SILLAH v. DAVIS, No. 02-2692-D/V (W.D.Tenn. 03/14/2003)

[1] United States District Court, Western District of Tennessee, Western Division

[2] No. 02-2692-D/V

[4] March 14, 2003

[5] MAHAMADOU SILLAH, PETITIONER,
v.
CHRISTINE G. DAVIS, ET AL., RESPONDENTS

[6] The opinion of the court was delivered by: Bernice B. Donald, United States District Judge.

[7]

ORDER DENYING PETITION PURSUANT TO 28 U.S.C. § 2241 ORDER DENYING APPOINTMENT OF COUNSEL AND ORDER CERTIFYING APPEAL WOULD NOT BE TAKEN IN GOOD FAITH

[8] On September 5, 2002, the petitioner, Mahamadou Sillah, a detainee at the West Tennessee Detention Facility in Mason, Tennessee ("WTDF"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner paid the habeas filing fee. On September 10, 2002, this Court issued an order directing the respondents to file a response to the petition. On October 2, 2002, respondents filed a motion to dismiss the petition, accompanied by a legal memorandum. Thereafter, on October 16, 2002 and on November 18, 2002, petitioner filed motions seeking appointment of counsel.

[9] In his habeas petition, Sillah makes the following factual allegations:

[10]

3. The plaintiff herein SILLAH, Mahamadou[,] is an alien and Native and Citizen of Gambia, who came to the U.S. on/about November 1994 with B2 visa.

[11]

4. The petitioner got married to U.S. Citizen on 1996, and filed for adjustment of status.

[12]

5. The plaintiff left the U.S. on 1999 with INS travel document, and came back within one month.

[13]

6. The plaintiff meet [sic] with the INS on June 2001.

[14]

7. On August 1, 2002[,] the plaintiff was driving to OHIO on 1-75, and was pulled by state police[.] [T]he officer asked if he plaintiff was driving 89 miles per hour? The plaintiff informed the officer that he was going 69 miles per hour.

[15]

8. The officer DID NOT GIVE THE PLAINTIFF the reason for pulling him over, yet he questioned him for his license, and asked him for his RACE and background.

[16]

9. The plaintiff complied with the officer, but within minutes, the FBI, and the INS were called along with 4 other police cars.

[17]

10. The plaintiff was taken in INS custody for no reason after getting pulled over for no reason.

[18]

11. The plaintiff has been in custody since 8-1-2002 without paper work, or court appearance.

[19]

12. The plaintiff was served with NOTICE TO APPEAR which have wrong information.

[20]

13. The plaintiff wrote INS but no respond [sic] came back.

[21] 14. The plaintiff is held without bond.

[22] 15. The plaintiff is held without court date.

[23]

16. The plaintiff has been in custody over one week without court appearance or due process.

[24] The petitioner further contends that the initial stop of his car was made without probable cause, the officer asked his race in violation of his right to Equal Protection, and the officer illegally searched his car without his consent. He seeks an order directing that he be released from custody, directing the Immigration and Naturalization Service ("INS") to provide him with legal status in the United States and to credit the entire time he has been present in the United States toward his eventual citizenship, to correct the INS records in unspecified ways, and "to treat this as a class action for aliens in detention without reason."

[25] Respondents contend that Sillah, a native of Gambia, entered the United States at New York City on a nonimmigrant visitor's visa on November 27, 1994. Response to Petition for Writ of Habeas Corpus, Motion to Dismiss Petition; and Supporting Memorandum, filed Oct. 2, 2002 ("G. Br."), Ex. 1. That visa authorized Sillah to remain in the United States until February 26, 1995. On April 11, 1996, Sillah married Patricia Dantzler, who purports to be a United States citizen. Id., Ex. 2. On or about January 14, 1998, Sillah applied for adjustment of status to that of a lawful permanent resident of the United States, based on his alleged marriage to a U.S. citizen. As part of that process, Ms. Dantzler (who was then known by the name of Patricia Sillah) filed a Form I-30, Petition for Alien Relative, id., Ex. 3, and Sillah filed a Form I-485, Application for Adjustment of Status, id., Ex. 4. On March 8, 1999, the Immigration and Naturalization Service ("INS") approved an application for advance parole to permit Sillah to leave the United States temporarily and to then return to his immigration parole, id., Ex. 5, and issued a Form I-512, Authorization for Parole of an Alien into the United States, id., Ex. 6.*fn1 Sillah returned to the United States pursuant to the grant of advance parole on or about April 25, 1999. See G. Br., Ex. 7. On August 2, 1999, the INS denied the Petition for Alien Relative filed by Ms. Sillah, id., Ex. 9,*fn2 and also denied Sillah's Application for Adjustment of Status, id., Ex. 10.

