DISCUSSION

Petitioner claims that the court should grant his habeas petition because his new TPS
application will be deemed abandoned if the Director deports him. Petitioner also rests his
habeas petition on the fact that he has been in the United States for over 10 years and he will
apply for lawful permanent resident (“LPR”) status because he is the beneficiary of a visa
petition filed by his father.

The Director responds that the habeas petition is no more than a disguised challenge to a
final removal order and thus this court lacks jurisdiction under 8 U.S.C. § 1252(g) (“no court
shall have jurisdiction to hear any cause or claim by or on behalf of an alien arising from the
decision or action by the Attorney General to commence proceedings, adjudicate cases, or
execute removal orders... .”). The Director concedes that “[ajn exception to this statutory
preclusion is permitted only in rare cases that present substantial constitutional issues or bizarre
miscarriages of justice.” Chapinski v. Ziglar, 278 F.3d 718, 721 (7" Cir. 2002). The Director
asserts that petitioner does not meet either of these exceptions because petitioner’s own failure to
depart voluntarily from the United States or appeal the immigration judge’s order to the BIA led
to the conversion of the initial order for voluntary departure into a final removal order.

Petitioner argues that this court has jurisdiction because his removal proceedings occurred
prior to the enactment of the IRIRA amendments to the INA. “While the IIRIRA amendments
generally apply only to removal proceedings instituted on or after its effective date of April 1,

1997, ... § 1252(g) is fully retroactive[.]” Fedorca v. Perryman, 197 F.3d 236, 240 (7" Cir.



filing and based on the improper address on the December 13, 2001 letter) or LPR in spite of this
removal order is not for this court to decide. Rather, the adjudication of petitioner’s habeas
claims falls within the administrative review process under the jurisdiction of the Attorney
General and the DHS. See generally 8 U.S.C. § 1254a(c)(2)(A) (Waiver of certain grounds for
inadmissibility for TPS); 8 C.F.R. § 240.62(b) (applications for suspension of deportation or
special rule cancellation of removal... .). Clearly, this court lacks subject matter jurisdiction to
review the habeas petition.
ORDER

Wherefore, for the reasons set forth above, the court dismisses petitioner’s emergency

petition for writ of habeas corpus for lack of subject matter jurisdiction. This case is terminated.

ENTER: Seen LA per

JOAN HUMPHREY LEFKOW
United States District Judge

Dated: April 9, 2003



temporarily is unable to handle the return of its nationals; (3) the government of E] Salvador
requested TPS designation; and (4) the Attorney General’s permission to allow nationals of El
Salvador to remain temporarily in the United States is not contrary to national interest. (Pet. Ex.
2.) Subsequently, the Attomey General extended the TPS program until September 9, 2003, with
an application filing period between September 9, 2002 and November 12, 2002. See “Extension
of the Designation of E] Salvador Under the Temporary Protected Status Program,” 67 FR
46000, 2002 WL 1473076 (F.R.).

Petitioner represents without evidence that he was granted TPS, including employment
authorization and additional extensions, until 2002. According to petitioner, he renewed his TPS
application sometime in 2002. When he did not hear back from the INS, he went to the INS
Indianapolis office to inquire about his application status. There, the INS took petitioner into
custody based on the final removal order. Petitioner attaches an exhibit to show that he filed a
new TPS application in mid-March 2003, listing his address as “Care of Gilma Bonilla,” at 3185
Eagledale Drive, Indianapolis, Indiana 46222.

The Director denies that the INS ever approved TPS for petitioner and that petitioner has
a TPS application on file. Rather, he provides an exhibit showing that the INS sent petitioner a
letter, dated December 13, 2001 and addressed to petitioner at 3185 Eagledale St., Indianapolis,
Indiana 46222, that stated petitioner failed “to submit additional evidence in support of the
application or petition.” (Gov’t Ex. 4.) The letter provided that petitioner had 30 days to file a
new application with a new fee, which petitioner failed to do. Based on its evidence, the Director

asserts that petitioner only attempted to submit an application but never received TPS.



(7" Cir. 1999)? Under § 1252(g), because petitioner seeks habeas relief in the form of a stay of
his removal order, this court lacks subject matter jurisdiction to review the habeas petition. See,
e.g., Fedorca, 197 F.3d at 239-40 (“Fedorca seeks as relief only a stay of deportation pending his
appeal to the BIA--or in other words, review of the decision to execute his deportation, which is
barred by §§ 1252(g).”); Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786, 786 (7° Cir. 2002) (“A
request for a stay of removal ‘arises from’ the Attorney General’s decision (reflected by the bag-
and-baggage letter) to execute a removal order.”).’

