Hamdi Ex Rel. Hamdi v. Napolitano

MERRITT, MOORE, Before and I. FACTUAL AND PROCEDURAL GIBBONS, Circuit Judges. BACKGROUND January On a Hamdi filed com- J., MOORE, the opinion delivered plaint under the DJA and the APA re- MERRITT, court, J., in joined. questing that the district court declare 629-30), GIBBONS, (pp. J. a delivered that DHS’s proceeding removal involving separate concurring opinion. mother, Elgharib,

his Fatiha contrary is OPINION law under the U.S. Constitution and inter- law national because Hamdi is a U.S. citi- MOORE, KAREN NELSON Circuit zen, syndrome has Down and numerous Judge. issues, dependent medical and is on his Hamdi, un- Sami the minor child of an well-being. mother his care and Spe- immigrant, complaint documented filed a cifically, complaint alleges: Declaratory Judgment Act being 10.Plaintiffs’ father pre- [sic] (“DJA”), 28 U.S.C. and the Admin- pursuing vented from a remedy (“APA”), istrative Procedure Act 5 U.S.C. available him in in law violation prohibit Department of of right law, his to due of process (“DHS”) Security Homeland from remov- separation II. The of severely this ground his mother child his handicapped mother his mother’s removal violated own consti- constitutes a form of cruel and un- tutional rights as an American citizen. child, punishment usual to this severely depen- Hamdi is and is disabled separation 12. The of severely dent on his care. mother’s The district handicapped American child from complaint court dismissed the for lack his and primary mother caretaker jurisdiction under 1252(g), 8 U.S.C. find- treats family this child and his dif- ing that Hamdi his “on brought complaint ferently from other in children behalf of’ his mother and that no other State of since Ohio the standard nonstatutory statutory or laws provided relating children in domestic and jurisdiction. appeals, arguing first juvenile in law the State Ohio is that the behalf language “on alien” that of the best interest of child does not bar over Equal and thus is violative of the brought pro- under the DJA to law, Protection of the tect the distinct constitutional parent’s separation minor 13. The from mother de- child affected and, second, prives proceedings, that the this child of the continued Consti- tution, law, love, international “the affection and care of his moth- customs usages er provide primary civilized nations” caretaker viola- 44/25, 9 and 16. 20 Dec. Arts. Res. the Ninth Amendment

tion of Constitution, illegal children of American citizen States the United declaratory ac- judgment aliens file severely- of this separation 14. The actions do violate tion since such his mother child from handicapped Gonzales, See, Act, Kruer v. ID Real interna- principles violates the LEX- 2005 U.S. Dist. 2005 WL treaties declarations tional 2005). (E.D.Ky. June IS 13030 signa- States is which the United Statement) Decla- to wit: Universal tory (Compl. Id. Jurisdictional UNGA, Rights, Human ration of original). (formatting errors 217(111), 10 Dec. Resolution a to dismiss for lack of filed motion DHS on Eco- International Covenant February on subject-matter jurisdiction Rights, nomic, and Social Cultural com- in lieu of an answer to the (XXI), 220A 16 Dec. Res. UNGA that Hamdi did not asserting first plaint, (IESCR), Declara- Universal a standing bring the suit without have to ECHR, on tion Convention Art. remov- separable injury from his mother’s Child, Rights the the and, that 8 alternatively, proceeding, al 44/25, Res. 20 Dec. UNGA juris- (g) preclude and U.S.C. 16. Arts. 9 and failed to estab- complaint diction the ¶¶ (“Doc.”) 2 10- (Compl. at DJA, APA, Dist. Ct. Doc. jurisdiction under the the lish 14). prop- was claimed Hamdi laws. Hamdi re- or other international in the Court for the South- er U.S. District In a February on 2009. sponded under the DJA ern District of Ohio decision, the district court March the APA because rejected contention that Hamdi DHS’s mother, satisfy standing requirements Elgharib could

