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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2870

Umme S. Sharif and Umme N. Sharif, by their
guardian Muhammad Sharif,

Petitioners-Appellants,

v.
                 
John D. Ashcroft, Attorney General of the
United States, et al.,

Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 7098--Charles P. Kocoras, Judge.

Argued January 9, 2002--Decided February 11, 2002


  Before Flaum, Chief Judge, and Harlington
Wood, Jr., and Easterbrook, Circuit Judges.

  Easterbrook, Circuit Judge.  Twin sisters
Umme N. Sharif and Umme S. Sharif were
ordered removed to Pakistan when they
failed to appear for hearings. The
Sharifs did not seek judicial review in
the court of appeals under 8 U.S.C.
sec.1252(a). A bag-and-baggage letter was
issued and ignored. Later the sisters
asked the district court to issue a writ
of habeas corpus that would stop the INS
from implementing the removal orders. The
district court held that it lacked
jurisdiction. 2001 U.S. Dist. Lexis 8475
(N.D. Ill. June 13, 2001). It was right.

  INS v. St. Cyr, 121 S. Ct. 2271 (2001),
holds that recent amendments to the
Immigration and Nationality Act do not
foreclose all use by aliens of 28 U.S.C.
sec.2241, the general habeas corpus
statute. But St. Cyr does not disturb the
holding of Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471
(1999), that 8 U.S.C. sec.1252(g) blocks
review in the district court of
particular kinds of administrative
decisions. Section 1252(g) reads:

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 chapter.

American-Arab Anti-Discrimination
Committee held that the three categories
of actions mentioned in this statute--
decisions to "commence proceedings,
adjudicate cases, or execute removal
orders"--must not be expanded by the
judiciary, but that within its scope the
statute is conclusive. The "[e]xcept as
otherwise provided" clause that opens
sec.1252(g) allows review of removal
orders in the courts of appeals, see
sec.1252(a)(1), but review by district
courts is not "otherwise provided in this
section" and therefore is blocked. See
Chapinski v. Ziglar, No. 01-2871 (7th
Cir. Jan. 28, 2002); Bhatt v. Reno, 204
F.3d 744 (7th Cir. 1999).

  According to the Sharifs, they do not
want the district judge to review a
decision by the Attorney General to
execute the removal orders. Instead they
just want the judge to "stay" execution
of those orders while they seek
additional administrative review, or
apply for relief under the recently
enacted Legal Immigration Family Equity
Act, Pub. L. 106553, 114 Stat. 2762
(2000). But sec.1252(g) does not
differentiate among kinds of relief. It
names three administrative actions--
decisions to "commence proceedings,
adjudicate cases, or execute removal
orders"--and interdicts all judicial
review "arising from" those actions,
unless some other part of sec.1252 allows
review. 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. This is so whether the Sharifs
seek a stay of removal pending
administrative reconsideration (they have
sought reopening) or pending a decision
under the new legislation (their father
Muhammad Sharif has sought relief under
sec.1104 of Pub. L. 106553, and, if his
request is granted, the twins may become
entitled to benefits under sec.1504 of
that Act). Muhammad Sharif's application
under Pub. L. 106553 also is a demand to
adjudicate a claim, and as we held in
Chapinski with respect to another statute
authorizing relief for some removable
aliens (the Nicaraguan Adjustment and
Central American Relief Act of 1997), a
district court lacks jurisdiction to
compel the Attorney General to initiate
or resolve proceedings that would lead to
relief from removal.

  For what it may be worth, we add that it
is hard to see why the Sharifs think that
this suit could do them any good. The
underlying problem is that they did not
receive notice of the time and place of
their removal hearings, because they and
their father failed to keep the INS
apprised of their current address. The
agency sent critical mailings to their
former address in Chicago. The Postal
Service forwarded some but not all of
this mail to the Sharifs' current home in
Bensenville (for example, one bag-and-
baggage letter arrived, but the other
twin's letter did not). If the address
problem is the fault of the twins or
their father, then there is no
constitutional problem with the agency's
procedures and no basis for judicial
relief, either by petition for review in
this court (the proper route) or a writ
of habeas corpus. See Dusenbery v. United
States, 122 S. Ct. 694 (2002) (notice by
mail to a person's last known address
affords due process of law). If the
address problem is the agency's fault, or
if perhaps the Sharifs' fault should be
excused, then the right remedy is
administrative rather than judicial--and
the Sharifs have set that process in
motion. They asked the immigration judge
to reopen the order of removal, and when
that motion was denied they appealed to
the Board of Immigration Appeals. While
that administrative appeal is pending, a
stay of removal is automatic. See 8
C.F.R. sec.3.23(b)(4)(iii)(c). The BIA's
decision will be reviewable in this
court. Because the INS now knows the
Sharifs' current address, they should not
encounter difficulty in filing a timely
petition to review any adverse decision.
There is nothing a district court should
or could do in the interim, even if it
had jurisdiction, which it does not.

Affirmed
.



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