Petition for Writ of Certiorari — Botezatu v. Immigration & Naturalization Service

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Suprem. Court, U.8.

PILED

991627 APR O« 200

No. _“AEAIGE G8 aug CLERK

In The

SUPREME COURT OF THE UNITED STATES

Emil and Gabriela Botezatu,

Petitioners,

Immigration and Naturalization

Service, et. al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Kit Kinports Robert A. Perkins*

Professor of Law Robert A. Perkins & Assoc., P.C.

University of Illinois 601 S. LaSalle St., Suite 210

College of Law Chicago, Illinois.60605

504 E. Pennsylvania Ave. (312)461-1199

Champaign, IL 61820

(217) 333-4205 *Cc unsel of Record

Attorneys for Petitioners

QUESTIONS PRESENTED

Did Congress, in passing the Illegal Immigration

Reform and Immigrant Responsibility Act of 1996,

intend to leave litigants without any judicial forum in

which to pursue constitutional claims against the

Immigration and Naturalization Service, even if those

claims do not challenge the merits of any decisions

made by the INS, but only the procedures used in

making those decisions, and even if they do not

involve challenges to the three discrete decisions

protected by the language of the statute?

If Congress did so intend, does it have the

constitutional power to strip the federal courts

of jurisdiction over constitutional claims where no

alternative federal forum is available?

PARTIES TO THE PROCEEDING

In addition to the parties named in the caption, Brian

Perryman, the Chicago District Director of the Immigration

and Naturalization Service, was a party to the case before the

Court of Appeals.

TABLE OF CONTENTS

Questions: Presertted ..........:.....cccsescecccrcsssereessness i

Parties to the Proceeding. ..............cseccsrcsssveoseroes il

IE CI ins ccccrccsinarsqsssndnensisinatintetentceas ill

RE IE ok eit isin iniresincss vi

OCpiMIOMB BelOw........cericssissssssccisscoccsossessssssooseeseess ]

Statement of Jurisdiction. ..................scscccesssceseees l

Constitutional and Statutory Provisions.............. 2

OMNIA OF TG COI oo siisciccnescceissserscsesnnascaesces 3

A. Factual Background ..................c.....c0sseceess -

B. Proceedings Below ...........:.c.ccsccsssscdersevees 7

C. Basis for Federal Jurisdiction in

ies FE NOG ionic cei sdvaccicsnnscsiveseneiiins 8

Reasons for Granting the WIit ............cccceseeeeeees 8

I. The Seventh Circuit’s Determination

that the “Exclusive Jurisdiction”

II.

Provision of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 Precludes Judicial Review

of Habeas Corpus Petitions Alleging

Due Process Violations Conflicts with

the Great Majority of Federal Circuit

CRI IE IN oi icikcsctctccheenttncsectints 9

A. The Seventh Circuit’s Decision Con-

Conflicts with Other Courts of Ap-

peals by Failing to Distinguish Be-

tween Challenges to the Merits of INS

Decisions and Challenges to the

Constitutionality of the Procedures

Used in Reaching Those Decisions...... 14

B. The Seventh Circuit’s Decision Con-

flicts with Other Courts of Appeals by

Giving §1252(g) a Broader Interpret-

ation than Justified by its Language or

this Court’s Decision in AADC............ 17

The Seventh Circuit’s Decision Im-

properly and Unnecessarily Raises the

Serious Constitutional Question Con-

cerning the Scope of Congress’s Pow-

er to Strip the Federal Courts of Juris-

diction Over Constitutional Claims...... 22

III. This Case Raises Recurring, Important

Issues that This Court Should Resolve..... 26

I ia 28

Appendix

A. Initial decision of Seventh Circuit denying

appeal, Botezatu v. INS, 195 F.3d 311

GRAF Tee inntiiiubaeaonmasuiiamanne 29

B. Decision denying rehearing, Botezatu v.

INS, No. 98-4155 (CA7, Jan. 5, 2000)........... 36

C. Decision of District Court, Botezatu v.

INS, case no. 98cv01965 (NDIL, Oct. 21,

SU RIS BR cacsiccscniiscisassincccassachsacaeiecean 38

D. a ee 41

E. INS decision of June 7, 1997, denying rein-

statement of voluntary departure ................. 61

F. INS decision of February 5, 1998, denying

DUMIARTASEOTA PATON o.oo ec cctédsesssescnssescencecveneess 64

G. INS decision of March 11, 1998, denying a —

OE I i iissssieccdercicbastinccerstorsenans 66

TABLE OF AUTHORITIES

Page

Cases

Barahona-Gomez v. Reno,

167 F.36: 1228 (CAD 1D99) cccscssveseresccnsscacsescecesss 10, 14

Bhatt v. Reno,

--- F.3d --- (CA7 1999)

(1999 U.S. App. LEXIS 26545).................sseese0 27 nl

Botezatu v. INS,

195 F396 301 (CAT TSS) ctticccce os B47

Bowen v. Michigan Academy

of Family Physicians,

B76 U5.B. GOT CE hecscsictrctinataniperessttnininiseens 4s tae

DeSousa v. Reno,

190 FSG 275 CAS FOOD vcccacsscsvcicissshentousinleicn 10 nl, 17,

Fedorca v. Perryman,

197 F.36 236 COAT USIP sccisssesirvertetssiccinrinnd 27 nl

vil

Felker v. Turpin,

Pe A Ie LO cisthcdncscuiintsbisticbalcelalisat att 24 n2

Garcia-Guzman v. Reno,

65 F. Supp. 2d 1077 (N.D. Cal. 1999) oo... 10n1, 15 n4,

18 n6

Johnson v. Robinson,

OR APs PU RE Pi acclast niacin deccesiien 23

Jurado-Gutierrez v. Greene,

--- F.3d --- (CA10 1999)

(1999 U.S. App. LEXIS 3071 1).......................... 10 n2, 20 n7

Mayers v. Reno,

EF ee Oe ae A RW acaba ecvccecccccsesnnadcionce 10 n2, 20 n7

McNary v. Haitian Refugee Center, Inc.,

I is SE oii aichsc sasisicnipiadesascsaitsssciisiaaes 12, 22

Mustata v. U.S. Dep't of Justice,

DF Ee COEF CG BIO ccvcscscinsesseressosscicnasnoenne 10 n2, 16,

18 n6

Musto v. Perryman,

Rw ie OU IA? BGI vanvcccccsccenccessetsnccersccanis 27 nl

Vill

Reno v. American-Arab

Anti-Discrimination Committee,

a re AE iia iaictincs insets adcaaientitinadecbcceiiaionans passim

Requena-Rodriguez v. Reno,

SO ce Ae CPA BID waiiniacstesctsncapnatacctensbacene 10 n2, 20 n7

Richardson v. Reno,

180 F.3d 1311 (CA11 1999), rehearing en

banc denied, 193 F.3d 525 (CA11 1999)........... 10 n2, 20 n7

Selgeka v. Carroll,

ee he ae BI aihiivcncisciscsinwivinieteccgs 10 n2, 15

Shah v. Reno,

RI ee Fe Ce FSD vasimraviniswiseaienoncanintens 10 n2, 20

Stewart v. INS,

BA © ee es CD Fe veitesinictinstahiiniins 10 n2, 18 n6

Tefel v. Reno,

180 F.3d 1286 (CA11 1999), rehearing-en

banc denied, 198 F.3d 265 (CA11 1999)............ 10 n2, 15 n4

Wallace v. Reno,

194 F.3d 279 (CAI 1999)................ edeisnnantiionanseris 10 n2, 20 n7

Walters v. Reno,

145 F.3d 1032 (CA9 1998),

cert. denied, 526 U.S. 1003 (1999) .....cceccceseeee. 10 n2, 12,

14 n3

Webster v. Doe,

A: Pe CA inci Ce 23, 25

Zhislin v. Reno,

Be Wc PING FY ings escaivacdececacassacncs 10 n2, 17,

| 19

Statutes

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996,

Rtas We NN skins ies eGAicdacticcens Setideveisicccia. passim

Other Authorities

Erwin Chemerinsky, Federal

Jurisdiction (3d ed. 1999)... cccccccscssescsscsceseees 22 nl

PETITION FOR WRIT OF CERTIORARI

Petitioners, Emil Botezatu and his wife Gabriela

Botezatu (collectively “Petitioners”), respectfully request

that a writ of certiorari be issued to review the judgment of

the United States Court of Appeals for the Seventh Circuit in

this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Seventh Circuit is reported at 195 F.3d 311 (CA7 1999)

(App. A). The decision denying rehearing en banc, Botezatu

v. INS, No. 98-4155 (7" Cir., Jan. 5, 2000) is unpublished

and included in the appendix herein (App. B). The opinion

of the district court in Botezatu v. INS, case no. 98cv01965

(N.D. IL., Oct. 21, 1998) (Lindberg, J.) is not published, but

is included in the appendix herein (App. C).

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals

for the Seventh Circuit was entered on October 21, 1999.

The Court of Appeals denied a timely petition for rehearing

on January 5, 2000.

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, §9 of the United States Constitution

provides in relevant part:

“The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in cases of Rebellion or

Invasion the public safety may require it.”

28 U.S.C. §2241(a) provides in relevant part:

“Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.”

28 U.S.C. §1331 provides that “The district courts

shall have original jurisdiction of all civil actions

arising under the Constitution, laws or treaties of the

United States.”

Section 242(g) of the Illegal Immigration, Reform and

Immigrant Responsibility Act of 1996, 8 U.S.C.

§1252(g), provides: “Except as provided in this

section and notwithstanding any other provision of

law, no court shall have jurisdiction to hear any cause

or claim by or on behalf of any alien arising from the

decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute

removal orders against any alien under this Act.”

STATEMENT OF THE CASE

The fundamental question in this case is whether, in

passing the immigration statute codified at 8 U.S.C.

§1252(g), which covers decisions by the Attorney General to

commence proceedings, adjudicate cases, or execute removal

orders against any alien, Congress intended to foreclose

judicial review of procedural due process and other

constitutional claims brought against the Immigration and

Naturalization Service (“INS”).

In this case, Petitioners, a married couple, applied for

post-deportation relief and were denied such relief without a

hearing. They alleged that this and other procedural

irregularities violated their rights to procedural due process.

Mrs. Botezatu, a Romanian national, has been granted

political asylum in the United States by the INS, meaning

that she has a well-founded fear of persecution should she

return to Romania. She is now a permanent resident of the

United States, and she has applied for citizenship. The INS

seeks to deport Mr. Botezatu, who has no criminal record at

all, poses no danger to the community, and is a productive

member of society, because he overstayed his tourist visa

while claiming asylum. Petitioners sought post-deportation

relief so that they could stay together in this country, which

was especially critical for them given Mrs. Botezatu’s

inability to return to Romania. To fully appreciate the

significance of the issues presented by this case, it 1s

essential to consider its factual background and the specific

claims made by Petitioners.

