judge denied the motion to reopen, and the twins appealed. The appeal is currently
pending before the Board of Immigration Appeals, and the twins’ removal is
automatically stayed pending the outcome of those proceedings. See 8 C.F.R.
§ 3.23(b)(4)(iii)(C).

On November 18, 2000, the twins filed this petition for a writ of habeas corpus.
They contend that the INS issued a final order of removal against them without first
providing them with notice and a meaningful opportunity to respond to the charges
against them in violation of the Due Process Clause of the United States Constitution.
Petitioners seek, inter alia, declaratory relief and a preliminary injunction preventing
the INS from deporting the twins until their habeas petition has been adjudicated.

Following the filing of the twins’ habeas petition, President Clinton signed into
law the Legal Immigration Family Equity Act (the “LIFE Act”), which enables certain
aliens living unlawfully in the United States to apply for adjustment;to the status of
lawful permanent resident without first leaving the country. The LIFE Act further
protects the spouses and minor children of LIFE late legalization applicants from
removal pending resolution of the spouse’s or parent’s application for adjustment of
status. According to the memorandum in support of the habeas petition, Mohammad
Sharif is eligible to apply for adjustment of status under the LIFE Act by virtue of his

membership in the class certified in Catholic Social Services, Inc. v. Meese, 685

-4-


F.3d at 746. The court went on to confirm that in such cases, habeas review was
essentially eliminated by the JIRIRA. Id.

The twins have made no showing that the denial of habeas in this case would
present a “bizarre miscarriage[] of justice” such that theirs would be “one of those rare
cases in which we would have to confront the question whether an exception to the
normal bar on habeas corpus petitions must be recognized.” Chowdury v. Ashcroft,
241 F.3d 848, 851 (7th Cir. 2001). In fact, the twins’ appeal is still pending before the
Board of Immigration Appeals; administrative relief may still be available to them. In
addition, the twins are not precluded by this ruling from filing with the Court of
Appeals an appropriate petition for review of their removal orders. We hold merely
that we lack jurisdiction to consider their constitutional and statutory claims on a
§ 2241 petition for habeas corpus. On this ground, the twins’ petition must be
dismissed.

CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted. The

petition for habeas corpus is dismissed in its entirety.

Ran Doe P. [reer ne

Charles P. Kocoras
United States District Judge

Dated: June 13, 2001

- 9 GAGKOCORAS 0070983


reopening of removal proceedings to consider a deportee’s claim that her removal is
stayed by the Act. See Adjustment of Status To That of Person Admitted for
Permanent Residence; Temporary Removal of Certain Restrictions of Eligibility —
Interim Rule with Request for Comments, 66 Fed. Reg. 16383, 16386 (March 26,
2001) (to be codified at 8 C.F.R. pt. 245). Nor have the twins exhausted their
administrative remedies regarding the adequacy of the notice they received prior to
their removal hearing. That issue forms the basis for their appeal, which is currently
pending before the Board of Immigration Appeals. Accordingly, we believe the twins’
petition for habeas corpus is premature and is subject to dismissal.
Il. Habeas jurisdiction after the IIRIRA amendments

The Government further contends that the petition must be dismissed for the
additional, alternative reason that a petition for habeas corpus is an improper vehicle
for judicial review of the twins’ removal orders. Aliens have traditionally been
permitted to challenge a deportation order by means of a petition for a writ of habeas
corpus brought under 28 U.S.C. § 2241, which gives federal courts jurisdiction to grant
the writ to a petitioner held in custody in violation of the Constitution, laws, or treaties
of the United States. The Government maintains that Congress repealed this grant of
habeas jurisdiction with the passage of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (the “IIRIRA”), which amended the judicial review

-6-


F. Supp. 1149 (E.D. Cal. 1988). See LIFE Act Section 1104(b)(1). As a result, the
twins argue, they are eligible for a temporary stay of removal pending a final
determination on their father’s application. See LIFE Act Section 1504.

Defendants (the “Government”) have moved pursuant to Rules 12(b)(1) and
12(b)(6) to dismiss the habeas petition. They argue that the Court lacks jurisdiction
over the petition because the twins have failed to exhaust their administrative remedies
and because Congress has abolished district court habeas review of the INS actions the
twins challenge. The twins have not responded to the motion to dismiss.

