MEMORANDUM BRIEF REGARDING JURISDICTION Patrick C. Hyde, P.C. Attorneys Denver Colorado

PETITIONER’S MEMORANDUM BRIEF REGARDING JURISDICTION
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[1]Petitioner John Doe is a citizen of Peru. Members of the Shinning Path severely beat him in 1981, and, in a separate incident in 1981, shot him twice in the leg for refusing to join their terrorist group. Mr. Doe entered the United States legally on a B-2 visitor’s visa in 1985 where he became a student. He began cleaning tables for a few hours a week in the student cafeteria and thus inadvertently violated his status by working.

As a result in 1987 the Immigration Judge (IJ) granted him voluntary departure with an alternate order of deportation (emphasis added), if he failed to depart voluntarily within the time promised. The IJ also told Mr. Doe's that if he departs on time, there would be no stigma or negative implications to this voluntary departure, (Landon v. Plasencia, 459 U.S. 21, 34-45 (1982), and that he should be able to receive another visa from the U.S. Consulate in Peru. The U.S. Consulate in Peru in fact issued Mr. Doe another temporary visa, but illegally cancelled it after discovering that an IJ had granted Mr. Doe a voluntary departure.

Members of the Shinning Path terrorist group beat Mr. Doe again in 1987, so he escaped to the United States and entered the United States legally without inspection, as he had a legitimate fear of further persecution. Mr. Doe did file an application for asylum in June of 1993, neglecting to sign it. The Immigration and Naturalization Service (INS) returned it to him and he signed it on July of 1993, and returned it without delay. The INS did not change the original filing date for any unreasonable delay by Petitioner. (See Administrative Record (hereinafter AR) 385 and 355.) Petitioner signed the asylum application again on July 10, 1997 at his interview with the immigration agent pursuant to regulations and under the INA as amended by the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA). The delay in administering Petitioner’s claim was solely due to the INS decision to await the amendments to the Immigration and Nationality Act (INA) by IIRIRA, thus depriving the Petitioner of judicial review and rights to file for suspension of deportation under prior INA law. After an agency hearing, an immigration asylum agent referred Mr. Doe’s asylum application to an IJ in July 29, of 1997.

The IJ denied Mr. Doe’s asylum application in January 1999. Mr. Doe appealed to the BIA, which affirmed on June 19, 2002, granting Mr. Doe voluntary departure under threat of alternate removal order under IIRIRA. Mr. Doe applied for and received an extension of time to depart voluntarily from the INS District Director (DD) to attend his divorce proceedings. The INS DD granted the extension until August 18, 2002. Mr. Doe departed to Mexico under voluntary departure prior to August 18, 2002, but returned to the United States again fearing to return to Peru. (AR bates Nos. 96 index doc No. 1: bates Nos. 97-108, Mr. Doe’s credit card receipts dated from 8/15/2 to 8/20/2 with passport stamp dated 8/20/2 from the US Consulate General, Mexico dated 8/20/2.)

Mr. John Doe applied for and the IJ denied Petitioner asylum under U.S. Treaty law, The Refugee Act of 1980, codified and made a statute, the INA § 208, 8 U.S.C. § 1158, withholding of removal under § 241(b)(3), 8 U.S.C. § 1231(b)(3), and withholding under the U.N. Convention against Torture. (1996), implemented (1998). A request for asylum is a request for all three forms of relief.

The asylum process is a two step process. Step one is to determine statutory eligibility under INA § 208, 8 USC § 1158, and INA § 101(42), 8 USC § 1101(42) as a refugee. The second step, if statutory eligibility is determined, is within the sound discretion of the Attorney General (AG), balancing the positive and negative factors of the applicant. See Krastev v. INS, 292 F.3d 1286; Woldemeskel v. INS, 257 F.3d 1185 (10th Cir. 2001). This case did not arrive at the second step as the agency determined that the asylum applicant was not statutorily eligible for asylum. Thus Petitioner first attacks the finding that he was not statutorily eligible for asylum. As to the proper use of the AG’s discretion, the AG did not place any positive or negative factors in the record demonstrating that he was using his discretion according to appropriate standards set up by the regulations and jurisprudential law, so as to prepare his decision for appropriate, constitutional, judicial review, which Mr. Doe alleges, is in itself, an abuse of discretion.

On January 24, 2003, Mr. Doe moved to reopen his asylum case pursuant to 8 C.F.R. §§ 1003.2(a), (c)(3)(ii) and (c)(3)(i) referencing § 1003.23(b)(4)(b)(i), claiming his denial was a V Amendment, US constitutional violation of procedural and substantive due process and equal protection, and that his denial was in part due to ineffective assistance of counsel. 8 C.F.R. § 1003.2(a) states that, “The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section.” (Emphasis added.) This subsection also states that the Board may sua sponte reopen a case.

Mr. Doe now asserts that the denial of his motion to Reopen and resultant removal order is a violation of 1) the US Constitution Article VI Treaty violation Art 33 of the UN Protocol Relating to the Status of Refugees, limiting the AG’s discretion to negative factors, which do not exist here, when an individual is statutorily eligible for asylum; 2) Article III separation of powers; 3) the All Writs Act 28 USC § 1651; 4) Petitioner’s rights protected by the Writ of Habeas Corpus 28 § USC 2241; and potentially 28 U.S.C. 1291, as Petitioner is awaiting a final order on his 2241 case.

