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Grigorian v. Morton

September 7, 2010

VARDAN GRIGORIAN, PETITIONER
v.
JOHN MORTON, ASSISTANT SECRETARY, IMMIGRATION AND CUSTOMS ENFORCEMENT; ERIC HOLDER, UNITED STATES ATTORNEY GENERAL; JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY; CRAIG A. LOWE, WARDEN, PIKE COUNTY CORRECTIONAL FACILITY, RESPONDENTS



The opinion of the court was delivered by: Judge Munley

MEMORANDUM

Before the court is the instant petition for a writ of habeas corpus. The government has responded to the petition with a motion to dismiss and the parties have briefed the issue, leaving the matter ripe for disposition.

Discussion

Petitioner Vardan Grigorian entered the United States on or about December 12, 1996 (Petition (Doc. 1) at 5). On July 7, 2003, Grigorian was placed in removal proceedings via a notice to appear. (Id.). Petitioner filed an application for asylum on September 24, 2003, contending that his removal should be withheld pursuant to the United Nation's Convention Against Torture. (Id.). An Immigration Judge denied this application on April 14, 2004. (Id.). Petitioner appealed this decision to the Board of Immigration Appeals (BIA) on April 29, 2004. (Id.). The BIA dismissed this appeal on June 28, 2005.

The heart of petitioner's claim is based on the events that followed this BIA decision. He contends he received a letter from his then-attorney, Mr. Nalbandian, informing him that the BIA had denied his appeal and relating that he must file an appeal in the Ninth Circuit Court of Appeals within thirty days. (Id. at 5-6). Doubting Nalbandian's credibility, petitioner sought a second opinion. (Id. a 6). Yefim M. Shlionsky, who, despite only recently completing law school, assured petitioner that he was competent to assist him, advised Grigorian that he should file a motion for reconsideration with the BIA rather than appealing. (Id.). Shlionsky did not inform petitioner that failing to file the appeal would foreclose him from later appealing to the Circuit Court. (Id.). Petitioner had Shlionsky file the motion for reconsideration, and he alleges that he thereby lost his ability to appeal the case beyond the BIA. (Id.). Grigorian thus claims that Shlionsky's advice cost him the ability to appeal his case. (Id.). He relates that he has petitioned the BIA to reopen his case, alleging that Shlionsky's conduct constituted ineffective assistance of counsel. (Id.). Petitioner's motion to reopen and request for a stay with the BIA are currently pending.

At the same time, the Armenian Consulate has informed petitioner that the Bureau of Immigration and Customs Enforcement (ICE) has requested Armenia to re-issue a travel document. (Id. at 6-7). Petitioner predicted that this travel document will be issued for his deportation on July 16, 2010. (Id. at 7).

Grigorian filed the instant petition on July 13, 2010 in the United States District Court for the Eastern District of Pennsylvania, along with motions for an emergency hearing and for an order to show cause. (Docs. 2-3). The Hon. Judge Thomas N. O'Neill, Jr. was assigned to the case, and he scheduled a hearing for July 27, 2010. (Doc. 4). The parties then filed briefs stating their respective positions, with the government additionally filing a motion to dismiss. The defendants argued in part that the case should be dismissed due to lack of subject matter jurisdiction or in the alternative transferred to the Middle District of Pennsylvania, where petitioner was held pending deportation. (See Docs. 5-6). Before conducting the hearing, however, the court issued a memorandum and order that declined to rule on the issue of jurisdiction and instead transferred the case to this court. (See Doc. 8). The case was then assigned to the instant judge, bringing the matter to its present posture.

Jurisdiction

Petitioner brings this action pursuant to 28 U.S.C. § 1343 and 28 U.S.C. § 2241. As such, the court has jurisdiction pursuant to 28 U.S.C. § 1331. ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.").

Legal Standard

The government argues that the court lacks subject-matter jurisdiction and should not hear the case. Federal courts are courts of limited jurisdiction, and thus have a continuing duty to satisfy themselves of jurisdiction before addressing the merits of a case. Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993) cert denied sub nom Upp v. Mellon Bank N.A., 510 U.S. 964 (1993). In fact, it is to be presumed that a cause lies outside this limited jurisdiction and the burden of establishing the contrary rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Moreover, federal courts have the obligation to address the question of subject matter jurisdiction sua sponte. Meritcare Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 217 (3d Cir. 1999); see generally Nelson v. Keefer, 451 F.2d 289, 293-95 (3d Cir. 1971) (finding that the federal judiciary has been too cautious in addressing the large number of cases which do not belong in federal courts).

Discussion

The question here is whether petitioner seeks review of a final order of removal. Under the Real ID Act of 2005, "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision" of the Immigration and Nationality Act. 8 U.S.C. § 1252(a)(5). That limitation applies to review sought through means of a habeas corpus petition. Id. "Arguably, any challenge by an alien who seeks to remain in this country could be construed as challenging his or her "'removal, deportation, or exclusion,' but such a broad interpretation would be counter to Congress' express intent. Instead, only challenges that directly implicate the order of removal . . . are properly the subject of transfer [to the Court of Appeals] under the REAL ID Act." Nnadika v. Attorney General of the United States, 484 F.3d 626, 632 (3d Cir. 2007). Here, petitioner claims he is not seeking review of the order of removal, but instead simply seeks to stay the implementation of that order until the BIA rules on his attempt to reopen the case. Thus, he argues, the restrictions in the REAL ID Act do not apply to this case.

Petitioner first contends that the court has the power to stay the case pending a decision of the BIA. "An appellate court's power to hold an order in abeyance while it assesses the legality of the order has been described as 'inherent,' preserved in the grant of authority to federal courts to 'issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.'" Nken v. Holder, 129 S.Ct. 1749, 1756 (2009) (quoting 28 U.S.C. § 1651(a)). This power "was 'firmly imbedded in our judicial system,' 'consonant with the historic procedures of federal appellate courts,' and 'a power as old as the judicial system of the nation." Id. at 1757 (quoting Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 9-10, 13 (1942)). The reviewing court has discretion to issue a stay, and is guided by "four factors: '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be ...


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