DISCUSSION
I. Exhaustion of remedies

The Government first argues that the Court lacks subject matter jurisdiction over
the petition because the twins have failed to exhaust their administrative remedies.
Pursuant to 8 U.S.C. § 1252(d)(1), a court may review a final order of removal only if
the alien has exhausted all administrative remedies available to her as of right. See
McBrearty v. Perryman, 212 F.3d 985, 987 (7th Cir. 2000). The twins have not
exhausted their administrative remedies with respect to either their due process or LIFE
Act claims. There is no evidence that the twins have raised the LIFE Act issue before
any administrative body or that they are somehow barred from doing so. Indeed, the

interim INS rule governing implementation of the LIFE Act contemplates the

-5-


942, n.7 (1999) (noting split in circuit authority). Early this year, the Supreme Court
granted certiorari in two cases in which that question is presented. See St. Cyr v. INS,
229 F.3d 406 (2d Cir. 2000), cert. granted, 121 S. Ct. 848 (2001); Calcano-Martinez
v. INS, 232 F.3d 328 (2d Cir. 2000), cert. granted, 121 S. Ct. 849 (2001). Pending a
ruling on the issue by the Supreme Court, we are bound by the Seventh Circuit’s
holding that section 1252(g) “foreclose{s] virtually all judicial review of deportation,
including habeas review, in cases to which it applies.” Bhatt v. Reno, 204 F.3d 744,
746 (1999). Those cases, the Supreme Court has held, are limited to suits challenging
the three actions or decisions specifically enumerated in the statute — commencing
proceedings, adjudicating cases, or executing removal orders. Reno v. American-Arab

Anti-Discrimination Committee, 119 S. Ct. at 943.

Petitioners argue that the relief they seek is unrelated to any of the three actions
specified in § 1252(g). We disagree. The INS has issued orders of removal against
both twins and has taken the additional step of ordering them to appear for deportation
at a specified date and time. The twins have now filed a habeas petition in an effort to
block their removal from the United States. Under similar circumstances, the Seventh
Circuit in Bhatt v. Reno found the alien’s habeas petition to “arise[] from the decision

and action...by the Attorney General...to execute removal orders” againsthim. See 204


__ Minote Order Form (06/97)
v

United States District Court, Northern District of Illinois

ame of Assigned Jud Sitting Judge if Other
ae Magistrate Judge Charles P. Kocoras ianeassigaed suds
CASE NUMBER 00 C 7098 DATE 6/13/2001
CASE Sharif et al vs. Reno et al
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

q@) Oo Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) Qa Answer brief to motion due, . Reply to answer brief due

(4) Qo Ruling/Hearingon__setfor___at

(5) im Status hearing{held/continued to] {set for/re-set for] on_ set fort

(6) a} Pretrial conference[held/continued to} {set for/re-set for] on _set for at.
(7) Oo Trial[set for/re-set for] on__at

(8) a [Bench/Jury trial] [Hearing] held/continued to__at

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COOFRCP4(m) [General Rule21 O FRCP41(a)(1) O FRCP41(a)(2).

ao) =f {Other docket entry] Case called for ruling. No one appears. ENTER MEMORANDUM
OPINION: Defendants’ motion (Doc 7-1) to dismiss is granted. The petition for habeas corpus is
dismissed in it entirety.

qi) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

UN 1.4 2001

date docketed

AN

Notices mailed by judge’s staff.

Notified counsel by telephone.

Y | Docketing to mail notices.
v¥ | Mail AO 450 form.

