. Page 6


  A. Jurisdiction

  District courts have long had jurisdiction over habeas corpus petitions pursuant to 28 U.S.C. § 2241 (2004). Despite the restrictions that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA")*fn11 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")*fn12 have recently imposed on aliens' access to the federal courts, the Supreme Court has held that neither statute repealed habeas jurisdiction under § 2241. See INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 2287 (2001). Still, Section 242 of the Act allows for judicial review of a final removal order only if "the alien has exhausted all administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d)(1). Thus, our Court of Appeals has explained that a district court generally will not have jurisdiction over an alien's § 2241 petition unless the alien already has explored all avenues for administrative relief. See Duvall v. Elwood, 336 F.3d 228, 231 n.5 (3d Cir. 2003) ("[T]he requisites of § 1252(d)(1) do indeed apply to petitions for habeas corpus. . . .").

  When an alien fails to raise a claim with the EOIR, he has not exhausted his administrative remedies with respect to that claim. See Allevne v. INS, 879 F.2d 1177, 1182 (3d Cir. 1989); Cisternas-Estav v. INS, 531 F.2d 155, 160 (3d Cir. 1976). Page 7 Here, Bonhometre never requested that the IJ or the BIA grant him relief under § 212(c), § 212(h), or the Convention, and he never suggested in any proceeding before the EOIR that their failure to advise him of such relief amounted to a denial of due process. We find, therefore, that Bonhometre failed to exhaust his administrative remedies for the constitutional violations alleged in his habeas petition.

  Still, the Supreme Court has recognized a limited exception to the general exhaustion requirement. Even if an alien fails to exhaust administrative remedies, we may exercise jurisdiction "over claims considered `wholly collateral' to a statute's review provisions and outside the agency's expertise, particularly where a finding of preclusion could foreclose all meaningful judicial review." Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212-213, 114 S.Ct. 771, 779 (1994) (citations and internal quotations omitted). Bonhometre's constitutional claims are "wholly collateral" to the Act's review provisions, and the EOIR has no expertise in discerning the outer limits of the Fifth Amendment's protections. Moreover, requiring aliens to challenge administratively an IJ's failure to advise them of their opportunities for relief would effectively foreclose all meaningful judicial ...

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