Mondesir v. INS , 84 F. App'x 215 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-29-2003
Mondesir v. INS
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3501
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3501
DHARLANDE MONDESIR,
Appellant
v.
IMMIGRATION & NATURALIZATION SERVICE
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 02-cv-00735)
District Judge: Honorable James F. McClure Jr.
Submitted Under Third Circuit LAR 34.1(a)
June 27, 2003
Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER*, District Judge
(Filed December 29, 2003)
OPINION
*Honorable Petrese B. Tucker, United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
AM BRO, Circuit Judge
Dharlande Mondesir appeals an order of the United States District Court for the
Middle District of Pennsylvania denying his petition for a writ of habeas corpus on the
ground that, under the Foreign Affairs Reform and Restructuring Act (“FARRA”), it did
not have jurisdiction to consider Mondesir’s claims under the United Nations Convention
Against Torture (“CAT”). Because we have subsequently decided, in Ogbudimkpa v.
Ashcroft, 342 F.3d 207 (3d Cir. 2003), that FARRA does not foreclose habeas jurisdiction
over CAT claims, we remand this case to the District Court for consideration of the merits
of M ondesir’s habeas petition.
I.
Facts and Procedural Posture
Mondesir was born in Haiti in 1976 and entered the United States as an immigrant
in 1987. In 2000, a Pennsylvania state court convicted him of possession with intent to
distribute cocaine and sentenced him to a term of imprisonment of 11 to 24 months less
one day. The Immigration and Naturalization Service (“INS”) then served Mondesir with
a notice to appear for removal proceedings, charging that he was subject to removal under
8 U.S.C. § 1227(a)(2)(A)(iiii) (conviction of an aggravated felony) and 8 U.S.C. §
1227(a)(2)(B)(I) (conviction of a controlled substance violation). Mondesir applied for
withholding of removal under 8 U.S.C. § 1231(b)(3) and, in the alternative, sought
deferral of his deportation under CAT. Finding that Haiti has a policy of automatically
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detaining all criminal deportees from the United States for an indeterminate period in
Haitian prisons where torture is a common practice, the Immigration Judge (“IJ”) granted
Mondesir a deferral of deportation under CAT and 8 C.F.R. § 208.16. But on appeal
from the INS, the Board of Immigration Appeals (“BIA”) vacated the IJ’s decision and
ordered Mondesir deported. Mondesir then filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2241 along with a motion for an emergency stay of deportation. In
August 2002, the District Court concluded that it did not have jurisdiction to review the
CAT claim as a petition for habeas corpus and denied Mondesir’s petition.1 Mondesir
appealed to our Court and we held the case c.a.v. pending our decision in Ogbudimpka,
which also raised the issue of whether federal district courts have habeas jurisdiction to
hear CAT claims. We filed our decision in Ogbudimka on August 22, 2003, and we now
proceed to the disposition of Mondesir’s appeal. 2
II.
Analysis
Article 3 of CAT provides that no state shall expel, return, or extradite a person to
1
Following the District Court’s denial of habeas relief, Mondesir was removed to
Haiti.
2
Mondesir’s removal does not moot his petition for review of the District Court’s
denial of habeas relief because there are “collateral consequences” of the BIA’s order of
removal. See Chong v. Quarantillo, 264 F.3d 378, 385 (3d Cir. 2001) (holding that “the
[BIA’s] order of removal creates sufficient collateral consequences to render [the alien’s]
petition a live case or controversy by preventing [the alien] from entering the United
States for ten years” pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)).
3
another state “where there are substantial grounds of believing that he would be in danger
of being subject to torture.” After the United States formally ratified CAT in 1994,
Congress passed implementing legislation, FARRA. Section 2242(d) of FARRA
provides that the federal courts may only consider CAT claims as part of the review of
final orders of removal under § 242 of the Immigration and Nationality Act. Based on
this statutory provision, the District Court concluded that, because Mondesir was not
raising his CAT claims on appeal from a final order of removal, it did not have
jurisdiction to review his claim in a § 2241 habeas proceeding.
We have since held that, “because § 2242(d) of FARRA fails to state explicitly
that a district court may not exercise jurisdiction over habeas corpus claims or mention 28
U.S.C. § 2241, the District Court retains that jurisdiction.” Ogbudimkpa, 342 F.3d at 216.
We reasoned that, in a case involving a similar jurisdiction-stripping provision in another
immigration statute, the Supreme Court required an explicit statement of congressional
intent to deprive district courts of their pre-existing habeas jurisdiction. Id. at 214 (citing
Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001)). Finding no
such statement of intent regarding FARRA’s § 2242(d), and no grounds for distinguishing
the Court’s analysis in St. Cyr., we remanded Ogbudimkpa’s case to the district court for
consideration of the merits of his habeas petition. Id. at 222. The same reasoning and
4
result apply here.3 Thus we reverse the District Court’s decision and remand for it to
consider the merits of Mondesir’s habeas corpus petition.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Thomas L. Ambro, Circuit Judge
3
We affirm, however, the District Court’s denial of Mondesir’s claim that § 212(h) of
the Immigration and Nationality Act (“INA”) violates his equal protection rights and its
denial of his claim that the IJ wrongfully denied him withholding of removal under §
241(b)(3) of the INA. Though Mondesir’s Notice of Appeal appealed these portions of
the District Court’s August 2002 Order, his appellate brief notes that “counsel does not
believe that either issue has merit.” (Br. at 23).
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