the Plaintiffs Fatiha allegation the it that Hamdi’s because found has been ordered removed deprive his removal would in violation of the Consti- mother’s United States caregiver him a primary of his was suffi- specifically tution States United (Dist. injury Op. Doc. 11 Fifth and cient fact. Ct. Process Clause of the Due 2-3). However, Amendments, granted the court Equal Fourteenth dismiss, Clause, concluding motion that 8 Amend- DHS’s Eighth Protection ment, Hamdi’s com- 1252(g) and inter- barred the Ninth Amendment any one initiated “on behalf of plaint as national treaties United arising by action alien from the decision or signatory: States a The Universal UNGA, Attorney to ... re- Human General execute Rights, Declaration any 217(111), orders alien.”1 against Inter- moval Resolution Dec. Economic, con- 1252(g). The district court national on Social U.S.C. Covenant “in analogous 220A “on behalf of’ as Rights, Res. strued and Cultural UNGA (XXI), (IESCR), of,” it found Hamdi’s the interest Dec. 1966 Universal ECHR, fell complaint Art. 12 within Declaration Convention Child, prevent Hamdi’s redress was Rights 1989 UNGA on title, juris- court shall 1252(g), jurisdiction,” 1651 of such no "Exclusive Section any by cause or claim or states: diction hear arising any from decision behalf of alien Except provided in and not- this section Attorney com- General to or withstanding any provision of law other cases, adjudicate ex- proceedings, or mence including (statutory nonstatutory), sec- or against any alien un- ecute removal orders Title other habeas 2241 of chapter. this corpus 1361 and der provision, sections -something anticipatorily that his the district court mother’s denied removal— to stay in accom- motion had been unsuccessful Hamdi’s mother’s removal mother litiga- pending appeal. Id. at previously through separate 7-8. plishing (Dist. (citing at 4 Op. tion. Doc. Ct. appeals from the dismissal of his Romero, United States A separate claims.2 panel this court Cir.2002) (interpreting the “on stay denied Hamdi’s motion his moth- Sentencing language of’ behalf but, pending appeal, er’s removal with reference to Guidelines Webster’s DHS, April through the U.S. Im- Dictionary))). Third New International migration and Enforcement agen- Customs (“ICE”), cy stayed rejected also her for one district court year. subject-matter ju- asserted other bases

risdiction, concluding DJA neither the II. ANALYSIS provide nor the APA could independent jurisdiction, that sources We review de novo district-court none of the treaties Hamdi cited were complaint decision to dismiss for lack of binding, and that Hamdi had failed to es- subject-matter jurisdiction, and accept we alleged any tablish how “customs and us- findings factual that the district court provide of civilized nations” could ages analysis made in its it unless committed subject-matter jurisdiction. States, basis for Id. clear error.3 Davis v. United 499 5-7). (Dist. (6th Cir.2007). order, at In the Op. Ct. same F.3d 593-94 analysis subject-matter jurisdiction 2. The district-court order stated in a footnote under reasoning required the same and for his APA whether claim is redress- able, court to may to dismiss Hamdi’s claims related his aspects we address both of DHS’s prevented mother’s order of removal also motion on de novo review. Winnett v. exercising jurisdiction Inc., court from over the (6th Caterpillar, 553 F.3d 1007-08 complaint allegations Cir.2009) Indus., related to Hamdi’s fa- (citing Rogers v. Stratton (Dist. immigration Inc., ther's issues. Doc. 11 Ct. (6th Cir.1986) ("re- 798 F.2d 917 1). Op. 2 appeal n. Hamdi’s brief on did viewing 12(b)(1) an issue raised under Rule any arguments not raise related to father’s his 12(b)(6)’ plaintiff ”)). 