——————— ee

———E

A. Factual Background

Petitioners Emil and Gabriela Botezatu were born in

Romania. They first met in 1988 and soon started living

together. Petitioners have lived together continuously for

nearly twelve years.

Petitioners experienced political problems in

Romania after they participated in demonstrations against

Nicolae Ceausescu and his successor Ion Iliescu, and in 1993

they sought asylum in the United States. On March 19,

1993, they filed separate, nearly identical, applications for

political asylum. (They were mistakenly advised by the

person who assisted them with their asylum applications that

they should not get married prior to seeking asylum.) Mrs.

Botezatu was granted asylum. Mr. Botezatu’s asyium

application was denied by an immigration judge, and he

appealed that decision to the Board of Immigration Appeals

(“BIA”). During this appeal, Petitioners were legally

married, and Mrs. Botezatu, by then a lawful permanent

resident of the United States, applied for permanent

MELE na eerie ser

residence for Mr: Botezatu. This application was approved,

but there were no visa numbers available for Mr. Botezatu to

immigrate. (App. D {¥ 9-16.)

The BIA denied Mr. Botezatu’s asylum claim, and he

appealed that decision to the Seventh Circuit in 1996. On

April 7, 1997, the Seventh Circuit dismissed Mr. Botezatu’s

asylum appeal. Thereafter, the INS issued a “bag and

baggage” letter demanding that Mr. Botezatu report for

deportation to Romania.

Petitioners sought to remain in the United States

together. Accordingly, they sought several post-deportation

remedies. First, on May 1, 1997, Petitioners filed for

reinstatement of Mr. Botezatu’s voluntary departure so that

he could leave the United States without the stigma of

deportation and later re-enter the country to be with Mrs.

Botezatu when his visa number allowed him to immigrate.’

The reinstatement application was denied on June 6, 1997

(App. E). Petitioners’ Complaint in this case alleges that the

Chicago District Office of the INS uses its power to rule on

applications for extensions and reinstatements of voluntary

departure as a means of discouraging asylum applicants from

pursuing appeals, penalizing those who do choose to appeal

to the Seventh Circuit because they are viewed as “su[ing]

the INS”.

'One who is deported -- even if married to a United States citizen -- must

normally wait ten years before re-entering this country. See 8 U.S.C.

§1182(a)(9)(A)(ii).

After reinstatement of voluntary departure was

denied, Petitioners’ attorney called a deportation officer to

discuss other possible remedies so as to enable Mr. Botezatu

to continue living with Mrs. Botezatu or to rejoin her as soon

as a visa number became available for him. Before any

substantive conversation could take place, the officer,

admitting he was thoroughly unfamiliar with the case, stated

that any request for a stay of deportation would be denied out

of hand, and that he was under a directive to deny all stay

requests unless they involved serious medical reasons.

Moreover, the officer requested that counsel not file a stay

application simply because this would require him to respond

in writing, requiring extra work. Petitioners’ Complaint in

this case alleges that within the past two or three years, the

Chicago District office of the INS has adopted a policy of

“front-desking” stay applications, automatically denying

requests for stays of deportation without giving them any

consideration whatsoever unless they are based on serious

medical reasons. Family unity factors, though traditionally

considered important, are no longer given any consideration

(App. D 4 23-25).

On July 9, 1997, Petitioners filed an application for

humanitarian parole, or alternatively for deferred action,

which was subsequently denied (App. F). They then applied

for a stay of deportation. On March 11, 1998, the INS

denied the application for a stay of deportation (App. G). The

INS decided all of the foregoing applications for post- |

deportation relief without a hearing.

B. Proceedings Below

On March 31, 1998, Petitioners filed the instant

complaint in federal district court, alleging, inter alia, that

the methods the INS used in denying their various

applications violated procedural due process in that: ( 1) the

decisions were made by a non-attorney who did not conduct

any hearing at all despite the important rights involved; (2)

the INS pre-judged the merits of their applications, and of

others seeking similar relief, before they were even

submitted; and (3) the INS gave directives to its officers that

eliminated family unity considerations as a factor in deciding

which people cu.. remain in this country despite a deportation

order (App. D).

Petitioners also alleged substantive due process

violations, i.e, that Respondents’ failure to allow this married

couple, who have lived together for almost twelve years, to

Stay together is a violation of their rights of marital privacy.

Additionally, they alleged various violations of treaties to

which the United States is a signatory, as well as violations

of customary international law, which protect the right of

marriage. Finally, Petitioners alleged that the INS has

engaged in a pattern of misusing the voluntary departure

remedy to dissuade asylum seekers from exercising their

right to appeal.

The INS moved to dismiss the case, and the District

Court granted its motion, holding that it had no jurisdiction

over the foregoing claims (App. C). The case was then

appealed to the Seventh Circuit, which affirmed (App. A). A

timely Petition for Rehearing En Banc was denied on

January 5, 2000 (App. B).

C. Basis for Federal Jurisdiction in First Instance

Petitioners contend that there is no evidence that, in

passing 8 U.S.C. §1252(g), Congress intended to foreclose

jurisdiction over constitutional claims, specifically the claims

of widespread procedural irregularities alleged in their

complaint. Therefore, since §1252(g) does not apply to such

claims, the federal courts have jurisdiction over this case

under 28 U.S.C. §2241 (the habeas statute), 28 U.S.C.

§1331, and the Suspension Clause of the Constitution (Art. I,

§9).

REASONS FOR GRANTING THE PETITION

Certiorari should be granted in this case for three

reasons. First, the decision below conflicts with the law in

the great majority of circuits on the important issue of the

extent to which federal courts still have jurisdiction to

entertain habeas petitions raising constitutional claims in

light of Congress’ recent immigration reforms. Second, the

Seventh Circuit’s decision effectively -- and unnecessarily --

raises the serious constitutional question whether Congress

has the power to strip federal courts of their jurisdiction over

constitutional issues. Third, this Court’s review would

provide much-needed clarity on recurring issues of

fundamental importance to immigration law.

3 THE SEVENTH CIRCUIT’S DETERMINATION THAT

THE “EXCLUSIVE JURISDICTION” PROVISION OF

THE ILLEGAL IMMIGRATION REFORM AND

IMMIGRANT RESPONSIBILITY ACT OF 1996

PRECLUDES JUDICIAL REVIEW OF HABEAS CORPUS

PETITIONS ALLEGING DUE PROCESS VIOLATIONS

CONFLICTS WITH THE GREAT MAJORITY OF

FEDERAL CIRCUIT COURTS OF APPEALS.

In the decision below, the Seventh Circuit held that

Petitioners’ procedural due process claims were subject.to

the jurisdiction-stripping provisions of §242(g) of the Illegal

Immigration Reform and Immigrant Responsibility Act of

1996, 110 Stat. 3009-546 (“IIRIRA”), codified as 8 U.S.C.

§1252(g) (Supp. 1998) (“§1252(g)”), because they amounted

to a direct challenge to the merits of a deportation order and

thereby impermissibly intruded on the Attorney General’s

“no deferred action’ decisions and similar discretionary

determinations.” Botezatu v. INS, 195 F.3d 31 1, 313-14

(CA7 1999) (quoting Reno v. American-Arab Anti-

Discrimination Committee, 525 U.S. 471, 485 (1999)

(“AADC’”)) (App. A). This holding directly conflicts with

the decisions of nine other Courts of Appeals.’

>See Wallace v. Reno, 194 F.3d 279, 285 (CA1 1999) (noting that

_“[t]he Supreme Court’s surprisingly narrow reading of [§1252(g)]

... certainly does not encourage us to enlarge the reach of that

section” and concluding that the federal courts may entertain

habeas petitions challenging the constitutionality of final orders of

deportation); DeSousa v. Reno, 190 F.3d 175, 182-83 (CA3 1999)

(holding that §1252(g) “only applies to suits challenging the

government’s selective enforcement of the immigration laws”);

Seigeka v. Carroll, 184 F.3d 337, 341 (CA4 1999) (concluding

that §1252(g) did not apply to a due process claim challenging the

refusal to permit petitioner to present his application to an

immigration judge in a deportation hearing); Stewart v. INS, 181

F.3d 587, 594 (CA4 1999) (ruling that habeas jurisdiction was

available there because “a motion to reopen is very similar to a

motion to reconsider” and AADC specifically excluded motions to

reconsider from §1252(g)’s scope); Requena-Rodriguez v. Reno,

190 F.3d 299, 303 (CAS 1999) (holding that district courts have

jurisdiction to hear habeas petitions that challenge a final order of

deportation because such a challenge does not fall under one of

the three discrete actions listed in §1252(g)); Zhislin v. Reno, 195

F.3d 810, 813 (CA6 1999) (concluding that due process claims are

subject to judicial review if they arise from deportation

proceedings so long as they do not directly challenge the three

discrete events listed in §1252(g)); Mustata v. U.S. Dep't of

Justice, 179 F.3d 1017, 1023 (CA6 1999) (ruling that §1252(g)

did not strip the district court of jurisdiction over the petitioners’

habeas claim that ineffective assistance of counsel at their

deportation hearings violated due process); Shah v. Reno, 184

F.3d 719, 722 (CA8 1999) (noting that “[t]he words ‘commence

proceedings, adjudicate cases, or execute removal orders’ refer to

separate and discrete actions in the deportation process” and,

consequently, §1252(g) “has nothing to do” with cases where

These other circuit courts, when faced with

substantially identical issues, have held that in light of this

“review is sought of a final order of deportation”); Barahona-

Gomez v. Reno, 167 F.3d 1228, 1234 (CA9 1999) (holding that

§1252(g) does not preclude jurisdiction over due process claims);

Walters v. Reno, 145 F.3d 1032, 1052 (CA9 1998), cert. denied,

526 U.S. 1003 (1999) (ruling that the federal courts had

jurisdiction over due process claims challenging the adequacy of

the notice a class of aliens received concerning their possible

deportation for document fraud); Jurado-Gutierrez y. Greene, ---

F.3d --- (CA10 1999) (1999 U.S. App. LEXIS 30711, at *13)

(holding that a final order of deportation remains reviewable on

habeas because it does “not interfere with the Attorney General’s

decision to commence proceedings, adjudicate cases, or execute a

removal order”); Richardson v. Reno, 180 F.3d 13] 1, 1312(CAI11

1999), rehearing en banc denied, 193 F.3d 525 (CA11 1999)

(holding that a habeas petition challenging the constitutionality of

petitioners’ removal from the United States or their detention

while awaiting removal is not barred by §1252(g)); Tefel v. Reno,

180 F.3d 1286, 1298 (CA11 1999), rehearing en banc denied, 198

F.3d 265 (CA11 1999) (concluding that “constitutional challenges

to legislation specifically mandating [a certain] application of the

stop-time rule” are not barred by §1252(g)); Mayers v. Reno, 175

F.3d 1289, 1297 (CA11 1999) (holding that final orders of

deportation are reviewable because §1252(g) excludes from

judicial review only three discrete decisions or actions of the

Attorney General). See also Garcia-Guzman v. Reno, 65 F. Supp.

