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VERISSIMO v. I.N.S.

June 14, 2002

MANUEL VERISSIMO, PETITIONER
V.
IMMIGRATION AND NATURALIZATION SERVICES, RESPONDENT.



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

OPINION

Petitioner Manuel Verissimo ("Petitioner"), pro se, petitions for a writ of habeas corpus pursuant to 18 U.S.C. § 2241. Respondent, Immigration and Naturalization Services ("INS"), opposes the petition. This Court finds that it is not the proper venue, and transfers the petition to the District of Massachusetts.

FACTS AND PROCEDURAL HISTORY

On October 20, 1998, Petitioner pled guilty to possession of a class A controlled substance with intent to distribute in violation of Massachusetts law. In exchange for his plea, Petitioner received a reduced sentence of one year.

Though Petitioner was born in Portugal, he has resided lawfully in the United States for the past 29 of his 31 years. His immediate family resides in the United States, including his 11 year old daughter. He neither reads nor writes Portugese and has no known relatives in Portugal. According to Petitioner, he was not informed of the implications of a guilty plea on his standing as a Lawful Permanent Resident ("LPR").

INS Proceedings

On January 29, 1999, the Immigration and Naturalization Service ("INS") issued a Notice to Appear in Removal Proceeding in violation of the Immigration and Nationality Act ("INA") § 237(a)(2)(A)(iii). An Immigration Judge ordered Petitioner's removal to Portugal on March 26, 1999. The Board of Immigration Appeals dismissed Petitioner's appeal of this decision on September 9, 1999.

Petitioner challenges the Order of Deportation on several grounds. First, he argues that he is entitled to relief under the provisions of INA § 212(h), 28 U.S.C. § 1182 (h). Petitioner asserts that INA § 212(h) violates the Equal Protection Clause because it bars LPRs convicted of an "Aggravated Felony" from pursuing relief. Petitioner further contends that he is entitled to humanitarian relief under the International Covenant of Civil and Political Rights ("ICCPR") and Article 36 of the Vienna Convention because he was never informed of his right to contact his consul, the Consulate of Portugal, concerning his arrest and deportation proceedings.

Federal Habeas Proceedings

In April of 2000, Petitioner filed this habeas corpus petition in the District of Massachusetts pursuant to 28 U.S.C. § 2241. After the petition was filed, INS transferred Petitioner to holding facilities in Pennsylvania, Rhode Island and New Jersey. Corresponding to each INS transfer, the respective district courts found that they lacked venue and transferred the action under either 28 U.S.C. § 1404 (a) or 28 U.S.C. § 1406 (a). Thus, the action that began in Massachusetts was transferred to the Eastern District of Pennsylvania, the Middle District of Pennsylvania, the District of Rhode Island, and finally to the District of New Jersey. On December 26, 2001, Petitioner notified the Court that INS transferred him yet again to a facility in Maryland and questioned whether the action would be transferred to a new district.

DISCUSSION

When venue is inappropriate, a court may transfer a habeas corpus petition to an appropriate district sua sponte. Chatman-Bey v. Thornburgh, 864 F.2d 804, 813-14, 274 U.S. App. D.C. 398 (D.C. Cir. 1988); McCoy v. United States Board of Parole, 537 F.2d 962, 965 (8th Cir. 1976). Habeas corpus actions may ...


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