Federal District Court Opinions
BARENBOY v. IMMIGRATION & CUSTOMS ENFORCEMENT, (N.J. 2006)
ALEXANDER BARENBOY, Petitioner, v. IMMIGRATION & CUSTOMS
ENFORCEMENT, Respondent. Civil Action 2:06-CV-722 (FSH).
United States District Court, D. New Jersey. June 15, 2006
ALEXANDER BARENBOY, pro se Hudson County Correctional
Center Kearny, New Jersey 07032
CHRISTOPHER J. CHRISTIE, United States Attorney; SUSAN
HANDLER-MANAHEM, Assistant United States Attorney 970 Broad
Street Newark, New Jersey 07102, Attorneys for Respondent.
OPINION
FAITH HOCHBERG, District Judge
This application (hereinafter “Petition”) for a Writ of
Mandamus under 28 U.S.C. § 1361 was filed by
Petitioner Alexander Barenboy (hereinafter “Petitioner”).
Prior to this Petition, Petitioner made two applications to
this Court. The procedural and factual matters pertaining
to Petitioner’s previous applications were detailed by the
Court of Appeals for Third Circuit in Barenboy v. AG of the
United States, 2005 U.S. App. LEXIS 29056 (3d Cir. 2005),
and could be summarized as follows: Page 2
[Petitioner] was born in the Moldavian Soviet Socialist
Republic, which no longer exists, having become the
independent Republic of Moldova in August 1991.
[Petitioner] entered the United States as a refugee in
1992. About ten years later, he was convicted of a drug
crime and was placed in removal proceedings. An
Immigration Judge (IJ) denied [Petitioner]’s application
for asylum, withholding of removal and deferral of removal
under the United Nations Convention Against Torture, and
ordered him removed to Moldova. On August 18, 2004, the
Board of Immigration Appeals (BIA) affirmed. . . . [T]he
Moldovan Embassy informed the U.S. Immigration and Customs
Enforcement (ICE) that [Petitioner] was not a citizen of
Moldova, but that he could apply for citizenship, based on
his birth in Moldavia. The Consul indicated that he would
only forward an application for citizenship upon written
request from Barenboy himself. ICE prepared a letter for
[Petitioner]’s signature. . . . Barenboy signed the
letter, but . . . added the words “sing [sic] under the
protest.” The deportation officer believed that the
Moldovan Embassy would not accept such a letter, and did
not send it . . . inform[ing Petitioner] of his obligation
to cooperate. . . . [petitioner] filed a petition for a
writ of habeas corpus, arguing that there was no
likelihood of his removal in the foreseeable future and
that his detention was therefore improper under Zadvydas
v. Davis, 533 U.S. 678 (2001). . . . The District Court
rejected his argument, finding that [Petitioner] had
“caused the continued detention,” and . . . the
Government was authorized to extend the removal period
where the “alien fails or refuses to make timely
application in good faith for travel or other documents
necessary to the alien’s departure.” On June 8, 2005,
[Petitioner] filed a second habeas petition in the
District Court. He again argued that his removal in the
foreseeable future was unlikely, but provided no
substantiation for the assertion. . . . The District Court
issued an order to show cause why the petition should not
be dismissed as a second or successive petition. After
receiving responses and holding a hearing, the District
Court dismissed the petition with prejudice, finding that
[Petitioner]’s issues had been raised in his prior
petition, and that he raised no new issues. [Petitioner]
appealed. [The Court of Appeals found] no legal error [in
District Court’s dismissal of the petition as second or
successive. [Althought Petitioner] argued that
circumstances had changed [because] he had cooperated in
submitting a citizenship application,. . . . [The Court
of Appeals] agree[d] with the District Court that [(1)]
these circumstances were not legally significant[; and
Page 3 (2) Petitioner] had failed to produce any
competent evidence on the question of whether he was
unlikely to be removed in the foreseeable future.
Id. at *1-5.
Petitioner’s current Petition asserts, anew, that
Petitioner “is being held in indefinite detention,” Pet. at
1, since “forc[ing Petitioner to obtain] citizenship [in]
Moldova [against Petitoner’s will] (1) violate[s] the
United States . . . obligations [under the United Nations
Convention Against Torture],” id. at 4, and thus, “deni[al
of asylum to Petitioner] is tantamount to sending him to
his death or subjecting him to systematic torture and
prosecution, id. at 4-5, and (2) imposes upon Petitioner
indefinite detention if Petitioner refuses to cooperate by
“grossly object[ing the efforts to] forc[e] him to acquire
Moldovan citizenship.” Id. at 4, 9. Consequently,
“[P]etitioner requests [(1)] an order prohibiting the
[Immigration and Customs Enforcement] from forcing
[P]etitioner to become a citizen of Moldova or any other
country where his freedoms would be at risk and where the
government of that country would be either unwilling or
unable to protect these rights,”[fn1] id. at 17, and (2)
supervised release, since Petitioner “fully met his burden
under Zadvydas [v. Davis, 533 U.S. 678 Page 4 (2001),
and] there is no significant likelihood of his removal in
the reasonably foreseeable future.” Id. at 8, 12.