Petitioner, however, argues that his petition presents facts that demonstrate a bizarre
miscarriage of justice, See Chapinski, 278 F.3d at 721, The court recognizes that, despite the
removal order preventing a change in status, petitioner contends that he received TPS and simply
failed to renew it. If petitioner initially received TPS, then he initially was not subject to
detention and removal during that time period. See 8 U.S.C. §§ 1254a(a)(1)(A) (stating the

Attorney General may grant the alien TPS and “shall not remove the alien from the United States

Petitioner relies heavily on Sofinet v. INS, 188 F.3d 703, 705-06 (7" Cir. 1999), where the Seventh Circuit
granted a stay of the petitioner’s removal. In Sofinet, after petitioner exhausted administrative review, he filed a
notice of appeal with the Court of Appeals, The Court of Appeals retained jurisdiction under 8 U.S.C. § 1 10Sa(a)
subject to the transitional rules that provided for judicial review before the enactment of the ITRIRA. As indicated
above, these transitional rules are not applicable here because § 1252(g) is retroactive.

3In addition, petitioner argues that because § 1252(g) concerns only the Attorney General’s and not the
DHS’s actions, this court retains jurisdiction under § 2241. Section 1512(a) of the Homeland Security Act of 2002
(“HSA”), which created the DHS, states that the “{c]ompleted administrative actions of an agency shall not be
affected by the enactment of this Act . . . but shall continue in effect according to their terms . . . in accordance with
... acourt of competent jurisdiction[.]” 6 U.S.C. § 552(a) (further stating “complete administrative action includes
orders, determinations, rules, regulations . . .”). Moreover § 1512(d) of the HSA states that “references relating to an
agency that is transferred to the [DHS] in statutes . . . that precede such transfer or the effective date of this Act shall
be deemed to refer, as appropriate, to the [DHS]... .” 6 U.S.C, § 552(d); see also 6 U.S.C. § 557 (“With respect to
any function transferred by or under this Act (including a reorganization plan . . .) and exercised on or after the
effective date of this Act, reference in any other Federal law to any . . . officer . . . the functions of which are so
transferred shall be deemed to refer to the Secretary, other official, or component of the [DHS] to which such
function is transferred.”). Based on these provisions, although § 1252(g) refers to the Attorney General, it applies to
the DHS.



Minute Order Form. VW

United States District Court, Northern District of [linois

(

In@of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan H. Lefkow than Assigned Judge
i CASE NUMBER 03 C 2077 DATE 4/9/2003
CASE Hector J. Bonilla vs. United States Department of Homeland Security
TITLE
[In the following box (a) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) o Answer brief to motion due___. Reply to answer brief due___.

(4) a Ruling/Hearing on setfor_ at

(5) im Status hearing{held/continued to] [set for/re-set for]on__—ssetfor__—_att

(6) oO Pretrial conference{held/continued to] [set for/re-set for]on____—ssetfor_—— ss at_

(7) a Trial{set for/re-set for]on__—_—aat

(8) o {Bench/Jury trial] [Hearing] held/continued to___at

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

OOFRCP4(m) O Local Rule 41.1 O FRCP41(a)(1) 0 FRCP41(a)(2).

(0) «i [Other docket entry] Enter Memorandum Opinion and Order. Petitioner’s emergency petition for
writ of habeas corpus is dismissed for lack of subject matter jurisdiction. Case terminated.

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

No notices required, advised in open court.
2

No notices required. number of notices

Document... -°

/ | Notices mailed by judge’s staft.

APR 1 1 a6

Notified counsel by telephone. dare docker

Docketing to mail notices.

unae LORS wasn 7

Mail AO 450 form. docketing depulp ittials

Copy to judge/magistrate judge.

cr: vom see avon063

date mailed notice
courtroom
MD doputy's

depy MD
initials

Date/time received in
central Clerk’s Office

mailing deputy initials



during the period in which such status is in effect”) and (d)(4) (stating an alien provided TPS
“shall not be detained by the Attorney General on the basis of the alien’s immigration status”).
Nonetheless, petitioner concedes that he did not timely submit additional evidence for his
renewal TPS application. As his excuse, petitioner vaguely states “[it is unknown whether [he]
ever received the request for evidence.” (Pet. ] 7.)