'as had a Rule if filed status, immigration and we address do not Here, parties viability both briefed any potential related issues thereto. impact Hamdi’s constitutional and the claims jurisdictional-bar provisions § 1252 3. The district court decided to DHS's motion argument headings under their related to entirely grounds dismiss on the that the com- APA, 1252(g) and the and no additional plaint subject-matter juris- failed to establish argument party from either would alter our diction, arguments because DHS's in its subject-matter jurisdic- ultimate decision on accompanying memorandum of law its mo- grounds. tion or failure-to-state-a-claim As primarily ground. tion had focused on this recognized, this court has However, DHS stated in its also motion jurists struggled "Generations of complaint failed to state a claim difficulty distinguishing between Rules upon granted, be which relief can albeit with 12(b)(1) 12(b)(6) question in federal 12(b)(1), a citation Fed.R.Civ.P. ” Nowak cases.... v. Ironworkers Local 6 Pen- accompanying DHS’s of law memorandum Fund, (2d Cir.1996). sion F.3d arguments included related to the merits theory, (Mot. In clear: "the difference is former Doc. 7 Hamdi’s claims. See Dis- miss). drafted, plaintiff right Although inartfully ju- determines whether the has a DHS's particular be in and the arguments may latter is an risdictional also be construed adjudication cognizable arguments legal as to whether that Hamdi has failed state a upon may granted claim has been 5B which relief be be- stated.” Charles Alam Wright cause he R. has no meritorious constitutional Miller, & Federal Arthur Practice claim, (3d ed.2004). and no federal court review Yet in Procedure practice, mer- mother's order of removal. Because the “the difference the two between mo- its of Hamdi’s claim are relevant our often Id. tions is difficult to discern.” are entirely lacking pleaded their but there facts parties focused appeal, On complaint in the from which the court’s briefing whether 8 U.S.C. inferred, then mo- jurisdiction may be exercising barred the district court 12(b)(1) motion tion to dismiss under Rule subject-matter jurisdiction over Hamdi’s denied.”). However, may must also be we complaint and whether Hamdi was suffi rea- affirm the court’s dismissal for district ciently agency action to state aggrieved other those if dismissal is sons than stated subject-matter jurisdic providing a claim ProPride, Hensley appropriate. Mfg. parties the APA. Neither the (6th Inc., Cir.2009); Ap- F.3d whether nor district court discussed (6th Glenn, ple juris assert could Cir.1999). ju general federal-question diction under jurisdictional will each issue address pursuant risdiction to 28 U.S.C. turn, care to “a famil taking remember court, by ground the district whether principle statutory iar construction: the 1252(g), ing its decision favoring judicial of ad presumption impact potential jurisdictional avoided the Holder, action.” Kucana v. ministrative raised of 8 U.S.C. DHS — - U.S. -, -, Although party specifically below. neither - (2010). -, so, we L.Ed.2d Even appeal, addressed 28 U.S.C. “ address these issues mindful that the Su independent obligation are ‘under recently Court reasserted that preme “[a] own jurisdiction,” examine’ Baird [our] affecting statute federal ‘must Cir.2001) Norton, construed both with and with precision be Dallas, FW/PBS, City (quoting Inc. v. fidelity to the terms by Congress 596, 215, 231, 107 493 110 S.Ct. U.S. ” expressed has its wishes.’ Id. at 840 (1990)), that the dis L.Ed.2d 603 INS, Fan (quoting Cheng Kwok 392 trict court to determine whether Hamdi’s 1970, 20 L.Ed.2d 88 S.Ct. complaint adjudicated any could be (1968)). 1037 complaint, grounds supported in the Estate Comm’r, Mueller v. 153 F.3d 304 The A. Bar of 8 Jurisdictional U.S.C. (6th Cir.1998). may determine that We 1252(g) Apply § Does Not to Inde- subject- lack the motion to dismiss for pendent Brought by Actions a Citi- matter jurisdiction should have been de Raising zen Child Distinct Constitu- pleaded nied if are complaint facts in Rights tional jurisdiction. O’Bryan sufficient to infer Ham The district court dismissed (6th Cir.), See, Holy F.3d 375-76 556 complaint part di’s in on the of the basis — denied, U.S. -, cert. 130 S.Ct. in jurisdictional 1252(g). bar Section (2009); 175 27 5B