Senior litigation counsel Theodore W. Atkinson of the U.S. Department of Justice’s Office of Immigration Litigation argued that Mariano Angkel Shiano failed to exhaust his administrative remedies as he is required to do under the Immigration and Nationality Act, 8 U.S.C. section 1101.
Atkinson said the U.S. District Court for the NMI where the petition for habeas corpus has been filed by Shiano, through his attorney Stephen Woodruff, lacks jurisdiction over petitioner’s claims under 8 U.S.C. sections 1252(d)(1),(a)(5) and (b)(9).
Through those jurisdiction-limiting provisions, Atkinson said, “Congress channeled all issues of fact and law arising from immigration proceedings into the federal courts of appeals through petitions for review.”
“Review in the courts of appeals after administrative remedies have been exhausted is the exclusive avenue for aliens to challenge their removal orders.”
Atkinson added: “This court therefore lacks jurisdiction over Shiano’s habeas petition. However, even if the court determines it has threshold habeas jurisdiction, it should nevertheless dismiss the petition because the denial of a request for waiver of inadmissibility is non-reviewable under 8 U.S.C. section 1252 (a)(2)(B)(i), and because Shiano’s removal under the [Immigration and Nationality Act] does not have retroactive effect, let alone impermissible retroactive effect.”
The U.S. District Court for the NMI earlier ordered a temporary stay of removal on Shiano who was about to leave the commonwealth last month.
Shiano was supposed to leave the CNMI after being ordered removed by the Saipan Immigration Court on May 3, 2011 for being “an alien who has been convicted of two more offenses (other than purely political offenses) for which the aggregate sentences to the confinement actually imposed were five years or more.”
Named respondents were Gerald Zedde in his official capacity as supervisory detention and deportation officer, Saipan Immigration and Customs Enforcement; Beth Limrick, in her official capacity as acting supervisor, enforcement and removal operations; and Arnold K. Seman, in his official capacity as acting commissioner of the CNMI Department of Corrections.
On July 1, 2011, Immigration Judge Dayna Beamer denied Shiano’s request for a stay of removal proceedings with a motion to reopen “due to criminal conviction history.”
“The status of nationals of Freely Associated States in the United States is most appropriately characterized as a sort of de jure nonimmigrant second class lawful permanent resident,” Woodruff said, referring to his client’s immigration status.
Atkinson argued that “Shiano has a long and violent criminal record.”
Between 1997 and 2007, Shiano was charged with the following crimes in a total of seven different cases in the CNMI: 1) one count of assault with a dangerous weapon, 2) one count of child abuse, 3) six counts of assault and battery, 4) counts of disturbing the peace, and 5) two counts of criminal mischief.
“As the Superior Court noted when entering Shiano’s seventh criminal conviction in 2007, most, if not all, of the assault and battery counts as well as Shiano’s seven convictions were against the same victims, his wife and son,” Atkinson told the federal court.
The aggregate sentence imposed within the meaning of INA Section 212 (a)(2)(B) for these seven offenses were “just barely five years, the bare minimum sufficient to support a Section 212 (a)(2)(B) charge assuming all the convictions are cognizable,” Woodruff said.
Shiano’s actual time served for these sentences was only 97 days, Woodruff added.
Shiano is currently detained at the CNMI Department of Corrections facility under the authority of the U.S. Department of Homeland Security’s Immigration and Customs Enforcement.
