610 F.Supp.3d 990
E.D. Mich.2022Background
- Petitioner Amit R. Agarwal, an Indian national with longstanding prior lawful H-nonimmigrant status, was arrested after a 2019 criminal prosecution, pled guilty in July 2021, completed a two-month sentence, and was taken into ICE custody for expedited removal in October 2021.
- ICE prepared an unsigned “Purported Initial Removal Order” and later produced a “Purported Final Removal Order” that purportedly bore supervisory approval; the documentary record contains inconsistencies (white-out, conflicting service dates, divergent sworn declarations, no supervisor affidavit).
- Agarwal filed a habeas petition (Nov. 17, 2021) raising three claims: (1) detention without a final expedited removal order under 8 U.S.C. § 1252(e); (2) an Appointments Clause challenge to the officers who issued the order; and (3) a Fifth Amendment due-process challenge based on his substantial U.S. ties and prior admissions.
- An emergency TRO to prevent removal was denied; Agarwal was removed to India. Respondents then moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
- The court denied the motion to dismiss, concluding that (a) genuine factual disputes exist about whether a final expedited removal order was in fact issued and directing limited jurisdictional discovery, and (b) the Suspension Clause permits habeas review of the Appointments Clause and as-applied due-process claims here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court may review under §1252(e) whether a final expedited removal order actually issued | Agarwal: supervisory approval is a condition precedent under 8 C.F.R. §235.3(b)(7); no final order issued, so §1252(e) review applies | Respondents: §1252(e) limits review to whether an order issued, but courts may not review procedural validity of an issued expedited order | Court: Denied dismissal; accepted plea that no final order may have issued; factual disputes warrant limited jurisdictional discovery before resolving issuance |
| Whether Suspension Clause preserves habeas jurisdiction for Appointments Clause challenge despite §1252(a) jurisdiction-stripping | Agarwal: Suspension Clause permits habeas; §1252(e) is inadequate as substitute because it precludes Appointments challenges | Respondents: §1252(a) bars review; systemic challenges belong in D.C. court under §1252(e)(3) | Court: Suspension Clause applies; §1252(e) is not an adequate substitute; habeas jurisdiction exists for Appointments claim |
| Whether Appointments and due-process claims are “systemic challenges” requiring exclusive D.C. jurisdiction and 60‑day filing | Agarwal: claims are as‑applied to his individual detention and paperwork, not systemic | Respondents: §1252(e)(3) vests exclusive D.C. jurisdiction and a 60‑day bar for systemic challenges | Court: Claims deemed as‑applied, not systemic; D.C. exclusivity and 60‑day rule do not bar these claims |
| Whether Thuraissigiam and the initial-entry doctrine bar Agarwal’s due-process claim and habeas relief after removal | Agarwal: he had prior lawful admissions and substantial U.S. ties and pleaded release as relief; collateral consequences persist after removal | Respondents: Thuraissigiam limits due process for initial-entry applicants; habeas only available for simple release, which Agarwal cannot obtain after removal | Court: At pleading stage, Agarwal plausibly alleged valid prior entry and ties; he sought release when filing; collateral consequences (inadmissibility) preserve jurisdiction; Thuraissigiam does not require dismissal now |
Key Cases Cited
- Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) (habeas does not provide rights to administrative review for initial‑entry applicants who did not seek release)
- Boumediene v. Bush, 553 U.S. 723 (2008) (two‑step test for whether habeas suspension is implicated and whether substitute procedures are adequate)
- Castro v. United States Dep't of Homeland Sec., 835 F.3d 422 (3d Cir. 2016) (overview of §1252 limits on judicial review of expedited removal)
- Osorio‑Martinez v. Attorney Gen., 893 F.3d 153 (3d Cir. 2018) (applying Boumediene to §1252; §1252(e) inadequate substitute for certain habeas claims)
- Lucia v. SEC, 138 S. Ct. 2044 (2018) (Appointments Clause principles governing who may exercise significant federal authority)
- INS v. St. Cyr, 533 U.S. 289 (2001) (habeas protections and review of certain immigration consequences)
- Spencer v. Kemna, 523 U.S. 1 (1998) (habeas jurisdiction survives release where continuing collateral consequences exist)