L.Ed.2d A. Charles 1252(g) precludes the federal courts from Wright Miller, & Arthur R. Federal exercising subject-matter jurisdiction over at 200-01 Practice & “any any claim by Procedure cause or or on behalf of (3d (“[I]f ed.2004) allegation of the by alien from the or arising decision adjudi- district is proceedings, court’s insufficient to commence [DHS]4 Recoveries, Gunter, 1252(g) specifically Primax Inc. v. 4. Section references “the General”; (alteration however, (6th Cir.2006) origi- Attorney in as a result nal). Indeed, Security it have been error for the Act of all statu- would Homeland questions tory Attorney district court to rule on merits references to the General in deciding immigration after that lacked it statutes are construed as refer- jurisdiction. encing appropriate See Steel Co. v. official. See El- DHS Citizens for F,3d Env’t, 83, 94-95, gharib v. Napolitano, Better 523 U.S. (1998). (6th Cir.2010). L.Ed.2d cases, Homecare, cate or execute removal orders ex ed States rel. A+ Inc. v. Inc., Mgmt. against any Group, under this Medshares chapter.” alien 400 F.3d (6th Cir.2005) 428, 442 (citing DHS that the United 1252(g). maintains Wells, 482, 490-92, States properly interpreted district court Hamdi’s (1997))). 5.Ct. L.Ed.2d 107 The brought complaint as “on behalf of’ his reading “natural of the full text” requires mother, in proceedings, an alien examine we plain statute its relief re- allegations and the “ meaning, including language ‘the and de quested interest are “in the of’ his mother ” sign of the statute as a (quot whole.’ Id. inextricably intertwined with his moth- Parrett, 429). “If the er’s removal argues order. statutory clear, language is brought this action is “on him- behalf of’ examine the legislative relevant history.” self to own enforce his constitutional Parrett, 530 F.3d at 429. violated the order of his mother’s re- We conclude that Hamdi’s claims do not moval and that his mother an inci- only fall within the meaning 1252(g). Al beneficiary agree dental the action. We many though courts have dismissed actions Hamdi, conclude 1252(g) brought by, or asserting rights of, preclude does not the district court from child, citizen few have courts addressed exercising jurisdiction over com- 1252(g). Dictionary definitions are not plaint complaint adequately because the extremely helpful analysis. to our Black’s independent raises his claims on his own Dictionary (9th ed.2009) does not de Law behalf. phrase “behalf’5; fine the “on of’ or behalf proper interpretation (11th ed.2004) defines Merriam-Webster “on language behalf of’ is a phrase of; as “in the interest also: as impression matter of first circuit of,” representative and further defines (and circuits). all apparently in “interest, benefit; “behalf’ also: sup statutory de novo such questions inter port, defense.” We have found two Parrett, pretation, United States v. directly courts addressed the (6th Cir.2008), F.3d employing a §of impact 1252(g) aon citizen child’s three-step legislative-interpretation frame Gonzales, In complaint. Kruer v. No. 05- by work the Supreme established Court: 120-DLB, 2005 WL 1529987 (E.D.Ky. “ ‘first, reading text; a natural of the full 2005) (unpublished June opinion), the second, the common-law meaning rejected district court applicability the of statutory terms; finally, and consideration 1252(a)(5)6 jurisdictional the bars in and of the statutory legislative history and for (g) because “the face of the children’s Peti ” guidance,’ v. Napolitano, Lockhart 573 tion does not is being brought indicate it (6th Cir.2009) (quoting behalf, Unit on their mother’s though this be 5. Black's Law ...; "repre does define of benefit on of means ‘as the Dictionary behalf " part as "[t]he sentation” in act or an instance agent representative or of.' another, standing acting of for on or behalf of client”; esp. by lawyer a on behalf of a 1252(a)(5) “judicial 6. Section defines review” "representative” definition of includes "[o]ne purposes of 1252 and establishes that "a who acts stands for or another.” behalf of petition for appropriate review filed with an (9th ed.2009) (repre Dictionary Black's Law appeals court with this accordance sec- 2; representative sentation definition defini tion be the shall sole and exclusive means for 1) added). (emphases tion Modern Garner's judicial review of an order removal entered Usage (3d ed.2009) "behalf” defines American any provision chap- issued of this phrases, stating with reference two to “[i]n 1252(a)(5). 