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Kumarasamy v. Attorney General of United States

June 23, 2006; as amended August 4, 2006

YOGESWARAN KUMARASAMY, APPELLANT
v.
ATTORNEY GENERAL OF UNITED STATES; SECRETARY OF DEPARTMENT OF HOMELAND SECURITY; JOHN CARBONE, FIELD OFFICE DIRECTOR, IMMIGRATION & CUSTOMS ENFORCEMENT; VENSON DAVID, AGENT, IMMIGRATION & CUSTOMS ENFORCEMENT; BOB, AGENT, IMMIGRATION & CUSTOMS ENFORCEMENT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY D.C. Civil No. 04-cv-02341 District Judge: The Honorable William G. Bassler.

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

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) May 11, 2006

Before: BARRY, SMITH and TASHIMA,*fn1 Circuit Judges

OPINION OF THE COURT

Yogeswaran Kumarasamy appeals from the District Court's dismissal for lack of jurisdiction of his petition for a writ of habeas corpus in which he challenged his removal from the United States. We will affirm.

I. BACKGROUND

Kumarasamy is a native and citizen of Sri Lanka, as well as a citizen of Canada, who entered the United States on a student visa in 1984. In 1991, he applied for asylum in the United States and for protection under the Convention Against Torture ("CAT"). Eight years later, in 1999, his application for asylum was still pending, and the Immigration and Naturalization Service ("INS") (now the Bureau of Immigration and Customs Enforcement ("BICE")) served him with a Notice to Appear. The Notice charged him with being subject to removal under 8 U.S.C. § 1227(a)(1)(B) as an alien admitted to the United States as a non-immigrant who remained in the United States for a period longer than that which was authorized. At the master calendar hearing, Kumarasamy sought asylum, protection under CAT, withholding of removal to Sri Lanka, and withholding of removal to Canada. The Immigration Judge ("IJ") scheduled an individual hearing for January 12, 2000.

Kumarasamy appeared at his individual hearing with counsel. According to Kumarasamy, the IJ summoned his attorney and the INS attorney for an informal conference prior to the commencement of the hearing. When his attorney emerged from the meeting, he informed Kumarasamy that the IJ said the Court would not grant Kumarasamy's asylum application because of his Canadian citizenship, but that it would grant his application for withholding of removal to Sri Lanka-if he withdrew all of his other claims. His attorney also told him that the IJ said he would be able to stay in the United States and work indefinitely under the grant of withholding of removal.*fn2

Kumarasamy agreed to this arrangement and withdrew all his claims other than withholding of removal to Sri Lanka. The IJ granted withholding of removal to Sri Lanka. For the next four years, Kumarasamy remained in the United States and received yearly employment authorization.

In December 2003, the Department of Homeland Security ("DHS") notified the IJ that he had failed to include an order removing Kumarasamy from the United States, as required when granting withholding of removal to a specific country. A DHS attorney filed a motion with the IJ to amend the original order to reflect an underlying order of removal from the United States. The IJ granted the motion and amended the order. On January 29, 2004, BICE agents took Kumarasamy into custody.

Kumarasamy contends that his attorney filed a motion for a bond hearing the next day, and a hearing was held before the IJ on February 5, 2004. At the bond hearing, the IJ asked the BICE attorney why Kumarasamy was being detained when he had been granted withholding of removal. The BICE attorney explained that Kumarasamy was being deported to Canada. The IJ told Kumarasamy's attorney to file a motion to stay the deportation, which he promised to sign.*fn3

At 9:00 the next morning, BICE agents put Kumarasamy on a plane at the airport in Newark and ...


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