2d 1077, 1083 (N.D. Cal. 1999) (concluding that petitioner’s

claim was cognizable on habeas because he “is not claiming that

the INS should have granted him ‘deferred action’ before

adjudicating his case -- instead he challenges the statutory and

constitutional foundation for other decisions made during his

removal proceedings”).

Court’s narrow interpretation of §1252(g) in AADC,

procedural due process claims remain subject to judicial

review on habeas corpus as “general collateral challenges to

unconstitutional practices and policies used by’” the INS.

Walters v. Reno, 145 F.3d 1032, 1052 (CA9 1998), cert.

denied, 526 U.S. 1003 (1999) (quoting McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479, 492 (1991)). The

conflict between the rule applied by the Seventh Circuit and

the rule applied by these other circuits is apparent from a

brief comparison of the cases as viewed against the backdrop

of the rule that emerges from AADC. Indeed, while this

Court’s opinion in AADC did not decide whether §1252(g)

precludes judicial review of habeas claims, it noted that

“(t]here is disagreement on this point in the Courts of

Appeals.” 525 U.S. at 480 n.7. Unfortunately, the Courts of

Appeals remain divided on this question.

In AADC, this Court gave §1252(g) a “narrow

reading,” refusing to interpret it as covering the spectrum of

deportation orders. /d. at 487. In fact, the Court expressly

rejected the notion that §1252(g) “covers the universe of

deportation claims -- that it is a sort of a ‘zipper’ clause that

says ‘no judicial review in deportation cases unless this

section provides judicial review.’” Jd. at 482. Rather the

Court indicated that §1252(g) is “much narrower” and

applies only to “three discrete actions that the Attorney

General may take: her ‘decision or action’ to ‘commence

proceedings, adjudicate cases or execute removal orders.’”

Id. (quoting §1252(g)). The Court buttressed this

interpretation by relying on the apparent rationale underlying

§1252(g). Specifically, the Court reasoned that Congress

enacted this provision to “give some measure of protection to

‘no deferred action’ decisions and similar discretionary

determinations.” /d. at 485. In other words, the Court

concluded that §1252(g) was enacted to prevent the federal

courts from interfering with the Attorney General’s

prosecutorial discretion.

As applied by the nine circuit courts that conflict with

the Seventh Circuit, §1252(g), as interpreted in AADC,

would not preclude jurisdiction over Petitioners’ claims that

Mr. Botezatu was denied due process. These courts have

been primarily guided by the logic of two interrelated

principles that now stand diametrically opposed to the

Seventh Circuit’s position. First, they have held that habeas

review remains available in cases where petitioners are not

challenging the substance of the INS’s decisions but rather

the constitutionality of the procedures used in reaching those

- decisions. Second, the majority of Courts of Appeals have

interpreted AADC as construing §1252(g) narrowly so as to

preclude only direct challenges to the Attorney General’s

discretion to commence proceedings, adjudicate cases, or

execute removal orders. Simply put, §1252(g) protects only

the Attorney General’s discretion to prosecute.

A. THE SEVENTH CIRCUIT’S DECISION CONFLICTS

WITH OTHER COURTS OF APPEALS BY FAILING TO

DISTINGUISH BETWEEN CHALLENGES TO THE

MERITS OF INS DECISIONS AND CHALLENGES TO

THE CONSTITUTIONALITY OF THE PROCEDURES

USED IN REACHING THOSE DECISIONS.

In contrast to the court below, most Courts of

Appeals have recognized that habeas review remains

available in immigration cases where, in the words of the

Ninth Circuit, the petitioners’ objective is “not to obtain

judicial review of the merits of their INS proceedings, but

rather to enforce their constitutional rights to due process in

the context of those proceedings.” Thus, the great majority

of the Courts of Appeals have held that while §1252(g)

clearly precludes challenges to the outcome of the Attorney

General’s decision to prosecute (for example, a claim that the

Attorney General or INS shouid have granted a petitioner

some form of deferred action), it does not strip the federal

courts of jurisdiction to hear habeas petitions challenging the

process by which the decision was made (for example, a

>Walters v. Reno, 145 F.3d 1032, 1052 (CA9 1998), cert. denied,

526 U.S. 1003 (1999) (emphasis added) (holding that the federal

courts had jurisdiction over due process claims challenging the

adequacy of the notice a class of aliens received concerning their

possible deportation for document fraud). See also Barahona-

Gomez v. Reno, 167 F.3d 1228, 1234 (CA9 1999) (quoting this

language from Walters in holding that, by its terms, §1252(g)

does not preclude jurisdiction over due process claims).

claim that the Attorney General or INS based the decision to

prosecute a petitioner’s deportation on his or her race).

In the instant case, the Botezatus’ procedural due

process claims are not attacks on the merits of the Attorney

General’s decision to deport or claims that the INS should

have granted Mr. Botezatu “deferred action.” Rather, they

are challenges to the constitutionality of the procedures used

in reaching decisions made after his deportation proceedings

ended. Indeed, in a similar political asylum case where the

petitioner challenged only the adequacy of INS procedures,

the Fourth Circuit concluded that habeas review is available

under §1252(g) where a petitioner seeks the minimum

protections of due process and is improper where the prayer

is to reverse a denial of deferred action. See Selgeka v.

Carroll, 184 F.3d 337, 342 (CA4 1999). Likewise, the

Eleventh Circuit has held that the federal courts have

jurisdiction in cases where petitioners challenge the manner

in which discretionary actions or decisions are rendered as

opposed to the outcome of those decisions.‘

‘See Tefel v. Reno, 180 F.3d 1286, 1298 (CA11 1999), rehearing

en banc denied, 198 F.3d 265 (CA11 1999) (“Plaintiffs’

challenges . . . involve constitutional challenges to legislation

specifically mandating [a certain] application of the stop-time

tule. Plaintiffs’ claims do not challenge the Attorney General’s

exercise of her discretion to commence proceedings, adjudicate

Cases, or execute removal orders.”). See also Garcia-Guzman v.

Reno, 65 F. Supp. 24-1077, 1083 (N.D. Cal. 1999) (concluding

that petitioner’s claim was cognizable on habeas because he “‘is

not claiming that the INS should have granted him ‘deferred

action’ before adjudicating his case -- instead he challenges the

Here, the Botezatus are claiming that the INS violated

their procedural due process rights. More specifically, their

claim is that the INS’s failure to provide a fair and adequate

process for considering requests for humanitarian parole,

voluntary departure, and stays of deportation resulted in a

~iolation of due process. Thus, because Petitioners’

procedural due process claims are not challenging the

outcome of any INS decisions, but rather the procedures used

in reaching them, they should be subject to federal habeas

jurisdiction.

In accepting this line of reasoning in a similar case,

the Sixth Circuit recognized that the “fact that the

[petitioners] . . . seek a stay of deportation does not make

their claim one against the decision to execute a removal

order.” Mustata v. U.S. Dep't of Justice, 179 F.3d 1017,

1023 (CA6 1999) (holding that §1252(g) did not strip the

district court of jurisdiction over the petitioners’ habeas

claim that ineffective assistance of counsel at their

deportation hearings violated due process). “[Any] argument

to the contrary,” the Sixth Circuit continued, “confuses the

substance of the [petitioners’] claim with the remedy

requested.” Jd. Hence, the fact that the effect of Petitioners’

claim may be to prevent the Attorney General from

executing a deportation order against Mr. Botezatu is not

dispositive. Otherwise, as the Third Circuit cautioned,

statutory and constitutional foundation for other decisions made

during his removal proceedings”).

“every deportation-related challenge . . . could be deemed a

suit to stop the ‘execution’ of a deportation order.”” DeSousa

v. Reno, 190 F.3d 175, 182 (CA3 1999). Thus, where there

is no challenge to the merits of the Attorney General’s

decision to prosecute, the Third, Fourth, Sixth, Ninth, and

Eleventh Circuits are “satisfied that [the petitioner] has not

presented a challenge ‘arising from the decision or action. . .

to execute removal orders.’” Zhislin v. Reno, 195 F.3d 810,

814 (CA6 1999) (quoting AADC, 525 U.S. at 482).

B. THE SEVENTH CIRCUIT’S DECISION CONFLICTS

WITH OTHER COURTS OF APPEALS BY GIVING

§1252(G) A BROADER INTERPRETATION THAN

JUSTIFIED BY ITS LANGUAGE OR THIS COURT’S

DECISION IN AADC.

The Seventh Circuit also stands apart from the other

circuits with regard to the breadth of its application of

§1252(g) -- that is, its interpretation is unduly expansive.

The Seventh Circuit understands AADC to stand for the

proposition that §1252(g) precludes habeas review of all

challenges to “‘no deferred action’ decisions and similar

discretionary determinations” irrespective of whether they

challenge a decision or action to commence proceedings,

adjudicate cases, or execute removal orders. Botezatu, 195

F.3d at 314 (App. A). In other words, under the Seventh

Circuit's model, all of the Attorney General’s discretionary

decisions are immune from habeas review.

Clearly, this view is overbroad. In fact, it directly

conflicts with AADC’s observation that it is “implausible” to

claim that §1252(g)’s “mention of three discrete events along

the road to deportation was a shorthand way of referring to

all claims arising from deportation proceedings.” 525 U.S. at

482. Moreover, the Seventh Circuit’s broad interpretation of

§1252(g) would preclude jurisdiction even in cases that

AADC expressly indicates fall outside the scope of §1252(g).

For instance, while the Court’s opinion in AADC noted that

“decisions to open an investigation . . . and to refuse

reconsideration of [a deportation] order” do not come within

the ambit of §1252(g),° even these two examples fit

comfortably within the Seventh Circuit’s expansive view of

§1252(g) because they constitute “similar discretionary

determinations.” Indeed, the Fourth and Sixth Circuits as

well as the Northern District of California have noted that

“{b]ecause some of the examples [listed in AADC] could be

squeezed into one of the three listed actions if the actions

were to be read expansively, the examples reinforce the

Court’s express statement that §1252(g) ‘applies only to

°525 U.S. at 482 (“There are of course many other decisions or

actions that may be part of the deportation process -- such as the

decisions to open an investigation, to surveil the suspected

violator, to reschedule the deportation hearing, to include various

provisions in the final order that is the product of the adjudication,

and to refuse reconsideration of that order. It is implausible that

the mention of three discrete events along the road to deportation

was a shorthand way of referring to all claims arising from

deportation proceedings.”’).

a ee

three discrete actions.’’”

