923 F.3d 53
2d Cir.2019Background
- Ragbir, a lawful permanent resident convicted of wire fraud, has a final removal order since 2006–07 but was released on supervision and repeatedly granted administrative stays of removal through 2016.
- After becoming an outspoken immigration activist (founder of New Sanctuary Coalition), Ragbir engaged in public protests and high-profile check-ins with ICE that drew press attention.
- In January 2018 ICE revoked a pending stay, arrested Ragbir at a scheduled check-in, transferred him toward removal, and detained him briefly; Ragbir alleges these acts were motivated by retaliation for his speech.
- Ragbir sued in district court asserting First Amendment retaliation and viewpoint-discrimination claims and sought injunctive/declaratory relief preventing execution of his removal order; the district court dismissed for lack of jurisdiction under 8 U.S.C. § 1252(g) and denied a preliminary injunction.
- On appeal the Second Circuit (majority) held Ragbir pleaded a cognizable First Amendment claim, concluded § 1252(g) on its face withdraws jurisdiction over such claims, but ruled the Suspension Clause requires availability of habeas corpus to adjudicate his claim; it vacated and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1252(g) bars federal-court jurisdiction over Ragbir’s claim that ICE executed his removal in retaliation for speech | §1252(g) should not strip jurisdiction over constitutional claims like Ragbir’s; statute doesn’t plainly eliminate constitutional review | §1252(g) bars "any" cause or claim arising from decisions to execute removal orders, including constitutional and habeas claims | §1252(g) covers the Government’s challenged conduct and, as amended, purports to bar constitutional claims, but that statutory bar triggers a Suspension Clause analysis |
| Whether Ragbir stated a cognizable First Amendment retaliation/viewpoint-discrimination claim | Ragbir’s political speech is core First Amendment activity; pleadings and declarations plausibly show officials acted because of his speech and its prominence | Precedent limits retaliation claims when probable cause or valid removal order exists (AADC and Second Circuit cases) | Court held Ragbir plausibly stated a claim: his speech is core political speech, the alleged retaliation is sufficiently "egregious/outrageous" under AADC, and prior circuit precedents do not foreclose his claim |
| Whether the Suspension Clause requires habeas review despite § 1252(g)’s jurisdictional bar | Even if Congress intended to remove review, the Suspension Clause preserves a constitutional minimum of habeas relief when no adequate substitute exists | Government contended no Suspension Clause issue if claim fails on merits or plaintiff is not in custody; also argued alternative remedies exist | Held Suspension Clause requires that Ragbir be allowed to pursue habeas relief: no adequate substitute exists, Ragbir is in Executive custody for habeas purposes, and historical practice supports factfinding habeas review |
| Whether Ragbir is "in custody" and whether habeas may include factfinding | Ragbir’s liberty is presently and imminently curtailed by ICE supervision, reporting requirements, repeated stays, prior detention, and threatened removal; habeas may reach claims requiring factfinding | Govt argued Ragbir was not currently in custody and habeas would not change his status; also suggested the merits require factfinding not suited to habeas | Held Ragbir is in custody for Suspension Clause purposes (Hensley framework); historical and statutory practice allows habeas courts to do factfinding, so habeas is available |
Key Cases Cited
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (§1252(g) limits review; rare "outrageous" exceptions)
- Boumediene v. Bush, 553 U.S. 723 (2008) (Suspension Clause protects a constitutional minimum of habeas)
- I.N.S. v. St. Cyr, 533 U.S. 289 (2001) (habeas review principles for aliens; statutory construction and avoidance)
- Hensley v. Mun. Court, San Jose–Milpitas Judicial Dist., 411 U.S. 345 (1973) ("custody" can include release on recognizance/stays; habeas not defeated by formalisms)
- Padilla v. Kentucky, 559 U.S. 356 (2010) (deportation is a severe penalty for lawful permanent residents)
- Mozzochi v. Borden, 959 F.2d 1174 (2d Cir.) (probable cause can defeat certain retaliation claims in criminal prosecution context)
- Singer v. Fulton Cty. Sheriff, 63 F.3d 110 (2d Cir.) (applied Mozzochi standard re: chilling and retaliation)
- Preiser v. Rodriguez, 411 U.S. 475 (1973) (habeas is available to attack future confinement and obtain future release)