The Petitioner asserts that since he has been suffering illegal detention since November 2002, 15 months, without being released by Writ of Habeas Corpus filed over 12 months ago. This court has jurisdiction when the Federal District Court issues a judgment regarding Petitioner’s 2241 claim, as there is no time in the foreseeable future that Petitioner’s claims will be resolved regarding his asylum claim, and Petitioner will not be released from detention in the foreseeable future. Zadvidas v. Davis and INS, 533 U.S. 678 (2001). The District Court has also issued which a stay of removal order, a final district court order, and the court possesses all of the evidence in this case.

Thus this honorable Tenth Circuit court has jurisdiction under 28 USC §1291 if a district court has made a final decision in a case. Pursuant to Desktop Direct, Inc. v. Digital Equipment Corp., 993 F.2d 755 (10th Cir. (Utah) May 17 1993), a final decision is a decision which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Here the District Court need only execute the judgment whether to issue the writ. There is therefore a final order for purposes of 28 USC § 1291 jurisdiction.

Alternatively, this case also falls into the “collateral order” exception to the final judgment requirement expressed in Digital, supra, citing Cohen v. Beneficial Indus. Loan Corp., 377 U.S. 541 (1949).

"[T]o fall within the Cohen exception, an order must satisfy at least three conditions: It must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Lauro Lines, 490 U.S. at 498, 109 S.Ct. at 1978 (quotations omitted). Defendant argues that this district court order satisfies each of these criteria for appealability, citing cases from the Eleventh, Fifth, and Second Circuits that so hold. With due respect to our sister circuits, we disagree. See Forbus v. Sears, Roebuck & Co., 958 F.2d 1036, 1039-40 (11th Cir.), cert. denied, 506 U.S. 955, 113 S.Ct. 412, 121 L.Ed.2d 336 (1992); Grillet v. Sears, Roebuck & Co., 927 F.2d 217, 219-20 (5th Cir.1991); Janneh v. GAF Corp., 887 F.2d 432, 434-36 (2d Cir.1989), cert. denied, 498 U.S. 865, 111 S.Ct. 177, 112 L.Ed.2d 141 (1990); see also Chaput v. Unisys Corp., 964 F.2d 1299, 1301 (2d Cir.1992)

The District Court has conclusively determined the disputed question that the Respondent will not remove Petitioner until further order of that Court. It resolved the completely separate issue as to whether Mr. Doe is presently removable and detainable, as opposed to whether Mr. Doe received a fair and constitutional asylum hearing, rather than whether the Board improperly denied Petitioner’s Motion to Reopen his asylum claim.

The Federal District Court stay, without issuing a writ of habeas corpus resolved an important issue completely separate from the merits of the action, i.e., whether the Petitioner can be removed from the United States or constitutionally detained, and be effectively unreviewable on appeal from a final judgment." At this time the District Court Judge has not ruled upon whether to issue the writ, and therefore his decision cannot be reviewable on appeal as of now as a final judgment.

The issue is important as the Petitioner’s liberty, freedom and with his documented poor health, his life is threatened without his proper therapy. The immediacy of this case is also important because his U.S. citizen, three-year old daughter is growing up without knowing who he is, a consideration, which is extremely important to the Petitioner. Removability and detention is conceptually distinct from the merits of the Petitioner’s asylum claim, as well as his claim that the Board abused its discretion in not reopening this asylum case. The case would be “effectively unreviewable” as the Respondents have stated that they will remove the Petitioner as soon as the District Court Judge removes his stay order. The District Court Decision is also important as Mr. Doe’s case involves allegations that the Respondents issued Petitioner a removal order in violation of his constitutional, treaty and statutory rights.

This honorable Court directed Counsel for Petitioner to submit a jurisdictional brief, and address a possible 30 day jurisdictional limit in 8 U.S.C. 1252(b), INA § 242(b). This brief follows.

Petitioner alleges that he has been issued a removal order in violation of Treaty law, the U.S. Constitution Article VI, is the basis for Article III jurisdiction. Article VI states that “. . . all treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land.” Federal question 28 U.S.C. § 1331 provides for Article III jurisdiction: “The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.

Petitioner also asserts jurisdiction exists in this honorable Tenth Circuit Court pursuant to Article V of the U.S. Constitution as the INA as amended by the IIRIRA apparently removed statutory jurisdiction to review the Attorney General’s discretionary decision involved in an asylum denial. This case however involves the petition for review of the non-discretionary portion of the AG’s decision not to grant an asylum application when required by law.

There also exists a question of statutory jurisdiction in this case based upon an assertion that INA § 242, 8 U.S.C. § 1252 applies to this case and permits Petitioner to Petition for review. The regulation, 8 CFR §1003.2(a) and (c) read together, properly interpreted and construed within the asylum context, establishing appropriate standards of review, requires that the BIA grant a motion to reopen such as here when not only does the evidence present a prima facie case for relief, but also 1) shifts the burden of proof to the INS to prove changed circumstances in the country, when they can’t do so, but also 2) establishes that the Respondent is legal required to grant the Petitioner asylum relief. Jurisdiction exists as immigration law presents a federal question.