In contrast to the Seventh Circuit’s broad view of

§1252(g), a majority of the Courts of Appeals that have faced

this issue have held that, as a result of AADC’s narrow

construction of §1252(g), claims arising from the deportation

process are not necessarily barred. In Zhislin v. Reno, 195

F.3d 810, 813 (CA6 1999), for example, the Sixth Circuit

relied on this Court’s opinion in AADC in concluding that

“claims arising from [the deportation process] are still

subject to the jurisdiction of the federal courts.” The Sixth

Circuit therefore held that a petitioner’s due process claims

are subject to judicial review if they arise from the

*Mustata v. U.S. Dep't of Justice, 179 F.3d 1017 1021 (CA6 1999)

(quoting AADC, 525 U.S. at 482) (holding that petitioner’s

ineffective assistance of counsel claim did not involve a challenge

to the Attorney General’s decision to commence proceedings,

adjudicate cases, or execute removal orders and thus was

reviewable on habeas). See also Stewart v. INS, 181 F.3d 587,

594 (CA4 1999) (concluding that habeas jurisdiction was

available there because “a motion to reopen is very similar to a

motion to reconsider” and AADC specifically excluded motions to

reconsider from §1252(g)’s scope); Garcia-Guzman v. Reno, 65

F. Supp. 2d 1077, 1082-83 (N.D. Cal. 1999) (“To confirm the

narrowness of section 1252(g), the Court also listed examples of

‘many other’ decisions or actions that are part of the deportation

process but nevertheless fall outside section 1252(g)'s reach.

These examples all cover decisions that could arguably be

construed as part of the decision to commence proceedings or

adjudicate cases. Thus, §1252(g) is properly read to cover only

the three discrete actions enumerated therein.”).

deportation proceedings so long as they do not directly

challenge the three discrete events listed in §1252(g).

Likewise, the Eighth Circuit observed in Shah v. Reno, 184

F.3d 719, 722 (CA8 1999), that “[t]he words ‘commence

proceedings, adjudicate cases, or execute removal orders’ -

refer to separate and discrete actions in the deportation

process” and consequently §1252(g) “has nothing to do”

with cases where “review is sought of a final order of

deportation.” The First, Fourth, Fifth, Tenth, and Eleventh

Circuits have all reached similar conclusions.’

"See Wallace v. Reno, 194 F.3d 279, 285 (CA1 1999) (noting that

“(t]he Supreme Court’s surprisingly narrow reading of [§1252(g)]

... certainly does not encourage us to enlarge the reach of that

section” and concluding that the federal courts may entertain

habeas petitions challenging the constitutionality of final orders of

deportation); Selgeka v. Carroll, 184 F.3d 337, 341 (CA4 1999)

(holding that §1252(g) did not apply to due process claim

challenging the refusal to permit petitioner to present his

application to an immigration judge in a deportation hearing);

Requena-Rodriguez v. Reno, 190 F.3d 299, 303 (CAS 1999)

(holding that district courts have jurisdiction to hear habeas

petitions that challenge a final order of deportation because such a

challenge does not fall under one of the three discrete actions

listed in §1252(g)); Jurado-Gutierrez v. Greene, --- F.3d ---- |

(CA10 1999) (1999 U.S. App. LEXIS 30711, at *13) (holding that

a final order of deportation remains reviewable on habeas because

it does “not interfere with the Attorney General’s decision to

commence proceedings, adjudicate cases, or execute a removal

order’); Richardson v. Reno, 180 F.3d 1311, 1312 (CA11 1999),

rehearing en banc denied, 193 F.3d 525 (CA11 1999)

(concluding, based on this Court’s interpretation of §1252(g), that

a habeas petition challenging the constitutionality of petitioners’

removal from the United States or their detention while awaiting

Some courts have gone even further. For example,

the Third Circuit, in facing a similar issue, relied on the fact

that AADC “explicitly rejected a broad interpretation” of

§1252(g) in concluding that the statute “only applies to suits

challenging the government’s selective enforcement of the

immigration laws.” DeSousa v. Reno, 190 F.3d 175, 182

(CA3 1999) (emphasis added). Because the petitioner’s

claim in that case “was not brought on this ground,” the

Third Circuit ruled that §1252(g) did not preclude

consideration of a habeas petition challenging the final order

of deportation issued against him. /d. at 182-83 (“As

[§1252(g)] does not apply to DeSousa, . . . the district court

had jurisdiction to consider DeSousa’s habeas petition,

including both his constitutional and statutory claims.”).

Thus, under the view taken by the First, Third,

Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits,

Petitioners’ claims would not be barred by §1252(g) because

they do not challenge the three discrete decisions protected

by the statute. Petitioners have not challenged the Attorney

General’s decision to commence proceedings, adjudicate a

removal does not constitute a challenge to the decision to

commence proceedings, adjudicate cases, or execute removal

orders, although ultimately holding that habeas jurisdiction was

not available in that case based on other provisions of post-

IIRIRA law); Mayers v. Reno, 175 F.3d 1289, 1297 (CA11 1999)

(holding that final orders of deportation are reviewable because

§1252(g) excludes from judicial review only three discrete

decisions or actions of the Attorney General).

case, or execute a removal order against Mr. Botezatu, but

rather the processes by which various decisions were made

after his deportation hearing.

II. THE SEVENTH CIRCUIT’S DECISION IMPROPERLY

AND UNNECESSARILY RAISES THE SERIOUS

- CONSTITUTIONAL QUESTION CONCERNING THE

SCOPE OF CONGRESS’S POWER TO STRIP THE

FEDERAL COURTS OF JURISDICTION OVER

CONSTITUTIONAL CLAIMS.

In ruling against Petitioners and adopting such an

expansive view of §1252(g), the Seventh Circuit construed

the statute to foreclose judicial review of constitutional

claims arising from INS proceedings that take place after a

deportation hearing. The court’s decision thus unnecessarily

creates what this Court has referred to as “a serious

constitutional question” -- the extent to which Congress has

the constitutional power to restrict the jurisdiction of the

federal courts. Bowen v. Michigan Academy of Family

Physicians, 476 U.S. 667, 681 n.12 (1986).'

This Court has consistently cautioned that there is a

“well-settled presumption favoring interpretations of statutes

'For a description of the controversy that this issue has generated

among academics and a summary of the four competing

approaches that have been taken to it, see Erwin Chemerinsky,

Federal Jurisdiction § 3.3, at 191 (3d ed. 1999).

that allow judicial review of administrative action.” McNary

v. Haitian Refugee Center, Inc., 498 U.S. 479, 480 (1991).

Therefore, “where Congress intends to preclude judicial

review of constitutional claims,” this Court has held that

Congress’s “intent to do so must be clear.” Webster v. Doe,

486 U.S. 592, 603 (1988) (citing Johnson v. Robinson, 415

U.S. 361, 373-74 (1974)). Clear evidence of congressional

intent is required “in part to avoid the ‘serious constitutional

question’ that would arise if a federal statute were construed

to deny any judicial forum for a colorable constitutional

claim.” Jd. (quoting Bowen, 476 U.S. at 681 n.12). In this

case, however, not only did the Court of Appeals construe “a

federal statute . . . to deny any judicial forum for a colorable

constitutional claim,” but it did so without a clear showing of

congressional intent to preclude judicial review of those

claims, and in spite of this Court’s deliberately limited

decision in AADC.

The Seventh Circuit’s creation of this serious

constitutional question began with its mischaracterization of

the claims Petitioners presented to the court on appeal. The

Court of Appeals understood Petitioners to be challenging

the results of proceedings that took place after the INS

decided to deport Mr. Botezatu -- specifically, the INS’s

refusal to grant his requests for a stay of deportation,

reinstatement of voluntary departure, and humanitarian

parole. As explained above in Part I(A), however,

Petitioners’ procedural due process claims are not

challenging the results of these proceedings or the result of

Mr. Botezatu’s deportation hearing. Instead, they are

challenging the procedures used by the INS in making these

decisions.

Based on its erroneous assumption about the nature

of Petitioners’ claims, the Seventh Circuit determined that

this Court’s decision in AADC precludes the federal courts

from hearing this case. In so doing, the Court of Appeals not

only ignored this Court’s refusal to give §1252(g) an

excessively broad reading (as explained above in Part I(B)),

but also ignored AADC’s description of §1252(g) as

“specifically directed at the deconstruction, fragmentation,

and hence prolongation of removal proceedings.” 525 U.S.

at 486. Petitioners, however, are not seeking “separate

rounds of judicial intervention.” Jd. at 485. Rather, their

claims focus on the procedures used by the INS in making

decisions after Mr. Botezatu’s deportation hearing, claims

that did not arise and therefore could not possibly have been

raised on his direct appeal from that hearing.’ -

"For this reason, Petitioners’ case is also distinguishable from the

situation presented to this Court in Felker v. Turpin, 518 U.S. 651

(1996). Felker upheld the constitutionality of a provision in the

Antiterrorism and Effective Death Penalty Act that prohibited this

Court from reviewing the lower courts’ denial of a “second or

successive” habeas petition. Petitioners’ claims do not involve a

“second or successive” request for review of the constitutionality

of INS procedures. Instead, this case constitutes Petitioners’ first

and only opportunity to challenge the constitutionality of INS

procedures used subsequent to Mr. Botezatu’s deportation

hearing. Additionally, in upholding the statutory provision at

issue in Felker, the Court noted that Congress did “not deprive

The Seventh Circuit’s mischaracterization of

Petitioners’ case and its failure to recognize the difference

between their claims and those this Court held to be covered

by §1252(g) yields a disconcerting result: the federal courts

are stripped of jurisdiction to consider any constitutional

challenges arising from INS proceedings subsequent to a

deportation hearing. Nothing in this Court’s decision in

AADC or in the legislative purposes underlying §1252(g)

indicates that Congress intended to grant the INS such broad

immunity from constitutional accountability.. By ignoring

this Court’s admonition that the long-standing presumption

favoring judicial review of administrative decisions can be

overcome only by clear evidence of congressional intent, the

Seventh Circuit improperly created “the ‘serious

constitutional question’ that [arises when] a federal statute

[is] construed to deny any judicial forum for a colorable

constitutional claim.” Webster v. Doe, 486 U.S. at 603

(quoting Bowen v. Michigan Academy of Family Physicians,

476 U.S. at 681 n.12).

this Court of jurisdiction to entertain original habeas petitions.”

Id. at 654. In this case, however, if the Seventh Circuit’s

expansive interpretation of §1252(g) is upheld, Petitioners have

no alternative judicial forum comparable to the one that existed in

Felker.

Hil. THIS CASE RAISES RECURRING, IMPORTANT ISSUES

THAT THIS COURT SHOULD RESOLVE.

