Kitphothiyan v. Ashcroft

74 F. App'x 623
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 12, 2003
DocketNo. 02-3288
StatusPublished
Cited by5 cases

This text of 74 F. App'x 623 (Kitphothiyan v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kitphothiyan v. Ashcroft, 74 F. App'x 623 (7th Cir. 2003).

Opinion

ORDER

Phairoj Kitphothiyan seeks review of an order dismissing for lack of jurisdiction his petitions for the writ of habeas corpus and the writ of mandamus. We affirm the order of the district court.

I.

Phairoj Kitphothiyan is a native and citizen of Thailand who came to this country on April 1, 1992, as a non-immigrant visitor. He then applied for asylum, which was denied. On November 12, 1993, an immigration judge ordered Kitphothiyan deported from the United States and back to his home in Thailand. Kitphothiyan failed to appeal the immigration judge’s decision and on April 28, 1994, the Immigration and Naturalization Service (“INS”) issued an in absentia warrant of deportation for Kitphothiyan.

In 1994, Kitphothiyan moved to Wisconsin where, one year later, he married Sunanta Sessions, a United States citizen. In 1996, a defective application for an immediate relative visa on behalf of Kitphothiyan was mailed to the INS’s Milwaukee office. Kitphothiyan simultaneously filed a defective application to adjust his status to permanent resident with the INS. In neither application did he reveal his previous warrant of deportation. He also failed to [625]*625provide his correct alienage number and the relative visa application was incorrectly signed.

Despite his illegal status, Kitphothiyan managed to evade the authorities until June 2002, when he was taken into custody pursuant to the warrant of deportation. He is currently being detained pending the execution of the 1993 final order of deportation.

On June 31, 2002, Kitphothiyan filed petitions for the writs of habeas corpus and mandamus with the United States District Court for the Western District of Wisconsin, seeking to overturn his deportation order and compel the processing of his wife’s relative visa application filed on his behalf. The district court found that it did not possess jurisdiction to adjudicate either of Kitphothiyan’s disputes. First, relying on Sharif ex. rel. Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir.2002), the district court held that it lacked jurisdiction under INA § 242(g), 8 U.S.C. § 1252(g), to address Kitphothiyan’s request to prevent his deportation from the United States. In addition, citing our decision in Chapinski v. Ziglar, 278 F.3d 718, 719-20 (7th Cir.2002), it held that it lacked jurisdiction under INA § 242(g) to compel the Attorney General to adjudicate Kitphothiyan’s wife’s immigration petition for an immediate relative visa in order to provide him with relief from deportation. Kitphothiyan appeals and we affirm.1

III.

Kitphothiyan argues that the district court erred in dismissing both petitions for writs of habeas corpus and mandamus for lack of subject matter jurisdiction under Section 242(g) of the Immigration and Nationality Act (“INA” or “Act”), 8 U.S.C. § 1252(g) (2000). He maintains that the district court does have jurisdiction to entertain a petition for habeas corpus challenging an in absentia order for deportation when exceptional circumstances prevented him from contesting the order. He also maintains that the district court is not divested of its jurisdiction to issue an order of mandamus when he has been denied due process. This court reviews de novo a district court’s order dismissing a petition for writ of habeas corpus or mandamus for lack of subject matter jurisdiction. Chapinski, 278 F.3d at 720.

We begin our analysis by examining Kitphothiyan’s petition for a writ of habeas corpus. Kitphothiyan seeks a stay of execution of a deportation order in order to remain in the country while he pursues relief from deportation through his wife’s petition for a relative visa. Kitphothiyan argues that the district court erred as a matter of law when it held that it lacked subject matter jurisdiction over his petition. He challenges the validity of the in absentia order on the basis that he failed to appear for the November 12,1993 hearing from which the in absentia order arises, and then failed to appeal that order, due to exceptional circumstances. The exceptional circumstance, he claims, was the fraudulent legal advice of his former attorney, Valeria Angeles-Valerio. Allegedly, [626]*626Angeles-Valerio advised Kitphothiyan that he was to do nothing after receipt of the order of deportation.

Section 242(g) of the INA, 8 U.S.C. § 1252(g), provides that, outside of the procedures for judicial review in the Act, “... 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.” This section of the Code was recently examined by this court in Sharif, 280 F.3d at 787, where petitioners sought to stay execution of a removal order while they applied for relief from removal and sought administrative reconsideration. We held that a request for a stay of removal arises from the Attorney General’s decision to execute a removal order, and therefore is closed off from judicial review by 8 U.S.C. § 1252(g). Id. Kitphothiyan’s case is on all fours with Sharif. Deportation orders, such as Kitphothiyan’s, are to be stayed through administrative channels, such as an appeal to the Board of Immigration Appeals, otherwise the court system would be awash with potential deportees. See Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1994). Only after the Board of Immigration Appeals (“BIA”) has made a decision does an appeal lie in the judicial circuit in which the administrative proceedings occurred, which in this case would have been the Fourth Circuit. See IIRIRA § 309(c)(4)(d).2

Kitphothiyan is correct in noting that the Supreme Court held in INS v. St. Cyr, 533 U.S. 289, 314, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that district courts retain jurisdiction under 28 U.S.C. § 2241 to review a habeas petition challenging a BIA holding that an alien was ineligible to apply for a particular form of discretionary relief from deportation. However, Kitphothiyan’s petition to the district court to stay execution of the final order of deportation entered against him is entirely unrelated to the issues decided in St. Cyr. As we noted in Sharif the Supreme Court has held that 8 U.S.C. § 1252(g) deprives the district courts of jurisdiction to review the Attorney General’s decisions to commence proceedings, adjudicate cases, or execute removal orders. Sharif, 280 F.3d at 787 (citing Reno v.

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74 F. App'x 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kitphothiyan-v-ashcroft-ca7-2003.