This brief argues, that Section 242(a)(2)(B)(ii) does not provide for any judicial review particularly in a case denying (emphasis added) an asylum claim under INA § 208, and therefore INA § 242(a)(1) provides for jurisdiction under 28 U.S. C. Ch. 158, § 2341, and § 2344 of which, allows for 60 days to petition for review, as well as F.R.C.P. Rule 26(b)(2) permitting for extensions of time where applicable, and INA §242(a)(2)(B) (ii) deprives the petitioner, John Doe of judicial review of a denial of an asylum claim under INA § 208(a) et sequel. And secondly that jurisdiction lies in 28 U.S.C. 2241, writ of habeas corpus, 28 U.S.C. § 1651 the all Writs Act (the First Judiciary Act of 1789), 28 U.S.C. § 1631 (The Transfer Act), Article III of the Constitution, preserving right to judicial review for unconstitutional acts by the legislative and executive branches of the government, specifically violations of fifth amendment procedural and substantive due process and treaty violations, depriving a petitioner of his rights under the law.

The brief argues further that the IN § 242 is unconstitutional, as it is void for vagueness, as no reasonable person could read that provision of the law and determine, a) whether jurisdiction for review exists, and b) what are the jurisdictional time limits prescribed for judicial review. This brief also argues that present INA § 242(b) as amended by the IIRIRA, is unconstitutional as the unconstitutional intent of that provision was to deprive aliens such as the Petitioner here, John Doe of any and all rights to review, and in fact, the Attorney General has argued exactly that position in the recent past. (See Petitioner’s Opening Brief ft nt. 1 cases.)

Alternatively this brief argues that jurisdiction exists under INA §242(b)(4) which provides jurisdiction as this case involves the treaty and statutory eligibility decision to asylum –the first step-- which precede the AG’s discretionary decision whether to grant or deny asylum, and thus §242(a)(2)(B) entitled “Denials to [the AG’s] discretionary relief” (Emphasis added.) does not apply against Mr. Doe to deny judicial review of his case or otherwise deny this Court’s jurisdiction.

This case involves the non-discretionary provisions of the AG’s duty to determine statutory eligibility for asylum related relief, and thus § 242(a)(2)(B)(ii) does not preclude judicial review and jurisdiction, as the AG did not list positive and negative factors to indicate that he used his discretion within the proper restrictions referred to in § 3001.2(a). The AG does not have unfettered discretion in immigration cases such as asylum. M. of Francois, 15 I&N Dec. 534 (1975)(Immigration law is a federal question with domestic implications.)

This brief also argues that §242(g) does not deprive this honorable Court of jurisdiction as the Petitioner here is requesting that this court review an agency’s denial of Mr. Doe’s motion to reopen his asylum hearing, and, subsection (g) does not enumerate that review is precluded.

The brief argues that 1) the regulations for reopening a decision in an asylum case, 8 CFR §1003.2(a), regarding a motion to reopen a case; and 2) the Board’s sua sponte authority to reopen a case; as well as 3) 8 C.F.R. § 1003.2(c)(ii), the asylum applicant’s rights to reapply for asylum beyond any time period, if, after all due diligence, new evidence, that was not previously available now exists, and country conditions have changed. These regulations must be interpreted, construed and balanced to comply with statutory, treaty and jurisprudential law regarding statutory eligibility for 1) asylum, 2) withholding under the INA § 241(b)(3)(A), and 3) withholding under the UN Torture Convention pursuant to judicial review under INA § 242(b)(4).

In this case the denial to reopen the case is arbitrary, capricious, and an abuse of discretion. This case includes evidence of facts, which compel a contrary conclusion. On this administrative record viewed as a whole, including additional evidence, which could not with all due diligence have been included in the administrative record at an earlier time, compel a contrary finding of facts. The record now includes evidence showing that the prior decision, that the alien is not eligible for admission to the United States is manifestly contrary to law.

This case does not involve the AG’s discretion, but rather, an illegal determination that the alien is statutorily ineligible for asylum, and that since the Petitioner is statutorily eligible for asylum, and there are no negative factors in Mr. Doe’s case depriving him of the right to the AG’s positive use of discretion, then any AG’s judgment not granting relief under INA § 208, 8 USC §1158 would have been manifestly contrary to the law regarding the AG’s proper use of discretion in granting asylum to one statutorily eligible, and also an abuse of discretion.

ISSUE:
Whether under the present asylum law, where an asylum applicant, who asserts constitutional, treaty, statutory, regulatory and jurisprudential violations, and an abuse and non use of the AG’s discretion in the asylum hearing, prejudicing the asylum applicant, this Court has jurisdiction to review such agency denial of appeal and denial of a discretionary motion to reopen based upon standards in the present substantive and procedural, asylum law?

The United States Supreme Court and the Circuit Courts including this honorable Tenth Circuit Court has accepted jurisdiction, notwithstanding the IIRIRA amendments to the INA including 8 U.S.C.§ 1152, INA § 525 pursuant to inter alia the following cases:

Desktop Direct, Inc. v. Digital Equipment Corp., 993 F.2d 755 (10th Cir. (Utah) May 17 1993); Mickeviciute v. INS, 18 Fed. Appx. 772 (2001); Sierra v. INS, 258 F.3d 1213 (10th Cir. 2001); INS v. Ventura, 123 S. Ct. 353 (2002); and cases cited therein. These cases accepted jurisdiction on both denials of motions to reopen and on challenges on constitutional grounds.

This honorable Tenth Circuit Court specifically cited several cases, which it wanted addressed in its order of October 29, 2003 requesting a jurisdictional memorandum brief in this case.