8 U.S.C. ter.” ‘in the means interest or for the behalf of lack- expedite “re “to aliens their and tended filing,” the indirect result in remain authority legal so basis to United binding reveals no search States”); Reno Am.-Arab Anti-Dis- on the v. brought terpreting [as the statute (AADC), at *2 n. 3. crimination Comm. Id. behalf].” mother’s 482-86, im L.Ed.2d found S.Ct. Kruer district court (1999). cautious, however, not review We must applicability to be limited its plicitly broadly jurisdiction-stripping subject interpret to the individual sought explicit con- provisions at *3. With this conclu the absence Id. removal order. AADC, intent. 525 U.S. at 480- sion, “accepted]” gressional the Kruer district 936; Reno, action Prado v. 198 F.3d citizen children’s jurisdiction of (1st Cir.1999) (“In [AADC], rejected prejudice. merits with and that by “accept Supreme taught interpreting Court (summarizing holding *9 Id. at IIRI- jurisdiction jurisdiction limiting provisions had ing” that court reading v. textual standing). requires In Coleman RA close had plaintiffs (N.D.Ill. States, jurisdiction con- F.Supp.2d 757 that restrictions on should United 2006), 1252(g) tightly precise language form cho- court held that district by Congress.”). not to bar sen apply did presented the child’s the citizen child’s suit it is in Hamdi’s own interest While in rights separate own redressable litigate his claims that his mother’s remov jury only incidentally benefit would al order violates his distinct constitutional Id. Re immigrant parent. at 763-66. plainly it benefit well rights, would her as precedents narrow con lying favoring if were be successful and to limits, the dis jurisdictional struction of judicial the relief he secure seeks— solely plain trict court what “the looked and cancellation of his mother’s removal that “[s]ec text makes clear” reasoned argue One could Hamdi is order. here because apply does asking the federal courts to take his moth by citizens not bar claims statute does arguments er’s substantive and convert (because ‘by brought such claims are not seeking them into his the relief own alien’) any alleging ... or that removal denied, remedy has but the that she been personal ders violate the citizen’s distinct Hamdi seeks does not dictate the sub (because ‘on such are not claims complaint. of his stance Mustata alien’).” (citing Id. at 765 behalf Justice, 1021-23 Dept. of Fasano, F.Supp.2d Maldonado Cir.1999) (distinguishing an ineffec (S.D.Cal.1999) (citing Lindahl asking tive-assistance-of-counsel 768, Mgmt., Personnel 470 U.S. Office stay of a order from a deportation a 1620, 779-80, 674 105 S.Ct. 84 L.Ed.2d 1252(g) § to the execution of the challenge Doe, (1985)); Webster v. 486 U.S. itself); v. Aguilar order U.S. Immi cf. (1988)). 2047, 108 S.Ct. 100 L.Ed.2d 632 & Div. gration Customs Enforcement Sec., 1, reasoning per- find 510 F.3d Dep’t We the in Coleman the Homeland (1st Cir.2007) § (holding recognize provisions that the 16-17 suasive. We jurisdiction of U.S.C. 1252 are to narrow barred 28 U.S.C. 1331 even 8 intended availability judicial though for re- on face of undocumented available orders, complaint precluding federal courts aliens’ because “substance moval subject-matter jurisdiction trumps through form” “we must look exercising and many easy labeling final order as creative over claims related to a such evasions Kucana, nature of the of removal. 130 S.Ct. 838 consider fundamental Congress’s “aggres- ... collective (emphasizing [to not] claims asserted allow in- congressional to were end runs around directives” sive[]” amendments 1252

