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