Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); INS v. St. Cyr,
533 U.S. 289, 121 S.Ct. 2271, 2287, 150 L.Ed.2d 347 (2001).!
I. _ Discussion

Under The Immigration and Nationality Act (INA) "[a]ny alien who is convicted of an
aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)iii).
Section 101(a)(43)(A) of the INA defines the term “aggravated felony” as "murder, rape, or
sexual abuse of a minor." Under the INA's admissibility provisions, petitioner's removal and:
Status as an aggravated felon prevents him from being admitted to the United States for twenty
years absent consent to apply for readmission from the Attorney General. See 8 U.S.C. §
1182(a)(9)(A)(i)-(iii). Petitioner seeks reconsideration of this Court's determination that the
habeas petition is moot. Petitioner maintains that this action is not moot because if this Court
were to grant relief, then he would be able to return to the United States. Petitoner’s inability to
return for twenty years flows from the II's decision to classify him as an aggravated felon. See
Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir. 2001) (“we conclude that Petitioner’s removal
from the United States does not render her case moot”), The Court finds that the petition is not
moot.

Petitioner argues that the proceeding before the IJ denied him the due process of law the

Constitution guarantees. Petitioner fails to explain how the process was deficient, other than his

‘The district court retains subject matter jurisdiction over habeas petitions despite the
amendments to the INA rendered by the provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), Pub.L. No 104-132, 110 Stat. 1214 (enacted and effective
April 24, 1996), and the Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA"), Pub.L. No. 104-208,110 Stat. 3009-546 (enacted on September 30, 1996
and effective on April 1, 1997).

4.


Immigration Judge ("I") denied petitioner's request for custody redetermination. The IJ agreed
with the INS that petitioner had been convicted of an aggravated felony. On May 3, 2002,
petitioner filed a motion to terminate the removal proceedings arguing that the statute under
which he was convicted was divisible. Petitioner argued that his crime was "masturbation merely
with the knowledge that a minor is watching." On May 30, 2002, the INS filed a brief in support
of the NTA and in response to petitioner's motion to terminate the removal proceedings. In their
brief, the INS argued that petitioner's Sexual Exploitation of a Child Conviction was an
aggravated felony. On June 6, 20002, the IJ ordered that petitioner be deported to Columbia.
Petitioner waived his right to appeal the IJ's decision.

On July 26, 2002, petitioner filed his habeas petition alleging that he was wrongfully
categorized as a non-citizen subject to mandatory detention. He claimed that Sexual Exploitation
of a Child is not an aggravated felony and that he should been able to post bond until a final
removal decision was made. Petitioner never obtained a stay of his removal. On November 18,
2002, petitioner was deported pursuant to a final order of removal entered by the IJ and executed
by the INS. On November 21, 2002, this Court dismissed petitioner's habeas petition as moot.

0. Jurisdiction

The district court has subject matter jurisdiction to entertain petitions for a writ of habeas

corpus filed by aliens subject to a final order of removal under 28 U.S.C. § 2241(c), which

authorizes the district court to review an alien's removal order. Se¢ 28 US.C. § 2241(c);

3.



blanket statement that the IJ determined that he was an aggravated felon in a perfunctory manner.
Instead, petitioner attacks the [J's determination that he is an aggravated felon subject to removal.
Petitioner, however, waived his right to appeal the II's decision. Having waived his right to
appeal the LJs decision, petitioner can not now come to this Court seeking a review of that
decision. "A court may review a final order of removal only if... the alien has exhausted all
administrative remedies available to the alien as of right." 8 U.S.C. § 1252(d); see also Hmaidan
y. Ashcroft, 258 F. Supp.2d 832, 839 (N.D. Il. 2003) (explaining that exhaustion of
administrative remedies is required of aliens in INS custody). The purpose of the exhaustion
requirement is to allow the consideration of habeas relief on a more developed factual record
without burdening the habeas court with the task of presiding over the development of that
record. Hmaidan, 258 F. Supp.2d at 839-40.

In this case, petitioner waived his right to appeal the I’s decision. Despite his waiver,
petitioner appealed the order of removal to the Board of Immigration Appeals (“BIA”). The BIA
dismissed his appeal for lack of jurisdiction. The only conceivable rationale for the petitioner's
invocation of this Court’s jurisdiction is that the waiver of his right to appeal the 1J’s decision
did not include wavier of appeal of the manner by which the decision was reached. Petitioner
offers no authority in support of that proposition. This Court considers an alien's waiver of the
right to appeal to the BIA as a failure to exhaust administrative remedies for jurisdictional
purposes. See Mejia-Ruiz v, INS, 51 F.3d 358, 364 (2d Cir.1995); see also 8 CER. §§ 3.3 ("A
notice of appeal may not be filed by any party who has waived appeal"); 3.38 (same); 3.39 (J
decision final upon waiver of appeal) (2002). If this Court were to exercise jurisdiction over

petitioner’s habeas case, it would be creating a rule that allows parties to waive their right to

~5-


Minute Onder Form (06/97)
.

a
\afec States District Court, Northern District of Illinois

‘mtg | Davide Cour Paras
CASE NUMBER 02 C 5331 DATE 8/11/2003
CASE Arcenio Rodriguez-Martinez vs. John D. Ashcroft, et al.
TITLE
{in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.