623 Nashville, however, alia, (citing, “[immigration inter C. & St. L. proceedings 249, Wallace, 259, ... governed by are the APA” Ry. v. 288 U.S. S.Ct. 345, (1933); “Congress provisions 77 L.Ed. 730 Penhallow v. intended of the (3 Dall.) Adm’rs, 54, Immigration Nationality Act Doane’s U.S. of 1952 (1795))). (INA) hold ... L.Ed. 507 com to the APA in supplant immi brought by gration INS, citizen child plaint proceedings.”8 U.S. who Ardestani v. 133-34, 515, asserts his or her own distinct constitu S.Ct. separate injury tional does not L.Ed.2d 496 (citing Marcello v. Bonds, fairly fall within the “on behalf of 99 L.Ed. (1955)); jurisdictional Reno, bar 1252(g). alien” Robert 25 Fed. (6th Cir.2002) challenges constitutionality Appx. Hamdi (unpublished (“The mother, the final order of for opinion) simply his APA gov does not his claim his immigration but asserts own distinct con ern proceedings under Thus, rights. stitutional the district INA used to challenge not be INA”). improperly upon hearing provisions relied dis But see missing complaint. Hamdi’s Acosta v. Gaffney, F.2d 1156-58

(3d Cir.1977) (holding citizen child had B. The Administrative Procedure Act standing under APA and 8 U.S.C. Subject-Matter Does Not Provide § 1329 to assert a challenge constitutional Here Jurisdiction parents’ to no removal but constitutional removal). right prohibit result, As a

Hamdi argues alternative the APA subject-matter does not provide constitutional- and international- jurisdiction in the instant case to the ex provide law-based claims basis sub tent that Hamdi seeks review of his moth ject-matter jurisdiction under the APA.7 Instead, er’s order of removal. the APA’s yet This circuit has not addressed whether general sovereign waiver immunity jurisdiction APA provide can for citi respect non-monetary applies claims challenge immigration zen children to allow Hamdi’s distinct constitutional now claims proceedings, but we conclude that proceed district attempt gener assert court’s al federal-question subject-matter jurisdic jurisdiction solely under the APA is una APA, vailing. tion of To utilize the 28 U.S.C. see Hamdi must United States Detroit, sufficiently alleged City that he is “suffer 520-21 (6th Cir.2003) (en ing legal action, banc), wrong agency because of especially in light adversely or aggrieved by affected of “the presumption favoring judicial re 702; agency action.” Bangura action,” Kucana, 5 U.S.C. view of administrative Hansen, 839; 434 F.3d 498-500 130 S.Ct. at also see Ikenokwalu- Cir.2006). held, Supreme Gonzales, Court has White v. actually independent subject did not contest the district basis federal matter court's denial of under the jurisdiction”). DJA appeal § on but rather focused on applica- and the APA. Were we to address the Indeed, 1252(a)(1) 8. specifically § 8 U.S.C. DJA, bility of the we would conclude that it "judicial states that review of a final order provide subject-matter jurisdic- also does not governed only by of removal ... chapter is Skelly Phillips tion. See Oil Petroleum. Co. 28, provided 158 except of Title as in subsec- Co., 667, 671, 876, 339 U.S. 70 S.Ct. 94 L.Ed. (b) tion section.” 8 this U.S.C. of (1950) (holding Congress enlarged 1194 added). § (emphasis We discuss remedies, range of court available federal not (b) impact below the of subsection on Ham- jurisdiction, under the DJA because "[i]t is di's claims. [DJA] well-settled that the cannot serve as an

624 Arbaugh v. Y H Cir.2007) & in context United States.” (reaffirming, 1235, 500, 513, 126 S.Ct. suit, Corp., 546 U.S. that “the Adminis-

