AMIT RAMESH AGARWAL v. ROBERT E. LYNCH, et al.
Case No. 21-cv-12688
UNITED STATES
July 6, 2022
PageID.298
Hon. Matthew F. Leitman
Case 4:21-cv-12688-MFL-EAS ECF No. 18, Filed 07/06/22
/
Petitioner Amit Ramesh Agarwal is a citizen of India. In October 2021, while Agarwal was present in the United States, officers from United States Immigration and Customs Enforcement (“ICE“) took him into their custody, lodged him at the Monroe County Jail, and commenced expedited removal proceedings against him. Agarwal then filed a petition for a writ of habeas corpus in this Court against Respondents Robert E. Lynch, Alejandro Mayorkas, Anthony Blinken, and Merrick Garland. (See Pet., ECF No. 1.) In the petition, Agarwal argued, among other things, that he should immediately be released from custody because (1) he had not, in fact, been ordered removed under a final order of expedited removal and (2) assuming arguendo that a final order of expedited removal had been issued against him, the order was invalid under both the Appointments Clause and the Due Process Clause of the United States Constitution.
On the eve of Agarwal‘s scheduled removal, he filed an emergency motion for a temporary restraining order barring ICE from removing him. (See Agarwal Mot. for TRO, ECF No. 6.) The Court denied the motion because Agarwal had delayed seeking emergency relief and because he failed to persuade the Court, in the extremely limited period of time available for emergency review of his claims, that he had a substantial likelihood of success on the merits. (See Order, ECF No. 12.) A few hours after the Court denied the motion, Agarwal was removed to India.
Respondents have now moved to dismiss all of Agarwal‘s claims under
I
The Court begins with a brief explanation as to how the expedited removal process differs from the standard removal process and with a brief description of Congress’ effort to limit judicial review of expedited removal orders.
A
Under the Immigration and Nationality Act (the “INA“),
For certain classes of immigrants, Congress has created an expedited removal process. The criteria for expedited removal are codified in Section 1225(b)(1) of the INA,
B
Congress has substantially limited the authority of federal courts to review orders of expedited removal. Section 1252(a) of the INA,
Section 1252 of Title 8 defines the scope of judicial review for all orders of removal. This statute narrowly circumscribes judicial review for expedited removal orders issued pursuant to§ 1225(b)(1) . [....] Moreover, except as provided in [Section 1252(e)], [Section 1252(a)] strips courts of jurisdiction to review: (1) “any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an [expedited removal] order“; (2) “a decision by the Attorney General to invoke” the expedited removal regime; and (3) the “procedures and policies adopted by the Attorney General to implement the provisions of [§ 1225(b)(1)].” Id.§ 1252(a)(2)(A)(i) ,(ii) &(iv) . Thus, the statute makes abundantly clear that whatever jurisdiction courts have to review issues relating to expedited removal orders arises under [Section 1252(e)].
Section 1252(e), for its part, preserves judicial review for only a small subset of
issues relating to individual expedited removal orders: Judicial review of any determination made under [§ 1225(b)(1)] is available in habeas corpus proceedings, but shall be limited to determinations of—
(A) whether the petitioner is an alien,
(B) whether the petitioner was ordered removed under [§ 1225(b)(1)], and
(C) whether the petitioner can prove ... that the petitioner is [a lawful permanent resident], has been admitted as a refugee ... or has been granted asylum ....
Id. § 1252(e)(2). In reviewing a determination under subpart (B) above—i.e., in deciding “whether the petitioner was ordered removed under [§ 1225(b)(1)]“—“the court‘s inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually admissible or entitled to any relief from removal.” Id. § 1252(e)(5).
Section 1252(e) also provides jurisdiction to the district court for the District of Columbia to review “[c]hallenges [to the] validity of the [expedited removal] system.” Id. § 1252(e)(3)(A). Such systemic challenges include challenges to the constitutionality of any provision of the expedited removal statute or its implementing regulations, as well as challenges claiming that a given regulation is inconsistent with law. See id. § 1252(e)(3)(A)(i) & (ii). Nevertheless, systemic challenges must be brought within sixty days after implementation of the challenged statute or regulation. Id. § 1252(e)(3)(B); see also Am.
Id. at 426–27.
