Federal court dismisses petition by deportable man

The federal court dismissed yesterday a court action filed by a deportable Chinese national who claimed he was cheated out of his more than $50,000 investment in the CNMI.

But Stephen C. Woodruff, counsel for petitioner Fu Chen, said the judge misapprehended the petition and that they will appeal or pursue an alternative remedy.

U.S. District Court for the NMI designated judge David A. Wiseman ruled that the immigration judge’s exercise of discretion in Chen’s case was “lawful.” As such, Wiseman said, Chen’s petition for habeas corpus does not “state facts that point to a ‘real possibility of constitutional error.’”

“It is therefore dismissed. The Clerk shall close the file,” said the judge in a two-page order.

According to the petition, Chen entered the CNMI lawfully and held a long-term business entry permit at least until Dec. 10, 1998. He invested more than $50,000 in the CNMI but was ultimately cheated out of his investment by a local man, Woodruff said.

Chen pursued legal remedies but had difficulty doing so and it is his understanding that the local man passed away before he could realize any recovery of his investment.

Chen then went to Immigration and Customs Enforcement to seek help but instead the Department of Homeland Security initiated removal proceedings against him, Woodruff said.

On April 8, 2011, the immigration judge directed Chen to be removed.

Chen, through Woodruff, recently filed the petition for habeas corpus in federal court. Woodruff argued that Chen’s situation is precisely the kind of case that “screams for an exercise of discretion, “ yet the DHS and the immigration judge refused to even engage in an exercise of discretion.

On July 6, Wiseman ordered that Chen’s removal from the CNMI be stated pending court order.

In dismissing the petition, Wiseman said the legal contention is that the immigration judge failed to exercise her discretion to grant humanitarian parole on the basis of Chen’s debt.

Wiseman said the petition indicates that the immigration judge did consider Chen’s argument for discretionary relief on the basis of his debt.

“As such, the immigration judge did exercise her discretion, and petitioner is really objecting to that exercise,” Wiseman noted.

Woodruff told Saipan Tribune yesterday that Wiseman has the law right but misapprehended Chen’s petition. He insists that the exercise of discretion by the immigration judge was never at issue.

“I do not believe immigration judges even have jurisdiction to exercise the type of discretion involved in Mr. Chen’s petition,” he said.

Woodruff said the duty to exercise discretion arose when Chen presented himself to immigration officers at USCIS Application Support Center and again when he presented himself to immigration officers at ICE in accordance with instructions from USCIS.

Woodruff said that Wiseman’s order, much to his surprise, pointed to the immigration judge’s denial of Chen’s motion for stay of removal, pending consideration of his motion to reopen as evidence that the immigration judge “did consider petitioner’s argument for discretionary relief on the basis of his debt.”

Woodruff said the decision of the immigration judge on a motion to reopen is indeed discretionary, but it has nothing whatsoever to do with whether Chen should or should not be granted relief under the Immigration and Nationality Act such as humanitarian or public interest parole.