Motion by Petitioner for Reconsideration of the Court's Order of 11/21/02 [10-1]

DOCKET ENTRY:

qd Oo Filed motion of [ use listing in “Motion” box above.)

(2) oO Brief in support of motion due

(3) oO Answer brief to motion due. . Reply to answer brief due. :

(4) Oo Ruling/Hearing on set for at

(5) QO Status hearing{held/continued to) [set for/re-set for] on set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at .

(7) 0 Trial{set for/re-set for} on at

(8) Q [Bench/Jury trial} [Hearing] held/continued to at

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

OFRCP4m) (CLocalRule 41.1 OFRCP41(a)\(1) CO FRCP41(a)(2).

ao [Other docket entry] For the reasons set forth in the attached Memorandum Opinion and Order,
petitioner’s motion for reconsideration is granted [10-1]. The Court finds that petitioner’s habeas action
is not moot. Due to petitioner's failure to exhaust his administrative remedies, however, this Court lacks
jurisdiction over the subject matter of the habeas petition. Accor , petitioner’s etition is
DISMISSED. This action is closed. - bn

(il) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.
Notified counsel by telephone.
X_ | Docketing to mail notices.
Mail AO 450 form.

4un09 Lolursia’s'n
MY319

Copy to judge/magistrate judge.
courtroom ARE Wd 21 9n¥e0
kb (le) deputy's
initials Sahota
ce 's Office



appeal and bring a habeas action in federal court, thereby circumventing the administrative
process. The effect of such a rule would be to undermine agency functions and clog the courts
with unnecessary petitions. The rules are clear: before proceeding to federal court, an alien must
exhaust his or her administrative remedies. Petitioner did not exhaust his administrative

temedies. Accordingly, this Court lacks jurisdiction to hear petitioner’s habeas petition.

Conclusion
For the foregoing reasons, petitioner’s motion for reconsideration is granted. The Court finds

that petitioner’s habeas action is not moot. Due to petitioner’s failure to exhaust his administrative
remedies, however, this Court lacks jurisdiction over the subject matter of the habeas petition.

Accordingly, petitioner’s habeas petition is DISMISSED.

ee
| ‘

David H. Coar

United States District Judge

Dated: August 11, 2003

-6-


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ARCENIO RODRIGUEZ-MARTINEZ,

Petitioner,
No. 02 C5331
v.
HONORABLE DAVID H. COAR
JOHN ASHCROFT, as ATTORNEY
GENERAL of the UNITED STATES,
BRIAN R. PERRYMAN, as the District
Director of the Chicago District office of the
IMMIGRATION & NATURALIZATION
SERVICE,

wwe we we www ww weer www

Respondents.

MEMORANDUM OPINION AND ORDER

Petitioner, Arecenio Rodriguez-Martinez, filed the habeas petition in this case on July 26,
2002. On November 21, 2002, this Court dismissed petitioner's habeas petition as moot because
petitioner was deported to Columbia. Before this Court is petitioner’s motion for
reconsideration.
L Factual and Procedural Background

Petitioner is an adult native and citizen of Columbia and was admitted to this Country on
April 24, 1971 a Miami, Florida as an immigrant. On August 11, 1999, a 911 call was made by
eleven year-old Franki Levinson to the Niles police to report inappropriate touching by the
petitioner. The eleven year-old victim told arriving officers that petitioner, her stepfather,
touched her on the buttocks. Franki was in bed at the time and petitioner was nude. She then

saw petitioner in the "push-up position" over her nine year-old sister, Katie, who was asleep.
Pp Pl iP P'

-l-

\\



The petitioner began making a pumping motion over Katie and began rubbing his groin area on
the nine year-old girl's body. When petitioner noticed that Franki was awake and watching him,
he left the room. The police interviewed nine year-old Katie, who told them about past sexual
attacks by the petitioner. She reported incidents in which the petitioner touched her vaginal area
both with her underwear on and sometimes with it off. The petitioner told police that he
"definitely had a problem" but otherwise refused to answer their questions. After interviewing
the victims and reviewing the evidence, an Assistant Cook County State's Attomey approved
felony charges based on the two incidents of August 10, 1999 as well as the reported previous
incidents. A grand jury subsequently indicted the petitioner for multiple acts of aggravated
criminal sexual abuse. Count One alleged that on August 10, 1999, the petitioner "committed an
act of sexual conduct upon F.L. to wit: Arcenio Rodriguez fondled F.L.'s buttocks with his hand,
for the purpose of sexual gratification or arousal of Arcenio Rodriguez, and F.L. was under 18
years of age when the act was committed, and Arcenio Rodriguez was a family member, to wit:
F.L.'s stepfather in violation of 720, Act 5 Section 12-16(B), of the Illinois Compiled Statutes."
On May 26, 2000, that count was reduced to a misdemeanor, and the petitioner plead guilty to
Sexual Exploitation of a Child, under 720 ILCS 5/11-9.1(A)(1). Petitioner was sentenced to
twenty-four months of misdemeanor probation. A two-year order of protection was issued
naming both children as protected persons. The remaining charges were nolle prossed.

The Immigration and Naturalization Service ("INS") detained petitioner without bond on
its allegation in the Notice to Appear, ("NTA"), I-862 , that Petitioner was convicted of an
aggravated felony as defined in INA § 101(a)(43)(A). The INS used that basis to include

petitioner in the class of non-citizens subject to mandatory detention. On April 18, 2002, the

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