UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 93-4885
Summary Calendar
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OLUGBENGA BALOGUN,
Petitioner-Appellant,
versus
IMMIGRATION AND NATURALIZATION
SERVICE, JOHN B. Z. CAPLINGER,
Respondents-Appellees.
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Appeal from the United States District Court for the
Western District of Louisiana
______________________________________________
(December 2, 1993)
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner-appellant Olugbenga Balogun (petitioner) appeals
the district court's dismissal of his application for writ of
habeas corpus. We hold that the district court erred in entering
judgment without giving petitioner notice or the opportunity to
respond to the allegations set forth by respondent-appellees
Immigration and Naturalization Service and John B. Z. Caplinger
(respondents). Accordingly, we reverse and remand the case to the
district court for further proceedings.
Facts and Proceedings Below
Petitioner is a citizen and native of Nigeria. In August of
1984, he entered the United States as a nonimmigrant student
authorized to remain in this country so long as he maintained his
status as a student. In July of 1987, petitioner graduated from
Jacksonville State University, thereby discontinuing his student
status. He did not, however, leave the country as his visa
required, but instead remained in the United States. On March 17,
1990, petitioner was arrested in Anniston, Alabama and charged with
illegal possession of credit cards, fraudulent use of credit cards,
and forgery. In June of 1990, he pleaded guilty to the charged
offenses and was sentenced to a five-year term of imprisonment in
the Alabama State Penitentiary.
On September 2, 1990, the Immigration and Naturalization
Service (INS) issued an order to show cause charging petitioner
with deportability pursuant to section 241(a)(9) [8 U.S.C. §
1151(a)(9)] of the Immigration and Nationality Act,1 in that he
failed to comply with the conditions of the nonimmigrant status
under which he was admitted. After a hearing before an immigration
judge on April 24, 1991, in which petitioner admitted all of the
allegations in the order to show cause, the judge found petitioner
deportable as charged and ordered him deported to Nigeria.
Petitioner appealed to the Board of Immigration Appeals (BIA), and
on July 18, 1991, the BIA affirmed the immigration judge's order.
1
Redesignated as section 241(a)(1)(C)(i) [8 U.S.C. §
1251(a)(1)(C)(i)] of the Immigration and Nationality Act of 1990,
Pub.L. No. 101-649, 104 Stat. 4978, 5077, 5078.
2
Petitioner appealed to this court and on March 27, 1992, we
affirmed the BIA decision. Balogun v. Immigration and
Naturalization Service, No. 91-4705 (5th Cir. March 27, 1992)
(unpublished).
While in custody at the INS Detention Center in El Paso,
Texas, petitioner was charged with illegally obtaining telephone
credit cards through the use of a false social security number and
using the cards to make several thousand dollars worth of long
distance telephone calls. On March 20, 1992, petitioner pleaded
guilty to this offense and was sentenced by the federal district
court to seven months imprisonment; the INS released petitioner to
the custody of the Bureau of Prisons (BOP) pursuant to this
sentence. On July 10, 1992, the BOP returned petitioner to the
custody of the INS.
On January 13, 1993, upon completing six months of continuous
INS custody, petitioner filed an application in the United States
District Court for the Western District of Louisiana for a federal
writ of habeas corpus under 28 U.S.C. § 2241; the application was
referred to a magistrate judge pursuant to 28 U.S.C. §
636(b)(1)(B). In his application, petitioner alleged that his
detention was unlawful because more than six months had elapsed
since his deportation order became final, in violation of 8 U.S.C.
§ 1252(c) and (d). Petitioner contended that section 1252(c)
mandates an alien's release from detention if the INS has not
effected deportation within six months of the final order adjudging
the alien's deportability. As relief, petitioner requested that he
be released on supervision pending his deportation.
3
On March 9, 1993, the magistrate judge entered a memorandum
order which directed respondents to file a response to petitioner's
complaint within thirty days. The magistrate judge also ordered
that after respondents had filed their answer, petitioner would
have twenty days in which to file a reply to respondents'
memorandum. Finally, the magistrate judge stated that after the
record was complete, he would determine the necessity of an
evidentiary hearing, and if no hearing was necessary, would issue
a report and recommendation.