Immigration Lawyers Ass‘n v. Reno, 18 F.Supp.2d 38, 47 (D.D.C. 1998), aff‘d, 199 F.3d 1352 (D.C. Cir. 2000) (holding that “the 60-day requirement is jurisdictional rather than a traditional limitations period“).
II1
A
Agarwal is a native and citizen of India. (See Pet. at ¶8, ECF No. 1, PageID.4.) Agarwal came to the United States to attend college, and he graduated from Farleigh Dickinson University in New Jersey. (See id. at ¶14, PageID.5.) “[B]eginning in 2009, Mr. Agarwal was the beneficiary of several approved petitions as an ‘H-1B’ nonimmigrant pursuant to
time, Agarwal “operated an electronics business, Best Electronics LLC, of which he was a majority owner and also an employee.” (Id. at ¶15, PageID.5.)
B
Agarwal‘s status as an “H non-immigrant” ended in 2019, and he departed the United States. (See id. at ¶17, PageID.6.) After Agarwal left the country, a federal
“Also in 2019, Mr. Agarwal applied for ... an F-2 nonimmigrant visa in order to return to the United States as the spouse of his F-1 nonimmigrant student wife ... who was pursuing a master‘s degree.” (Id. at ¶19, PageID.6.) Even though Agarwal had been charged with money laundering that same year, his application for an F-2 non-immigrant visa was granted, and the visa “was issued” to him. (Id.)
When Agarwal attempted to return to the United States in December 2019 under his F-2 non-immigrant visa, a Customs and Border Protection (“CBP“) officer “purported to cancel” the visa. (Id. at ¶20, PageID.6.) Agarwal was then arrested for money laundering. (See id. at ¶21, PageID.6.) He was “paroled into the United States for prosecution” and released on a $350,000 bond. (Id.) Agarwal‘s criminal prosecution remained pending for over a year, and he remained on bond in the United States during that time. (See id. at ¶22, PageID.7.)
On July 15, 2021, “Agarwal pled guilty to conspiracy to operate an unlicensed money transmitting business, in violation of
C
Next, ICE Deportation Officer Charles Smith prepared a Notice and Order of Expedited Removal against Agarwal (the “Purported Initial Removal Order“). (See id. at ¶¶ 30–32, PageID.8–9. See also Purported Initial Removal Order, ECF No. 1-11.) The Purported Initial Removal Order was dated October 26, 2021. (See Purported Initial Removal Order, ECF No. 1-11, PageID.72–73.) The Purported Initial Removal Order also had a signature line for Smith‘s supervisor, Acting Assistant Field Office Director Michael Lentz, but that line was blank. (See id., PageID.73.)
The Purported Initial Removal Order informed Agarwal that he was “subject to removal from the United States pursuant to section 212(a)(7)(A)(i)(I) of the INA, as ‘an immigrant who, at the time of application for admission, [was] not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 211(a) of the Act.‘” (Pet. at ¶31, ECF No. 1, PageID.9, quoting Purported Initial Removal Order, ECF No. 1-11, PageID.74.) The Purported Initial Removal Order also stated that Agarwal would be barred from admission from the United States for a period of ten years. (See Purported Initial Removal Order, ECF No. 1-11, PageID.72.) But that was wrong. In fact, Agarwal was subject to only a five-year period of inadmissibility. See
On October 29, 2022, Agarwal, through counsel, “submitted a letter to the Detroit Field Office of ICE Enforcement and Removal
voluntary departure.” (Id., PageID.9–10.) Agarwal sought this relief so that he could leave the United States voluntarily and avoid the future bar on admission that would be a consequence of his expedited removal.
D
As of November 17, 2021, Agarwal had not received any response to his October 29 letter. Nor had he “been referred to CBP for further processing,” “been allowed to withdraw his application for admission and depart from the United States voluntarily,” or been “placed in removal proceedings before an Immigration Judge.” (Id. at ¶36, PageID.10.) Instead, he “remain[ed] confined” at the Monroe County Jail. (Id.)
