United States District Court, E.D. Pennsylvania
February 20, 2004.
JOHN ASHCROFT, et al
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.
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
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. ¶
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
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
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
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).
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 review of the IJ's failure to advise because most aliens would
not even know that the Act provided them such opportunities absent an
IJ's advice. Thus, we have jurisdiction to consider Bonhometre's
B. Eligibility for Relief
Bonhometre claims that the IJ should have advised him that he could
apply for relief under § 212(c), § 212(h) and the Convention,
but the Government claims that he was not entitled to any of this relief.
If it is clear that an alien is not eligible for relief under the Act,
then due process does not require an IJ to advise the alien that he might
apply for it. Thus, we must consider whether Bonhometre would have been
eligible for the relief he claims the IJ wrongly failed to advise him
1. Section 212(c)
Until 1996, Section 212(c) of the Act provided that:
Aliens lawfully admitted for permanent residence
who temporarily proceeded abroad voluntarily and
not under an order of deportation, and who are
returning to a lawful unrelinquished domicile of
seven consecutive years, may be admitted in the
discretion of the Attorney General. . . . The
first sentence of this subsection shall not apply
to an alien who has been convicted of one or more
aggravated felonies and has served for such felony
or felonies a term of imprisonment of at least 5
8 U.S.C. § 1182 (c) (1994) (repealed 1996). Although this
language does not appear to apply to aliens who have never left the
country, the BIA and the Courts of Appeals have concluded that "this
discretionary relief may be extended to deportable aliens who have not
exited the United States." Katsis v. INS, 997 F.2d 1067
(3d Cir. 1993).
When Bonhometre pled guilty, a removable alien was eligible for §
212(c) relief if he (1) was "lawfully admitted for permanent residence";
and (2) had established a "lawful unrelinquished domicile of seven
consecutive years." Cf. Morel v. INS, 90 F.3d 833 (3d Cir.
1996) (construing domicile requirement). Defendants argue that Bonhometre
has failed to meet either of these eligibility criteria. Because
Bonhometre was a lawful temporary resident, not a lawful
permanent resident, see supra note 1, we find that he was not
eligible for § 212(c) relief in 1995 without deciding whether he also
failed to establish a "lawful" domicile for seven consecutive
2. Section 212(h)
As codified in 1995, § 212(h) of the Act gave the Attorney General
discretion to waive an alien's removability if the alien (1) was a
spouse, parent, or child of a United States citizen and (2) could
demonstrate that removal would cause extreme hardship to the citizen.
See 8 U.S.C. § 1182(h)(1)(B) (1994).*fn14 Because
Bonhometre's common-law wife and three
children are all United States citizens, we presume that there was
at least a reasonable possibility that Bonhometre would have been
eligible for § 212(h) relief under the statutory scheme that existed
at the time of his guilty plea.
IIRIRA changed that scheme by forbidding the Attorney General from
granting § 212(h) waivers to aliens who had been convicted of
aggravated felonies. See IIRIRA, § 348(a), 110 Stat. at
3009-639 (1996). Bonhometre has never disputed that the crimes to which
he pled guilty were aggravated felonies, so IIRIRA would make him
ineligible for § 212(h) relief if it applied retroactively to him.
Although St. Cyr discussed the retroactive repeal of §
212(c), its reasoning applies with equal force to § 212(h). The
elimination of any possibility of a § 212(h) waiver has an obvious
and severe retroactive effect on aliens who pled guilty to aggravated
felonies before IIRIRA's enactment and who would have been eligible for
such a waiver at the time of their pleas. We decline to interpret IIRIRA
as denying those aliens access to relief under § 212(h). Thus, there
remained at least a reasonable possibility that Bonhometre was eligible
for § 212(h) relief at his removal hearing.
3. Convention Against Torture
When an alien applies for the withholding of removal under the
Convention Against Torture, an IJ must first determine whether the alien
is "more likely than not to be tortured in the country of removal."
8 C.F.R. § 1208.16(c)(4)(2004); see also
8 C.F.R. § 1208.18(a) (2004) (defining "torture"). If the IJ finds that the
alien is likely to be tortured in the country of removal, then the alien is
entitled to protection under the Convention.