Copy togudhe/magistrte Judge.

set KC] Se oy su 13 Fale 8!
initials

Date/time received in
central Clerk's Office,

smuiling deputy initials



provisions of the Immigration and Nationality Act (the “INA”). Under the ITRIRA, the
Government argues, all challenges to removal proceedings must now be brought before
a Court of Appeals in the context of a petition for review of a final order of removal.
Section 306 of the IIRIRA amended section 242(g) of the INA to read as
follows:
Exclusive Jurisdiction.-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. § 1252(g).
Furthermore, Section 242(b)(9) of the amended INA provides:
Consolidation of issues 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
title shall be available only in judicial review of a final order under this
section. 8 U.S.C. § 1252(b)(9).
Section 1252 makes judicial review of final removal orders available pursuant to a
petition for review filed in the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings. See 8 U.S.C. § 1252(b).
The question of whether these provisions of the I[RIRA eliminate all district

court jurisdiction to entertain habeas petitions under § 2241 is an unsettled one. See

Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S. Ct. 936,

-7-


forwarded by the U.S. Postal Service to the girls’ new address in Bensenville, [linois;
the other was never received by the twins or their guardian, Mohammed Sharif.

According to INS records, a follow-up “Notice of Hearing in Removal
Proceedings” was sent to each twin, at the Sheridan Road address, on August 9, 2000.
The notices indicated that the girls’ cases had been scheduled for hearings before the
Immigration Court on October 24, 2000, at 9:00 a.m. The hearings were held as
scheduled but the twins, who claim not to have received notice of the time and date of
the hearing, did not appear either in person or through counsel. The Immigration Judge
found them both to be removable and ordered them removed to Pakistan.

On or about November 2, 2000, Petitioners received by certified mail —
forwarded to Bensenville from the Sheridan Road address — a single “bag and
baggage” letter from the INS. The letter, which was addressed to Umme SHARIF with
Nazia’s alien registration number, instructed the addressee to report to the INS for
deportation on November 9, 2000, at 9:15 a.m. Petitioners contacted the Deportation
Officer named in the bag and baggage letter in an attempt to obtain a stay of execution
of the deportation order, but the officer never responded to their request. Neither twin
appeared for removal on November 9. Rather, on November 17, 2000, Petitioners
moved the Immigration Court to reopen the in absentia removal orders for both twins,
arguing that they did not receive adequate notice of their hearings. The immigration

-3-


United States on six-month visitor’s visas. They have remained in the country until
this time with Mohammad Sharif, who Petitioners state is their biological father, next
of kin, and legal guardian.

On or about January 8, 1998, the twins applied for adjustment to permanent
resident status by filing separate applications for adjustment of status with the United
States Immigration and Naturalization Service (“INS”). Both girls’ applications were
denied on the basis that no visa number was available to them. On or about June 28,
1999, the INS sent notifications of the denials to the address listed on the twins’
applications: 5101 N. Sheridan Road in Chicago, Illinois.

On or about July 24, 2000, the INS issued a “Notice to Appear” to each of the
girls. The notices were both addressed to “Umme SHARIE” and sent by regular U.S.
mail to the Sheridan Road address the twins had listed on their applications for
adjustment of status. Although the notices did not list the addressees’ middle names,
one notice referenced file number A76 770 958, Nazia’s alien registration number, and
the other referenced file number A76 770 959, Sadia’s alien registration number. Each
notice indicated that the addressee was subject to removal pursuant to Section
237(a)(1)(B) of the Immigration and Nationality Act (8 U.S.C. § 1227) and ordered her
to appear before an immigration judge at 55 East Monroe, Chicago, Illinois, at a date

and time “To Be Scheduled.” According to the petition, one of the two notices was

-2-


POCKETED

SUN 14 2001
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UMME S. SHARIF,

Alien Registration No. 76 770 958, and
UMME N. SHARIF,

Alien Registration No. 76 770 959,

Plaintiffs,

vs. No. 00 C 7098
JANET RENO, Attorney General; DORIS
MESSNER, Commissioner of the Immigration &
Naturalization Service; BRIAN R. PERRYMAN,
District Director of the Immigration &
Naturalization Service; DEBROAH ACHIM,
Assistant Director for Deportation, and
IMMIGRATION & NATURALIZATION
SERVICE,

weer eres rs ror eres’

Defendants.

MEMORANDUM OPINION
CHARLES P. KOCORAS, District Judge:
This matter is before the Court on Defendants’ motion to dismiss the petition for
a writ of habeas corpus. For the reasons set forth below, the motion is granted.
BACKGROUND
Petitioners Umme S. Sharif (“Sadia”) and Umme N. Sharif (“Nazia”) are

thirteen-year-old twin girls and natives of Pakistan. In 1989, the twins arrived in the

q