381 F. Supp. 3d 120
D.D.C.2019Background
- Manoel Flor Gomes, a Brazilian national who entered unlawfully ~13 years earlier, was ordered removed in absentia in 2005 after missing his removal hearing; he did not update his address as instructed.
- Gomes lived and worked in the U.S., married a lawful permanent resident, and has a newborn; his wife later filed for his lawful permanent residence, triggering need to reopen the 2005 removal order.
- Gomes moved to reopen in August 2018; the IJ denied reopening in September 2018, the BIA denied a stay in October 2018, and Gomes filed habeas in federal district court in November 2018.
- The district court stayed removal pending litigation; government moved to dismiss for lack of jurisdiction; Gomes sought leave to amend his habeas petition to assert asylum, cancellation, waiver, and CAT relief.
- In March 2019 the BIA remanded Gomes’s motion to reopen to the IJ; meanwhile the district court held a hearing and addressed whether it retained habeas jurisdiction over claims tied to the removal order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| District court habeas jurisdiction over claims tied to removal order | Gomes: habeas is needed to preserve asylum, cancellation, waiver, CAT claims because administrative process may not provide meaningful review before removal | Gov: Real ID Act channels review of removal orders to the courts of appeals; district court lacks jurisdiction | Court: Dismiss for lack of jurisdiction; claims challenging removal are within appellate review under the INA |
| Application of Devitri (Suspension Clause concern) | Gomes: Devitri supports habeas where administrative process leaves no meaningful opportunity to adjudicate relief before removal | Gov: Devitri distinguishable because Gomes has already filed to reopen and raised asylum with BIA | Court: Devitri inapplicable—Gomes has administrative avenues (motion to reopen, BIA, First Circuit stay) |
| Due process challenge to continued detention (Zadvydas) | Gomes: detention violates due process because ICE failed to provide procedural custody-review notice to counsel | Gov: Detention is within Zadvydas six‑month presumption and removal was imminent but for the district court’s stay | Court: Detention claim moot/unsupported—removal was imminent and Zadvydas presumption inapposite |
| Right to remain in U.S. during adjustment/cancellation proceedings | Gomes: entitlement to remain while pursuing provisional waiver, cancellation, and CAT relief | Gov: No due process right to remain; relief sought is discretionary and does not create a protected liberty interest | Court: No cognizable due process liberty interest; discretionary relief does not entitle Gomes to remain |
Key Cases Cited
- Zadvydas v. Davis, 533 U.S. 678 (limits prolonged post-removal-period detention; six-month reasonableness presumption)
- Ishak v. Gonzales, 422 F.3d 22 (1st Cir.) (Real ID Act channels challenges to removal orders to the courts of appeals)
- Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018) (district court held BIA framework as applied could violate Suspension Clause when no meaningful administrative review exists)
- Mejia-Orellana v. Gonzales, 502 F.3d 13 (1st Cir.) (discretionary relief does not create a cognizable liberty interest)