Respondents did not respond to petitioner's application within
thirty days of the magistrate judge's order and on April 14, 1993,
petitioner moved for summary judgment or, alternatively, default
judgment. On April 21, respondents filed an "Answer and Return and
Response to Summary Judgment/Default Judgment Motion" in which they
conceded that they missed the filing deadline, but explained that
respondents' counsel had "improperly calendared [the petition] for
a sixty day response time." In their answer, respondents asserted
that the habeas petition should be dismissed because petitioner's
own actions caused the delay in his deportation.2
2
In their answer, respondents alleged, inter alia, the
following: On August 17, 1992, the INS requested that the
Nigerian Embassy provide a travel document for Balogun to effect
his deportation. On September 5, 1992, officials from the
Embassy interviewed Balogun, at which time they requested further
information. The Embassy made another request for the same
information on October 22, 1992, but Balogun has failed to
produce any documentation in response to either of these
requests. Petitioner refused to cooperate with Nigerian Embassy
officials and told them he did not wish to be deported. The
Embassy refuses to provide a travel document until Balogun's
identity can be proven. The answer also alleged that petitioner
"has made unsubstantiated claims to United States citizenship."
It further asserted "the INS has been, at all times, ready and
4
Six days after respondents filed their answer, the magistrate
judge issued a report recommending denial of petitioner's motion
for summary judgment and dismissal of his application for writ of
habeas corpus. The magistrate judge determined that 8 U.S.C. §
1252(c) gives the Attorney General six "unhampered" months from the
date of the final order of deportation in which to deport the
alien.3 The report concluded that because petitioner "seeks to
interfere with the ability of the INS to obtain travel documents
for him," the INS has not had six unhampered months to effect
petitioner's deportation and thus the time limit prescribed under
§ 1252(c) was equitably tolled by petitioner's conduct.
On May 5, 1993, petitioner filed written objections to the
magistrate judge's report in which he asserted, among other things
(1) that the magistrate judge's order of March 9, 1993 allowed
petitioner twenty days to respond to respondents' answer; (2) that
the magistrate judge's report was issued six days after respondents
filed their answer; and (3) the magistrate's findings were based
solely on respondents' answer and its attached exhibits.
Petitioner disputed the allegations made by respondents that the
delay in his deportation was due to his deliberate attempts to
hamper the INS; rather, he alleged that the deportation was delayed
willing to deport Mr. Balogun to Nigeria in accordance with the
court orders but has been unable to do so because of his
obstruction of the deportation process."
3
8 C.F.R. § 2.1 (1991) delegates "to the [INS] Commissioner
the authority of the Attorney General to direct the
administration of the Service and to enforce the Act and all
other laws relating to the immigration and naturalization of
aliens."
5
because the Anniston, Alabama police department lost his passport
when they arrested him in 1990 and the Nigerian Embassy would not
issue a travel document without a passport. Along with his
objections, petitioner filed an affidavit and other documentary
evidence tending to support some of his contentions. Respondents
filed nothing further.
In an order dated May 19, 1993, the district court adopted the
magistrate judge's report in its entirety and dismissed
petitioner's application for writ of habeas corpus. Thereafter,
petitioner filed a timely notice of appeal.4
Discussion
Petitioner raises two points of error on appeal. First,
petitioner argues that the district court erred in relying only on
respondents' answer and supporting exhibits in making the factual
findings underlying its denial of petitioner's habeas corpus
application. Second, petitioner argues that even if the factual
findings were correct, the INS was nevertheless without authority
to continue detaining him beyond the six-month period allowed by 8
U.S.C. § 1252(c). We address petitioner's second argument first.
I. Section 1252(c)
Petitioner contends that the district court erred in
concluding that the facts as it found them justified his continued
detention by the INS. He argues that the plain meaning of section
1252(c) and (d) mandates that the INS release an alien subject to
deportation if they cannot effect his deportation within six months
4
We subsequently granted petitioner leave to appeal in forma
pauperis and appointed counsel to represent him.
6
of the final order of deportation. Petitioner asserts that in his
case the six-month period has expired and nothing allows the INS to
continue detaining him. He seeks immediate deportation or release
on bond.
Both parties agree that petitioner has been in continuous INS
detention since July 10, 1992, when petitioner was transferred by
the BOP into INS custody. The question then is whether the six-
month period allowed under section 1252(c) for INS detention
pending execution of deportation may be tolled where the alien's
conduct has intentionally prevented the INS from effectuating the
deportation. Section 1252(c) reads in pertinent part:
"When a final order of deportation under administrative
processes is made against any alien, the Attorney General
shall have a period of six months from the date of such
order, or, if judicial review is had, then from the date
of the final order of the court, within which to effect
the alien's departure from the United States, during
which period, at the Attorney General's discretion, the
alien may be detained, released on bond in an amount and
containing such conditions as the Attorney General may
prescribe, or released on such other condition as the
Attorney General may prescribe. Any court of competent
jurisdiction shall have authority to review or revise any
determination of the Attorney General concerning
detention, release on bond, or other release during such
six-month period upon a conclusive showing in habeas
corpus proceedings that the Attorney General is not
proceeding with such reasonable dispatch as may be
warranted by the particular facts and circumstances in
the case of any alien to effect such alien's departure
from the United States within such six-month period. If
deportation has not been practicable, advisable, or
possible, or departure of the alien from the United
States under the order of deportation has not been
effected, within such six-month period, the alien shall
become subject to such further supervision and detention
pending eventual deportation as is authorized in this
section. . . . For the purposes of this section an order
of deportation heretofore or hereafter entered against an
alien in legal detention or confinement, other than under
an immigration process shall be considered as being made
as of the moment he is released from such detention or
7
confinement, and not prior thereto." 8 U.S.C. § 1252(c).
