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Case 2:07-cv-02200-DRD Document 7 Filed 08/20/07 Page 1 of 11 PageID: 143

CHRISTOPHER J. CHRISTIE
United States Attorney
Neil R. Gallagher
Assistant U.S. Attorney
970 Broad Street, Room 702
Newark, New Jersey 07102
(973) 645-2835

UNITED STATES DISTRICT COURT


DISTRICT OF NEW JERSEY

Bijan Anaraki Kiani, : Hon. Dickinson R. Debevoise

: Civil Action No. 07-2200(DRD)


Petitioner,
v. : Amended Answer and Opposition to
Habeas Corpus Petition
Michael Chertoff, et al., :

Respondents. :

Respondents, by and through counsel, Christopher J. Christie, United

States Attorney for the District of New Jersey, respectfully request that the Court

accept this answer in opposition to the Petition for a Writ of Habeas Corpus (the

“petition”) in this matter. Respondents rely upon and attach true and correct

copies of documents supplied by the Department of Homeland Security (DHS)

relevant to this matter. Respondents have requested that the Executive Office for

Immigration Review prepare a Certified Administrative Record and will file that

with the Court when received.

Facts

Petitioner is a native and citizen of Iran. See, Petition at 2; Order to Show

Cause dated November 21, 1989, attached hereto as exhibit A. He entered the
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United States on or about October 13, 1984. Order to Show Cause, exhibit A,

paragraph 3. He was granted lawful permanent resident status on July 21, 1987.

Id., paragraph 5.

On September 13, 1989 petitioner was convicted in the Circuit Court for

Montgomery County, Maryland for the offense of possession with intent to

distribute a Controlled Substance, to wit, Cocaine, in violation of Article 27,

Section 286 of the Annotated Code of Maryland. Id., paragraph 6, Judgment of

Conviction, exhibit B. An Order to Show Cause was entered in an administrative

proceeding, charging petitioner as being deportable under Section 241(a)(11) of

the Immigration and Nationality Act (“INA”) in that he had been convicted of a law

relating to a controlled substance; and further charged him as being deportable

pursuant to Section 241(a)(4)(B) of the INA as being convicted of an aggravated

felony, specifically the drug trafficking offense. See exhibit A.

In the administrative deportation proceedings petitioner requested that he

be granted asylum in the United States. His application is attached as exhibit C

hereto, The Petitioner was granted asylum on August 7, 1990. See Order of the

Immigration Judge, dated August 7, 1990, exhibit D hereto.

However on January 30, 1998 Petitioner was convicted in the United States

District Court for the Eastern District of Virginia of Conspiracy to Possess with

Intent to Distribute and to Distribute 5 kilograms or more of Cocaine. See,

exhibit E, Judgment. Petitioner was sentenced to a term of two hundred and sixty

two months imprisonment. Id.

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A Notice to Appear was entered against Petitioner charging him as

removable, exhibit F. However there were no proceedings conducted in this

matter as petitioner was detained. DHS moved to terminate this proceeding as

the proper procedure was to reopen the 1989 proceeding. See exhibit G.

Due to the 1998 federal conviction INS lodged a detainer with the Bureau of

Prisons, exhibit H. Petitioner was released from prison on February 2, 2007. See

exhibit I. Petitioner was taken into ICE custody on February 2, 2007. See

Warrant for Arrest and Custody Determination exhibit J hereto; see also exhibit I.

He was determined to be subject to the mandatory detention provisions of Section

236 of the INA. See exhibit J.

On February 7, 2007 ICE counsel moved to Reopen the Deportation

Proceedings and to Change Venue to Newark. The motion is attached as exhibit

K. There was a delay in the adjudication of the motion by the IJ in Baltimore,

apparently because the motion was not in the Clerk’s records. DHS counsel

followed up on this and on June 18, 2007 the Immigration Judge in Baltimore

granted the government’s motion, See Order attached hereto as Exhibit L.

According to ICE Counsel this matter was scheduled for a hearing before an

Immigration Judge in Newark, New Jersey on July 9, 2007 at 1 p.m. At that time

the petitioner did not request bond but requested and was given an I-589,

Application for Asylum and Withholding of Removal. The completed form was

filed with the Immigration Court and is attached as exhibit M. A merits hearing

on the matter is scheduled before an Immigration Judge in Newark on August 27,

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2007. See scheduling letter, exhibit N.