aof citizen-child’s (2006). 701, Act, § et 163 L.Ed.2d 1097 5 U.S.C. trative Procedure as a in instances serve seq., may some standing In addressing government’s sover- the federal waiver of the district court bring claim before through immunity, general eign APA arguments and in its related jurisdiction of U.S.C. question federal 28 subject-matter appeal, argues on DHS 1331, empower the federal district has jurisdiction lacking is because Hamdi timely appeals from certain to hear courts failed to a violation of constitution assert Reno, 197 (citing Sabhari v. Board orders” However, “[jjurisdic ally protected right. (8th Cir.1999))); 938, accord 942-43 by possibility tion is not defeated Frazier, 822, Ginters v. fail to state a cause might the averments (8th Cir.2010) continuing va- (affirming the could actual petitioners on which lidity after the enactment of of Sabhari ly recover.” Steel Co. Citizens for 1252(a)(2)(B) Supreme and the Court’s 83, 89, Better 523 U.S. 118 S.Ct. Env't Kucana). in decision (internal (1998) 1003, 140 quo L.Ed.2d 210 omitted). alterations tation marks and Federal-Question Subject-Matter C. so, invoking federal-ques Even “[a] 28 1331 Jurisdiction Under jurisdiction under 28 U.S.C. tion 1331 Appropriate Is subject- ... for want of be dismissed Raising 1. A Child Distinct Citizen colorable, jurisdiction matter if it is not Rights May Assert Constitutional i.e., if it made solely is ‘immaterial and Federal-Question Subject-Matter purpose obtaining jurisdiction’ is ” Jurisdiction ‘wholly and frivolous.’ Ar insubstantial 10, baugh, at 513 n. 546 U.S. 126 S.Ct. agree with the We district Hood, 678, 327 (quoting Bell v. U.S. inju a sufficient Hamdi has asserted (1946)). 682-83, 773, 90 L.Ed. 939 S.Ct. ry standing purposes, but fact for previously explained propri conclude that the district court erred ety of this basis: dismissal on that the constitutional na recognizing alleged ju ture for lack of injury, apparent of Hamdi’s “Dismissal complaint, provided risdiction inadequacy the face of the sub ject-matter jurisdiction ques proper only as a claim is when federal federal insubstantial, meaning implausi tion claim is ‘so within the 28 U.S.C. Servs., ble, decisions prior Reno v. Catholic foreclosed of this Soc. Inc., Court, completely 113 S.Ct. or otherwise 509 U.S. devoid (holding a chal merit not to involve federal contro L.Ed.2d 38 ” versy.’ lenge adjustment-of- used Co. v. Citizens a Better regulations Steel 83, 89, 118 lacking was not a statu En 523 U.S. S.Ct. applications status v't (1998) (quoting tory jurisdiction source “since 28 U.S.C. L.Ed.2d Oneida granting ques County Indian New York v. generally federal Nation of Oneida, jurisdiction, S.Ct. ‘confer[s] ” (1974)). agency to review action’ 39 L.Ed.2d 73 This re federal courts Sanders, substantiality quirement or non-frivo (quoting Califano (1977))). question L.Ed.2d of the federal refers lousness any legal “A “to plaintiff properly juris invokes whether there substance present plaintiff to the is pleads position diction when she colorable claim ing.” under’ the Constitution or laws of 13B Charles ‘arising Wright, A. Arthur prohibited H. federal district courts are from R. Miller Cooper, Federal & Edward (2d § 3564 order, vacating and reviewing removal and Procedure Practice ed.1984). the ultimate relief Hamdi seeks. complaint can be to the Recoveries, Gunter, Hamdi’s reduced Inc. v. Primax (6th Cir.2006); also Ai- claim that because Hamdi has constitution- see Holder, 510, 514 Fed.Appx. chai Hu al that his mother’s rights order of remov- (“A Cir.2009) (unpublished opinion) affects, adversely al and because DHS did if immaterial is not colorable it is in imposing consider only support jurisdiction, to and asserted removal, his mother’s order of Hamdi is utterly is and frivo- or if it insubstantial relief. requested entitled to His relief is lous”). Although many prec- circuit-court district court re- the federal should edents, circuit, including some from this and, mother’s order of view his may undermine Hamdi’s constitutional taking proper account of his constitutional claims, claims say we cannot that his rights, cancel that removal order. In its subject-matter for lack of be dismissed below, arguments DHS asserted jurisdiction grounds on the' of insubstan- 1252(a)(5)10 1252(b)(9),11 and preclud- or tiality frivolousness.9 court ed the district from sub- exercising Proper 