This Court cited Van Dinh v. Reno, 197 F.3d 427 at 434-35 (10th Cir. 2000) in its October 29, 2003 order, but Van Dinh substantiates that this Court has jurisdiction in this case. Van Dinh states:

Two other provisions in the immigration statutes bar judicial review of discretionary decisions. Title 8 U.S.C. § 1229c(b)(1) authorizes the Attorney General, in her discretion, to allow an alien voluntarily to depart the United States in lieu of undergoing removal proceedings. Section 1229c(f) bars review by any court of the "denial of a request for an order of voluntary departure under [§ 1229c(b)]," which at first blush appears to apply to the Attorney General's decision to allow departure. We note, however, that the Attorney General's discretion to permit voluntary departure under § 1229c(b) is specifically conditioned upon the entry of a separate order granting voluntary departure by an immigration judge who must find four conditions to exist before the order may be granted. See § 1229c(b)(1). Thus, the bar in § 1229c(f) appears to bar review of the immigration judge's order and not to bar review of the Attorney General's subsequent decision to allow the alien to depart voluntarily pursuant to that order. Interpreted in that manner, the two sections are complementary and not redundant.

The first step in the asylum determination is also a decision of statutory eligibility, not based upon the discretion of the AG. The issue in Van Dinh was whether the AG could move detainees from one detention center to another. There was no constitutional attack that the removal or deportation orders suffered some constitutional infirmity as in this case.

There are also separate limitations to review of the Attorney General's discretionary decisions in 8 U.S.C. § 1158, but these provisions are not superfluous because § 1252(a)(2)(B)(ii) expressly excepts the granting of relief under § 1158 from the bar provided in § 1252(a)(2)(B)(ii).

We conclude that § 1252(a)(2)(B)(ii) does not render superfluous other jurisdictional statutes and limits direct review of discretionary decisions and actions related to the custody and detention of aliens who have already been determined to be deportable in a final order. Because the discretionary decision to transfer aliens from one facility to another and the correlative discretionary decision to grant or deny relief from such a transfer is a "decision . . . under this subchapter," judicial review of that decision is expressly barred by § 1252(a)(2)(B)(ii). Cf. Chavez v. United States INS, 55 F. Supp. 2d 555,1999 WL 304539, at 2 (W.D. La. 1999) (concluding that it lacked jurisdiction under § 1252(a)(2)(B)(ii) to review challenges to discretionary decisions in alien's habeas action absent a challenge {197 F.3d 435} to the constitutionality of INS proceedings); Edoo v. Kaplinger, 47 F. Supp. 2d 769, 773 (W.Q. La. 1999) (accord) (stating that "it seems well established that the Constitution has not historically required judicial review of merely discretionary decisions," and citing Yang v. INS, 109 F .3d 1185, 1195 (7th Cir. 1997)). Because IIRIRA expressly precludes both the remedy requested and direct review of the discretionary decisions at issue, the district court had no jurisdiction to entertain a Bivens class action requesting such review and remedy.

Here the Petitioner challenges the constitutionality of the removal order itself, as well as the proper use of the BIA discretion denying Petitioner’s Motion to Reopen his case. Asylum cases are not cases within the unfettered discretion of the AG.

Finally, we respond to appellants' argument that § 1252(a)(2)(B)(ii) and § 1252(f) do not apply to bar review when constitutional due process issues like those alleged in the complaint have been raised.

Initially, we note that the Bivens class action complaint requests only prospective injunctive relief based on a hypothetical transfer to a remote area and a totally speculative future violation of due process that would not arise solely from the transfer itself. Cf. Committee of Central Am. Refugees v. INS, 682 F. Supp. 1055, 1064-65 (N.D. Ca. 1988) (holding that a transfer to another INS facility, "standing alone, does not constitute a violation of plaintiffs' due process or statutory rights justifying the issuance of injunctive relief to restrict the Attorney General's discretion" to detain aliens in appropriate INS facilities); Committee of Central Am. Refugees v. INS, 795 F.2d 1434, 1435 (9th Cir.1986) (affirming district court's denial of preliminary injunction that would interfere with Attorney General's discretionary power to choose facility where deportable aliens were detained in absence of proof of actual deprivation of statutory right to counselor denial of due process). Thus, the complaint does not allege that an actual or continuing constitutional violation had occurred that could be remedied by judicial action.

Here the Petitioner alleges more than future speculative violations of his due process rights. He is not merely filing a preliminary injunction to preclude the Respondents from transferring him from one detention center to another. He is requesting an injunction from being forced to return to his home country to be persecuted by the Shining Path. He is asserting that he did not get a fair asylum hearing.

We emphasized, however, that our holding in this case has no application to constitutional habeas claims brought pursuant to 28 U.S.C. § 2241. See Jurado-Gutierrez, 1999 WL 637038, at 7-8 (holding that review under § 2241 [is] still available notwithstanding express language in IIRIRA. Barring review "by any court" of final orders of removal for aliens deportable by reason of having committed a criminal offense, and distinguishing between direct and collateral review). While the immigration statutes may not preclude collateral review of constitutional issues in § 2241 habeas cases, an issue we do not decide here, they do preclude direct review of the Attorney General's discretionary immigration cases by means of a Bivens class action suit.

Because the district court had no jurisdiction to review the Attorney General's discretionary decisions to transfer and detain appellants in another INS facility under § 1252(a)(2)(B)(ii) and because the complaint requested a remedy the district court had no jurisdiction to grant under § 1252(f), no Bivens class action was available and the court did not have subject matter jurisdiction under 28 U.S.C. § 1331. Having no subject matter jurisdiction over the underlying suit under any other statute, the district court was also without authority to entertain the request for award of attorney fees and costs under the EAJA. See Powder River Basin Resource Council, 54 F.3d at 1482 n.2.