JURISDICTION
Petitioner characterizes his action as a writ of mandamus
under 28 U.S.C. § 1361. The Court finds that
Petitioner is not entitled to issuance of a writ of
mandamus under 28 U.S.C. § 1361. To be eligible for
mandamus relief, a petitioner must establish (1) that he
has a clear right to relief, (2) that the respondent’s duty
to perform the act in question is plainly defined and
peremptory, and (3) that he has no other adequate remedy.
See Rios v. Ziglar, 398 F.3d 1201 (10th Cir. 2005); see
also Cheney v. U.S. Dist. Court for the Dist. Of Columbia,
542 U.S. 367 (2004) (“Mandamus is an extraordinary remedy,
available to `a plaintiff only if . . . the defendant owes
him a clear, non-discretionary duty”) (citing Heckler v.
Ringer, 466 U.S. 602 (1984)). Petitioner, however, has not
established any of these requirements. With respect to the
first two requirements, the Third Circuit’s opinion in
Barenboy v. AG of the United States, 2005 U.S. App. LEXIS
29056 (3d Cir. 2005), was expressly based on lack of
Respondent’s duty to grant Petitioner the requested relief.
Moreover, Petitioner has adequate access to relief via a
petition for habeas relief under § 2241 if he can
establish that his removal is not reasonably foreseeable.
Therefore, the writ of mandamus is denied, and the Court
will construe Petitioner’s Page 5 application as a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241.
A. Challenge to Detention under Section 2241
Section 2241 of Title 28 of the United States Code
provides, in relevant part: “(a) 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. . . . (c) The writ of habeas
corpus shall not extend to a prisoner unless . . . (3) he
is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(a),
(c) (3). Thus, the Court has subject matter jurisdiction
over this matter pursuant to 28 U.S.C. § 2241(a) and
(c) in that Petitioner challenges his custody under the
authority of the United States and in violation of the laws
of the United States. See United States v. Ferri, 686 F.2d
147, 158 (3d Cir. 1982), cert. denied, 459 U.S. 1211 (1983)
(claims attacking the execution of a petitioner’s sentence
are properly brought under 28 U.S.C. § 2241); see
also Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d
Cir. 1991) (“challenges to the length, appropriateness or
conditions of confinement are properly brought under 28
U.S.C. § 2241”).
B. Challenge to Order of Removal
On May 11, 2005, the President signed into law the REAL ID
Act of 2005. See Pub.L. 109-13, Div. B, 119 Stat. 231 (May
11, Page 6 2005). Section 106(a)(5) of the REAL ID Act of
2005 amends 8 U.S.C. § 1252 to provide that,
“[n]otwithstanding any other provision of law (statutory or
non[-]statutory), including section 2241 of title 28,
United States Code, or any other habeas corpus provision. .
. . a petition for review filed with an appropriate court
of appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of this Act,
except as provided in subsection (e).”[fn2] See REAL ID Act
of 2005, § 106(a)(5), to be codified at 8 U.S.C.
§ 1252(a)(5).
Moreover, pursuant to 28 U.S.C. § 1631,
[w]henever a civil action is filed in a court . . . and
that court finds that there is a want of jurisdiction, the
court shall, if it is in the interest of justice, transfer
such action or appeal to any other such court in which the
action or appeal could have been brought at the time it
was filed or noticed, and the action or appeal shall
proceed as if it had been filed in or noticed for the
court to which it is transferred on the date upon which it
was actually filed in or noticed for the court from which
it is transferred. Page 7
The applicable venue provision, 8 U.S.C. §
1252(b)(2), provides that a “petition for review shall be
filed with the court of appeals for the judicial circuit in
which the immigration judge completed the proceedings.”
Here, the Petition is silent as to the venue of the
immigration court that issued the order of removal.
C. Retained Part of Petition
The retained part of the Petition presents a successive
petition (and, perhaps, constitutes an abuse of writ).[fn3]
Since the very same facts with regard to Petitioner’s state
of removal proceedings were already brought to the
attention of this Court and the Court of Appeals, and ruled
upon by both Courts, see Barenboy v. AG of the United
States, 2:04-cv-04706-JAP (N.J.D. 2005), aff’d, 2005 U.S.