[26] On August 1, 2002, an officer with the Tennessee Highway Patrol stopped Sillah near Athens, Tennessee. According to a Form I-213, Record of Deportable/Inadmissible Alien, id., Ex. 11, that was apparently prepared by an INS officer who was called to the scene, Sillah was stopped for speeding and, upon being given permission to search the car, the officer found approximately one thousand (1000) "bootleg" compact disks. The officer also determined that the license plate was not registered to the car, which Sillah claimed to own. Sillah also had no driver's license, although he did produce an Ohio state identification card. Upon learning that Sillah was from Gambia, the officer contacted the INS. The INS officer determined that Sillah was in the country illegally and took him into custody. Id. That same day, Sillah was notified that he would remain in custody pending removal proceedings before a U.S. Immigration Court. See id., Ex. 32.

[27] On or about August 11, 2002, Sillah requested a custody redetermination hearing before the U.S. Immigration Court in Memphis. See id., Ex. 8. The Immigration Court scheduled a hearing on Sillah's motion to be held at 1:30 p.m. on August 15, 2002. Id., Ex. 13. On August 15, 2002, the District Director of the INS's New York District issued an order revoking Sillah's immigration parole. Id., Ex. 14.*fn3 Also, at the August 15, 2002 redetermination hearing, the Immigration Judge denied the motion for a determination of Sillah's custody status. G. Br., Ex. 15.*fn4 Sillah did not appeal this decision.

[28] On August 19, 2002, a Notice to Appear was served on Sillah and was filed with the Immigration Court. G. Br., Ex. 17.*fn5 The effect of this notice was to formally commence removal proceedings against Sillah.*fn6 The notice alleged that Sillah is an arriving alien; that he is not a citizen or national of the United States; that he is a native of Gambia and a citizen of Gambia; and that he arrived in the United States at or near New York City, New York on or about November 27, 1994 as a B-1 Nonimmigrant. The legal basis for Sillah's removal from the United States was alleged to be the following:

[29]

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.

[30] G. Br., Ex. 17.

[31] On August 29, 2002, a Form I-261, Additional Charges of Inadmissibility/Deportability, was filed that contained the additional factual allegations that Sillah departed the United States and last arrived in the United States at New York, New York on or about April 25, 1999, pursuant to a grant of advance parole; and that he is an intending immigrant not in possession of a valid immigrant visa. Id., Ex. 18.

[32] Sillah was afforded a master calendar hearing before the U.S. Immigration Court on August 29, 2002, see id., Ex. 19, at which time the respondent contends that Sillah admitted the allegations against him and he was found removable by the U.S. Immigration Court.*fn7 The respondent contends that Sillah's case was continued until September 5, 2002 for consideration of possible avenues of relief from removal. See id., Ex. 20. On September 5, 2002, respondent contends that petitioner requested additional time from the Immigration Court to consider his options. The hearing was rescheduled for September 19, 2002. Id., Ex. 21.*fn8 On or about September 10, 2002, Sillah filed a motion seeking a change of venue to New York City. Id., Ex. 22. That motion was denied on September 16, 2002 because "[n]o valid purpose has been alleged for a change of venue" and "[t]his case is close to completion." Id., Ex. 23. Sillah also filed an application for asylum, id., Ex. 26, and the Immigration Court conducted as asylum hearing on September 30, 2002, id., Ex. 25.