Here the Van Dihn case distinguishes its decision from this case, which is a habeas claim pursuant to 28 U.S.C. § 2241, which the court states is still available “notwithstanding language in IIRIRA.”

This Court also cites Sierra v. INS, 258 F.3d 1213 (10th Cir. 1999). This Court accepted jurisdiction on the basis of a habeas corpus. Writ of certiorari denied Sierra v. INS, 534 U.S. 1071, 151 L. Ed. 2d 589, 122 S. Ct. 676.

This Court also mentioned Belay-Gebru v. INS, 327 F.3d 998, 1000 n.5 (10th Cir. 2003) in the October 29, 2003 order. Belay-Gebru involved an appeal under former 8 USC § 1105a, INA § 106, which was repealed by IIRIRA. Also this Petition was timely filed within 30 days of a denial of the Petitioner’s right to file a Motion to Reopen under 8 CFR 1003.2(a) and (c). Also this case involves a case where the newly submitted evidence establishes to a level of clear and convincing evidence, i.e., objectively verifiable evidence, that the Petitioner is worthy and eligible for this country’s protection under the asylum laws, and not granting him asylum is a violation of our treaty obligations. In this case the Petitioner alleges due process, equal protection, Articles. III, VI and VIII constitutional violations in his asylum proceedings, and ineffective assistance of counsel, prejudicing the Petitioner. In this case the Petitioner alleges jurisdiction under 8 USC § 1252, INA § 242 jurisdiction regarding non-discretionary decisions of the AG and inappropriate discretionary decisions without proper procedure in making those decisions which require a balancing of the equities, this too, to Mr. Doe’s prejudice.

Mr. Doe alleges in his opening brief that he did not have the evidence because he was not advised by his attorney to provide a physical and psychological forensic exam to the IJ demonstrating the extent of his injuries. Mr. Doe tried to get the police reports of the two times he was severely beaten by the Shinning Path (SP), once after being kidnapped for three days, and in another incident being shot twice in the leg, a sign used by the SP for someone they consider a traitor for not joining their forces. Finally two police reports have arrived. One is part of the record attached to his Motion to Reopen his case. (Bates No. 64 to 194; Index is Bates No. 96. Forensic Exam No. 108-09; certified translations of police and hospital reports re: John Doe Bates No. 117-121; See also Petitioner’s Motion to Reopen with exhibits Bates Nos. 213- 242)

Mr. Doe has also recently received the police and hospital report that his father was pushed in front of an oncoming truck and nearly killed, fracturing his skull and several bones. The police report concludes that the SP perpetrated the crime, especially since the petitioner’s father was a professional field-grade officer. Mr. Doe also received the police report of his beating in 1987. Mr. Doe also has included evidence of the resurgence of power of the Shinning Path in Peru recently, and evidence that the Shinning Path has now joined with the major terrorist group in Colombia, the FARC. This evidence is extra-administrative, as it has just recently been made available to the Petitioner. It is included as exhibits in the Petitioner’s opening brief.

In Belay-Gebru, supra, the Court also mentioned, that even had Mr. Belay-Gebru filed within the proper time, the Court would not have found abuse of discretion in his case.

The Court’s October 29, 2003 order also mentioned the four factors from 10th Cir. R. 8.1, referenced in R. 18.1, required to be demonstrated for a Motion for Stay to be considered: 1) the likelihood of success; 2) the threat of irreparable harm absent a stay; 3) the absence of harm to respondent if a stay issues; and 4) the risk of harm to the public interest.

The Petitioner is likely to succeed in his asylum claim, if reopened, because he has the medical and psychiatric, forensic report demonstrating his beatings, the persecution of his father, the resurgence of the SH, with the many terrorist activities they are again perpetrating; and the state department reports even in 1995 stating that the government can not control the terrorist group, which attacks out of revenge with total impunity, and in any part of Peru, rural or urban, in any department, as it has done to Mr. Doe.

There is absolutely no risk of harm to anyone absent a stay. Mr Doe has never been convicted of a crime anywhere, he is college educated, and is a respected member of the Church of the Later Day Saints. He has a plethora of reference letters attesting to his good character and reputation for being a productive and honest member of society.

The Respondents are now paying to detain Petitioner. If Petitioner is released he will return to his community and family, his three-year-old daughter, Makaila. The Respondents will have no trouble finding him again. Petitioner has never missed a hearing or appearance.

There is absolutely no harm to the public interest. The public’s interest is always served by the productive behavior of hard workers like Mr. Doe. He is the type of person who would make a model citizen of the United States, if he is given that opportunity, an opportunity he deserves, as one eligible for asylum.

Mickeviciute v. INS, 18 Fed. Appx. 772 (2001) stated that the 10th Cir. Ct. has jurisdiction to review the BIA's decision under the pre-IIRIRA version of 8 U.S.C. § 1105a, as amended by the transitional rules. See Itaeva v. Immigration and Naturalization Serv., 314 F.3d 1238, 1240 (10th Cir. 2003); Osei v. INS, 305 F.3d 1205, 1207 n.1 (10th Cir. 2002); see also Aguilera v. Kirkpatrick, 241 F.3d 1286, 1290-91 (10th Cir. 2001) (holding 8 U.S.C. § 1252(g) does not preclude appellate review of motions to reopen).

We have an independent duty to examine issues relating to our jurisdiction. Ho v. Greene, 204 F.3d 1045, 1050 (10th Cir. 2000). . . . We now hold that IIRIRA did not strip the federal courts of jurisdiction to consider Sierra's habeas petition. [Footnote omitted.] IIRIRA added a provision to federal law restricting court review of discretionary decisions in the immigration context: . . . 8 U.S.C. § 1252(a)(2)(B).

