The opinion of the court was delivered by: A. CAPUTO, District Judge
Presently before the Court is Petitioner Donovan Forbe's Motion
Requesting Emergency Stay of Removal and Judgment on the Grounds
of Default (Doc. 1), which the Court construes as a petition for
writ of habeas corpus and a motion for emergency stay of removal.
Because Petitioner has failed to demonstrate any constitutional
or other legal error and has failed to exhaust his administrative
remedies with respect to his claim of derivative citizenship, I
will deny both the petition and the motion for stay of removal.
Petitioner asserts the following: On March 4, 2005, Petitioner
was ordered removed from the United States by an Immigration
Judge ("IJ") for a conviction of Criminal Possession of a
Controlled Substance and Conspiracy to Distribute in the state of
North Carolina. Petitioner submitted an appeal to the Board of
Immigration Appeals ("BIA") and filed a supporting brief on July
28, 2005. The U.S. Government or Bureau of Immigration and
Customs Enforcement ("ICE") failed to submit a reply brief. On September 12, 2005, the BIA rendered a decision on the merits of
Petitioner's appeal and pursuant to 8 C.F.R. § 1003.1(e)(4),
affirmed the IJ's decision without opinion. Petitioner contends
that ICE and the U.S. Government's failure to submit a brief in
response to Petitioner's appeal constituted default, such that he
was entitled to a judgment in his favor. Lastly, in addition to
the present petition, Petitioner is submitting a writ of habeas
corpus addressing his underlying conviction in the Middle
District of North Carolina.
The Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA") precludes judicial review of criminal alien
removal. 8 U.S.C. § 1252 (2005). However, the Supreme Court has
ruled that district courts have jurisdiction under
28 U.S.C. § 2241 to consider habeas petitions challenging such removal.
Chmakov v. Blackman, 266 F.3d 210, 213 (3d Cir. 2001) (citing
Zadvydas v. Davis, 533 U.S. 678, 688 (2001)); INS v. St.
Cyr., 533 U.S. 289, 314 (2001). The scope of review of such
claims, however, is limited to constitutional issues and errors
of law. Auguste v. Ridge, 395 F.3d 123, 138 (3d Cir. 2005).
Factual determinations rendered at the administrative level and
denials of discretionary relief fall outside the Court's scope of
review. Id.; Bakhtriger v. Elwood, 360 F.3d 414, 425 (3d Cir.
2004). In the instant matter, Petitioner has failed to
demonstrate any constitutional or other legal error.
Liberally construing the petition, Petitioner attempts to
allege a violation of his due process rights. Aliens are entitled
to due process of law in removal proceedings pursuant to the
Fifth Amendment. Reno v. Flores, 507 U.S. 292, 305 (1993).
However, to prevail on a due process claim, the petitioner must demonstrate that his
rights were violated by defects in the underlying removal
proceeding, and he suffered prejudice as a result of the defects.
United States v. Ayeni, 66 F. Supp. 2d 617, 621 (M.D. Pa. 1999)
(citing United States v. Zarate-Martinez, 133 F.3d 1194, 1197
(9th Cir. 1998)). To demonstrate prejudice, the Petitioner must
offer "plausible grounds of relief which might have been
available to him but for the deprivation of rights."
Zarate-Martinez, 133 F.3d at 1198. In the present case, the
only defect alleged by Petitioner is that the opposition to his
appeal failed to submit a reply brief. Petitioner was afforded
the opportunity to submit his appeal and a brief in support,
followed by an evaluation of that appeal on the merits by the
BIA. From these facts, it is clear that the failure of the U.S.
Government or ICE to submit a brief in opposition of Plaintiff's
appeal did not prejudice the Plaintiff. As such, Plaintiff has
failed to demonstrate a violation of his due process rights or
any other constitutional or legal error.
Lastly, the Court notes that Petitioner states briefly in his
petition that he has a derivative U.S. citizenship claim. "Prior
to presenting a claim for derivative citizenship in this forum,
Petitioner must present his claim to the Department of Homeland
Security ("DHS")". 8 CFR § 322.5; McKenzie v. INS, No. 04-1001,
2004 U.S. Dist. LEXIS 26237, at *17 (E.D. Pa. December 30, 2004).
If Petitioner's claim of derivative citizenship is denied after
he has fully exhausted his administrative remedies, he may then
seek judicial review of his claim in federal court. Henriquez v.
Ashcroft, 269 F. Supp. 2d 106, 108 (E.D.N.Y. 2003). Since
Petitioner has failed to exhaust his administrative remedies with
respect to his claim of derivative citizenship, this Court lacks
jurisdiction to review such a claim in a petition for habeas corpus relief. Duvall v.
Elwood, 336 F.3d 228, 232 (3d Cir. 2003).
Petitioner has failed to demonstrate a violation of his due
process rights or any other constitutional or legal error.
Petitioner must also exhaust his administrative remedies with
respect to a claim of derivative citizenship before the Court can
exercise jurisdiction to review such a claim in a petition for
habeas corpus relief. Therefore, the Court with deny the petition
for writ of habeas corpus and Petitioner's motion for emergency
stay of removal will also be denied.
An appropriate order follows. ORDER
NOW, this 3rd day of October, 2005, IT IS HEREBY ORDERED
(1) Petitioner's motion for emergency stay of removal
(2) Petitioner Donovan Forbe's petition for writ of
habeas corpus is DENIED.
(3) The Clerk of the ...