DIXON v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT

The opinion of the court was delivered by: HARVEY BARTLE, III, District Judge

MEMORANDUM

Before the court are two habeas corpus petitions of Earl Dixon pursuant to 28 U.S.C. § 2241.*fn1 Petitioner maintains that he was denied his constitutional right to due process when he was deported to Jamaica in August, 1992, that the crime for which he was convicted was not a deportable offense, and that, having reentered the United States, his continued detention is illegal. Not in his petitions, but in a later brief, he also requests asylum.

Mr. Dixon is a citizen of Jamaica who entered the United States as a legal permanent resident in June, 1981. In September, 1985, he pleaded guilty to a charge of conspiracy to distribute cocaine in violation of 21 U.S.C. § 846. On May 9, 1987, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause and Notice of Hearing, charging that Dixon was deportable under § 241(a)(11) of the Immigration and Nationality Act.*fn2 On July 9, 1987, "upon the basis of [Dixon1s] admissions," an immigration judge determined that Dixon was deportable and ordered his deportation to Jamaica. The immigration judge noted that petitioner had made no application for relief from deportation over which the court had jurisdiction. In the matter of Earl Dixon, File A37458329, United States Department of Justice, Decision of the Immigration Judge (July 9, 1987). Observing that the immigration judge's decision had been based on Dixon's "concessions at the hearing," the Board of Immigration Appeals ("BIA") affirmed the immigration judge's order of deportation. In re Earl Dixon, File No. A37458329, United States Department of Justice, Decision of the BIA (Aug. 16, 1991).

  Dixon was directed to surrender for deportation on July 9, 1992. On August 11, 1992, he filed a "motion to reopen, grant a hearing for relief under 212(c),*fn3 and stay of deportation." He argued that he had become eligible for § 212(c) relief as of July 13, 1991, the date which marked seven consecutive years of lawful permanent residence in the United States. Dixon's motion for a stay of deportation was denied by the BIA on August 14, 1992, and he was deported to Jamaica on August 18, 1992.

  On February 15, 1997, Dixon illegally re-entered the United States. In early 2003, the INS issued a Notice of Intent/Decision to Re-Instate Prior Order. At that time, Dixon, who declined to be advised by an attorney, executed an affidavit in his own handwriting, in which he declared that he had entered the United States in February, 1997 with a "fake passport," that he had been deported in 1992, and that he had never applied to the Attorney General for permission to re-enter the country. On January 2, 2003, the INS reinstated the prior order of deportation. On August 6, 2003, Dixon was taken into custody by the INS, where he presently remains. He filed the first habeas corpus petition on August 19, 2003, and on August 26, 2003, this court entered an order enjoining the United States and all of its departments from deporting Dixon pending a decision on this habeas corpus motion. The second petition for habeas corpus was filed on November 25, 2003. Our review under § 2241 is limited to questions of constitutional and statutory law. Bakhtriqer v. Elwood, 360 F.3d 414, 424 (3d Cir. 2004). Factual findings and discretionary determinations of the BIA are not reviewable under § 2241. Id. at 425.

  Dixon argues that his deportation in 1992 was illegal because he had no opportunity to be heard by an immigration judge and was therefore deprived of due process. However, as is apparent from the record and as reflected by the facts stated above, he did have a hearing before an immigration judge and an opportunity to show cause why he was not deportable.

  Dixon also argues that his conviction was for aiding and abetting in the distribution of a controlled substance, rather than for conspiracy. According to Dixon, he was not convicted of a drug trafficking crime, which is defined under 18 U.S.C. § 924(c)(2) as "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)," and therefore he is not deportable. The record, in contrast, shows that Dixon was in fact convicted of conspiracy to distribute a controlled substance under 21 U.S.C. § 846. This is a drug trafficking crime under 18 U.S.C. § 924(c)(2), for which Dixon was subject to deportation. Furthermore, even if Dixon had been convicted of aiding and abetting rather than conspiracy, he would have been punishable as a principal for a drug trafficking crime under the Controlled Substances Act. See 18 U.S.C. § 2(a); United States v. Williams, 344 F.3d 365, 372 n.3 (3d Cir. 2003). Dixon also argues he should have been afforded consideration for a waiver of deportation under § 212(c) of the Immigration and Nationality Act.*fn4 In order to be eligible for such relief, an alien must demonstrate that he has accrued seven consecutive years of unrelinquished lawful residence in the United States. See Katsis v. INS, 997 F.2d 1067, 1070 (3d Cir. 1993). Once statutory eligibility is established under § 212(c), the Attorney General or his designate is required to make a discretionary determination as to whether to grant a waiver. See Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). However, once a deportation order has become administratively final, that is "generally when the Board renders its decision in the case upon appeal or certification," the alien is statutorily ineligible for relief under § 212(c), and the Attorney General no longer has discretion to waive deportation. Katsis, 997 F.2d at 1072, 1075. See also Tipu, 20 F.3d at 586. "The policies of the [Immigration and Nationality] Act would be best served by deeming the lawful permanent resident status of an alien to end with the entry of a final administrative order of deportation . . ." Katsis, 997 F.2d at 1072.

  Dixon filed his motion to reopen and for a § 212(c) hearing on August 11, 1992. However, as stated above, the BIA affirmed the immigration judge's order of deportation on August 16, 1991. This rendered the order administratively final. See id. Furthermore, the BIA "may deny as a matter of law an alien's motion to reopen deportation proceedings to seek discretionary relief if the alien in question is subject to an administratively final deportation order." Tipu, 20 F.3d at 586. Thus, Dixon was not and is not at this time entitled to consideration for a waiver of deportation under § 212.

  Finally, Dixon argues his present imprisonment is illegal pending his eventual removal because there is "good reason to believe there is no significant likelihood of removal in the reasonably foreseeable future," and that his continued indefinite detention is in violation of due process. See Zadvydas v. Davis, 533 U.S. 678, 701 (2001). "When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered," a ninety-day "removal period" follows, during which the alien is held in custody while the government makes the removal arrangements. Id. at 682. Aliens who have been convicted of certain criminal offenses, including drug trafficking, are removable under 8 U.S.C. § 1227(a)(2)*fn5 and "may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision." 8 U.S.C. § 1231(a)(6). Further detention may not be indefinite, but can be for a "reasonable time" to secure removal. Zadvydas, 533 U.S. at 682. If removal is no longer reasonably necessary, continued detention is no longer authorized. Id. at 699. After a six-month period of detention, "once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing." Id. at 701.

  As previously noted, Dixon was taken into the custody of the INS on August 6, 2003 pursuant to the re-instated deportation order of January 2, 2003, and this court entered an order on August 26, 2003 enjoining Dixon's deportation until further notice, pending the outcome of this habeas corpus action. There is nothing in the record to indicate that once the stay is lifted, Dixon's deportation will not be effected in a timely manner, much less that it will not be effected in the foreseeable future.

  Finally, petitioner has asked this court to grant him asylum. This is a matter that must be directed to the Attorney General. See 8 U.S.C. § 1101(a) (42) (A), 1158(b)(1).

  ORDER

  (3) the order entered on August 26, 2003 enjoining the United States and all of its departments from deporting Earl Dixon from the ...