On November 17, 2021, Agarwal filed a Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief in this Court. Agarwal‘s petition contained three claims for relief, which were captioned as follows: (1) “Detention Without a Final Expedited Removal Order –
As his first request for relief, Agarwal asked the Court to “[o]rder that Respondents release [him] from custody.” (See id. at ¶ 61(a), PageID.15.) He also asked the Court to:
(b) Order that if CBP does not admit [him] in F-2 status following his release from custody, Respondents shall allow [him] to withdraw his application for admission under INA § 235(a)(4),
8 U.S.C. § 1225(a)(4) , and depart from the United States without a removal order, or in the alternative afford [him] removal proceedings before an Immigration Judge under INA § 240,8 U.S.C. § 1229a ;(c) Declare that the [Purported Initial] Removal Order is not a legally valid and final removal order;
(d) Declare that [his] departure from the United States shall not render him inadmissible under section 212(a)(9)(A) of the INA,
8 U.S.C. § 1182(a)(9)(A) , despite the [Purported Initial] Removal Order;(e) Grant such other and further relief at law and in equity as justice may require;
and (f) Grant attorney‘s fees and costs of Court to Petitioner under the Equal Access to Justice Act.
(Id. at ¶ 61(b)–(f), PageID.15.)
E
Shortly after filing his petition, Agarwal learned that Respondents planned to “imminently seek” his removal to India. (Agarwal Mot. for TRO, ECF No. 6, PageID.148.) Therefore, on November 23, 2021, he filed an emergency motion for a temporary restraining order seeking to stop his removal. (See id.) Respondents
filed a response to the motion the next day. (See Resp., ECF No. 8.) Along with that response, counsel for Respondents filed with the Court what Respondents called a “final expedited order of removal”
The Court held two emergency hearings on Agarwal‘s motion, and it denied his requested relief. The Court explained on the record that it could not find, in the extremely compressed time available for emergency review, that Agarwal had demonstrated a substantial likelihood of success on the merits. The Court also noted that Agarwal had delayed in filing his TRO motion and that that delay weighed against the granting of emergency relief. The Court then memorialized its ruling in a written order. (See Order, ECF No. 12.) Agarwal was subsequently removed to India pursuant to the Purported Final Removal Order.
F
Respondents have now moved to dismiss Agarwal‘s petition under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (See Mot. to Dismiss, ECF No. 14.) Respondents first contend that the Court lacks subject-matter jurisdiction over all three of Agarwal‘s claims. In the alternative, they argue that if the Court has subject-matter jurisdiction, then the Court should conclude that Agarwal‘s first claim fails to state a claim on which relief can be granted. (See id.) Agarwal opposes Respondents’ motion. (See Agarwal Resp. to Mot. to Dismiss, ECF No. 15.) The Court held an in-person hearing on the motion on May 26, 2022.
III
The Court begins with the procedural framework applicable to the two grounds on which Respondents seek dismissal. “Motions to dismiss for lack of subject matter jurisdiction [under
Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990), and the court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Id.
“To survive a motion to dismiss” under
IV
The Court will examine Respondents’ challenges to each claim in Agarwal‘s petition separately. For the reasons explained below, the Court concludes that Respondents are not entitled to dismissal of any of Agarwal‘s claims at this time.
A
1
In Count One of Agarwal‘s petition, he sought relief under Section 1252(e), the statutory provision that preserves limited judicial review of expedited removal orders. As noted above, Section 1252(e) permits a district court to review, among other things, “whether the petitioner was ordered removed” under
Agarwal contended in his petition that he was entitled to relief under Section 1252(e) because a final expedited removal order was not in fact issued against him. (See Pet. at ¶¶ 37–46, ECF No. 1, PageID.11–13.) Agarwal explained that under
that certain features of the Purported Initial Removal Order “implie[d]” that it “ha[d] not been reviewed and approved by a supervisor.” (Id. at ¶42, PageID.11.) More specifically, Agarwal pointed out that (1) the Purported Initial Removal Order did “not bear the signature of a supervisor,” (2) “[t]he box on the [Purported Initial] Removal Order that is to be checked if ‘supervisory concurrence was obtained by telephone or other means,’ ... [was] not checked,” (3) “no other written evidence of supervisory review” of the Purported Initial Removal Order was provided to him, and (4) other documents that were provided to him contained additional errors that called into question whether any of the expedited removal paperwork related to him had been reviewed and approved by a supervisor. (Id. at ¶¶ 39–43, PageID.11.) Agarwal therefore insisted that he was being “unlawfully detained ... for the purpose of potentially [removing] him from the United States ... in the absence of any final order of removal under
2
The Court begins with Respondents’ argument that the Court lacks subject-matter jurisdiction over this claim under Section 1252(e). Respondents characterize this claim as one seeking “review [of] the validity
expedited order of removal for validity based on alleged procedural deficiencies.” (Mot. to Dismiss, ECF No. 14, PageID.226, citing Castro, 835 F.3d at 425.) They highlight that under Section 1252(e), this Court‘s review is limited to whether an expedited order of removal “in fact was issued.”