The form of protection available to the alien depends upon whether the
alien is subject to mandatory denial of withholding. In this case,
Bonhometre would be subject to mandatory denial of withholding only if
he "f[ell] within section 241(b)(3)(B) of the Act"
8 C.F.R. § 1208.16(d)(2) (2004). Under that section, an alien who has been
"convicted by a final judgment of a particularly serious crime" is
subject to mandatory denial of withholding.
8 U.S.C. § 1231(b)(3)(B)(ii)(2004).*fn15
Thus, if Bonhometre was convicted of a "particularly serious
crime", he would be subject to a mandatory denial of withholding of
removal, and the only protection to which the Convention would entitle
him would be a deferral of removal. 8 C.F.R. § 1208.16(c)(4)(2004);
see also 8 C.F.R. § 1208.17(2004)(explaining that an alien
whose removal has been deferred is subject to detention until termination
of deferral and subsequent removal). On the other hand, federal
regulations would require an Immigration Judge to withhold removal if
Bonhometre was not convicted of a particularly serious crime.
8 C.F.R. § 1208.16(d)(1)(2004).
For purposes of this case, the most remarkable feature of this
administrative procedure is that none of it existed at the time of
Bonhometre's removal hearing. Although the Convention's requirements
have bound the United States since November 20, 1994, the EOIR did not
implement the administrative procedures that we have just reviewed until
March 22, 1998. See supra note 10. During the intervening three
and one-half years a period that includes Bonhometre's September
17, 1997 removal hearing the INS used a "pre-regulatory
administrative process" to assess "whether removing an alien to a
particular country [was] consistent with Article 3 [of the Convention]."
See Regulations Concerning the Convention Against Torture, 64
Reg. 8478, 8479 (Feb. 19, 1999). The informality of that system
makes judicial review especially difficult, but the EOIR cannot now use
its failure to articulate transparent standards to argue that Bonhometre
would not have been eligible for relief. We presume, therefore, that
there is at least a reasonable possibility that, at his removal hearing,
Bonhometre would have been eligible for some form of relief from removal
under the Convention.*fn16
C. Constitutional Claims
Because there was a reasonable possibility that Bonhometre was entitled
to a § 212(h) waiver and to protection from removal under the
Convention, we must decide whether the EOIR denied him due process when
it failed to advise him of these possibilities for relief. Our Court of
Appeals has not addressed this issue, and the other Courts of Appeals
have not yet reached a consensus. Compare United States v.
Muro-Inclan, 249 F.3d 1180, 1184 (9th Cir. 2001) ("[W]hen the record
before the Immigration Judge `raises a reasonable possibility' of relief
from deportation under [§ 212(h)], it is a denial of due process to
fail to inform an alien of that possibility at the deportation
hearing.") with United States v. Aguirre-Tello,
353 F.3d 1199, 1205 (10th Cir. 2004) (en banc) ("[T]he IJ's failure to
specifically advise [the alien] that he could be eligible for §
212(c) relief . . . was not a constitutional violation."); United
States v. Lopez-Ortiz, 313 F.3d 225, 231 (5th Cir. 2002) ("[T]he
Immigration Judge's error in failing to explain [alien's] eligibility
[for § 212(c) relief] does not rise to the level of fundamental
unfairness."), cert. denied, 537 U.S. 1135 (2003). Given the
absence of binding precedent and the conflicting guidance from other
Circuits, we must blaze our own trail.
To determine whether due process requires Us to advise aliens of the
opportunity to request relief, we balance (1) the alien's interest; (2)
the risk that, unless he receives the advice, the alien will suffer an
erroneous deprivation of his interest; (3) the probable value, if any, of
the advice; and (4) the Government's interest, including the fiscal and
administrative burdens that giving the advice would entail. Mathews
v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 (1976).