Argument

1. Petitioner is properly Detained Pursuant to 8 U.S.C.§1226(c)

Upon his arrest the Petitioner was determined by DHS to be subject to the

mandatory detention provisions of the INA. See exhibit J hereto. These are set

forth at 8 U.S.C.§1226, which provides:

§ 1226. Apprehension and detention of aliens

(a) Arrest, detention, and release

On a warrant issued by the Attorney General, an alien may be


arrested and detained pending a decision on whether the alien is to
be removed from the United States. Except as provided in
subsection (c) of this section and pending such decision, the Attorney
General--
(1) may continue to detain the arrested alien; and

(2) may release the alien on--

(A) bond of at least $1,500 with security approved by, and


containing conditions prescribed by, the Attorney General; or
(B) conditional parole; but

(3) may not provide the alien with work authorization (including an
"employment authorized" endorsement or other appropriate work
permit), unless the alien is lawfully admitted for permanent
residence or otherwise would (without regard to removal
proceedings) be provided such authorization.
***

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(c) Detention of criminal aliens


(1) Custody

The Attorney General shall take into custody any alien who–

(A) is inadmissible by reason of having committed any offense


covered in section 1182(a)(2) of this title,

(B) is deportable by reason of having committed any offense


covered in section 1227(a)(2)(A)(ii), (A)(iii), (B), (C), or (D) of this
title,

(C) is deportable under section 1227(a)(2)(A)(i) of this title on the


basis of an offense for which the alien has been sentence to a term
of imprisonment of at least 1 year, or

(D) is inadmissible under section 1182(a)(3)(B) of this title or


deportable under section 1227(a)(4)(B) of this title,

when the alien is released, without regard to whether the alien is


released on parole, supervised release, or probation, and without
regard to whether the alien may be arrested or imprisoned again
for the same offense.
***

(e) Judicial review


The Attorney General's discretionary judgment regarding the
application of this section shall not be subject to review. No court
may set aside any action or decision by the Attorney General under
this section regarding the detention or release of any alien or the
grant, revocation, or denial of bond or parole.

Petitioner is subject to the mandatory detention provisions of the act as he

has been convicted of the drug trafficking charge in 1998 which makes him

removable pursuant to 8 U.S.C.§1227(a)(2)(A)(iii) [aggravated felony] and (B)

[controlled substance violation]. He was taken into custody, pursuant to the

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statutory direction, “when released” from detention on this charge. He is being

held pending the resolution of the removal proceedings he is currently in. As

discussed below, he may have his prior grant of asylum revoked and the only

relief from removal available to him is the Convention Against Torture (“CAT”).

2.This Court Lacks Jurisdiction to Consider this Matter Pursuant to the Real ID

Act.

On May 11, 2005, the President signed into law the REAL ID Act of 2005,

Pub. L. No. 109-13, Div. B, 119 Stat. 231. Section 106(a) of the REAL ID Act

amends Section 242(a) of the Immigration and Nationality Act (“INA”) to clarify

that district courts lack jurisdiction, whether through habeas corpus under

section 2241or otherwise, to review any removal order for any alien. The act

provides:

(5) Exclusive means of review

Notwithstanding any other provision of law (statutory or


nonstatutory), including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 of such title, 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 chapter, except as provided in subsection (e) of this
section. For purposes of this chapter, in every provision that limits
or eliminates judicial review or jurisdiction to review, the terms
"judicial review" and "jurisdiction to review" include habeas corpus
review pursuant to section 2241 of Title 28, or any other habeas
corpus provision, sections 1361 and 1651 of such title, and review
pursuant to any other provision of law (statutory or nonstatutory).

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In addition to eliminating habeas review the Real ID act also made clear

that all questions of fact or law arising from removal proceedings can only be

addressed in a petition for review:

(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1)


of this section, the following requirements apply: ***

(9) Consolidation of questions for judicial review

Judicial review of all questions of law and fact, including


interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding brought to
remove an alien from the United States under this subchapter shall
be available only in judicial review of a final order under this section.
Except as otherwise provided in this section, no court shall have
jurisdiction, by habeas corpus under section 2241 of Title 28, or any
other habeas corpus provision, by section 1361 or 1651 of such title,
or by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.

The jurisdictional bar applies to all removal claims, including challenges

under domestic law implementing the Convention Against Torture, and it applies

to both criminal and non-criminal aliens. Section 106, therefore, abrogates the

Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001).