Section 1252(d) provides that if deportation cannot be effected
within the six-month period, the alien "shall, pending eventual
deportation, be subject to supervision under regulations prescribed
by the Attorney General." 8 U.S.C. § 1252(d). No other provision
of the Immigration and Nationality Act explicitly provides or
prohibits detention beyond the six-month period.
Respondents do not dispute that section 1252(c) allows the INS
to detain an alien for six months pending his deportation; however,
they contend that the six-month period is tolled if the conduct of
a deportable alien is the cause of a delay in the alien's
deportation. Respondents rely on case law from the Second Circuit
for the proposition that the Attorney General have six "unhampered"
months within which to effect deportation.
Whether the conduct of a deportable alien, which causes a
delay in his deportation, can toll the six-month period allowed
under section 1252(c) is an issue of first impression in this
Circuit. No court that has considered the issue has held that the
INS must release a deportable alien from detention if the alien
engages in conduct which prolongs his detention beyond the six-
month period. In contrast, the Second Circuit and several district
courts have stated that the Attorney General has six "unhampered"
months from the date of the final deportation order during which it
may detain an alien. The six-month period is tolled if the alien
"hampers" his deportation by, for example, initiating litigation
regarding the validity of the deportation order. See, e.g.,
Doherty v. Thornburgh, 943 F.2d 204, 211-12 (2d Cir. 1991) (six-
8
month period is tolled if detainee-initiated litigation concerning
the deportation is pending), cert. dismissed sub nom. Doherty v.
Barr, 112 S. Ct. 1254 (1992); Dor, supra, 891 F.2d at 1002-03
(same); Bartholomeu v. District Director, Immigration and
Naturalization Serv., 487 F.Supp. 315, 319-20 (D. Md. 1980) (same);
United States ex rel. Lam Tuk Man v. Esperdy, 280 F.Supp. 303, 304
(S.D.N.Y. 1967) (same); United States ex rel. Cefalu v.
Shaughnessy, 117 F.Supp. 473, 474 (S.D.N.Y.), aff'd on opinion
below, 209 F.2d 959 (2d Cir. 1954) (per curiam) (same). Cf.
Castillo-Gradis v. Turnage, 752 F.Supp. 937, 940 (S.D. Cal. 1990)
(noting that further detention may be justified when the "actions
of the deportable alien are solely responsible for the delay"). In
Dor, the Second Circuit affirmed the district court's denial of an
alien's habeas corpus petition seeking release from detention
pursuant to section 1252(c). 891 F.2d at 1002-03. The court
concluded that because the alien had obtained a stay of the
deportation order, the six-month period had not begun to run. In
coming to its conclusion the court stated that "[w]hen the actions
of the alien prevent the INS from effecting deportation, delaying
tactics do not support the alien's claim for release from
deportation." Id. at 1002.
All of the above cases finding that an alien's conduct
hampered the Attorney General in effecting the alien's deportation
involved the alien's use of the judicial process to delay
deportation.5 Here, respondents allege that petitioner has
5
In a case with facts similar to those of the case at bar the
Fourth Circuit, in an unpublished opinion, adopted the reasoning
9
hampered their attempts to effect his deportation by deliberately
withholding information and otherwise obstructing the INS from
obtaining a travel document from the Nigerian Embassy. Although
the conduct alleged to have hampered the INS is not petitioner's
initiation of litigation, the principle established by the Second
Circuit that an alien is not entitled to relief for a delay that he
himself has intentionally caused applies with greater force when
the conduct in question is not connected to his legitimate right of
recourse to the judicial system, but rather is the deliberate
obstruction of an otherwise imminent deportation. While we do not
determine the accuracy of respondents' allegations, we conclude
that if petitioner by his conduct intentionally caused the delay of
which he now complains, it would be inequitable to allow him to
benefit from that delay. The alien should not be allowed to profit
from his own wrong and contra non valentem agere nulla currit
praescriptio. Hence, we hold that if it is shown that petitioner
by his conduct has intentionally prevented the INS from effecting
his deportation, the six-month period should be equitably tolled
until petitioner begins to cooperate with the INS in effecting his
deportation or his obstruction no longer prevents the INS from
bringing that about. Cf. Irwin v. Veterans Administration, 111
of the Second Circuit cases which held that the Attorney General
has six "unhampered" months within which it may detain an alien
pending deportation. See Ogorodnikov v. Immigration and
Naturalization Serv., 1993 WL 192766 (4th Cir. June 7, 1993) (per
curiam). In affirming a district court's denial of habeas relief
for an alien detained pending deportation, the Ogorodnikov court
concluded that when "the only obstacle to [petitioner's]
deportation has been his refusal to obtain a travel document to
go to Russia," petitioner's hampering of the INS's attempts to
deport him tolled the six-month period. Id. at *3.