To the extent that this is a facial challenge to the Court‘s subject-matter jurisdiction, it must fail. As explained above, when reviewing a facial attack, “the court must take the material allegations of the petition as true and construed in the light most favorable to the nonmoving party.” Ritchie, 15 F.3d at 598. But Respondents’ argument does not take Agarwal‘s allegations as true. Contrary to Respondents’ argument, Agarwal does not allege that the Purported Removal Orders actually issued but are somehow tainted by a procedural flaw. Instead, Agarwal claims that the Purported Removal Orders, in fact, were not issued because (1) supervisor review and approval is a condition precedent to the issuance of a final order of expedited removal, see
PageID.12.) All of these allegations bring Agarwal‘s claim squarely within the jurisdiction granted by Section 1252(e). Thus, the Court rejects Respondents’ facial challenge to the Court‘s subject-matter jurisdiction over Agarwal‘s Section 1252(e) claim.
To the extent that Respondents mount a factual challenge to the Court‘s subject-matter jurisdiction over Agarwal‘s Section 1252(e) claim, that challenge cannot be resolved on the current record before the Court. As noted above, Respondents’ jurisdictional challenge rests upon their factual assertion that a final order of expedited removal was actually issued against Agarwal before he was removed. They insist that that fact is essentially indisputable because (1) the Purported Final Removal Order was filed with this Court before Agarwal was removed and (2) that order bore the signature of Lentz, an ICE supervisor who was authorized under
Purported Final Removal Order. Thus, the Court cannot yet conclude that the Purported Final Removal Order was “issued.”
The circumstances that raise questions concerning the reliability of Respondents’ version of events and the authenticity of the documents offered by Respondents include the following:
- In the “Certificate of Service” in the Purported Initial Removal Order, the signature line for the “immigration officer” is signed “refused.”
(Purported Initial Removal Order, ECF No. 1-11, PageID.73.) The “Certificate of Service” in the Purported Final Removal Order contains what appears to be white-out fluid over that signature line and includes the signature of ICE Agent Smith where the word “refused” used to be. (See Purported Final Removal Order, ECF No. 8-1, PageID.176.) The apparent use of white out on an official order raises obvious questions. - There is a notation written in blue pen on the last page of the Purported Final Removal Order that says “*REFUSED* Received by Non-Citizens.” (Id.) But ICE Agent Smith says that he provided the order only to Agarwal, not to multiple “non-citizens.” (ECF No. 11, PageID.189.) The reference to “non-citizens” plural creates additional uncertainty about the reliability of Smith‘s account of the relevant events.
- In these proceedings, ICE Agent Smith submitted a sworn declaration dated November 24, 2021 (the “First Smith Declaration“). (See First Smith Declaration, ECF No 11.) The purpose of the First Smith Declaration was to “explain Agarwal‘s order of removal.” (Id. at ¶3, PageID.188.) But the First Smith Declaration creates additional confusion.
- Smith attests that he “served” Agarwal with the Purported Final Removal Order on October 27, 2021. (Id. at ¶¶ 7–8, PageID.189.) But the Certificate of Service for the Purported Final Removal Order reflects that it was served the day before,
October 26, 2021. (See Purported Final Removal Order, ECF No. 8-1, PageID.176.)
- Smith attempts to explain the inconsistency in the service dates by saying that he “re-used the prior certificate of service dated October 26, 2021.” (First Smith Decl. at ¶8, ECF No. 11, PageID.189.) But there is no dated “prior certificate of service” in the record. The only other certificate of service in this record is the one included in the Purported Initial Removal Order, but that certificate of service was undated. (See Purported Initial Removal Order, ECF No. 1-11, PageID.73.)
- Finally, Agarwal vigorously disputes that Smith served him with the Purported Final Removal Order, as Smith contends in the First Smith Declaration. Agarwal avers in his own sworn declaration that he “never received” the signed Purported Final Removal Order from Smith. (Agarwal Decl. at ¶9, ECF No. 15-2, PageID.282.)