The recent flood of federal cases cited in this petition

demonstrates that the factual scenario involved in this case --

a claim, via a habeas petition, alleging systemic problems at

the INS that deprive petitioners and others similarly situated

of due process or other constitutional rights -- is hardly

unique. In addition to this case, decisions from nine other

circuits have likewise involved INS attempts to dismiss

habeas petitions for want of jurisdiction pursuant to

§1252(g). In each case, the INS argued that §1252(g) bars

challenges that relate to the Attorney General’s exercise of

her discretion to prosecute (i.e., deport or remove). Without

exception, the petitioners have responded that their

challenges do not constitute an attack on the Attorney

General’s decision to “commence proceedings, to adjudicate

cases, or to execute removal orders” and, moreover, that their

challenges do not impermissibly tread on her prosecutorial

discretion. The issue presented in this petition is thus both

important and recurring.

In this case, Petitioners seek habeas relief to address

systemic problems at the INS that violated their

constitutionally guaranteed rights to procedural due process

by: (1) failing to hold any hearings on certain applications

SS aS

from them and others; (2) pre-judging the merits of (i.e.,

“front-desking”) certain applications before they were

actually filed; and (3) discouraging asylum applicants from

seeking appellate review of INS orders. The Seventh Circuit

thought that §1252(g) barred these complaints because they

amounted to attacks on the Attorney General’s refusal to

grant deferred action. That holding is possible only under an

understanding of §1252(g) that ignores this Court’s original

explanation for construing §1252( g) narrowly to include only

three discrete actions along the way to deportation. The

decision below has broad implications for the scope of

§1252(g) and creates a conflict with the rule of law applied

by the great majority of the Courts of Appeals — a conflict

that is unlikely to disappear given the Seventh Circuit’s

consistent adherence to an expansive interpretation of

§1252(g) in cases other than this one.' Accordingly, this

‘See Bhatt v. Reno, --- F.3d --- (CA7 1999) (1999 U.S. App.

LEXIS 26545, at *7-8) (noting that “we have consistently decided

that .. . §1252(g) foreclose[s] virtually all judicial review of

deportation, including habeas review” and that petitioners are left

only with “the safety valve of direct review” of their deportation

hearings in the courts of appeals); Fedorca v. Perryman, 197 F.3d

236, 240 (CA7 1999) (giving lip service to the view that §1252(g)

“precludes review of only the three listed discretionary decisions

or actions of the Attorney General,” but then going on to deny

jurisdiction in that case because “[i]f [the petitioner’s] motion to

reopen his deportation proceedings had been successful, . . . it

would have abrogated the . . . deportation order”); Musto v.

Perryman, 193 F.3d 888, 891 (CA7 1999) (observing that

“because [petitioner] is challenging his administrative

adjudication and removal order, the catch-all provision of

issue warrants immediate resolution by this Court.

CONCLUSION

The petition for a writ of certiorari should be granted.

Robert A. Perkins*

Robert A. Perkins & Assoc., P.C.

601 S. LaSalle, Suite 210

Chicago, IL 60605

(312) 461-1199

Kit Kinports

Professor of Law

University of Illinois College of Law

504 E. Pennsylvania Avenue

Champaign, IL 61820

(217) 333-4205

*Counsel of Record

[§1252(g)] applies to further bar judicial review’’) (emphasis

added).

U.S. 7™ CIRCUIT COURT OF APPEALS

Plaintiffs-Appellants,

IMMIGRATION AND NATURALIZATION SERVICE

and BRYAN PERRYMAN, Chicago District Director

of the Immigration and Naturalization Service,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 1965--George W. Lindberg, Judge.

Argued June 8, 1999--Decided October 21, 1999

Before COFFEY, EASTERBROOK and ROVNER, Circuit

Judges. .

ROVNER, Circuit Judge. Emil Botezatu, a native of

. Romania, entered the United States as a non- immigrant alien

in transit on March 19, 1993 with his fianc, Gabriela, also

Romanian, with whom he had been living nearly

continuously since 1988. Upon arrival, each filed a claim for

political asylum with the Immigration and Naturalization

Service. Her application for asylum was granted and she

became a lawful permanent resident alien, but his application

was denied. He was authorized to remain until March 24,

1993, but he did not leave this country at that time. In June

1994, the INS issued an order to show cause alleging that he

was deportable as an alien who remained in the United States

beyond the authorized period. See 8 U.S.C. sec.sec. 1227,

1231(a)(1)(B). On June 30, 1995, an immigration judge

found Botezatu deportable, denied his asylum application,

and granted his application for voluntary departure.

On August 17, 1995, Botezatu married Gabriela. In January

1996, she filed a visa petition on her husband's behalf as a

spouse of a permanent resident. The INS approved the

petition, but no visas in the permanent resident category were

available for him. On August 5, 1996, the Board of

Immigration Appeals (the "Board") affirmed the immigration

judge's decision of June 30, 1995, indicating that Botezatu

might apply for an extension of the voluntary departure

period. He petitioned this court to review the Board's

decision but did not apply for an extension. In April 1997,

we denied his petition in an unpublished order.

Botezatu requested that the INS District Director reinstate his

voluntary departure. The District Director denied this request

because, he said, Botezatu had violated the terms of his

voluntary departure by failing to seek an extension after the

Board's decision. The INS agreed, however, to postpone

Botezatu's deportation while his request was pending for

humanitarian parole or deferred action on the grounds of his

desire to remain in this country with his wife. The agency

denied this request n February 1998. Botezatu filed for a

stay of deportation, but in March 1998, the District Director

denied this application and the INS then ordered Botezatu to

report for deportation on March 31, 1998.

On that date, however, the Botezatus instead filed this

lawsuit in federal district court contesting several

determinations of the Board relating to Emil Botezatu's

deportation. They alleged that the district court had subject

matter jurisdiction under 42 U.S.C. sec. 1983 (civil rights), 5

U.S.C. sec. 701 et seq. (the Administrative Procedure Act),

and 28 U.S.C. sec.sec. 1331 (federal question jurisdiction)

and 2241 (habeas corpus). Their complaint alleged that

several actions or decisions of the Board violated various

amendments to the federal Constitution, provisions of the

International Covenant on Civil and Political Rights, and

customary norms of international law. The INS argued that

the complaint should be dismissed for want of subject matter

jurisdiction and the district court agreed, dismissing the case

on November 20, 1998. The Botezatus appeal.

We review a dismissal for want of subject matter jurisdiction

de novo. Jones v. United States, 112 F.3d 299, 301 (7th Cir.

1997), cert. denied, 118 S.Ct. 173 (1997). At issue is whether

this case is governed by sec. 242(g) of the Immigration and

Nationality Act ("INA"), as amended by sec. 306(a) of the

Illegal Immigration Reform and Immi grant Responsibility

Act of 1996, 110 Stat. 3009-546 ("IIRIRA"), and the proper

interpretation of this provision in view of recent caselaw.

The statute reads:

Except as provided in this section and notwithstanding any

other provision of law, no court shall have jurisdiction to

hear any cause or claim by or on behalf of any alien arising

from the decision or action by the Attorney General to

commence proceedings, adjudicate cases, or execute removal

orders against any alien under this Act.

8 U.S.C. sec. 1252(g)./1 The Supreme Court has recently

rejected the interpretation that "sec. 1252(g) covers the

universe of deportation claims--that it is 2 sort of 'zipper'

clause that says 'no judicial review in deportation cases

unless this section provides judicial review." Reno v.

American-Arab Anti-Discrimination Committee, 119 S.Ct.

936, 943 (1999) ("ADC"). In ADC, the Court held that sec.

1252(g) precludes only review of the three discretionary

decisions or actions listed in the statute, namely, decisions to

"commence proceedings, adjudicate cases, or execute

removal orders." Id. The Botezatus argue that sec. 1252(g)

does not apply to their case because they do not challenge

any of these three listed types of decisions, but only the

constitutionality of various post- deportation procedures. In

particular, the Botezatus contend that the district court has

jurisdiction over their claims attacking the INS's decisions

in: (1) refusing to grant Botezatu's request for a stay of

deportation, (2) failing to reinstate his administrative grant of

voluntary departure, and (3) denying his request for

humanitarian relief in the form of humanitarian parole.

The plaintiffs’ arguments are not persuasive. They claim that

the district court has jurisdiction over the INS's refusal to

issue a stay of deportation, citing Cheng Fan Kwok v. INS,

392 U.S. 206 (1968). There the Supreme Court read the

former INA sec. 106(a)(10), the then- effective immigration

habeas provision, to provide a jurisdictional basis for a

district court to review a stay of deportation. The Court held

that in such an attack, the "petitioner did not attack the

deportation order itself." Id. at 213. Unfortunately for the

Botezatus, the statutory provision construed in Cheng which

formerly allowed for the review they request has been

repealed by sec. 401(e) of the Anti- Terrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), see LaGuerre v.

Reno, 164 F.3d 1035, 1038 (7th Cir. 1998), and the

jurisdictional basis for district court review of a stay of

deportation was removed by sec. 1252(g). In interpreting sec.

1252(g), the Supreme Court has disapproved Cheng, treating

denial of a stay of deportation as one of "various decisions . .

. leading up to or consequent upon final orders of

deportation” which was within the scope of sec. 1252(g).

ADC, 118 S.Ct at 944. The plaintiffs cite several cases

suggesting that, notwithstanding sec. 1252(g), a district court

may review denials of some other forms of ancillary relief

not at issue here. Perhaps so. However, in ADC, the Supreme

Court has indicated that a denial of a stay of deportation is

not among the actions or decisions to which sec. 1252(g) is

inapplicable.

The plaintiffs further contend that the Supreme Court's

limited holding in ADC about the short list of decisions over

which the district court lacks jurisdiction under sec. 1252(g)

(decisions to commence proceedings, adjudicate cases, or

—

execute removal orders) means that the district court has

jurisdiction to review the refusal to reinstate Botezatu's

voluntary departure or to grant him humanitarian parole or

deferred action. This, they argue, is because they do not

make a direct attack upon the final order of deportation nor

on an order made during the deportation proceedings. The

relief they request is not, therefore, on the list of precluded

items. However, in ADC, the Supreme Court unambiguously

read "'no deferred action’ decisions and similar discretionary

determinations” as governed by sec. 1252(g), saying that

Congress intended to give these sorts of determinations

"some measure of protection" from judicial review and

provided that "if they are reviewable at all, they at least will

not be made bases for separate rounds of judicial

intervention.” 119 S.Ct. at 944. Review of refusal to grant

deferred action is for this reason excluded from the

jurisdiction of the district court.

