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Thoung v. United States

United States District Court, D. Kansas

October 11, 2017

LINA THOUNG, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE.

         Plaintiff Lina Thoung has moved this Court to issue a writ of habeas corpus vacating the judicial removal order entered in United States v. Thoung, Case Number 12-cr-10177-EFM, for lack of jurisdiction. Thoung pleaded guilty and stipulated to her sentence, denaturalization, and the judicial order of removal entered in that proceeding. Thoung now seeks to vacate the removal order, arguing that this Court lacked jurisdiction to order her removal from the United States. For the following reasons, Thoung's petition for writ of habeas corpus (Doc. 1) is denied, and her Motion for Temporary Restraining Order (Doc. 7) is denied as moot.

         I. Factual and Procedural Background

         Thoung, a citizen of Cambodia, was admitted to the United States in 2002 and later applied to become a lawful permanent resident in 2003. But in 2012, Thoung was indicted on eight counts related to her use of a stolen identity to obtain a U.S. visa, naturalized U.S. citizenship, and a U.S. passport.

         On December 13, 2012, she pleaded guilty to one count of document fraud in violation of 18 U.S.C. § 1546(a). Per the terms of the plea agreement, Thoung stipulated and agreed that her U.S. citizenship would be revoked under 8 U.S.C. § 1451(e) as a part of the agreement, and agreed that the Court shall enter an order of revocation of her citizenship. Additionally, Thoung jointly requested with the Government that the Court order her removal from the United States so that the U.S. Immigration and Customs Enforcement (“ICE”) may execute the order of removal according to the applicable laws and regulations. Furthermore, the plea agreement also included a waiver of appeal and collateral attack provision. That provision provided that “[t]he defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, the defendant's conviction or the components of the sentence to be imposed herein including the length and conditions of supervised release (emphasis added).”

         On January 23, 2013, Thoung and the Government jointly moved this Court to enter an order removing her from the United States upon completion of her sentence. In the motion, Thoung advised the Court that she understood the stipulation and its consequences, and that she had voluntarily agreed to it. The order entered by this Court incorporated Thoung's stipulations and ordered the defendant removed to Cambodia, as the parties requested.

         After the order of removal was entered, Thoung was held by immigration authorities for over six months while they attempted to deport her to Cambodia. Thoung was not immediately deported and was eventually released on an “Order of Supervision.”

         Thoung is now married to a U.S. citizen and would be eligible to apply for adjustment of status but for the order of removal. Accordingly, on February 28, 2017, she filed a petition for writ of habeas corpus to vacate the removal order, arguing that this Court lacked jurisdiction to enter the order. On September 29, 2017, Thoung was arrested by Immigration and Customs Enforcement (“ICE”) and deportation proceedings were commenced. Thoung filed a motion for a temporary restraining order on October 6, 2017, requesting an order directing the United States to stop its efforts to deport her until this Court has had a chance to rule on the merits.

         II. Discussion

         A. Thoung's Argument

         In her underlying criminal case, Thoung and the Government jointly requested and stipulated to an entry of a judicial order of removal as a condition of Thoung's plea agreement. When entering the order of removal, this Court assumed jurisdiction under 8 U.S.C. § 1228(c)(5), which provides that:

The United States Attorney, with the concurrence of the Commissioner, may, pursuant to Federal Rule of Criminal Procedure 11, enter into a plea agreement which calls for the alien, who is deportable under this chapter, to waive the right to notice and a hearing under this section, and stipulate to the entry of a judicial order of removal from the United States as a condition of the plea agreement or as a condition of probation or supervised release, or both. The United States district court, in both felony and misdemeanor cases, and a United States magistrate judge in misdemeanor cases, may accept such a stipulation and shall have jurisdiction to enter a judicial order of removal pursuant to the terms of such stipulation (emphasis added).

         A plain reading of this statute suggests that a U.S. District Court has jurisdiction to enter a stipulated judicial order of removal against any alien “who is deportable.” In Thoung's underlying criminal case, she was found to be deportable under 8 U.S.C. § 1227(a)(1)(A) and (a)(3)(B)(iii). Because Thoung was deportable “under this chapter, ” the Court assumed jurisdiction and entered the order of removal.

         But Thoung now argues that this Court lacked jurisdiction to order her removal. Thoung posits that a District Court can only order an immigrant removed if that immigrant is deportable under 8 U.S.C. § 1227(a)(2)(A).[1] In other words, the immigrant must have been convicted of a crime classified as a “general crime” under § 1227(a)(2)(A) before the Court can enter an order of removal-even if the parties stipulated to the entry of such an order. According to Thoung, this is nonnegotiable; the District Court does not have authorization to enter an order of removal against an immigrant who is removable under some other subsection of 8 U.S.C. § 1227, like she was.

         Obviously, the jurisdictional prerequisite Thoung proposes is not obvious upon a plain reading of § 1228(c)(5), which states that the District Court “shall have jurisdiction” over an alien “who is deportable.” The “general crime” requirement Thoung is advocating for is found in § 1228(c)(1) and (c)(2). Section 1228(c)(1) provides:

Notwithstanding any other provision of this chapter, a United States district court shall have jurisdiction to enter a judicial order of removal at the time of sentencing against an alien who is deportable, if such an order has been requested by the United States Attorney with the concurrence of the Commissioner and if the court chooses to exercise such jurisdiction.

         Section 1228(c)(2) then provides the procedure for entering a judicial order of removal. Of particular relevance, § 1228(c)(2)(B) states:

Notwithstanding section 1252b of this title, the United States Attorney, with the concurrence of the Commissioner, shall file at least 30 days prior to the date set for sentencing a charge containing factual allegations regarding the alienage of the defendant and identifying the crime or crimes which make the defendant deportable under section 1227(a)(2)(A) of this title (emphasis added).

         Then, the District Court “may order the alien removed if the Attorney General demonstrates that the alien is deportable under this chapter.”[2]

         Thoung asserts that she was not convicted of a “general crime” as defined by § 1227(a)(2)(A), so this Court lacked jurisdiction to order her removal under § 1228(c)(2)(B). Here, Thoung does not contest that she is deportable under some other provision of this chapter other than § 1227(a)(2). Accordingly, her argument hinges entirely on the premise that § 1228(c)(5) (which governs the joint stipulation to the entry of an order of removal) is insufficient in itself to grant the District Court jurisdiction to enter an order of removal. In other words, Thoung is arguing that the procedures stated in § 1228(c)(2), particularly the “general crime” conviction requirement found in § 1228(c)(2)(B), apply to all judicial orders of removal-even stipulated orders under § 1228(c)(5), despite the fact that § 1228(c)(5) does not explicitly require a “general crime” conviction.

         In support, Thoung cites to written guidance issued by the Department of Justice (“DOJ”). For example, the DOJ's April 28, 1995 “Memorandum on Deportation of Criminal Aliens” explains that “[u]nder the Department's interpretation of the statute, stipulated judicial deportation should be sought only if the offense to which the alien defendant will plead guilty causes him to be deportable under 8 U.S.C. § 1251(a)(2)(A) [the pre-1996 statute defining ‘general crimes'].”[3]

         Thoung also cites to United States v. Angel-Martinez, [4] a 1997 case decided shortly after ...


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