App. LEXIS 29056 (3d Cir. 2005), the retained part of the
Petition is either successive or an abuse of writ. Indeed,
the only “new fact” offered by Petitioner is, Page 8
effectively, his argument that his detention became
indefinite since he “will not” be removed because he
“should not” be removed (and he should not be removed
because he will be either tortured or killed). See Pet. at
8, 12. This “information” cannot constitute a new issue as
defined in Barenboy, 2005 U.S. App. LEXIS 29056, at *4-5,
since this “new” submission is nothing but (1) a
conjuncture of circular arguments, (2) Petitioner’s
speculation as to the future findings by the Court of
Appeals with respect to the possibility that Petitioner
would br granted asylum on the basis of his refugee
status,[fn4] and (3) bald assertions unsupported by any
facts.
Moreover, the Respondents clarify that
On May 22, 2006, Deportation Officer Shaughnessy was able
to talk to Mr. Cucos of the Moldovan Embassy. Mr. Cucos
stated that[,] on May 17, 2006, he finally received from
[P]etitioner’s family[] the documents needed to consider
[P]etitioner for citizenship.
Ans. at 7 (citing Shaughnessy Dec. ¶ 3). Page 9
Since Petitioner failed to show any new legally
significant facts suggesting lack of likelihood of his
removal in the reasonably foreseeable future, see Barenboy
v. AG of the United States, 2005 U.S. App. LEXIS 29056, at
*5, and since Petitioner’s removal proceedings are clearly
underway and progressing successfully, the retained part of
his Petition shall be dismissed.
CONCLUSION
Since the aspect of Petitioner’s application asserting lack
of likelihood of his removal in the reasonably foreseeable
future is successive, this Court denies Petitioner a Writ
of Habeas Corpus with respect to this claim pursuant to 28
U.S.C. § 2241. Since the aspect of Petitioner’s
application contesting his removal order shall be filed
with the court of appeals for the judicial circuit in which
the immigration judge completed the proceedings, this Court
directs the parties to stipulate to or brief the propriety
of the transfer order pursuant to Special Notice issued by
the Court of Appeals for the Third Circuit on June 16, 2005.
An appropriate Order accompanies this Opinion.
[fn1] Petitioner admits that the argument was available to
him but asserts that his “counsel failed to raise the issue
before this Court and the Court of Appeals.” Pet. at 1.
[fn2] Subsection (e) of § 1252 is not applicable
here. That section provides that judicial review of any
determination made under 8 U.S.C. § 1225(b)(1) is
available in habeas corpus proceedings, limited to a
determination of whether the petitioner is an alien,
whether the petitioner was ordered removed under such
section, and whether the petitioner can prove certain
conditions. See 8 U.S.C. § 1252(e)(2). Section
1225(b)(1) governs the inspection of aliens arriving in the
United States and authorizes an immigration officer to
order the removal of an alien who is arriving in the United
States, without further hearing. See 8 U.S.C. §
1225(b)(1).
[fn3] The terms “successive petition” and “abuse of the
writ” have slightly different meanings. A “successive
petition” raises grounds identical to those raised and
rejected on the merits on a prior petition. See Sanders v.
United States, 373 U.S. 1, at 15-17 [(1963)]. . . . The
concept of “abuse of the writ” is founded on the equitable
nature of habeas corpus. . . . Where a prisoner files a
petition raising grounds that were available but not relied
upon in a prior petition, or engages in other conduct that
disentitles him to the relief he seeks, the federal court
may dismiss the subsequent petition on the ground that the
prisoner has abused the writ. Id. at 17-19.
[fn4] See Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004)
(affirming refusal of asylum to a member of Jewish faith who
was to be removed to Moldova since the issue was a
discretionary agency matter not subject to review under
Section 2241); Crivoseia v. Ashcroft, 104 Fed. Appx. 237
(3d Cir. 2004) (since there was no substantial evidence to
corroborate aliens’ claims that they were persecuted in
their native Moldova because they were Jewish, withholding
of removal was properly denied); see also Smriko v.
Ashcroft, 387 F.3d 279 (3d Cir. 2004) (where an alien
sought to terminate his removal proceedings on the basis of
his refugee status, the Court refused to acknowledge an
automatic refugee’s right to asylum and remanded the case to
the BIA for clarification of the grounds for streamlining
of the case in accordance with applicable regulations).
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