There are two reasons why this provision does not apply in this case. First, this statute addresses only "jurisdiction to review." In the immigration context, "jurisdiction to review" has a meaning distinct from "habeas corpus," and a statute stripping courts of the former does not also deprive them of the ability to hear a habeas challenge. INS v. St. Cyr, 150 L. Ed. 2d 347, 121 S. Ct. 2271, 2285 (2001). The Supreme Court in St. Cyr concluded that the phrases "judicial review" and "jurisdiction to review" found in § 1252(a)(1) and (a)(2)(C) preclude only "full, non-habeas review," 121 S. Ct. at 2286, and we see no reason why the same phrase in § 1252(a)(2)(B)(ii) should have any greater reach. Sierra, accordingly, may proceed through a § 2241 habeas petition, as he has done in this case.

Second, § 1252(a)(2)(B)(ii) strips the courts of jurisdiction to review only matters falling within the Attorney General's discretion. Sierra does not seek review of the Attorney General's exercise of discretion; rather, he challenges the constitutionality of the procedures used in his parole proceeding. It is never within the Attorney General's discretion to act unconstitutionally. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (holding that statutes restricting judicial review of discretionary decisions do not preclude review of challenges to the constitutionality of INS regulations); Ho, 204 F.3d at 1052 (holding that § 1252(a)(2)(B)(ii) does not bar challenges to the constitutionality of immigration statutes), overruled on other grounds by Zadvydas v. Davis, 150 L. Ed. 2d 653, 121 S. Ct. 2491 (2001); cf. Zadvydas, 121 S. Ct. at 2497-98 (holding that " § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention").

The other jurisdictional provision of IIRIRA that is arguably implicated is found in § 1226, which discusses the detention of aliens pending a decision on whether they are to be removed. It is not clear that this section applies to Sierra, who has already received a decision that he is to be removed. Cf. Ho, 204 F.3d at 1052 n.4 ("Arguably . . . § 1226(e) applies only to discretionary decisions made by the Attorney General pending the entry of a final removal order.") Assuming it applies, it does not deprive us of jurisdiction. Section 1226(e) states:

The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.

Although the wording of this section varies slightly from those sections specifically discussed by the St. Cyr Court in that it does not use the phrases "judicial review" or "jurisdiction to review," we find this difference unimportant. Section 1226(e), like § 1252, does not explicitly mention habeas review or § 2241. "Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal." St. Cyr, 121 S. Ct. at 2278-79. We hold that § 1226(e) does not "speak[] with sufficient clarity to bar jurisdiction pursuant to the general habeas statute." Id. at 2286.

8 U.S.C. §1252(a), INA § 242(a)--Applicable Provisions: (1)--General orders of removal: Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 235(b)(1)) is governed only by chapter 158 of title 28 of the United States Code, except as provided in subsection (b) . . .

It appears that INA § 242(b) does not constitute an “exception” to INA § 242(a), thus §242(a) may apply and provide jurisdiction in this Court. If so § 242 (a) provides for a 60-day time limit.
Alternatively, if INA § 242(b) does supply an “exception” to INA § 242 (a), this is a petition for review of a final order of removal, thus INA § 242 (b) could apply.
(b)--Requirements for Review of Orders of Removal: With respect to review of an order of removal under subsection (a)(1), the following requirements apply: . . . (4)--Scope and standard for review . . . (A)-- the court of appeals shall decide the petition only on the administrative record on which the order of removal is based, (B)-- the administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary, (C)-- a decision that an alien is not eligible for admission to the United States is conclusive unless manifestly contrary to law, and (D)-- the Attorney General's discretionary judgment whether to grant relief under section 208(a) shall be conclusive unless manifestly contrary to the law and an abuse of discretion.

Here based solely on the administrative record, the evidence shows newly submitted evidence compelling a reasonable adjudicator to conclude that the Petitioner was without a doubt persecuted as he claimed in his original asylum hearing. This evidence includes a forensic physical and psychiatric examination demonstrating that the Petitioner, an asylum applicant, was beaten up nearly to death on two occasions, in 1981 and again in 1987, and shot in the leg twice in a separate incident as he testified to in his original asylum hearing.
Mr. Doe’s evidence in his motion to reopen his asylum claim includes evidence that was not available at his original hearing including a certified police report of his being kidnapped for three days by the Shinning Path (SP) terrorist group in 1981 and beaten. It includes Petitioner’s affidavit that his counsel did not provide this evidence at the asylum hearing thus concluding that in Mr. Doe’s opinion, he was subject to ineffective assistance of counsel prejudicing his case. The evidence includes the US State Department Report of 1995, stating that the Shinning Path attacks citizens with total impunity, as the government in Peru is helpless to protect them, especially, as here, where the Shinning Path is seeking revenge over citizens, such as Mr. Doe, whose father was a professional field-grade officer in the Peruvian government, presently fighting the SP. (Administrative Record (AR) Bates No. 96). Thus Mr. Doe is eligible for asylum under appropriate treaty and statutory requirements INA §208 and §101(42), and a decision that an alien is not eligible for admission to the United States is manifestly contrary to law. (See AR bates No. 85 references to the limited discretion of the AG in asylum cases.)
The Attorney General's (AG) discretionary judgment whether to grant asylum after an alien has proven to be eligible by statute is the second decision in granting asylum and is governed by equity. That is the AG cannot refuse to grant asylum unless there are negative factors applying that denial of the relief under § 208. The negative factors must outweigh the positive factors in order to be within the proper use of discretion. In this case Mr. Doe has no negative factors. Mr. Doe has positive factors such as family ties, his daughter, Makaila, and strong community ties. Therefore the AG’s denial is manifestly contrary to the law and an abuse of discretion.
(6)--Consolidation with review of motions to reopen or reconsider: When a petitioner seeks review of an order under this section, any review sought of a motion to reopen or reconsider the order shall be consolidated with the review of the order. . . .