The question remains whether the INS's refusal to grant

humanitarian parole or to reinstate Botezatu's voluntary

departure falls within the class of "similar discretionary

determinations" which the Supreme Court treated as

relevantly analogous to "no deferred action" decisions, and

so within the scope of sec. 1252(g). The plaintiffs themselves

concede that humanitarian parole is a sort of relief

functionally equivalent to deferred action--they request these

two kinds of relief in the alternative. In any event they fail to

suggest any distinctions among deferred action, humanitarian

parole and voluntary departure which would exclude the

latter two from the scope of sec. 1252(g) if deferred action

comes under it. The distinction, if any, was theirs to make,

and since they did not make it, the point is waived. See

Parrillo v. Commercial Union Ins. Co., 85 F.3d 1245, 1249-

1250 (7th Cir. 1996). The district court, then, had no

jurisdiction over the Botezatus' claims, and was correct to

dismiss the claims on that basis.

AFFIRMED.

/1 Botezatu's case is governed by the IIRIRA transition rules

because removal proceedings commenced in this case before

April 1, 1997. Thus, we consider the effect only of section

1252(g), and not any other subparts of that section. See

Lalani v. Perryman, 105 F.3d 334, 336 (7th Cir. 1997) (as of

April 1, 1997, subsection (g) will apply retroactively, unlike

the other subsections).

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

January 5, 2000

Before

Hon. John L. Coffey, Circuit Judge

Hon. Frank H. Easterbrook, Circuit Judge

Hon. Iliana Diamond Rovner, Circuit Judge

No. 98-4155

Emil and Gabriela Botezatu ) Appeal from the United States

Plaintiffs-Appellants ) District Court for the Northern

) District of Illinois, Eastern

v. ~ ) Division.

)

Immigration and ) No. 98 C 1965

Naturalization Service )

and Bryan Perryman, )

Chicago District Director ) George W. Lindberg,

of the Immigration and ) Judge.

Naturalization Service, )

Defendants-Appellees. )

ORDER

Plaintiffs-appellants filed a petition for rehearing and

petition for rehearing en banc on December 6, 1999. No

judge in regular active service has requested a vote on the

petition for rehearing en banc and all of the judges on the

panel have voted to deny rehearing. The petition for

rehearing is therefore DENIED.

Emil Botezatu V. INS

Case No: 98-cv-01965

ND II], October 21, 1998

Judge George W. Lindberg

Respondent Immigration and Naturalization Services (INS)

requests the dismissal of petitioner Emil Botezatu's petition

for a writ of habeas corpus for lack of subject matter

jurisdiction. Botezatu is currently awaiting deportation to

Romania. He entered the United States on March 19, 1993,

and applied for political asylum. The INS denied the

application on May 3, 1994. In June 1995, an administrative

judge found Botezatu to be deportable and granted plaintiff

voluntary departure if he left the United States before

October 30, 1995. The court order indicated that if plaintiff

did not leave within the specified period, the privilege of

voluntary departure automatically converted into a final

order of deportation. In July 1995, Botezatu appealed the

order of deportation to the Board of Immigration Appeals

(BIA). On August 17, 1995, petitioner married Gabriela

Botezatu. In January 1996, petitioner's wife filed a visa

petition on his behalf for a spouse of a permanent resident.

Although the INS approved the visa petition, no visas within

this category are currently available. Petitioner failed to

depart the United States as of October 30, 1995. The BIA

affirmed the order of deportation on August 5, 1996.

Botezatu appealed to the United States Court of Appeals for

the Seventh Circuit, which affirmed on April 17, 1997. On

March 13, 1998, the INS again ordered Botezatu to report for

deportation, this time by March 31, 1998. On that date,

Botezatu filed the instant petition to stay his deportation and

obtain review of the INS' deportation procedures. After

reviewing the petition, this court must now dismiss for lack

of subject matter jurisdiction. Petitioner presents three bases

for jurisdiction: 28 U.S.C. § 2241, 42 U.S.C. § 1983 and 5

U.S.C. § 701. Not only do these statutes fail to give this

court jurisdiction over the petition but § 242(g) of the

Immigration and Nationality Act (INA) specifically divests

this court of jurisdiction over it. 8 U.S.C. § 1252(g). The

section states that "no court shall have jurisdiction to hear

any cause or claim by or on behalf of any alien arising from

the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders

against any alien under this chapter." 8 U.S.C. § 1252(g).

Plaintiff claims that he is not directly appealing a final order

of deportation but rather the hearing process afforded by the

INS, making § 242(g) inapplicable. This argument is not

persuasive. First, plaintiff filed this complaint on the last day

available to stay his deportation, indicating that the

complaint is "arising from" the final order of deportation.

Second, the language of § 242(g) governs the hearing

process as well as final orders of deportation when it gives

the Attorney General exclusive jurisdiction over its power

"to commence proceedings" and "adjudicate cases." Nor do

the additional statutes petitioner cites provide jurisdiction.

Section 242(g)'s grant of exclusive jurisdiction to the

Attorney General over deportation cases divests district

courts of their habeas corpus jurisdiction under 28 U.S.C. §

2241. Yang v. INS, 199 F.3d 1185, 1195 (7th Cir. 1997).

Section 1983 may only be invoked when a person acting

"under the color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of

Columbia" deprives a person of a right guaranteed by the

Constitution. 42 U.S.C. §1983 (emphasis added); see

Wheedlin v. Wheeler, 373 U.S. 647, 650 (1963). In the

present case, no state statute, ordinance or regulation is at

issue but instead the actions of a federal agency. Finally, 5

U.S.C. § 701 is inapplicable to agency action that "is

committed to agency discretion by law," which is the case

here. Lalani v. Perryman, 105 F.3d 334, 337 (7th Cir. 1997).

For these reasons, the court grants the motion to dismiss for

lack of subject matter jurisdiction.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EMIL AND GABRIELLA _)

BOTEZATU, )

)

PLAINTIFFS _ )

)

V. )

)

IMMIGRATION AND ) [date stamp:]

NATURALIZATION ) RECEIVED

SERVICE AND BRYAN ) MAR 31 1998

PERRYMAN, CHICAGO _)

DISTRICT DIRECTOR ) Michael W. Dobbins

OF IMMIGRATION AND) Clerk, U.S. District

SERVICE ) Court

) [illegible]

DEFENDANTS) MAGISTRATE

) JUDGE ASHMAN

COMPLAINT

Emil and Gabriela Botezatu (collectively “Plaintiffs”

or the “Botezatus”), by their attorneys, hereby complain of

defendants Immigration and Naturalization Service, and

Bryan Perryman, the Chicago District Director of the

Immigration and Naturalization Service, and for their

Complaint Plaintiffs state as follows:

The Parties

l. Plaintiff Gabriela Botezatu (““Mrs. Botezatu’’)

is a Lawful Permanent Resident of the United States and

resides in Chicago, Illinois. In March 1993, Mrs. Botezatu

fled her native Romania and came to the United States

seeking asylum. She was granted asylum on October 5,

1993. A copy of the decision granting her asylum is

annexed.

[stamp:] RECEIVED 3-31-98

UNITED STATES ATTORNEY

NORTHERN DISTRICT

CHICAGO, ILLINOIS

REC’D BY SM

[Illegible] NOT VERIFIED

ye Plaintiff Emil Botezatu (““Mr. Botezatu’”’) is

Mrs. Botezatu’s husband. The couple have resided together

continuously since 1988. In March 1993, Mr. Botezatu came

to the United States seeking asylum. However, his asylum

case was denied. Mr. Botezatu has no criminal record at all.

3. Defendant INS is an agency of the federal _

government within the Department of Justice and is the

agency in charge of enforcing the INA, 8 U.S.C. §1101 et.

seq.

4, Defendant Chicago District Director of the

INS is charged with the duty of administration and

enforcement of all the functions and powers and duties of the

INS.

Jurisdiction and Venue

- Jurisdiction is proper in this Court pursuant to

28 U.S.C. §2241 (Habeas Corpus), U.S.C. §1331 (Federal

Questions); 42 U.S.C. §1983 (Civil Rights Statutes) and the

Administrative Procedures Act, 5 U.S.C. §701 et. seq.

6. Venue is proper in this district under 28

U.S.C. §1391(b) because a substantial part of the events

giving rise to Plaintiff's claims occurred here.

Facts

7; Plaintiffs Emil and Gabriela Botezatu were

born in Romania and grew up there under the rule of

Communist Dictator Nicolae Ceauescu.

8. Mr. Botezatu grew up in an abusive home.

He met Mrs. Botezatu in 1988 and began dating her. Later

that year, he was invited to move in with her family and did

so. He has lived with Mrs. Botezatu continuously since that

time up to present.

9. The Botezatus opposed the regime of

Communist Dictator Nicolae Ceausescu and later opposed

the regime of his successor Ion Iliescu. They participated in

demonstrations together and had similar problems on

account of their political opinions.

10. The Botezatus lived together but did not

marry during this time. In light of their political problems,

they knew they might have to flee Romania at any time and

were informed by colleagues that their chances of obtaining a

visa to come to the United Sates were better if they were

married. (See Affidavit of Gabriela Botezatu, annexed as

part of Group Exhibit 1).

11. On March 19, 1993 the Botezatus fled

Romania and made separate claims for asylum in the United

States. Prior to claiminig asylum, they were mistakenly

advised by the person who assisted them with their asylum

applications not to get married prior to making their claims.

12. The Botezatus filed separate asylum

applications in 1993. Despite the fact that these were

separate applications, virtually all of the core facts were the

same.

13. On October 5, 1993, Mrs. Botezatu was

granted asylum by the INS asylum office. The asylum grant

indicates that the INS has determined that Mrs. Botezatu has

a well-founded fear of persecution should she return to

Romania. A copy of Mrs. Botezatu’s asylum grant is

annexed as part of Group Exhibit 1.

14. Mr. Botezatu’s asylum claim was denied by

the INS asylum office and his case was eventually presented

to an immigration judge in deportation proceedings. The

judge denied the case and Mr. Botezatu appealed.

15. In the meantime, in light of the changed

circumstances (i.e. Mrs. Botezatu already won her case and

Mr. Botezatu was fighting his), the couple were legally

married on August 17, 1995. A copy of their marriage

certificate is annexed as part of Group Exhibit 1.

16. Mrs. Botezatu became a Lawful Permanent

Residenton June 1, 1994 and in January, 1996, she applied

for permanent residence for Mr. Botezatu. This application

was appioved on 1996, but there are currently no visa

numbers available for Mr. Botezatu to immigrate pursuant to

this approved petition. A copy of the approval is annexed as

Exhibit 2.

17. On April 7, 1997 Mr. Botezatu exhausted the

appeals on his asylum case when the United States Court of

Appeals for the Seventh Circuit rejected the appeal.

18. On May 1, 1997 Mr. Botezatu, through newly

retained counsel, filed a motion to reinstated the period of

voluntary departure granted to him by the immigration judge

and the Board of Immigration Appeals. A copy of his

Motion for Reinstatement is annexed as Exhibit 3.

1). The INS did not respond to the Motion and on

May 30,1997 a second request was sent to the INS regarding

this issue. A copy of the second request is annexed as

Exhibit 4.

