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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BISMARK USEA,

Petitioner,

v.

MICHAEL CHERTOFF, et al.,

Respondent.

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CASE NO. C05-1755-JCC

REPORT AND RECOMMENDATION

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Bismark Usea is a native of Ghana and a citizen of Norway. On October 18,

2005, petitioner, appearing through counsel, filed this Petition for Writ of Habeas Corpus under

28 U.S.C. § 2241, seeking declaratory and injunctive relief. (Dkt. #1). Petitioner argues that the

Board of Immigration Appeals (“BIA”) denied him procedural due process when it denied

petitioner’s motion to reopen his immigration proceedings and mailed the decision to the wrong

address. Petitioner requests an order directing respondents to release him pending his Petition for

Review in the Ninth Circuit Court of Appeals. Respondents have moved to dismiss for lack of

jurisdiction.

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REPORT AND RECOMMENDATION

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Having reviewed the entire record, I recommend that the portion of petitioner’s habeas

petition challenging his detention be DENIED, and that the portion of petitioner’s habeas petition

challenging the denial of his motion to reopen be TRANSFERRED to the Ninth Circuit Court of

Appeals pursuant to 28 U.S.C. § 1631.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner Bismark Usea is a native of Ghana and a citizen of Norway. On or about

October 5, 2001, the Department of Homeland Security (“DHS”) issued a Notice to Appear,

charging petitioner as inadmissable for having made a false claim to United States citizenship.

Petitioner admitted the facts contained in the Notice to Appear and conceded removability. As

relief from removal, petitioner requested asylum and withholding of removal pursuant to section

208 and 243 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1158. On May 2, 2002,

the Immigration Judge (“IJ”) denied his applications for asylum and withholding of removal,

finding that petitioner’s request for asylum was time barred because it was filed more than one

year after his date of entry, but granted petitioner voluntary departure. On October 6, 2003, the

BIA affirmed the IJ’s decision. Petitioner timely appealed the BIA’s decision to the Ninth Circuit

Court of Appeals. On November 23, 2004, the Ninth Circuit dismissed the appeal. (Dkt. #1, Ex.

2).

On February 2, 2005, petitioner filed a motion with the BIA to reopen his removal

proceedings based on recent changes in the law. On March 11, 2005, the BIA issued its decision

denying petitioner’s motion to reopen his removal proceedings. (Dkt. #10, Ex. 2). Petitioner

alleges that the BIA mailed the decision to the incorrect address. (Dkt. #1, Ex. 2).

On September 12, 2005, the DHS arrested petitioner. At that time, petitioner was

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REPORT AND RECOMMENDATION

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informed that the BIA had denied his motion to reopen his removal proceedings. Id. On

September 22, 2005, petitioner filed a new motion to reopen with the BIA and a request to reissue

the BIA’s March 11, 2005, decision.

On October 18, 2005, petitioner filed the instant habeas petition, seeking review of the

denial of his request to reopen removal proceedings “on the ground that the BIA denied the

Motion to Re-Open in a manner contrary to the United States Constitution and the INA.” (Dkt.

#1 at 4).

On November 21, 2005, the BIA, recognizing that a mailing error had occurred, granted

petitioner’s request to reissue its March 11, 2005, decision. The decision states that, “the decision

will be reissued and treated as if entered on today’s date.” (Dkt. #10, Ex. 1). On December 7,

2005, petitioner timely filed a petition for review in the Ninth Circuit and requested a stay of

removal. Petitioner’s appeal is currently pending with the Ninth Circuit.

On December 13, 2005, petitioner submitted a written request to ICE Field Office Director

A. Neil Clark that he be released pursuant to INA § 241(a)(3), 8 U.S.C. § 1231(a)(3). (Dkt. #10,

Ex. 4). On February 15, 2006, petitioner also filed a motion for release with the Ninth Circuit,

seeking his release on bond pending adjudication of his Petition for Review. (Dkt. #14, Ex. 1).

DISCUSSION

A. Jurisdiction

Petitioner argues that the BIA violated due process when it denied his motion to reopen

his removal proceedings based on the Ninth Circuit’s decision in United States v. Karaouni, 379

F.3d 1139 (9th Cir. 2004), and when the BIA failed to timely mail its decision to the correct

address. Respondents argue that the Court lacks jurisdiction under the REAL ID Act to review

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1

 The Government has withdrawn its argument that this Court lacks jurisdiction to

entertain that portion of petitioner’s habeas petition seeking his release from detention pendente

lite. (Dkt. #15).

2

 Petitioner challenges removal based upon alleged due process violations arising out of

his non-receipt of the BIA’s denial of his motion to reopen and the resulting inability to submit a

timely appeal to the Court of Appeals.

REPORT AND RECOMMENDATION

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petitioner’s claims challenging the denial of his motion to reopen.1

Pursuant to Section 106 of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231

(codified at 8 U.S.C. § 1252), the exclusive means of asserting a challenge to a final order of

removal and matters dependent thereon, such as the one challenged herein, is to file a Petition for

Review with the appropriate court of appeals, which in this case is the Ninth Circuit Court of

Appeals. INA § 242(a)(5), (b)(2), 8 U.S.C. § 1252(a)(5), (b)(2); see also INA § 242(b)(6), 8

U.S.C. § 1252(b)(6)(“When petitioner seeks review of an order under this section, any review

sought of a motion to reopen or reconsider the order shall be consolidated with the review

order.”). Accordingly, claims by petitioner in which he challenges his order of removal may not

be considered in this habeas corpus action. 2

 Nonetheless, petitioner’s separate claim that he is

entitled to release from detention pending review of his appeal by the Ninth Circuit is properly

before the district court on petition under 28 U.S.C. § 2241. Petitioner requests in his response

to respondents’ motion to dismiss that, if the Court lacks jurisdiction to review his claims, his case

be transferred to the Ninth Circuit Court of Appeals. (Dkt. #11 at 2). Respondents have stated

that they have no opposition to a transfer of this case for consolidation with petitioner’s Petition

for Review. (Dkt. #12 at 6). Accordingly, the Court recommends that the portion of petitioner’s

habeas petition challenging the BIA’s denial of his motion to reopen be transferred to the Ninth

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3

 “Whenever a civil action is filed in a court . . . and that court finds that there is want of

jurisdiction, the court shall, if it is in the interest of justice, transfer such action . . . to any other

such court in which the action . . . could have been brought at the time it was filed . . .” 28 U.S.C.