Bonhometre has a weighty interest in being advised of all opportunities
for relief from a removal order because his interest in remaining in the
United States is very strong. For more than two decades, he has enjoyed
this country's relative peace and prosperity while political turmoil has
repeatedly disrupted his homeland, as this month's newspapers have most
recently documented. See, e.g., Christopher Marquis & Lydia
Polgreen, U.S. to Mediate in Haiti Crisis; Urges Americans
N.Y. Times, Feb. 20, 2004, at A6. He has entered a common-law
marriage with a United States citizen, and his three United States
citizen children are strangers to the land of his birth. If Bonhometre is
removed to Haiti, he will face not only the threats to his personal and
financial security that return will entail, but also an infinitely more
painful estrangement from his family. We cannot overstate his interest in
exploring all possibilities for avoiding this fate.
The second factor that we must consider is the risk that, unless an IJ
advises him of the opportunities for relief from removal, Bonhometre will
suffer an erroneous deprivation. In this context, we understand "error"
to be a case where an alien does not apply for relief but the Attorney
General would have granted relief if the alien had applied for it.
Because his children are United States citizens, Bonhometre is among the
class of aliens who are eligible for a § 212(h) waiver. See
8 U.S.C. § 1182(h)(1)(B) (1994). Still, no one can know the extent to
which the IJ's failure to advise Bonhometre about the possibility of
§ 212(h) relief increased the risk of error here because the Attorney
General retains complete discretion to grant or withhold such relief.
8 U.S.C. § 1182(h) (1994) (recognizing that Attorney General "may, in
his discretion," grant relief under § 212(h)). We can, however, be
certain that the IJ's failure to inform Bonhometre that the Convention
might shield him from removal increased the risk of error because
throughout the time that it acted through its "pre-regulatory
process" the INS consistently "used its . . .
discretionary authority to ensure that [an alien likely to be tortured
was] not removed." See Regulations Concerning the Convention
Against Torture, 64 Fed. Reg. 8478, 8479 (Feb. 19, 1999).
When there is a reasonable possibility that an alien would be entitled
to relief under § 212(h) or the Convention, the probable value of
requiring an IJ to advise him of that opportunity depends on how likely
he would be to apply for relief without the IJ's advice. With its
ever-changing maze of regulations, statutes, EOIR decisions, and judicial
opinions, the dizzying complexity of immigration law demands the skill of
an experienced lawyer. Because so few aliens are likely to possess such
thorough knowledge of the laws of a nation of which they are not
citizens, many eligible aliens risk failing to apply for relief from
removal.*fn17 There is, therefore, immeasurable value in requiring the
specialized corps of Us to ensure that the rights of acutely vulnerable
people are not so easily lost.
Finally, we reach the Government's interest in not advising removable
aliens of opportunities for relief under § 212(h) or the Convention.
An IJ could disclose these possibilities with minimal effort, and so
requiring her or him to
do so would not significantly burden the Government's interest in
administrative efficiency. Indeed, EOIR implicitly concedes this point by
requiring Us, in similar proceedings, to "inform the alien of his or her
apparent eligibility to apply for any . . . benefits."
8 C.F.R. § 1240.11(a)(2)(2004).
Based upon our weighing of the Eldridge factors, we hold that
the EOIR violated Bonhometre's due process rights when in a case
where there was a reasonable possibility that he was eligible for relief
under § 212(h) and the Convention it failed to advise him
that he could apply for such relief. See United States v.
Muro-Inclan, 249 F.3d 1180 (9th Cir. 2001).
We have jurisdiction over Bonhometre's "collateral" challenge to a
final order of removal. At the time of the removal hearing, there was a
reasonable possibility that Bonhometre was eligible for relief from
removal under § 212(h) and the Convention Against Torture, but the IJ
did not advise him of those opportunities for relief. This failure to
advise deprived Bonhometre of his Fifth Amendment right to due process.
Thus, we shall vacate the removal order and remand this case to the EOIR
for further proceedings.*fn18
AND NOW, this 20th day of February, 2004, upon review of
petitioner's amended petition for a writ of habeas corpus (docket
entry #9) and defendants' response thereto, and in accordance with the
accompanying Memorandum, it is hereby ORDERED that:
1. Bonhometre's amended petition for a writ of habeas corpus is
2. Immigration Judge William Joyce's Order of September 17, 1997 in
Case A91-436-391 is VACATED;
3. This matter is REMANDED to the Executive Office of Immigration
Review for a new removal hearing consistent with our Memorandum; and
4. The Clerk shall CLOSE this civil action statistically.