2). OnJune 6, 1997, the INS denied the Motion

to Reinstate Voluntary Departure. A copy of the denial is

annexed as Exhibit 5. No reason was given for the denial if

this Motion.

21. | The Chicago District Ofticer of the INS does

not havea consistent policy on extending or reinstating

voluntary departure during a Seventh Circuit appeal of an

asylum case and, on information and belief, may be using its

ability to grant extensions/reinstatement as a means to

discourage asylum applicants from pursuing non-frivolous

appeals. In one case, counsel was informed by a deportation

officer that refusal to extend/reinstated voluntary departure

was done to penalize people who “sue the INS” by seeking

Seventh Circuit review of asylum cases.

ye On June 20, 1997 Mr. Botezatu erroneously

received a form I-166, a “bag and baggage” letter, requesting

that he report for deportation to Bulgaria on July 10, 1997.

A copy of this letter is annexed as Exhibit 6.

a3: On July 8, 1997, Mr. Botezatu’s counsel

called the deportation officer in charge of Mr. Botezatu’s

case. A letter confirming parts of this conversation is

annexed as Exhibit 7. In this conversation, counsel informed

the officer that a mistake had been made and that Mr.

Botezatu was from Romania, not Bulgaria. In addition,

during the foregoing conversation counsel informed the

officer that Mr. Botezatu would be seeking a stay of

deportation, deferred action, or in the alternative

humanitarian parole. Before any discussion of the facts of

Mr. Botezatu’s case, the officer informed counsel that the

request for 2 stay would be denied, and that he was under a

directive to deny all requests for a stay unless they involved

serious medical reasons.

24. On information and belief, within the last 2-3

years the Chicago District office of the INS has adopted a

policy of automatically denying, without thorough

consideration, requests for Stays of deportation unless based

on serious medical reasons. Other factors are not considered.

25. In addition, during the above conversation,

the deportation officer requested that counsel not file an

application for a stay of deportation since such requests

required him to work since they had to be responded to in

writing. The officer also informed counsel of another

directive that any request for a stay would automatically

result in Mr. Botezatu being taken into INS custody and

jailed.

26. During the foregoing conversation, the

deportation officer agreed to postpone Mr. Botezatu’s

deportation while his request for humanitarian parole, or in

the alternative, deferred action, was pending. (See Exhibit 7)

27. Mrs. Botezatu filed Group Exhibit 1, a request

for humanitarian parole for Mr. Botezatu or in the alternative

deferred action on July 9, 1997, paying the filing fee of $70.

The request was accompanied by a letter from U.S. Senator

Carol Moseley-Braun, expert and fact affidavits, economic

and other evidence attesting to the humanitarian and public

interest reasons for keeping Mr. Botezatu and his wife

together in the United States.

28. Approximately one week later, the

deportation officer called counsel and informed him that

because the request for humanitarian parole or alternatively

deferred action was accompanied by a Senator’s letter, his

superiors had told him that he could not keep his earlier

agreement and would have to take action to deport Mr.

Botezatu, but would give him additional time to prepare for

deportation.

29. Soon after this conversation, in or around

August 1997, the Washington D.C. office of the INS made

an inquiry into the case. At this time, counsel spoke again

with the deportation officer who agreed not to take action in

the case until the request for humanitarian parole had been

adjudicated. Counsel was informed that humanitarian parole

requests were handled by the examination branch of the INS

and that this branch had not yet requested Mr. Botezatu’s

file. Counsel requested that the humanitarian parole request

be adjudicated. A letter confirming this request is annexed

as Exhibit 8.

30. | Counsel was subsequent! informed that the

Washington D.C. office of the INS had referred the matter

back to the Chicago District Office for a decision and on

October 21, 1997 counsel spoke again with the deportation

officer who informed him that the humanitarian parole

request was being handled by the Examinations Branch of

the INS and that such requests could not be handled by the

Deportation Branch. During the conversation, the officer

informed counsel that he had spoken to someone from the

Examinations Branch and that there was a 90% chance that

the humanitarian parole application would be denied.

However, the officer informed counsel at the Examinations

Branch had not looked at the file.

31. Inor around January 1998 the examinations

branch of the INS called counsel and informed him that it

could not grant the humanitarian parole request because

humanitarian parole requests could not be granted for people

present in the United States. Counsel informed the INS that

this was not the law and ran contrary to INS regulations and

practice. In fact, the INS has granted humanitarian parole to

people present in the United States. The officer’s response

was that the matter would be handled by the deportation

branch and to call them.

32. Counsel called the District Director and other

officials several times to correct the misunderstanding of law

regarding humanitarian parole. Within the next few days,

counsel received a call from one of the supervisors at the

Deportation Branch who informed counsel that the

Deportation Branch could not consider humanitarian parole

requests. She advised counsel to file an application for a stay

of deportation. Since neither the Deportation Branch nor the

Examinations Branch could advise counsel who or how the

humanitarian parole application would be decided, counsel

filed an application application for a stay of deportation on

February 4, 1998. A copy of the application for a stay of

deportation and cover letter are annexed as Exhibit 9.

Counsel re-submitted, as part of the application for a stay of

deportation, all of the affidavits and other supporting exhibits

contained in Group Exhibit 1.

33. In early February 1998 Defendants wrote

Plaintiffs a letter denying them “advance parole”. A copy of

the letter is annexed as Exhibit 10. The letter merely states

that they don’t qualify for “advance parole”. The letter does

not contain any standards for determining humanitarian

parole of discuss the arguments made by Plaintiffs.

34. On March 11, 1998 the stay of deportation

was denied. A copy of the denial is annexed as Exhibit 11.

3D. On March 13, 1998 the INS issued another

“bag and baggage letter” requesting that Mr. Botezatu report

for deportation on March 31, 1998, and placing him in the

constructive custody of the INS. A copy of this letter is

annexed as Exhibit 12.

36. | The Defendants never held a hearing on

whether Mr. Botezatu, who is married to an asylee/lawful

permanent resident, may remain in the United States.

37. Neither Mr. nor Mrs. Botezatu have returned

to Romania since fleeing there in 1993.

COUNT I

(Violation of the Substantive Due Process Protected by the

Fifth, Ninth, Tenth and Other Amendments of the U.S.

Constitution)

38. Plaintiffs re-allege and incorporate paragraphs

1 through 37 as if fully set forth herein.

39. The United States Supreme Court has found

that there are certain

fundamental rights emanating from the guarantees of the

United States Constitution. Among those rights is the right

to privacy, which includes freedom from government

intervention in family affairs, particularly in marital

relationships.

40. The actions of the defendants in attempting to

deport Mr. Botezatu and in refraining from taking actions

which would allow him to stay in the United States

substantially interfere with his and his family’s right to

privacy in that the defendants will be wrenching apart Mr.

Botezatu from his wife.

41. There are no compelling state interests for the

defendant’s interference in this case since Mr. Botezatu has

never been convicted of any crimes and, by all accounts, has

been a useful member of society for the past five years he has

been here.

42. Mr. and Mrs. Botezatu have been injured and

damaged by the defendants interference with their marriage

in that they may be’separated for at least 10 years and would

be subjected to additional substantial hardships if Mr.

Botezatu is deported.

COUNT II

(Violation of Article 23 of the International Convention of

Civil and Political Rights)

43. Plaintiffs re-allege and incorporate paragraphs

1 through 42 as if fully set forth herein.

44. Article II of the United States Constitution

declares all treaties of the United States to be Federal Law.

45. The United States is a signatory to the

International Convention of Civil and Political Rights (the

“Convention”’), which was ratified in 1992.

46. Article 23 of the Convention obligates

signatory states, including the United States, to protect the

right of marriage.

47. In deporting Mr. Botezatu, in refraining from

taking actions to allow him from taking action to allow him

to stay in the United States, and in failing to hold any sort of

hearing regarding him staying in the United States based on

his marriage, the INS is in violation of Article 23 of the

Convention.

48. Plaintiffs have been damaged by defendant’s

actions in that they may be separated for at least 10 years and

would be subjected to additional substantial hardships if Mr.

Botezatu is deported.

COUNT Ii

(Violation of Pre-emptory Standards of International Law/jus

cogens. Through

Interference with Right of Marriage)

49. Plaintiffs re-allege and incorporate paragraphs

1 through 48 as if fully set forth herein.

50. Marriage is a recognized human right under

U.S. national and customary international law. (See e.g.,

Universal Declaration of Human Rights, Article 16,

American Convention of Human Rights)

51. The United States is obligated to follow

customary international law. (See Article II, Section 2, U.S.

Const. See also Restatement of Law of Foreign

Relations.3™, Section 101, 102 and 111)

52. The United States is obligated to refrain from

gross and consistent patters of violation of human rights

under international law, (see e.g., Restatement of the Law of

Foreign Relations 3™ sections 701 and 702).

53. By deporting Emil Botezatu and possibly

subjecting him to a 10 separation from his wife, the United

States government substantially interferes with the

Botezatus’ right of marriage. By denying the Botezatus the

right to a hearing on the merits whether relief should be

granted and Emil Botezatu should be allowed to remain in

the United States, the United States commits a gross

violation of their human rights.

51. By refusing the same right to other persons

~ similarly situated, believed upon information and belief to

number in the hundreds if not thousands, the United States

engages in a consistent pattern of abusing human rights, in

violation of its obligations under the U.S. Constition and pre-

emptory standards of international law, (jus cogens).

54. By deporting Mr. Botezatu, failing to

accommodate his requests to stay in the United States

(humanitarian parole, stay of deportation) and failing to hold

a hearing on whether he should be separated from his wife,

the INS has violated customary international law.

55. Plaintiffs have been damaged by defendant’s

actions in that they may be separated for at least 10 years and

would be subjected to additional substantial hardships if Mr.

Botezatu is deported.

COUNT IV

(Flawed Decision Making Procedures on Stays of

Deportation Resulting in the Denial of

Procedural Due Process Under the Fifth Amendment of the

U.S. Constitution)

56. Plaintiffs re-allege and incorporate paragraphs

1 through 55 as if fully set forth herein.

57. The Fifth Amendment of the United States

Constitution provides that “No person shail...be deprived of

life, liberty or property, without due process of law.”

58. | The Defendant policy of pre-deciding requests

for stays of deportation before they are even filed and

automatically denying, without thorough consideration, stays

of deportation for people unless they have serious medical

problems, violates procedural due process.

59. In addition, the Defendants erred as a matter

of law in failing to address the legal factors necessary for a

stay and the case law regarding stays of deportation in

similar circumstances.

60. Defendant’s also erred as a matter of fact in

failing to recognize that Plaintiffs damages are far worse than

other who may be separated in that in other cases, the person

with immigration status in the U.S. can reside their spouse,

whereas in this case Mrs. Botezatu cannot reside with Mr.

Botezatu in Romania since the INS has already determined

that she has a well-founded fear of persecution should she

return there.

