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Ogbudimkpa v. Ashcroft

August 22, 2003

CHRISTOPHER OGBUDIMKPA, APPELLANT
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; KENNETH JOHN ELWOOD, DISTRICT DIRECTOR, INS PHILADELPHIA DISTRICT



Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 01-cv-01511) District Judge: Honorable James M. Munley

Before: Sloviter, Ambro, Circuit Judges, and TUCKER,*fn1 District Judge

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Argued June 26, 2003

OPINION OF THE COURT

We decide whether a district court has jurisdiction to consider a habeas corpus petition that alleges violations of Article 3 of the United Nations Convention Against Torture ("CAT").*fn2 Congress has implemented CAT *fn3 by enacting the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA").*fn4 Because generally we do not infer Congressional intent to repeal habeas jurisdiction, and because FARRA's jurisdictional provisions do not specifically foreclose habeas corpus jurisdiction under 28 U.S.C. § 2241, the general habeas statute, we hold that CAT claims are cognizable under § 2241. We therefore reverse the District Court's dismissal for lack of jurisdiction of Christopher Ogbudimkpa's habeas corpus petition and remand so that it may consider the merits of his petition.

I. Facts and Procedural History

Ogbudimkpa is a citizen of Nigeria who entered the United States in 1982 on a non-immigrant student visa. In 1985 an Immigration Judge ("IJ") ordered Ogbudimkpa to be deported for remaining longer than his visa permitted and for working without Government authorization, under Immigration and Nationality Act ("INA") § 241(a)(9), 8 U.S.C. § 1251(a)(9) (current version at 8 U.S.C. § 1227(a)(1)). The Immigration and Naturalization Service ("INS") did not immediately remove him. In 1994 Ogbudimkpa was convicted and sentenced on state drug charges and, upon his release from prison in 1996, paroled to INS custody.

In 1999 the Board of Immigration Appeals ("BIA") granted Ogbudimkpa's motion to reopen his removal proceedings so that he might seek protection under Article 3 of CAT, which provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Ogbudimkpa testified that, if he were returned to Nigeria, he would be imprisoned, tortured, or possibly executed by "his extended family members, one of whom is a senator, past president of the Nigerian government, and another who holds the rank of major either in the police or the military." The IJ concluded that Ogbudimkpa had testified credibly, but had not demonstrated that it was more likely than not he would be tortured if returned to Nigeria. The BIA affirmed the IJ's decision.

Ogbudimkpa filed a pro se Motion for Emergency Stay of Removal in the United States District Court for the Middle District of Pennsylvania, arguing that the United States Attorney General had erred in not granting him relief from removal under Article 3 of CAT. The District Court treated this motion as a petition for a writ of habeas corpus under 28 U.S.C. § 2241. In the first set of what became a game of forum ping pong, the Government moved to dismiss for lack of jurisdiction, arguing that the Circuit Court was the proper forum for Ogbudimkpa's CAT claims.*fn5 Ogbudimkpa (continuing to act pro se ) petitioned the District Court to transfer his case to our Court, and the Government consented. But upon transfer of the case to our Court, the Government again moved to dismiss for lack of jurisdiction, claiming the jurisdictional bar of § 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (" IIRIRA") applied to Ogbudimkpa because of his status as a criminal alien, even though the criminal conviction did not form the basis of the charges of deportation. This was exactly the opposite tack to the one taken by the Government in the District Court.*fn6 Unaware of the "whipsawing" procedural posture of this case, we granted the Government's motion to dismiss in an unpublished (and of course non-precedential) judgment order.*fn7 In doing so we noted the possibility that Ogbudimkpa might petition for a writ of habeas corpus.*fn8

Back yet again in District Court, Ogbudimkpa (still acting pro se ) filed a petition for habeas relief that essentially replicated the petition he had filed in November 2000. The Government moved to dismiss for lack of subject matter jurisdiction and the District Court granted that motion, concluding that it lacked jurisdiction to consider his petition.*fn9 This appeal followed,*fn10 an appeal in which Ogbudimkpa has been superbly represented by appointed counsel.*fn11

II. Discussion

A. Background

1. The Convention Against Torture

The United Nations drafted CAT in order to "make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world." United Nations: Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. E/CN.4/1984/72, Preamble (1984). On December 10, 1984, the United Nations General Assembly adopted CAT by unanimous agreement. Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, S. Exec. Rep. No. 101-30, at 2 (1990).

President Reagan signed CAT on April 18, 1988, id., with the following reservation: "The Government of the United States of America reserves the right to communicate, upon ratification, such reservations, interpretive understandings, or declarations as are deemed necessary." United Nations Treaty Collection: Declarations and Reservations, http:// www.unhchr.ch/html/menu3/b/treaty12_asp.htm. One month later, the President transmitted CAT to the Senate for approval, with nineteen proposed "reservations, understandings, and declarations," including the "declaration that [CAT] is not self-executing," and the assurance that "[t]he recommended legislation necessary to implement [CAT] will be submitted to the Congress separately." S. Treaty Doc. No. 100-20, iii, vi (1988).*fn12

The Senate adopted a resolution of advice and consent to ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990. 136 Cong. Rec. 36,198 (1990). The instrument of ratification included the declaration that "the provisions of articles 1 through 16 of [CAT] are not self-executing." United Nations Treaty Collection: Declarations and Reservations, http:// www.unhchr.ch/html/menu3/b/treaty12_asp.htm. On October 21, 1994, President Clinton deposited the instrument of ...


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