330 F. Supp. 3d 944
S.D. Ill.2018Background
- Petitioner Pablo Villavicencio Calderon, an Ecuadorian national with a 2010 final removal order, married a U.S. citizen and has two U.S.-citizen children; he has no criminal record and seeks to regularize status.
- His wife filed Form I-130 (Feb 2018); Petitioner intended to pursue Form I-212 (permission to reapply) and Form I-601A (provisional unlawful presence waiver) under DHS regulations permitting provisional waivers before consular processing.
- On June 1, 2018 Petitioner was detained by ICE at Hudson County Correctional Facility; ICE sought to execute his removal order immediately.
- Petitioner filed a § 2241 habeas petition seeking release, a stay of removal from the NYC area, and a stay of removal pending exhaustion of the provisional-waiver process; Judge Crotty granted the petition and ordered immediate release.
- The court found Petitioner has a right to seek the DHS provisional-unlawful-presence-waiver process and held that executing removal without allowing him to pursue that process violated the APA and the Fifth Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper respondent/venue for habeas | Legal custodians (federal officials) are proper respondents because local warden merely houses ICE detainees under an IGSA | Apply immediate-custodian rule: warden is proper respondent; venue improper here | Court applied legal-custodian rule to both core and non-core claims and upheld venue in SDNY |
| District-court jurisdiction over claims under INA §1252 | §1252 does not preclude review of whether ICE may execute removal when petitioner has a regulatory right to seek a provisional waiver | §§1252(a)(5),(b)(9),(g) strip district courts of jurisdiction over challenges related to removal orders | Court held §§1252(a)(5),(b)(9),(g) do not bar review of Petitioner's limited legal-question (right to seek waiver and whether removal may be executed notwithstanding that right) |
| Whether DHS regulations create a right to seek provisional waiver | DHS regulations create a procedurally enforceable right to apply for provisional I-601A (Accardi doctrine) even if no entitlement to the ultimate relief exists | DHS/ICE can exercise removal authority; discretion to execute removal not constrained | Court held the regulations create a "right to try" and DHS must permit the process to proceed before removal is executed |
| APA / Due Process challenge to executing removal before waiver process complete | Executing removal without explanation prevents Petitioner from pursuing the process and is arbitrary, capricious, and violates substantive and procedural due process | ICE's execution of removal is discretionary and unreviewable; detention/removal lawfully authorized | Court held ICE's action arbitrary and violated the APA and Fifth Amendment; ordered stay of removal and release pending exhaustion of I-130, I-212, I-601A or denials/approval outcomes |
Key Cases Cited
- Rasul v. Bush, 542 U.S. 466 (jurisdiction over habeas petitions by persons held in custody) (discussed venue/service standards)
- Rumsfeld v. Padilla, 542 U.S. 426 (immediate-custodian rule and proper respondent analysis)
- Zadvydas v. Davis, 533 U.S. 678 (review of statutory authority to detain aliens beyond a foreseeable removal period)
- United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (agency must follow its valid regulations; creates "right to seek" administrative relief)
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (§1252(g) limits review of certain discretionary immigration decisions)
- County of Sacramento v. Lewis, 523 U.S. 833 (due process protects against arbitrary government action)
- Henderson v. INS, 157 F.3d 106 (2d Cir.) (flexible approach to immediate-custodian rule in immigration habeas cases)
- Delgado v. Quarantillo, 643 F.3d 52 (2d Cir.) (distinguishing direct/indirect challenges to removal orders and limits on district-court review)