Here Mr. Doe is petitioning to review a denial of his a motion to reopen thus consolidating the review of the Board of Immigration Appeal’s (BIA) denial of his asylum application and his request for writ of habeas corpus presently pending in the Federal District Court for the District of Colorado, honorable Judge Matsch presiding. Thus if the court concludes under the above analysis, that Mr. Doe demonstrated treaty and statutory eligibility for asylum, and there are no negative factors which would permit the AG in the appropriate use of his discretion to deny asylum to Mr. Doe, the denial would be an abuse and the improper use of the AG’s discretion. The BIA’s denial would also be an abuse of discretion and this court must reverse the denial of that motion to reopen.
(9)--Consolidation of questions for judicial review: Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this title shall be available only in judicial review of a final order under this section.

The statute gives this court jurisdiction to review this denial of asylum and denial of the motion to reopen Mr. Doe’s case. He has received a final order under this section.

8 CFR § 1003.2 Reopening or reconsideration before the Board of Immigration Appeals. (a)--General. The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision. A request to reopen or reconsider any case in which a decision has been made by the Board, which request is made by the Service, or by the party affected by the decision, must be in the form of a written motion to the Board. The decision to grant or deny a motion to reopen or reconsider is within the discretion of the Board, subject to the restrictions of this section. (Emphasis added.) The Board has discretion to deny a motion to reopen even if the party moving has made out a prima facie case for relief.

Here, since Mr. Doe’s newly submitted evidence show that he is statutorily eligible for asylum, and there are no negative factors, which would permit the AG to deny asylum in the proper use of his discretion, the Board is required by law to reopen this case on its own motion in the interest of justice. Petitioner has also submitted written motion to the Board, which is within the Board’s discretion to grant or deny, subject to the restrictions of this section. (Emphasis added.) The decision is not within the unfettered discretion of the Board. Based upon the analysis of the asylum law as determined by the treaty, the constitution, the statute, and the jurisprudential law controlling the asylum obligations of the United States, the Board would be restricted from using its discretion to deny Petitioner’s motion to reopen.

Further the Petitioner’s newly submitted evidence not only makes out a prima facie case for asylum, the evidence demonstrates absolutely, that he has suffered past persecution, shifting the burden of proof to the INS, that conditions have changed in Peru making it safe for the Petitioner to return. This is a burden that the Respondent cannot meet. The new evidence shows that the Petitioner should be granted asylum in the interest of justice, and within the appropriate use of the Board’s discretion. It is an abuse of discretion for the Board not to reopen Mr. Doe’s case.

(c)--Motion to reopen. (1)-- A motion to reopen proceedings shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material. . . . A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him or her and an opportunity to apply therefore was afforded at the former hearing, unless the relief is sought on the basis of circumstances that have arisen subsequent to the hearing.

Here the Petitioner’s asylum claim was an unfair asylum hearing, partially due to ineffective assistance of counsel. Petitioner has merely recently come to believe that. The new evidence merely helps to prove the facts the Petitioner testified to at his former hearing. Without the new evidence, the IJ did not find the Petitioner credible and therefore did not find the facts to be true.

The new evidence was not available because Petitioner’s counsel did not advise Petitioner to provide it to the judge. The evidence is material. It is independently, verifiable expert evidence, which corroborates Petitioner’s statements of his past persecution in Peru. It demonstrates that Petitioner suffered from past persecution. The Petitioner recently submitted much of the evidence to this Court because the tragedies to Petitioner’s father committed by the Shinning Path had not yet been perpetrated.

Some of the new evidence are now reliable, independent, media accounts of the rise of power of the Shinning Path in Peru, making Petitioner’s return even more dangerous. Some of this evidence, the evidence submitted to this Court with the Opening Brief, is so recent that it has not yet been submitted to the Board, as this Court, as well as the habeas Court, --for purposes of obtaining Petitioner’s release from detention--, now has jurisdiction over the proceedings. Petitioner also should have rights to reapply for asylum under 8 CFR 1003.2(c)(3)(ii) argued below.

(2)-- Except as provided in paragraph (c)(3) of this section, a party may file only one motion to reopen deportation or exclusion proceedings (whether before the Board or the Immigration Judge) and that motion must be filed no later than 90 days after the date on which the final administrative decision was rendered in the proceeding sought to be reopened,

This paragraph must be read with the Board’s reasonable, constitutional sua sponte powers to reopen a case in the interest of justice.

(3)-- . . . The time and numerical limitations set forth in paragraph (c)(2) of this section shall not apply to a motion to reopen proceedings: . . . (ii)-- To apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing; . . .

