United States District Court, D. New Jersey
June 1, 2005.
VINCENZO DEVENTURA, Petitioner,
IMMIGRATION SERVICE, et al., Respondents.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
Petitioner Vincenzo Deventura, an immigration detainee
currently confined at the Monmouth County Correctional
Institution ("MCCI") in Freehold, New Jersey, has submitted a
petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. He also submitted an application to proceed in forma
pauperis, which the Court will grant pursuant to petitioner's
affidavit of indigence. For the reasons discussed below, the
Court will dismiss the petition for lack of jurisdiction. See
28 U.S.C. § 2243 ("A court . . . entertaining an application for
a writ of habeas corpus shall forthwith award the writ or issue
an order directing the respondent to show cause why the writ should
not be granted, unless it appears from the application that the
applicant or person detained is not entitled thereto.").
This statement of background facts is taken from the Petition
and attached papers submitted by petitioner, and is accepted as
true for purposes of this review.
Petitioner is a native and citizen of Italy who entered the
United States on July 20, 1956 as a lawful permanent resident
alien. He has lived in the United States continuously since 1956.
Petitioner married a U.S. citizen and has five U.S. citizen
children and twelve U.S. citizen grandchildren. He was convicted
in or about 1980 for possession of counterfeit currency and
sentenced to three years imprisonment. In 1990, petitioner was
convicted for the sale of a controlled substance and sentenced to
four years and nine months imprisonment.
While incarcerated, removal proceedings were commenced and an
Immigration Judge ordered that petitioner be removed from the
United States. He appealed the decision to the Board of
Immigration Appeals ("BIA"). Petitioner was released on parole
and taken into immigration custody. He was then released on bond.
When his appeal to the BIA was dismissed, petitioner filed a
timely motion for reconsideration. However, he was returned to
immigration custody. Petitioner contends that his medical condition, heart disease,
has worsened since his return to custody. He contends that he
will be homeless and destitute if returned to Italy, and will be
unable to continue with his necessary medical care and treatment
for his heart disease.
Consequently, petitioner seeks to have his case reconsidered by
the BIA based on extreme financial and medical hardship. One of
petitioner's children has filed an application to accord
petitioner immediate relative status for an adjustment of status,
enabling petitioner to stay in the United States. Petitioner asks
that his order of removal be stayed until his motion for
reconsideration and the application for adjustment of status is
reviewed by the BIA. Although the petition was filed with this
district court, it was entitled a "petition for reconsideration
and request for a stay of the order of deportation." The caption
of the petition also did not include the name of this district
court; rather, it was directed to the United States Department of
Justice, Executive Office for Immigration Review, Board of
A. Standard of Review
Petitioner seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2241(c)(3). That section states that the writ will not be
extended to a prisoner unless "he is in custody in violation of the Constitution or laws or treaties of the United States."
28 U.S.C. § 2241(c)(3).
A pro se pleading is held to less stringent standards than more
formal pleadings drafted by lawyers. See Estelle v. Gamble,
429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520
(1972). A pro se habeas petition and any supporting submissions
must be construed liberally and with a measure of tolerance.
See Royce v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis
v. Attorney General, 878 F.2d 714, 721-22 (3d Cir. 1989);
United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969),
cert. denied, 399 U.S. 912 (1970).
B. Petitioner's Request for Habeas Relief Will Be Dismissed
It is clear from the heading of the petition and the type of
relief requested by petitioner that petitioner seeks
reconsideration of the denial of his application for relief from
removal pursuant to Section 212(c) of the Immigration and
Nationality Act ("INA"), based on changed medical conditions, and
extreme medical and financial hardship. Petitioner does not
indicate the date of his final order of removal. He also does not
actually allege that his motion for reconsideration to the BIA
was denied. In fact, it is unclear whether this petition was
intended to be filed with the BIA.
Denials of motions to reopen or for reconsideration by the BIA
are reviewed by the Court of Appeals for the appropriate district. See Barker v. Ashcroft, 382 F.3d 313, 315-16 (3d
Cir. 2003) (denial of motion to reopen reviewed by circuit court
under "abuse of discretion" standard); Sevoian v. Ashcroft,
290 F.3d 166, 169 (3d Cir. 2002); Tipu v. INS, 20 F.3d 580, 582 (3d
Cir. 1994) ("[d]iscretionary decisions of the BIA will not be
disturbed unless they are found to be `arbitrary, irrational or
contrary to law'"); Dastmalchi v. INS, 660 F.2d 880, 885, 886
(3d Cir. 1981). Thus, in this case, the appropriate Court in
which denial of the motion for reconsideration could have been
appealed is the Court of Appeals for the circuit court in which
the Immigration proceeding took place.
Thus, this Court would not have jurisdiction over petitioner's
habeas action, if it challenges the BIA's denial of his motion
for reconsideration. Moreover, if the BIA has not yet reviewed
petitioner's motion for reconsideration for denial of § 212(c)
relief, and it appears that is the case here, the Court is
precluded from reviewing the petition because petitioner failed
to exhaust his administrative remedies before seeking habeas
Although 28 U.S.C. § 2241 contains no statutory exhaustion
requirement, the Court of Appeals for the Third Circuit has
typically required § 2241 petitioners to exhaust their
administrative remedies before applying to a federal court for
relief. See Duvall v. Elwood, 336 F.3d 228 (3d Cir. 2003); Callwood v. Enos, 230 F.3d 627, 634 (3d Cir. 2000); Massieu v.
Reno, 91 F.3d 416, 420-21 (3d Cir. 1996) ("judicial review is
precluded if the alien has failed to avail himself of all
administrative remedies"). This policy promotes three goals:
(1) allowing the appropriate agency to develop a
factual record and apply its expertise facilitates
judicial review; (2) permitting agencies to grant the
relief requested conserves judicial resources; and
(3) providing agencies the opportunity to correct
their own errors fosters administrative autonomy.
Goldberg v. Beeler, 82 F. Supp.2d 302, 309 (D.N.J. 1999),
aff'd, 248 F.3d 1130 (3d Cir. 2000).
In this instance, federal law establishes a comprehensive
administrative procedure governing the entry and removal of
aliens. See 8 U.S.C. § 1221, et seq. Once an order of removal
is issued against an alien, he or she may pursue several avenues
of relief within the administrative agency that must be exhausted
before the alien is eligible for federal habeas corpus relief.
For example, the alien may petition the Immigration Judge to
reopen or reconsider that Judge's determination, see
8 U.S.C. § 1229a(c)(5), (6), or he or she may appeal the deportation
decision to the Board of Immigration Appeals ("BIA"). See
8 U.S.C. § 1229a(c)(4).
Here, petitioner seeks to re-open his proceedings with the BIA
by motion for reconsideration based on changed circumstances
involving his medical condition. Thus, his application for habeas relief should be dismissed without prejudice for failure
to exhaust administrative remedies.
For the reasons set forth above, petitioner's application for
habeas relief and a stay of deportation must be dismissed for
failure to exhaust administrative remedies. Alternatively, if
petitioner is seeking reconsideration of the BIA's denial of §
212(c) relief, the petition should be dismissed for lack of
jurisdiction. An appropriate order follows.
© 1992-2005 VersusLaw Inc.