[33] As a threshold matter, this Court must first consider whether it has subject-matter jurisdiction over Sillah's challenge to the revocation of his immigration parole. In order to put this issue in context, it is necessary briefly to review the statutory provisions and regulations applicable to Sillah's detention. Sillah has been detained as an arriving alien.*fn9 Once his immigration parole was revoked, he was restored to the status he had at the time of the grant of parole, 8 C.F.R. § 212.5 (e)(2)(i), which, in Sillah's case, meant that he re-assumed the status of an arriving alien. See also INA § 101(a) (13) (B), 8 U.S.C. § 1101 (a) (13) (B) ("An alien who is paroled under section 212(d)(5) . . . shall not be considered to have been admitted."). Thus, notwithstanding the fact that he has been physically present in the United States for some time, Sillah stands in the position of an alien applying for admission to the United States.*fn10

[34] Detention of arriving aliens is generally mandatory. Section 235(b)(2)(A) of the Act, 8 U.S.C. § 1225 (b)(2)(A), provides that, "in the case of an alien who is an applicant for admission, if the examining immigration officer determines that an alien seeking admission is not clearly and beyond a doubt entitled to be admitted, the alien shall be detained for a proceeding under section 240."*fn11 Moreover, as previously noted, see supra p. 4 n. 1, the decision whether to release an arriving alien on parole is committed to the discretion of the Attorney General. INA § 212(d)(5), 8 U.S.C. § 1182 (d)(5)(A); 8 C.F.R. § 212.5.

[35] Moreover, the Act contains a provision limiting judicial review:

[36]

Notwithstanding any other provision of law, no court shall have jurisdiction to review- . . . (ii) any other decision or action of the Attorney General the authority for which is specified under this title to be in the discretion of the Attorney General, other than the granting of [asylum] relief under section 208(a).

[37] 8 U.S.C. § 1252 (a)(2)(B) (ii). "The subchapter referred to is subchapter II of Chapter 12 of Title 8, which covers sections 1151 through 1378." CDI Information Servs., Inc. v. Reno, 278 F.3d 616, 619 (6th Cir. 2002). Section 1182(d)(5), which governs immigration parole, falls within this subchapter. The statute and the relevant regulation, 8 C.F.R. § 212.5, clearly confers discretion on the INS. See 8 C.F.R. § 212.5 (c) ("In the case of all other arriving aliens. . . ., the district director or chief patrol agent may, after review of the individual case, parole into the United States temporarily in accordance with section 212(d)(5)(A) of the Act, any alien applicant for admission, under such terms and conditions . . . as he or she may deem appropriate.").*fn12 Using this analysis, the Sixth Circuit has held that federal courts lack subject-matter jurisdiction to review discretionary decisions by the INS. CDI Information Servs., Inc., 278 F.3d at 619-20 (denial of extension of alien's H1-B nonimmigrant visa); see also Thomas v. Jenifer, No. 00-2326, 2002 WL 655522 (6th Cir. Apr. 19, 2002) (per curiam) (decision not to grant an immigrant visa).

[38] The Sixth Circuit's decisions in CDI Information Servs. and Thomas do not, however, compel the conclusion that this Court also lacks subject-matter jurisdiction over the INS's revocation of Sillah's immigration parole. Language in the Supreme Court's decision in Immigration & Naturalization Serv. v. St. Cyr, 533 U.S. 289, 311-13 (2001), suggests that the language "no court shall have jurisdiction to review" does not bar habeas jurisdiction. As the Supreme Court noted, "[a]t no point . . . does [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA")] make express reference to § 2241. Given the historic use of § 2241 jurisdiction as a means of reviewing deportation and exclusion orders, Congress' failure to refer specifically to § 2241 is particularly significant." Id. at 312 n. 35; see also Calcano-Martinez v. Immigration & Naturalization Serv., 533 U.S. 348, 351-52 (2001). In light of the Supreme Court's decisions in St. Cyr and Calcano-Martinez, this Court is reluctant to hold that there is no subject-matter jurisdiction to review Sillah's habeas petition.*fn13

[39] Notwithstanding the fact that this Court has subjectmatter jurisdiction over Sillah's petition, courts have recognized the authority of the Attorney General, through the INS, to detain and exclude inadmissible aliens.*fn14 In that regard, the courts distinguish between arriving aliens and aliens who are deemed present in the United States. Thus, in Shaughnessy v. United States ex rel. Mazei, 345 U.S. 206 (1953), the Supreme Court considered a habeas petition filed by an immigrant who had been deemed inadmissible into the United States but was stranded on Ellis Island because no other country would take him. The Supreme Court concluded that, although "aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law," id. at 212, no such requirement is applicable to aliens seeking entry into the United States. Moreover, respondent's confinement on Ellis Island, which is physically within the United States, did not confer any right to due process. Id. at 213 ("harborage at Ellis Island is not an entry into the United States"). Even Congress's creation of immigration parole does not confer rights on the detainee:

[40]