A petition for review to the courts of appeals is now the exclusive means of

review of an administrative order of removal, deportation, or exclusion, and for

all questions of law or fact arising from the removal action. Thus the proper

course is for the Petitioner to proceed administratively and to await the decision

of the IJ and if it is unfavorable and a final order of removal is entered, to appeal

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the IJ’s decision to the BIA. If the BIA decision is unfavorable he can appeal the

decision to the United States Court of Appeals for the Third Circuit, which will

have jurisdiction of “review of constitutional claims or questions of law raised

upon a petition for review “ pursuant to 8 U.S.C.§1252(a)(2)(D).

3. The District Court Lacks Subject Matter Jurisdiction as Petitioner Failed to

Exhaust Administrative Remedies

Even if this Court were to find that its habeas jurisdiction survived in view

of the Real ID Act amendments to the INA, the Court lacks jurisdiction as the

petitioner failed to exhaust the administrative remedies available to him. Indeed,

he is still in removal proceedings and may press his arguments concerning

detention to the IJ in Newark.

Petitioner has the burden of establishing this Court’s jurisdiction.

Thomson v. Gaskill, 315 U.S. 442 (1942); International Ass'n of Machinists &

Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711 n.16 (3d Cir.

1982). Petitioner cannot demonstrate that this Court has jurisdiction to consider

his petition for habeas corpus relief because he failed to exhaust administrative

remedies in his removal hearing. Petitioner has argued that he has a grant of

asylum; however it appears that he is in serious danger of losing his asylum

status due to his drug trafficking conviction. 8 U.S.C.§1158 provides an

exception to asylum eligibility:

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(2) Exceptions

(A) In general

Paragraph (1) shall not apply to an alien if the Attorney General determines that--

***

(ii) the alien, having been convicted by a final judgment of a particularly serious
crime, constitutes a danger to the community of the United States;

***

(B) Special rules

(i) Conviction of aggravated felony

For purposes of clause (ii) of subparagraph (A), an alien who has been convicted
of an aggravated felony shall be considered to have been convicted of a
particularly serious crime.

8 U.S.C.§1158

See also 8 C.F. R.§1208.13(c)(2)(i)(D); 8 C.F.R.§1208.24(f) and (a)(3).

Thus, due to his conviction for drug trafficking Petitioner may lose his

asylum status and may be Ordered removed. It is counsel’s understanding that

Petitioner is ineligible for most types of relief from removal but may be eligible for

deferral of Removal pursuant to the UN Convention Against Torture. That

decision, however, must be made by the Immigration Judge in the Reopened

Deportation proceedings.

Petitioner also raises Zadvydas v. Davis, 533 U.S. 678 (2001). In

Zadvydas the Supreme Court concluded that section 241(a) of the INA authorizes

immigration detention after entry of an administratively final order of removal for

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a period reasonably necessary to accomplish the detainee's removal from the

United States. Zadvydas, 533 U.S. at 699-700. The Court recognized that six

months is a presumptively reasonable period of time to allow the government to

accomplish a detainee's removal. Id. The purpose of the detention is to insure the

alien is available for removal. Id. However Zadvydas has no application to this

case as Petitioner is detained during the administrative hearings. As set forth

above, Petitioner is subject to the mandatory detention provisions of INA section

236 (c)(1)(B). Petitioner may litigate his custody status in the immigration

proceeding and may present his claims for redetermination of his custody status

at his scheduled hearing. Petitioner is in proceedings and must exhaust his

remedies available in those administrative proceedings. Exhaustion requires that

the issues the alien seeks to challenge be raised before the BIA as well. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 595 n.5 (3d Cir. 2003).

There is every reason to require exhaustion in this matter. DHS has

exclusive authority to control the prosecution of deportable aliens in immigration

court. See Matter of U-M-, 20 I. & N. Dec. 327 (BIA 1991). Moreover, exhaustion

will allow the agency to develop the record fully and apply its expertise to the

Petitioner’s claims. As pointed out above, he will have BIA review and review by

the third circuit as set forth above. The failure to exhaust his administrative

remedies is a jurisdictional bar and the petition should be dismissed.

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CONCLUSION

For the foregoing reasons, this Court should deny and dismiss the Petition

for Habeas Corpus relief.

Respectfully Submitted,

CHRISTOPHER J. CHRISTIE
United States Attorney

/s/ Neil R. Gallagher


NEIL R. GALLAGHER
Assistant U.S. Attorney

CERTIFICATE OF SERVICE

This is to certify that on August 20, 2007, I served a copy of the Answer
upon:

Bijan Anaraki Kiani


Alien No. 24 649
Hudson County Jail
35 Hackensack Avenue
Kearny, New Jersey 07032

Service was made by First Class Mail.

/s/ Neil R. Gallagher


NEIL R. GALLAGHER

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