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TOPAZOV v. UNITED STATES INS

June 28, 1996

ARNOLD TOPAZOV, Plaintiff,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 Arnold Topazov is a citizen of the former Soviet Union and is currently incarcerated in the Federal Correctional Institution in Allenwood, Pennsylvania. He brings this action for declaratory and injunctive relief to remove an Immigration and Naturalization Service ("INS") detainer that has been lodged against him and to stop any deportation proceedings that may follow pursuant to the Immigration and Nationality Act of 1952 ("INA"), 8 U.S.C. § 1101 et seq. The INS moves to dismiss his claim for lack of subject matter and personal jurisdiction.

 I. FACTS

 Mr. Topazov is an ex-Soviet army officer who defected to the United States and received political asylum in August 1979. He remained in the United States for four successive six-month parole periods through April 1981. Def.'s Motion at 2. On April 15, 1981, he was granted permanent resident alien status pursuant to Section 7 of the Central Intelligence Act of 1949, 50 U.S.C. § 403h, which provides for the entry of aliens into the United States for permanent residence when such entry "is in the interest of national security or essential to the furtherance of the national intelligence mission." Def.'s Ex. 3, Mem. of Creation of Lawful Permanent Residence. *fn1"

 On March 7, 1985, Mr. Topazov was convicted of kidnaping and hostage taking during the commission of a bank robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2, 2113(e), and was sentenced to life imprisonment. Def.'s Ex. 1, Judgment and Probation/Commitment Order. The sentence was later reduced to twenty years. Def.'s Ex. 2. On April 15, 1992, the INS issued a detainer notifying the Bureau of Prisons that an inquiry had been initiated to determine whether Mr. Topazov was subject to deportation and requesting his transfer to the Federal Correctional Institution in Oakdale, Louisiana, six months prior to his release. Pl.'s Ex. 1, Detainer. *fn2" This action was based on Section 241 of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(A)(i), which classifies aliens who are convicted of crimes of moral turpitude within five years of admission to the United States as "deportable." *fn3" Mr. Topazov filed a request that the detainer be removed, but the INS did not respond. Compl. PP 9-14 and Ex. 2.

 Mr. Topazov asserts that his entry into the United States under the CIA Act precludes his deportation under the INA. Compl. P 17. He alleges that submission to any forthcoming deportation proceedings will cause him injury due to the potential debilitating effect of a cross-country transfer after a chronic ailment and the additional incarceration after his criminal release date that he believes will be required for the administrative adjudication and appeals. Pl.'s Opp. at 9-10. *fn4" Mr. Topazov requests this Court (1) to declare that any potential outcome of the INS deportation proceedings will have no effect on his resident status; (2) to order the INS to remove its detainer and issue a memorandum stating that it will not deport him upon his release from prison; and (3) to declare that his deportation proceedings would jeopardize the national security of the United States.

 II. JURISDICTION

 Mr. Topazov claims that this Court has jurisdiction over his case under the Declaratory Judgment Act, 28 U.S.C. § 2201. The INS asserts that this Court lacks jurisdiction because of the exclusivity and exhaustion provisions of Section 106 of the INA, 8 U.S.C. § 1105a(a)-(c), and, alternatively, that this action is a habeas corpus action relating to the fact or duration of incarceration over which this Court lacks jurisdiction because plaintiff is not in the custody of the INS and because such actions must be brought in the district of confinement.

 A. Exclusivity and Exhaustion Under Section 106

 Judicial review of deportation decisions is authorized by Section 106 of the INA, which provides that an order of deportation or exclusion shall not be reviewed by any court if the alien has not exhausted the administrative remedies available to him as of right under the immigration laws and regulations. 8 U.S.C. § 1105a(c). Exclusive jurisdiction to review final orders of deportation rests in the courts of appeals, not in the district courts. 8 U.S.C. § 1105a(a); see Foti v. INS, 375 U.S. 217, 223, 11 L. Ed. 2d 281, 84 S. Ct. 306 (1963); Ayuda, Inc. v. Thornburgh, 279 U.S. App. D.C. 252, 880 F.2d 1325, 1335 (D.C. Cir. 1989) ("Ayuda I"), vacated on other grounds, 498 U.S. 1117 (1991).

 This challenged INS action is not a deportation order per se but the lodging of a detainer. It is nevertheless sufficiently a part of the statutory scheme of deportation proceedings to implicate the exclusivity and exhaustion provisions of Section 106. The Supreme Court has defined the reach of Section 106 to "include[] all matters on which the validity of the final order is contingent, rather than only those determinations actually made at the [deportation] hearing." INS v. Chadha, 462 U.S. 919, 938, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983). This broad interpretation effects "the fundamental purpose behind § 106(a) [which] was to abbreviate the process of judicial review of deportation orders in order to frustrate certain practices whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Foti v. INS, 375 U.S. at 224. In Foti, the Court decided that Section 106 provides exclusive jurisdiction to the courts of appeals for denials of motions to suspend deportation orders because those motions are considered by the immigration judge "antecedent to and [as] a constituent part of the 'final order of deportation.'" Id. at 226. The Court observed that a "bifurcated procedure," whereby an alien could seek direct review of such denials of discretionary relief in the district court, and later seek review of a deportation decision in a court of appeals pursuant to Section 106, would frustrate the legislative intent to expedite deportation proceedings. Id. at 226-28. *fn5"

 As to the first point, it is established that the INS has the authority to issue a detainer when there is "reason to believe [an alien] is amenable to exclusion or deportation proceedings under any provision of law. " 8 C.F.R. § 242.2(a)(1). *fn7" The decision to issue a detainer, like the decision to suspend a deportation order or to reopen a deportation proceeding, is "governed by the regulations applicable to the deportation proceeding itself," Cheng Fan Kwok v. INS, 392 U.S. 206, 217, 20 L. Ed. 2d 1037, 88 S. Ct. 1970 (1968), and is made "as an integral part of the proceedings which [lead] to the issuance of a final deportation order." Foti v. INS, 375 U.S. at 223. Because a district court challenge to a detainer would involve the very "bifurcated procedure" that the Supreme Court disapproved in Foti, 375 U.S. at 226-27, the issuance of a detainer is governed by Section 106 and must be contested during the deportation proceedings themselves.

 As to the second point, the Ninth Circuit has addressed the question of whether a plaintiff may escape the exclusivity and exhaustion requirements of Section 106 to resolve a question of statutory interpretation which, if decided in that plaintiff's favor, would preclude deportation proceedings under the INA. See Wang Zong Xiao v. Barr, 979 F.2d 151 (9th Cir. 1992). Mr. Wang was a Chinese national paroled into the United States as a witness in a federal narcotics trial. Id. at 152. At the conclusion of the trial, the INS notified Mr. Wang that it was instituting exclusion proceedings to return him to China. Id. at 153. Alleging that the INS was "without legal authority over [his] person," Mr. Wang obtained a preliminary injunction that barred the ...


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