Whether petitioner is able to rebut the presumption that the Director properly addressed
the December 13, 2001 letter to him is arguable. See Hayes v. Potter, 310 F.3d 979, 982 (7" Cir.
2002) (“We will generally presume timely delivery of properly addressed mail”). The December
13, 2001 letter is addressed to petitioner at “3185 Eagledale St.” whereas, in his new TPS
application, petitioner lists the address as “Care of Gilma Bonilla” at “3185 Eagledale Drive.”
Even though the Director’s December 13, 2001 letter does not show it was sent “Care of Gilma
Bonilla” to “3185 Eagledale Drive,” petitioner fails to show that he provided this address
information in his original TPS application. Moreover, based on this court’s own research, there
does not appear to be an actual distinction between “3185 Eagledale St.” and “3185 Eagledale
Drive.” Nonetheless, although more evidence such as a copy of the original TPS application
and/or a sworn affidavit taken under oath by petitioner would be useful, the court simply will
resolve this issue in petitioner’s favor.

Assuming that the December 13, 2001 letter was not properly addressed and thus not
received, petitioner still cannot show that he is entitled to habeas relief. Petitioner did not appeal
or comply with the initial order for voluntary departure and thus he became automatically subject
to aremoval order. The removal order states that petitioner cannot change his status for five

years or until August 6, 2003. Whether petitioner may change his status to TPS (despite the late



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

+4 2003

APR

HECTOR J. BONILLA,
Petitioner,

No. 03 C 2077
Judge Joan H. Lefkow

Vv.

UNITED STATES DEPARTMENT
OF HOMELAND SECURITY,
District Director

weeenvererverwe we Ore

Respondent.

MEMORANDUM OPINION AND ORDER

On March 20, 2003, petitioner, Hector J. Bonilla, filed an emergency petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 against the “District Director” (the “Director”) of the
United States Department of Homeland Security (“DHS”).' Petitioner seeks release from
custody and a stay of his removal from the United States to his country of citizenship, El
Salvador, until the Board of Immigration Appeals (“BIA”) renders a decision on his “Motion to
Reopen” his immigration case. For the reasons set forth below, the court dismisses the habeas
petition for lack of subject matter jurisdiction.

BACKGROUND

On or about December 14, 1992, petitioner entered the United States through San Diego,

California without inspection. The Immigration and Naturalization Service (“INS”), now the

Department of Homeland Security (“DHS”), initiated removal proceedings against petitioner at

"Since March 1, 2003, the DHS oversees the enforcement and investigative functions of the former
Immigration and Naturalization Service (“INS”) under the Bureau of Immigration and Customs Enforcement (the
“Bureau”) whose Acting Director is Eduardo Aguirre, Jr, (“Aguirre”). Although petitioner lists as a respondent the
“District Director,” the court cannot locate this position within the Bureau. Rather, where the court refers to the
“Director,” it presumes that Aguirre is the appropriate respondent. er



some unspecified point but which petitioner asserts was before April 1, 1997, when the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA”) amendments to the
Immigration and Nationality Act (“INA”) became effective. On April 8, 1998, an immigration
judge in Houston, Texas denied petitioner’s request for political asylum and granted him the
opportunity to depart the United States voluntarily by August 7, 1998. (Gov’t Ex. 1.) The
immigration judge’s order further stated,

Remaining in the United States beyond the authorized date other than because of

exceptional circumstances beyond your control will result in your being ineligible

for certain forms of relief under the Immigration and Nationality Act for five years

from the date of the scheduled departure or the date of the unlawful entry,

respectively.

(d.) The “certain forms of relief” included voluntary departure, suspension of deportation or
voluntary departure, and adjustment of status or change of status.

The record does not show that petitioner appealed this order to the BIA. Furthermore,
petitioner admits that he did not voluntarily leave the United States. Based on these facts, the
initial order of voluntary departure converted into a final removal order. Indeed, on or about July
13, 1999, the INS attempted to enforce the removal order but petitioner did not appear for his
scheduled departure. (Gov’t Ex. 2.)

In the meantime, petitioner represents that he filed an application for Temporary
Protected Status (“TPS”) with the INS based on his El Salvadoran citizenship. Petitioner submits
a “Federal Register Notice on Salvadoran TPS,” issued March 9, 2001, that allows individuals to
apply for TPS between March 9, 2001 and September 9, 2002. The notice states that the

Attorney General designated a TPS program because (1) El Salvador has endured three

earthquakes resulting in substantial but temporary disruption of living conditions; (2) El Salvador