ICE Agent Smith also submitted a second sworn declaration in these proceedings dated January 6, 2022 (the “Second Smith Declaration“). (See Second Smith Declaration, ECF No. 14-1.) Like the First Smith Declaration, the purpose of the Second Smith Declaration was to “explain Agarwal‘s order of removal.” (Id. at ¶3, PageID.238.) But the two explanations differ in several potentially significant ways, and these differences raise additional concerns about the reliability of Smith‘s statements to the Court.
- First, in the Second Smith Declaration, Smith appears to abandon his explanation, recounted above, about his “re-use” of the “prior certificate of service.” Indeed, the Second Smith Declaration omits any explanation at all regarding the discrepancy between the date of service on Purported Final Removal
Order (October 26) and the date Smith says he provided the Purported Final Removal Order to Agarwal (October 27). - Second, unlike in the First Smith Declaration, Smith does not attempt to explain in the Second Smith Declaration why the Purported Final Removal Order contains white-out fluid and why he replaced the word “refused” with his signature. There is no explanation in the Second Smith Declaration that could explain why the Purported Final Removal Order has white-out fluid.
- Third, in the First Smith Declaration, Smith explained why he provided the Purported Initial Removal Order to Agarwal even though it was not signed by a supervisor.4 That explanation is omitted entirely from the Second Smith Declaration. The Second Smith Declaration does not acknowledge the Purported Initial Removal Order was unsigned.
- Finally, the Second Smith Declaration says, for the first time, that ICE Deportation Officer Aaron Zylstra was present when Smith met with Agarwal on October 26, 2021, and that Smith provided additional removal forms to Agarwal on October 26 — forms that Smith did not mention in the First Smith Declaration. Officer Zylstra has not submitted a declaration or affidavit confirming Smith‘s version of events. These aspects of the Second Smith Declaration raise additional questions about the reliability of the sworn statements Smith has made to the Court.
- ICE Supervisor Lentz has not presented any evidence to the Court, such as a declaration or affidavit, in which he confirms that he reviewed and approved Agarwal‘s removal and, if he did so, when he approved that removal.
Given these ambiguities, inconsistencies, and gaps in the record, the Court cannot conclude that the Purported Final Removal Order was reviewed, approved, and issued before Agarwal‘s removal from the United States.5
Under these circumstances, the Court chooses to exercise its discretion to permit some limited jurisdictional discovery related to whether the Purported Final Removal Order was in fact issued in the manner claimed by Respondents. See, e.g., Gilbert v. Ferry, 401 F.3d 411, 415 (6th Cir. 2015) (explaining that “[w]hen a defendant challenges a court‘s actual subject matter jurisdiction, as opposed to the sufficiency of the allegations of subject matter jurisdiction in the complaint, the parties must be given an opportunity to secure and present relevant evidence to the existence of jurisdiction“); Sizova v. Nat. Institute of Standards & Technology, 282 F.3d 1320, 1326 (10th Cir. 2002) (explaining that “[w]hen a defendant moves to dismiss for lack of jurisdiction, either party should be allowed
3
Finally, Respondents argue that even if the Court has subject-matter jurisdiction over Agarwal‘s claim under
B
1
The Court next turns to Count Two of Agarwal‘s petition. In that Count, Agarwal sought a writ of habeas corpus under
2
a
In their motion to dismiss, Respondents first lodge a facial attack on the Court‘s subject-matter jurisdiction over Agarwal‘s Appointments Clause claim. They primarily argue that (1)
The Court disagrees. As noted above, Agarwal brings his Appointments Clause claim in a petition for a writ of habeas corpus, and the Suspension Clause of the
The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Agarwal‘s allegations satisfy both prongs of the Boumediene test. First, Agarwal sufficiently alleged that he was not prohibited from invoking the Suspension Clause. As the Third Circuit has explained, a habeas petitioner who has entered the United States may invoke the Suspension Clause so long as he has “developed ... ‘substantial connections with this country.‘” Osorio-Martinez, 893 F.3d at 167–68 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990)). Agarwal alleged that he
Second,
The Third Circuit reached the same conclusion in Osorio-Martinez. In that decision, the Third Circuit explained:
In Boumediene, the Supreme Court took care to explain that habeas review is “most pressing” in the case of executive detention, as opposed to where “relief is sought from a sentence that resulted from the judgment of a court of record.” Boumediene, 553 U.S. at 782–83, 128 S.Ct. 2229. For the writ to be effective in such a case, “[t]he habeas court must have sufficient authority to conduct a meaningful review of both the cause for detention and the Executive‘s power to detain.” Id. at 783; see also INS v. St. Cyr, 533 U.S. 289, 301 (2001) (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest.“). More specifically, the Court declared it “uncontroversial ... that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 779 (quoting St. Cyr, 533 U.S. at 302).
