665 F. App'x 24
2d Cir.2016Background
- Petitioner Arnaldo Giammarco, a former U.S. lawful permanent resident, was removed to Italy in November 2012 as an aggravated felon.
- Connecticut Judiciary Committee issued a legislative subpoena seeking Giammarco’s in-person testimony on the impact of state criminal convictions and two private pardon bills concerning his convictions.
- Giammarco applied for humanitarian/public-benefit parole, a visa waiver, and a visitor visa to reenter the U.S.; those discretionary requests were denied.
- After administrative denials, Giammarco filed a petition for a writ of habeas corpus ad testificandum seeking temporary reentry to comply with the state legislative subpoena.
- The District Court dismissed the petition for lack of subject-matter jurisdiction, concluding the petition indirectly challenged discretionary immigration decisions barred from review under 8 U.S.C. § 1252(a)(2)(B)(ii).
- The Second Circuit affirmed, holding the habeas petition was inextricably linked to prior discretionary denials and thus nonreviewable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court had jurisdiction to hear a habeas petition seeking temporary reentry to testify | Giammarco: petition is a direct attempt to comply with a legislative subpoena after exhausting other means; not an indirect challenge to immigration decisions | Government: petition seeks the same relief as denied parole/visa requests and thus indirectly challenges discretionary immigration decisions barred from review | Court: Dismissal affirmed; petition is an indirect challenge to discretionary denials and jurisdiction is barred under § 1252(a)(2)(B)(ii) |
| Whether Delgado v. Quarantillo controls | Giammarco: Delgado is inapplicable because his petition is not linked to a removal order | Government: Delgado’s reasoning applies to discretionary-denial bar too; the substance of relief matters | Court: Delgado reasoning applies; relief sought would render prior discretionary denials invalid, so jurisdiction is barred |
| Whether habeas corpus ad testificandum can override discretionary parole/visa denials | Giammarco: habeas is proper to secure temporary reentry to testify after other options failed | Government: such a writ would effectively overturn discretionary immigration decisions, which are nonreviewable | Court: Writ would nullify prior discretionary denials; court lacks authority to grant it |
| Whether any other arguments permit review | Giammarco: asserted exhaustion and necessity for legislative compliance | Government: statutory jurisdictional bar controls regardless of exhaustion | Court: Remaining arguments rejected; statutory bar precludes review |
Key Cases Cited
- Kucana v. Holder, 558 U.S. 233 (2010) (statutory language can create jurisdictional bar to review of discretionary immigration decisions)
- Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011) (substance of relief determines whether suit is inextricably linked to nonreviewable removal-related decisions)
- Liranzo v. United States, 690 F.3d 78 (2d Cir. 2012) (standard of de novo review for jurisdictional dismissal)
- Bolante v. Keisler, 506 F.3d 618 (7th Cir. 2007) (parole decisions by immigration authorities are discretionary and generally not judicially reviewable)