975 F.3d 292
3d Cir.2020Background
- Tazu entered the U.S. without inspection in 1993, applied for asylum, and was denied; an IJ granted voluntary departure which became a final removal order in 2003 when he failed to depart.
- In 2009 he was detained for removal but released on supervised release because Bangladesh would not promptly issue travel documents; for a decade he complied with supervision.
- A U.S. citizen son filed an I-130 in 2017; after DHS obtained a renewed passport in early 2019, DHS re-detained Tazu to execute the removal order three days later.
- Tazu sought administrative relief (Form I-212, motion to reopen alleging ineffective assistance) and filed a habeas petition in the District of New Jersey seeking release and a stay while pursuing a provisional unlawful-presence waiver; DHS denied the I-212 and the BIA denied reopening; the District Court denied habeas and a stay.
- Tazu had a pending petition for review in the Second Circuit (which stays removal); he appealed the District Court denial to the Third Circuit, which concluded it lacked jurisdiction and reversed, directing dismissal for lack of subject-matter jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the District Court could review AG's decision to execute removal now (timing of removal) | Tazu: AG may not lawfully execute removal now because doing so would frustrate his provisional-waiver process and motion-to-reopen appeal | Gov: Challenges to the decision/ timing to execute a removal order are actions §1252(g)/(b)(9) funnels to the court of appeals via a petition for review | Court: Jurisdiction lacking in district court; timing/ execution claims must be raised in petition for review (Second Circuit) |
| Whether the District Court could review re-detention procedure (notice, revocation interview) | Tazu: DHS violated its own regulation and due process by re-detaining him without notice and a revocation interview | Gov: Short re-detention was part of executing the removal order and thus falls within §1252(g)/(b)(9) funneling to the court of appeals | Court: Re-detention challenge attacks an action to execute removal; district court lacked jurisdiction; claim belongs in petition for review |
| Whether funneling §§1252(g) and 1252(b)(9) as applied violates constitutional habeas/due process rights | Tazu: Channeling away from habeas denies meaningful judicial review of constitutional claims | Gov: Petition for review (including §1252(a)(2)(D)) provides adequate review; constitutional claims and questions of law remain reviewable on petition for review | Court: No constitutional problem as applied; petitioner can raise his claims in petition for review; statutes are constitutional in this context |
Key Cases Cited
- Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999) (explaining Congress’s funneling of removal-related claims and limiting separate judicial intervention)
- Jennings v. Rodriguez, 138 S. Ct. 830 (2018) (interpreting scope of review limitations and related precedent)
- Garcia v. Att’y Gen. of the U.S., 553 F.3d 724 (3d Cir. 2009) (§1252(g) does not bar challenges to the Executive’s statutory authority where statute itself removes the authority)
- E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177 (3d Cir. 2020) (describing §1252 funneling and limits on district-court review)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (petition for review can encompass claims to the validity of removal orders)
- Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020) (habeas corpus may not afford more relief than immigration-review process in certain contexts)
- Demore v. Kim, 538 U.S. 510 (2003) (distinguishing detention when removal is imminent from indefinite detention)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (addressing limits on detention when removal is no longer reasonably foreseeable)
- Aguilar v. U.S. ICE, 510 F.3d 1 (1st Cir. 2007) (holding §1252(b)(9) funnels claims that are inextricably intertwined with removal proceedings)
- Jimenez-Angeles v. Ashcroft, 291 F.3d 594 (9th Cir. 2002) (recognizing that discretion to execute removal includes timing decisions)