Here the Petitioner has the right to reapply for asylum based upon the new evidence that he did not have in spite of all due diligence. He now has evidence of his rights to asylum that was not available at his original hearing. The evidence includes proof of the changed circumstances in Peru with regard to the Shinning Path terror in that country. This evidence is material and was not available and could not have been discovered or presented at the previous hearing. Most of the evidence deals with events, which took place after Mr. Doe’s first hearing. Much of the evidence came after Mr. Doe’s first hearing even though Mr. Doe tried to obtain the evidence on time. The Board should have reopened Mr. Doe’s case pursuant to permit him to reapply for asylum. The Court has jurisdiction to review this decision.

There is also some question whether the IIRIRA amendments apply in this case. The Petitioner filed for asylum in 1993 and never received his asylum interview until July of 1997. Certainly Respondent acted arbitrarily an capriciously by not giving Petitioner a timely hearing, based upon the order in which he filed his application for asylum. This late treatment by Respondents apparently destroyed Petitioners rights to review under 8 U.S.C. § 1005a, INA § 106 and Petitioner’s rights to apply for suspension of deportation.

Belay-Gebru v. INS, supra, also cites and distinguishes cases regarding similar immigration, jurisdiction issues. Belay-Gebru, supra, was decided pursuant to jurisdiction provided by INA § 106, and the jurisdiction on this case apparently is governed by post IIRIRA amendments to the INA, statutorily, § 242, 8 U.S.C. § 1252.

The issue of jurisdiction involved in the INS’ delaying of issuance of an order to show cause in a timely manner after an application for asylum has been filed, to destroy rights the INS anticipates will be removed by future legislation appears to be improper enforcement against Petitioner’s Article VI constitutional, treaty rights. Also in this case the Petitioner filed his Petition for review of the Board’s denial of his Motion to Reopen within the 30-day jurisdictional time period. This issue has not yet been decided.

In Pena Luis, 196 F.3d 36 (1st Cir. 1999) the Court found that it had jurisdiction to hear the case based upon a constitutional, due process challenge. The court also divided the Board’s denial of voluntary departure, into the statutory and discretionary provisions. The court found that the Board properly stated that the Petitioner was statutorily eligible for voluntary departure. Then the Board addressed the discretionary provision of granting voluntary departure.

The Court found that the Board properly used its discretion. It stated the negative and positive factors pertaining to the case: the Petitioner’s family ties and ten years in the United States balanced against the Petitioner’s illegal employment using fraudulent documents. The Petitioner had no justification such as a “good faith” claim for asylum. The Board denied Petitioner voluntary departure in the proper use of its discretion, and the Board placed the elements of the discretionary portions of the decision on the record.

Here the Board denied the Motion to Reopen without placing the bases of their discretionary decision on the record. Here Petitioner has introduced evidence of changed country conditions required by 8 C.F.R. § 1003.2(c)(ii). These conditions are dangerous for Petitioner in his circumstances. The Board does not demonstrate its reasoning but merely refers to regulation and one case Matter of Lozado, 19 I&N Dec. 637 (BIA 1988) referring to mechanisms regarding frivolous accusations of ineffective assistance of counsel used by a Petitioner as dilatory tactics for the purpose of delaying a proper deportation order. This case is not frivolous. The ineffective assistance of Petitioner’s first counsel is obvious, not frivolous, in light of the evidence that is now provided by the Petitioner to support his case, and the Motion to Reopen was not filed for dilatory purposes to delay an otherwise “proper” removal order.

Also in Pena Luis, supra, the Court found jurisdiction based upon Petitioner’s due process challenge. However after finding jurisdiction the Court concluded that the challenge was frivolous and dismissed the case on the merits.

This case similarly involves a two-step procedure. The first step is the determination of statutory eligibility, which Petitioner challenges as having been unfair, and a breach of Petitioner’s V Amendment constitutional rights to due process and equal protection. Thus this Court has jurisdiction.

This case also similarly questions the Board’s denial of his Motion to Reopen. The Board does not place on the record the positive and negative factors in the discretionary decision for the purposes of judicial review as in Pena Luis, supra. With the new evidence the Board should have concluded that in the interest of justice, (Emphasis added.) the Petitioner is eligible for asylum and the Board should have reopened his case in the proper use of its discretion.

WHEREFORE, Petitioner requests that this honorable Tenth Circuit Court of Appeals acknowledge that it has jurisdiction in this case, accept jurisdiction and issue a stay of removal for the Petitioner John Doe, and remand this case to the Board of Immigration Appeals with instructions regarding the constitutional and treaty standards for granting a Motion to Reopen and, order the Board to grant Petitioner’s Motion to Reopen his Removal hearing, declare Petitioner’s prior order of removal a nullity, permitting and ordering Respondent’s to release Petitioner from the detention center in Aurora, Colorado where he is being held illegal pursuant to an unconstitutional order of removal, and to grant any further relief that this honorable Court deems just and equitable, including, in its broad powers as an Article III Court to grant Petitioner asylum relief pursuant to treaty obligations.

In the U.S. postal service, postage prepaid, this ______ day of February, 2004 addressed to:

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[1] This statement of facts addresses the specific findings of facts as stated by the honorable Tenth Circuit Court in its order dated October 29, 2003. Petition filed an Opening Brief in this case on or about October 23, 2003 with a more detailed statement of facts. Petitioner incorporates those facts and that opening brief by reference in this memorandum regarding jurisdiction, so as not to repeat those arguments, as that brief addresses in part the Board of Immigration Appeal’s (BIA or the Board) duty to reopen a case either by request of a Respondent or sua sponte on its own motion in the proper use of its jurisdiction. Thus if this honorable Court concludes it has jurisdiction, the opening brief argues why Petitioner’s believe the Board abused its discretion in not reopening Petitioner’s asylum case.

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