But the INA‘s jurisdiction-stripping provisions do not provide even this “uncontroversial” baseline of review. Instead,
§ 1252(e)(2) permits habeas review of expedited removal orders as to only three exceptionally narrow issues: whether the petitioner (1) is an alien, (2) was “ordered removed” (which we have interpreted to mean only “whether an immigration officer issued that piece of paper [the removal order] and whether the Petitioner is the same person referred to in that order,” Castro, 835 F.3d at 431 (internal citation omitted)), and (3) can prove his or her lawful status in the country.8 U.S.C. § 1252(e)(2) . It also explicitly precludes review of “whether the alien is actually inadmissible or entitled to any relief from removal,” id.§ 1252(e)(5) , and of “any other cause or claim arising from or relating to the implementation or operation of” the removal order, id.§ 1252(a)(2)(A)(i) .
Together, these provisions prevent us from considering “whether the expedited removal statute was lawfully applied to petitioners,” Castro, 835 F.3d at 432 (quoting Am.-Arab, 272 F.Supp.2d at 663), and thus preclude review of “the erroneous application or interpretation of relevant law,” Boumediene, 553 U.S. at 779 (quoting St. Cyr, 533 U.S. at 302). That, however, is the “uncontroversial” minimum demanded by the Great Writ.
Id. For much the same reasons, the Court concludes that
b
Respondents offer two additional arguments as to why the Court lacks jurisdiction to hear Agarwal‘s habeas claim based upon the Appointments Clause. Neither persuades the Court that it may not hear the claims.
i
First, Respondents argue that the United States District Court for the District of Columbia has exclusive jurisdiction over Agarwal‘s Appointments Clause claim. In support of this argument, Respondents rely on
The Court disagrees with Respondents’ characterization of Agarwal‘s Appointments Clause claim as a “systemic challenge.” Agarwal is not challenging the
ii
Respondents next argue that the Court must dismiss Agarwal‘s Appointments Clause claim because the sole relief available through a petition for a writ of habeas corpus – the vehicle he uses to press the claim – is “simple release,” but Agarwal “does not seek ‘simple release,’ and in fact, no longer seeks release at all [since he has now been removed to India].” (Respondents Reply Br., ECF No. 16, PageID.292–293.) This argument rests upon the Supreme Court‘s decision in Dep‘t of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959 (2020). (See id., discussing Thuraissigiam at length).
In Thuraissigiam, a citizen of Sri Lanka was stopped by border patrol agents within 25 yards of the United States border, placed into expedited removal proceedings, and later ordered removed. Thereafter, he filed a petition for a writ of habeas corpus. He alleged that “immigration officials deprived him of ‘a meaningful opportunity to establish his claims‘” that he would be persecuted if returned to Sri Lanka and that he was therefore eligible for asylum. Id. at 1967–68. But he did not seek release from custody. See id. Indeed, “[h]is petition made no mention of release from custody.” Id. at 1968. Instead, he sought only a court order “directing [the Department] to provide [him] a new opportunity to apply for asylum and other applicable relief.” Id. The district court dismissed the petition. It held that
The Supreme Court then reversed the Ninth Circuit. It held that the district court properly dismissed the petitioner‘s
Respondents say that Agarwal is in the same position as the petitioner in Thuraissigiam because, since Agarwal has already been removed, he can no longer seek “simple release.” Respondents further note that Agarwal‘s remaining requested relief — including, for instance, an “[o]rder that if CBP does not admit [Agarwal] in F-2 status following his release from custody, Respondents shall allow [him] to withdraw his application for admission” and a declaration that Agarwal‘s “departure from the United States [does] not render him inadmissible under
But there is a critical distinction between Thuraissigiam and this case. Unlike the petition in Thuraissigiam, Agarwal‘s petition did seek “simple release.” In fact, that was the very first type of relief that Agarwal requested. (See Pet. at ¶61(a), ECF No. 1, PageID.15.) Thus, Agarwal‘s petition contained the element that the petition in Thuraissigiam was missing – the element that the Supreme Court identified as essential to a viable habeas claim.
