                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2003

Mondesir v. INS
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3501




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-3501


                             DHARLANDE MONDESIR,

                                                      Appellant

                                           v.

                  IMMIGRATION & NATURALIZATION SERVICE




                      Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 02-cv-00735)
                     District Judge: Honorable James F. McClure Jr.




                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 27, 2003


     Before: SLOVITER, AMBRO, Circuit Judges, and TUCKER*, District Judge

                               (Filed December 29, 2003)


                                       OPINION




       *Honorable Petrese B. Tucker, United States District Court Judge for the Eastern
District of Pennsylvania, sitting by designation.
AM BRO, Circuit Judge

       Dharlande Mondesir appeals an order of the United States District Court for the

Middle District of Pennsylvania denying his petition for a writ of habeas corpus on the

ground that, under the Foreign Affairs Reform and Restructuring Act (“FARRA”), it did

not have jurisdiction to consider Mondesir’s claims under the United Nations Convention

Against Torture (“CAT”). Because we have subsequently decided, in Ogbudimkpa v.

Ashcroft, 342 F.3d 207 (3d Cir. 2003), that FARRA does not foreclose habeas jurisdiction

over CAT claims, we remand this case to the District Court for consideration of the merits

of M ondesir’s habeas petition.


                                          I.
                             Facts and Procedural Posture

       Mondesir was born in Haiti in 1976 and entered the United States as an immigrant

in 1987. In 2000, a Pennsylvania state court convicted him of possession with intent to

distribute cocaine and sentenced him to a term of imprisonment of 11 to 24 months less

one day. The Immigration and Naturalization Service (“INS”) then served Mondesir with

a notice to appear for removal proceedings, charging that he was subject to removal under

8 U.S.C. § 1227(a)(2)(A)(iiii) (conviction of an aggravated felony) and 8 U.S.C. §

1227(a)(2)(B)(I) (conviction of a controlled substance violation). Mondesir applied for

withholding of removal under 8 U.S.C. § 1231(b)(3) and, in the alternative, sought

deferral of his deportation under CAT. Finding that Haiti has a policy of automatically

                                            2
detaining all criminal deportees from the United States for an indeterminate period in

Haitian prisons where torture is a common practice, the Immigration Judge (“IJ”) granted

Mondesir a deferral of deportation under CAT and 8 C.F.R. § 208.16. But on appeal

from the INS, the Board of Immigration Appeals (“BIA”) vacated the IJ’s decision and

ordered Mondesir deported. Mondesir then filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2241 along with a motion for an emergency stay of deportation. In

August 2002, the District Court concluded that it did not have jurisdiction to review the

CAT claim as a petition for habeas corpus and denied Mondesir’s petition.1 Mondesir

appealed to our Court and we held the case c.a.v. pending our decision in Ogbudimpka,

which also raised the issue of whether federal district courts have habeas jurisdiction to

hear CAT claims. We filed our decision in Ogbudimka on August 22, 2003, and we now

proceed to the disposition of Mondesir’s appeal. 2


                                           II.
                                         Analysis

       Article 3 of CAT provides that no state shall expel, return, or extradite a person to



   1
   Following the District Court’s denial of habeas relief, Mondesir was removed to
Haiti.
   2
    Mondesir’s removal does not moot his petition for review of the District Court’s
denial of habeas relief because there are “collateral consequences” of the BIA’s order of
removal. See Chong v. Quarantillo, 264 F.3d 378, 385 (3d Cir. 2001) (holding that “the
[BIA’s] order of removal creates sufficient collateral consequences to render [the alien’s]
petition a live case or controversy by preventing [the alien] from entering the United
States for ten years” pursuant to 8 U.S.C. § 1182(a)(9)(A)(ii)).

                                              3
another state “where there are substantial grounds of believing that he would be in danger

of being subject to torture.” After the United States formally ratified CAT in 1994,

Congress passed implementing legislation, FARRA. Section 2242(d) of FARRA

provides that the federal courts may only consider CAT claims as part of the review of

final orders of removal under § 242 of the Immigration and Nationality Act. Based on

this statutory provision, the District Court concluded that, because Mondesir was not

raising his CAT claims on appeal from a final order of removal, it did not have

jurisdiction to review his claim in a § 2241 habeas proceeding.

       We have since held that, “because § 2242(d) of FARRA fails to state explicitly

that a district court may not exercise jurisdiction over habeas corpus claims or mention 28

U.S.C. § 2241, the District Court retains that jurisdiction.” Ogbudimkpa, 342 F.3d at 216.

We reasoned that, in a case involving a similar jurisdiction-stripping provision in another

immigration statute, the Supreme Court required an explicit statement of congressional

intent to deprive district courts of their pre-existing habeas jurisdiction. Id. at 214 (citing

Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001)). Finding no

such statement of intent regarding FARRA’s § 2242(d), and no grounds for distinguishing

the Court’s analysis in St. Cyr., we remanded Ogbudimkpa’s case to the district court for

consideration of the merits of his habeas petition. Id. at 222. The same reasoning and




                                               4
result apply here.3 Thus we reverse the District Court’s decision and remand for it to

consider the merits of Mondesir’s habeas corpus petition.




TO THE CLERK:

       Please file the foregoing Opinion.




                                            By the Court,




                                            /s/ Thomas L. Ambro, Circuit Judge




   3
    We affirm, however, the District Court’s denial of Mondesir’s claim that § 212(h) of
the Immigration and Nationality Act (“INA”) violates his equal protection rights and its
denial of his claim that the IJ wrongfully denied him withholding of removal under §
241(b)(3) of the INA. Though Mondesir’s Notice of Appeal appealed these portions of
the District Court’s August 2002 Order, his appellate brief notes that “counsel does not
believe that either issue has merit.” (Br. at 23).

                                              5