§ 1631.

REPORT AND RECOMMENDATION

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Circuit Court of Appeals under 28 U.S.C. § 1631.3

 Because the REAL ID Act does not require

or justify the transfer of petitioner’s constitutional due process challenge to his detention, the

Court retains jurisdiction to consider that portion of petitioner’s habeas petition challenging his

detention.

B. Injunctive Relief

Petitioner seeks a preliminary injunction directing respondents to release him pending

adjudication of his Petition for Review in the Ninth Circuit. The basic function of a preliminary

injunction is to preserve the status quo ante litem pending a determination of the action on the

merits. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197,

1200 (9th Cir. 1980). In determining whether to grant a preliminary injunction, the Ninth Circuit

considers: (1) the likelihood of success on the merits; (2) the possibility of irreparable injury to

plaintiff if an injunction is not granted; (3) the extent to which the balance of hardships favor

plaintiff; and (4) whether the public interest will be advanced by the injunction. See, e.g., Los

Angeles Mem’l Coliseum Comm’n , 634 F.2d at 1200. The analysis is often compressed into a

single continuum where the required showing of merit varies inversely with the showing of

irreparable harm. See Prudential Real Estate Affiliates, Inc. v. PRP Realty, Inc., 204 F.3d 867,

874 (9th Cir. 2000). The moving party may meet its burden by demonstrating either: (1) a

probability of success on the merits and the possibility of irreparable injury; or (2) that serious legal

questions are raised and the balance of hardship tips sharply in petitioner’s favor. Los Angeles

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Mem’l Coliseum Comm’n, 634 F.2d at 1201.

Respondents argue that any court ordered release of petitioner, pendente lite, would alter

the status quo – his detention – not preserve it. (Dkt. #12 at 6). Respondents argue that

petitioner actually seeks a mandatory preliminary injunction that goes well beyond maintaining the

status quo pendente lite, and thus the court should be extremely cautious about issuing a

preliminary injunction and should not grant relief unless the facts and the law clearly favor the

petitioner. Committee of Central American Refugees v. Immigration and Naturalization Serv.,

795 F.2d 1434, 1441 (9th Cir. 1986).

The Court agrees that an injunction would not maintain the status quo, but would

command respondents to take affirmative action. The Court, therefore, concludes that petitioner

seeks a mandatory injunction, and his request is subject to a higher degree of scrutiny because such

relief is “particularly disfavored.” Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.

1994)(citing Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1976)).

The Court finds that petitioner does not satisfy either prong of the standard for a

preliminary injunction, as he has not shown a probability of success on the merits of his case, or

that serious legal questions are raised. Petitioner claims that the BIA violated due process when

it failed to timely mail its decision to the correct address which resulted in petitioner’s arrest and

detention without bond. Petitioner contends that had he been notified that the BIA denied his

motion to reopen, “he would have timely filed a Petition for Review with a request to stay the

Removal Order and would have remained free pending disposition of the Petition for Review.”

(Dkt. #11 at 2). Petitioner maintains that “it was only because he was not notified of that decision

that an arrest warrant was issued.” Id. Respondents argue that petitioner’s claim that he was

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prejudiced due to the BIA’s mailing error is entirely conjecture. Respondents contend that had

petitioner filed a second Petition for Review earlier, the “removal period” imposed under INA §

241(a), 8 U.S.C. § 1231(a), would have placed petitioner’s custody status in the same posture

today – “i.e., an initial period of mandatory detention during the removal period, followed by

discretionary release/detention thereafter.” (Dkt. #12 at 2).

Petitioner’s deportation case was heard and considered by an Immigration Judge who

found him deportable and ordered him removed. Petitioner’s appeal to the BIA was unsuccessful.

Petitioner’s first Petition for Review was considered and denied on the merits by the Ninth Circuit.

Petitioner’s later motion to reopen his removal proceedings was denied by the BIA, and when the

BIA discovered its mailing error, reentered the denial order to afford petitioner an opportunity to

file another Petition for Review. Petitioner filed a second Petition for Review which is currently

pending in the Ninth Circuit.

Petitioner fails to substantiate his claim or otherwise show how his due process rights were

violated by the BIA’s now corrected mailing error. See, e.g., Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2001)(holding that an alien must show prejudice to prevail on a due process claim).

Accordingly, petitioner has not demonstrated a likelihood of success on the merits or that serious

legal questions are raised, and cannot meet the standard for injunctive relief.

CONCLUSION

For the foregoing reasons, I recommend that the portion of petitioner’s habeas petition

challenging his detention be DENIED, and that the portion of petitioner’s habeas petition

challenging the denial of his motion to reopen be TRANSFERRED to the Ninth Circuit Court of

Appeals under 28 U.S.C. § 1631. A proposed Order accompanies this Report and

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Recommendation.

DATED this 8th day of March, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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