Moreover, the Court does not read Thuraissigiam to require dismissal of a habeas petition that does seek simple release if the petition happens to couple that request with requests for additional, broader relief.10 Instead, Thuraissigiam requires dismissal of a habeas petition that does not seek simple release at all. Since Agarwal did seek simple release, Thuraissigiam does not require the Court to dismiss his Appointments Clause claim.
That Agarwal has been released from custody such that the Court can no longer grant his request for “simple release” does not change the result here. “Ordinarily, the subject matter jurisdiction of a court is tested as of the time the action is filed and subsequent changes will not operate to divest a court of its jurisdiction once it has been properly invoked.” In re Lewis, 398 F.3d 735, 743 (6th Cir. 2005). And here, when Agarwal filed his petition, it did contain a request for simple release. Thus, when the rule in Thuraissigiam is applied to the proper point in time – the filing of the petition – it does not require dismissal of Agarwal‘s habeas petition.
Furthermore, it is settled habeas law that a district court retains jurisdiction to grant habeas relief where (1) at the time the petitioner filed the petition, he was in custody and sought release from custody, (2) the petitioner was released from custody while his petition was pending, and (3)
For all of these reasons, the Court concludes that it does have subject-matter jurisdiction over Agarwal‘s claim seeking habeas relief based upon Respondents’ alleged violation of the Appointments Clause.
C
1
Finally, in Count Three of his petition, Agarwal sought habeas relief under
2
Respondents assert that the Court lacks subject-matter jurisdiction over Agarwal‘s due process claim for at least two reasons. (See Mot. to Dismiss, ECF No. 14, PageID.234–235.) Neither persuades the Court that it lacks jurisdiction.
First, Respondents contend that
Second, Respondents argue that Agarwal‘s due process claim is the type of “systemic” challenge that had to have been brought in the United States District Court for the District of Columbia within sixty days after implementation of the expedited removal statute. (See id. citing
Finally, even though Respondents do not seek dismissal of Agarwal‘s due process claim under
The Court rejects this argument because it does not accept Agarwal‘s allegations as true as an attack under
(“The petitioner in Thuraissigiam had not effected an entry into the United States and the majority opinion concluded that he accordingly was not entitled to any process beyond that provided for by statute. 140 S. Ct. at 1981–83. Thuraissigiam says nothing about the process due to an individual like Petitioner, who has been present in the United States for more than 30 years and who is seeking not to be allowed into this country in the first instance, but to be freed from detention within it“), vacated on other grounds, 976 F.3d 121 (2d Cir. 2020); Munoz v. United States Department of State, 526 F.Supp.3d 709, 724 n.8 (C.D. Cal. 2021) (explaining that Thuraissigiam and similar cases “draw a distinction between non-citizens seeking initial entry and those in deportation proceedings who have established connections in the United States,” and rejecting reliance on Thuraissigiam because the petitioner “had already ‘established connections in this country’ while living here for ten years“).
V
For all of the reasons explained above, Respondents’ motion to dismiss (ECF No. 14) is DENIED. The Court will now hold a status conference with the parties to discuss next steps in this action, including a period for limited jurisdictional and/or other discovery. IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: July 6, 2022
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on July 6, 2022, by electronic means and/or ordinary mail.
s/Holly A. Ryan
Case Manager
(313) 234–5126
Notes
(A) In General
Judicial review of determinations under section 1225(b) of this title and its implementation is available in an action instituted in the United States District Court for the District of Columbia, but shall be limited to determinations of –
(i) whether such section, or any regulation issued to implement such section, is constitutional; or
(ii) (whether such a regulation, or a written policy directive, written policy guideline, or written procedure issued by or under the authority of the Attorney General to implement such section, is not consistent with applicable provisions of this subchapter or is otherwise in violation of law.
(B) Deadlines for bringing actions
Any action instituted under this paragraph must be filed no later than 60 days after the date the challenged section, regulation, directive, guideline, or procedure described in clause (i) or (ii) of subparagraph (A) is first implemented.