61. Plaintiffs were severely damaged and

prejudiced by the due process violations outlined above, in

that they were denied a fair hearing on their request for a

stay, Mr. Botezatu is now scheduled to be deported from the

United States and may be barred from being with his wife for

10 years.

COUNT V

(Flawed Decision Making Procedures on Extensions and

Reinstatement of Voluntary Departure Resulting in the

Denial of Procedural Due Process Under the Fifth

Amendment of the U.S. Constitution)

62. Plaintiffs re-allege and incorporate paragraphs

1 through 65 as if fully set forth herein.

63. The Fifth Amendment of the United States

Constitution provides that “‘No person shall... be deprived of

life, liberty or property, without due process of law.”

The Defendants failure to adopt a procedure on humanitarian

parole, failure to enunciate any legal standards or specific

reasons for denying it in this case violates due process of

law.

64. The Defendants also erred as a matter of law

in failing to recognize that under their own regulations and

practice and humanitarian parole applications may be granted

to people in the United States.

65. Plaintiffs were severely damaged and

prejudiced by the due process violations outlined above, in

that Mr. Botezatu was denied his previously granted

privilege of voluntary departure, is scheduled to be deported

from the United States, and may be barred from immigrating

to the United States to be with his wife for the next 10 years.

COUNT VI

(Flawed Decision Making Procedures on Humanitarian

Parole Applications Resulting in the Denial of Procedural

Due Process Under the Fifth Amendment of the U.S.

Constitution)

66. Plaintiffs re-allege and incorporate paragraphs

1 through 70 as if fully set forth herein.

67. The Fifth Amendment of the United States

Constitution provides that “No person shall ...be deprived of

life, liberty or property, without due process of law.”

68. The Defendants failure to adopt a procedure

on humanitarian perole, failure to enunciate any legal

standards or specific reasons for denying it in this case

violates due process of law.

69. The Defendants also erred as a matter of law

in failing to recognize that under their own regulations and

practice humanitarian parole applications may be granted to

people in the United States.

70. __ Plaintiffs were severely damaged and

prejudiced by the due process violations and errors or law

outlined above, in that Mr. Botezatu is scheduled to be

deported from the United States, and may be barred from

immigrating to the United States to be with his wife for the

next 10 years.

COUNT VII

(Inconsistent Decision Making Procedures in Asylum

Process Resulting in the Denial of Procedural Due Process

Under the Fifth Amendment of the U.S. Constitution)

71. Plaintiffs re-allege and incorporate paragraphs

1 through 70 as if fully set forth herein.

72. The Fifth Amendment of the United States

Constitution provides that “No person shall... be deprived of

life, liberty or property, without due process us law.”

ry} The Defendants violated due process in

denying Mr. Botezatu asylum while granting it to Mrs.

Botezatu when the Botezatu’s lived together in Romania and

many of the core facts of their cases are identical.

74. Plaintiffs were severely damaged and

prejudiced by the due process violations and errors or law

outlined above, in that Mr. Botezatu was denied asylum, is

scheduled to be deported from the United States, and may be

barred from immigrating to the United States to be with his

wife for the next 10 years.

COUNT VIII

(Cruel and Unusual Punishment in Violation of the Eighth

Amendment of the United States Constitution)

75. Plaintiffs re-allege and incorporate paragraphs

1 through 74 as if fully set forth herein.

76. The Eighth Amendment to the United States

Constitution provides that: “Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.”

77. Deporting Mr. Botezatu would be cruel and

unusual punishment in violation of the Eighth Amendment in

that he has not committed any crimes, may be separated from

his wife for at least 10 years and be subjected to additional

substantial hardships if deported.

WHEREFORE, Plaintiffs prays that this honorable

court:

I. Issue an order prohibiting the INS from

detaining Mr. Botezatu pending the resolution of this case,

and allowing him to stay in the United States until such time

as a decision rendered by this Court after a full review of the

merits of this case.

II. Issue an order compelling the Defendants to

allow Mr. and Mrs. Botezatu to stay together in the United

States since their separation violates their right to privacy

and the above treaties.

[I]. Issue an order compelling Defendants to

remedy the procedural problems set forth above since they

violate due process of law.

IV. Grant Plaintiffs their attorney’s fees under the

Equal Access to Justice Act, 28 U.S.C.§2412.

™ Grant any other and further relief that this

Court may deem fit and proper.

Respectfully Submitted,

PLAINTIFFS,

By: _ s/Robert A. Perkins

Robert A. Perkins,

One of their attorneys

Robert A. Perkins

Robert A. Perkins & Associates

601 S. LaSalle St. Suite 210

Chicago, Illinois 60605

(312)461-1199

Joseph Zinger

Attorney at Law

1345 Wiley Road, Suite 116

Schaumburg, Illinois 60173

(847)755-1290

U.S. Department of Justice

Immigration and Naturalization Service

Notice of Action — Voluntary Departure

Please refer to this file number:

File: A72 135 377

To: (Enter full name and mailing address of aliens)

Botezatu, Emil Date: June 6, 1997

707 W. Waveland, Apt. 1109

Chicago, IL 60613 MAT WIT ATTY

Ph#

Please note: the blocks checked below relate to action taken

in your case.

= You have violated the terms of your admission as a

nonimmigrant. Consequently, the permission previously

granted you to remain in the United States is rescinded. You

are required to depart from the United States at your own

expense on or before

required to depart from the United States at your own

expense on or before

UNDER INS SAFEGUARDS.

coy

United States has been

You are required to depart on or before

(Approved/denied)

The amount of time that you have been granted to depart

voluntarily is the maximum allowable under the law in your

situation. You are, therefore, prohibited from applying for or

being granted any further voluntary departure.

CG) Your request for voluntary departure has been denied

since you were previously granted voluntary departure and

failed to depart.

You are ineligible for voluntary departure because you

were previously permitted to depart voluntarily after you

were found inadmissible as an alien who was present without

having been admitted or paroled.

‘You must notify this office on or before

of the arrangements you

have made to effect your departure, including the date, place

and manner. Use the enclosed self-addressed card to notify

this office regarding departure arrangements. Postage is not

required. At the time of your departure, you must surrender

Form I-94, ARRIVAL-DEPARTURE RECORD, in

accordance with instructions on that form.

NOTICE: Failure to depart on or before the specified date

may result in the withdrawal of voluntary departure and

action being taken to effect your removal. Failure to depart

on or before the specified date may also subject yout’ 1

possible civil penalty of not less than $1,000 and » .t more

than $5,000, and render you ineligible fof a period of 10

years for any further authorization for voluntary departure or

for relief under sections 240A, 245, 248, and 249 of the

Immigration and Nationality Act.

If there is a bond outstanding in your case, you are warned

that, to expedite cancellation of the bond and return of the

collateral posted, you must make advance arrangements with

this office to have your departure witnessed by an officer of

this Service.

Sincerely,

Acknowledgement of Receipt

s/ illegible

Brian R. Perryman

District Director

s/illegible

INS Officer Serving this Form/Office/Date

UNITED STATES DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

10 WEST JACKSON BOULEVARD

CHICAGO, ILLINOIS 60604

PLEASE ADDRESS REPLY AND

REFER TO THIS FILE NO.

A 72 135 377

[stamp:] Feb 05 1998

Mr. Emil Botezatu

707 W. Waveland, Apt. 1109

Chicago, Illinois 60613

Dear Mr. Botezatu:

This is in response to your request for authorization

for humanitarian parole of alien into the United States, filed

on July 9, 1997.

After careful review and consideration of the facts

presented, it has been concluded that you do not fall under

any of the categories of aliens who are eligible for issuance

of an advance parole pursuant to O.I. 212.5(c). Therefore,

—————————————————ee

your application for an advance parole is hereby denied.

There is no appeal of this decision.

Sincerely,

s/Brian R. Perryman

Brian R. Perryman

District Director

UNITED STATES DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

10 WEST JACKSON BOULEVARD

CHICAGO, ILLINOIS 60604

IN THE MATTER OF:

BOTEZATU, EMIL

(A72 135 377)

IN BEHALF OF APPLICANT: Robert A. Perkins

Attorney at Law

601 S. LaSalle Street

Chicago, Illinois 60605

APPLICATION: Stay of Deportation — Title 8, Code of

Federal Regulations, Part 241.6

BASIS OF APPLICATION: On February 05, 1998, the

applicant filed an application for a stay of deportation on

Form I-246. The reasons for the stay request the applicant

has provided are as follows:

Mr. Botezatu’s deportation would cause emotional and

economic hardship. His spouse can

not return to their own country since she has been granted

asylum in the United States.

BACKGROUND: The applicant is a 34-year-old native and

citizen of Romania who last entered the United States at

Chicago, Illinois, on March 19, 1993, as an alien in transit.

On April 8, 1993, the applicant filed for asylum. On April

12, 1994, the applicant’s request for asylum in the United

States was denied. On June 14, 1994, the Service issued an

order to show cause to the applicant, charging deportability

under Section 241(a)(1)(B) of the Immigration and

Nationality Act (INA).

On June 30, 1995, the applicant was found deportable by an

immigration judge, as the subject admitted the factual

allegations contained in the order to show cause and

conceded the charge of deportability. In lieu of deportation,

voluntary departure was granted until October 30, 1995. The

applicant appealed the immigration judge’s decision to the

Board of Immigration Appeals (BIA). On August 5, 1996,

the BIA dismissed the applicant’s appeal. On August 30,

1996, a petition for review was filed with the United States

Court of Appeals. The Board of Immigration Appeals

decision was affirmed by the Court.

On May 07, 1997, the applicant fiied a motion to reinstate

voluntary departure. On June 6, 1997, the request for

reinstatement of voluntary’ departure was denied. A warrant

of deportation was issued on June 20, 1997. On July 9,

1997, the applicant filed a request for humanitarian parole or

deferred action. This application was adjudicated on

February 05, 1998, and a denial notice was issued to the

applicant.

DISCUSSION: The applicant and his spouse were married

on August 17, 1995, long after deportation proceedings were

initiated in 1994. He knew, prior to getting married, that he

was expected to leave the United States. Even though the

applicant is the beneficiary of an approved visa petition, the

outstanding warrant of deportation cannot be overlooked.

Mr. Botezatu’s spouse stated her inability to return to her

own country. It is noted she was granted asylum in the

United States and the Service at no time has indicated that

she must depart. While the applicant and his spouse may

experience hardship if he is deported, no evidence has been

submitted that the hardships would be anymore severe than

those normally associated with the deportation of a family

member.

DECISION: I have reviewed the appkkcant’s request for a

stay of deportation and his immigration history. After

weighing all the facts available to me, I have determined as a

matter of discretion to deny the applicant’s request for a stay

of deportation.

The application for a stay of deportation is denied.

s/illegible

Bnan R. Perryman

District Director Date3/10/98

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.