10
S.Ct. 453, 457 (1990) (equitable tolling of time limit for suit
against the government); Honda v. Clark, 87 S.Ct. 1188, 1196-97
(1967) (same as to claim).
II. Procedural Infirmities
Petitioner next argues that even if it is possible to toll the
six-month period under section 1252(c) based on the conduct of the
alien subject to deportation, the district court erred by not
allowing petitioner to rebut the allegations of respondents'
answer. Specifically, petitioner contends that the district
court's dismissal of his habeas petition amounted to a sua sponte
grant of summary judgment in favor of respondents. Petitioner
argues that the district court erred in relying only on
respondents' answer and supporting exhibits to determine the facts
underlying its grant of summary judgment, without giving petitioner
notice or opportunity to respond.
In the case sub judice, the district court adopted the
magistrate judge's report that recommended dismissal of
petitioner's application based on the allegations in respondents'
April 21, 1993 answer and the exhibits attached thereto.6 Although
the district court did not state that it was granting summary
judgment in favor of respondents, a decision which disposes of a
party's claim by reference to evidence from outside of the
pleadings is construed as a grant of summary judgment. See United
6
The magistrate judge's factual findings are almost a
verbatim recitation of allegations in respondents' answer, and
the report's conclusion that petitioner has intentionally
interfered with the ability of the INS to obtain a travel
document is based solely on allegations in the answer and
attached unverified exhibits.
11
States v. East Baton Rouge Parish Sch. Bd., 594 F.2d 56, 57 n.3
(5th Cir. 1979) (citing Moch v. East Baton Rouge Parish Sch. Bd.,
548 F.2d 594 (5th Cir.), cert. denied, 98 S.Ct. 183 (1977)).
Rule 56(c), Fed. R. Civ. P., permits a court to grant summary
judgment in favor of a party that did not request it, but only upon
proper notice to the adverse party. NL Industries, Inc. v. GHR
Energy Corp., 940 F.2d 957, 965-66 (5th Cir. 1991), cert. denied,
112 S.Ct. 873 (1992). However, when granted sua sponte, summary
judgment is governed by Rule 56's requirement of ten days notice
and an opportunity to respond. See, e.g., Powell v. United States,
849 F.2d 1576, 1577 (5th Cir. 1988) (noting that "settled precedent
in this circuit bars entry of summary judgment without the ten days
notice mandated by Fed.R.Civ.P. 56(c)"). See also Celotex Corp. v.
Catrett, 106 S.Ct. 2548, 2554 (1986); Fernandez-Montes v. Allied
Pilots Ass'n, 987 F.2d 278, 283 n.7 (5th Cir. 1993);
Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932
F.2d 442, 444-45 (5th Cir. 1991); McCarty v. United States, 929
F.2d 1085, 1088 (5th Cir. 1991).
Here, the magistrate judge failed to give petitioner any
notice that he was considering recommending summary judgment in
favor of respondents. The magistrate judge also failed to give
petitioner any time to reply to respondents' memorandum, much less
the twenty days granted to petitioner by the magistrate judge in
his March 9, 1993, memorandum order. Petitioner asserts that he is
not responsible for the delay in his deportation; rather, he
contends that the Nigerian Embassy will not provide him with a
travel document because he has no passport, and the reason he has
12
no passport is that it was confiscated by the police in Anniston,
Alabama after his 1990 arrest. While we do not determine the
veracity of petitioner's assertions, we acknowledge that he should
have been given the opportunity to substantiate them. Hence, by
adopting the magistrate judge's report and recommendation in the
face of petitioner's written objections and dismissing petitioner's
application for habeas relief the district court erred.
Accordingly, we remand the case for further proceedings not
inconsistent herewith.
REVERSED and REMANDED
13