2. Dismissal Was Because jurisdiction ject-matter over Hamdi’s Hamdi Constitu- Fails to State a Although acknowledge claim. we that the Upon tional Relief Claim Which provisions 8 U.S.C. apart of even May Be Granted above, from discussed in- are availability judicial tended to narrow the of Hamdi has to state a claim failed upon granted which relief can be of removal review orders and for claims title, pursuant also such 9. Hamdi relies on international treaties 1651 of and review usages provision "the civilized any (statutory and customs and of na- other of law or jurisdiction. to assert nonstatutory). tions” jurisdiction Because conclude that 1252(b) Requirements 11.§ for of or- based on constitutional review available Hamdi's claims, we need not decide ders of removal whether subject-matter jurisdiction could establish respect With to review of an of re- order bases. these (a)(1) moval subsection sec- under of this tion, the review Exclusive means of requirements following apply: ... Con- Notwithstanding any provision of law other questions judicial solidation review (statutory nonstatutory), including or sec- questions of all and Judicial review of law any 2241 of tion Title or other habeas fact, including interpretation applica- corpus provision, and sections statutory constitutional and provi- title, petition such review filed sions, arising any pro- from action taken or appropriate appeals court ceeding brought to remove an alien accordance with this be the section shall subchapter the United States under this judicial sole exclusive means for review judicial shall available be review an order of or removal entered issued Except any a final under this provision chapter, except order section. as of this 1252], (e) provided provided in otherwise in this section [§ as subsection section. purposes every provi- jurisdiction, chapter, For of this no shall have habeas judicial corpus that limits or review under section 2241 or sion eliminates of Title 28 review, "judicial any corpus provision, by or the terms other habeas sec- title, "jurisdiction by any review” in- or 1651 of such review” tion 1361 or corpus pursuant provision (statutory of law clude habeas review other or nonstat- utoiy), 2241 of Title other habe- such an order or such section corpus provision, questions 1361 and of law or fact. sections 626 removal, arising limitation” for “all claims dictional] a final see

arising from order of AADC, AADC, proceedings.” Kucana, 838-39; deportation from 525 130 S.Ct. at 482-83, 936; see at 119 S.Ct. 482-86, conclude S.Ct. U.S. Baker, Muka v. F.3d jurisdictional of bar scope that the the Cir.2009) of (explaining impact 1252(b)(9) district preclude § does not the 1252(a)(5) (b)(9) judicial channel § & juris- exercising subject-matter court from orders). “By of legality review of removal However, claim. over Hamdi’s diction terms, provision the aims to consolidate its 1252(b)(9) operate the preclude § does of law fact’ that ‘arise questions ‘all providing particular from district court ‘proceeding’ an or a from’ either ‘action’ review of judicial that Hamdi relief seeks— in connection with the removal of brought n his and cancella- mother’s order removal Aguilar, at 9. an alien.” tion of that order. 1252(b)(9) Indeed, chan- judicial § “is a — -, -, Holder, In Nken v. U.S. claim-barring one.” neling provision, L.Ed.2d 550 129 S.Ct. We, like Id. at 11. the First Circuit (2009), Supreme explained Court interpretation cannot Aguilar, endorse judicial immigration “changes in review of “arising language from” Im brought Illegal procedures 1252(b)(9) § all claims “swallowfs] Respon migration Immigrant Reform and upon, or be might somehow touch (IIRIRA), sibility of 1996 110 Stat. Act to, government’s efforts to re- traced 3009-546, substantially amended an alien.” Id. at 10. move (INA), Immigration Nationality Act Furthermore, if had intended Congress seq.,”: § 1101 et U.S.C. result, it accomplish far-reaching so substantially review system The new language. have used could broader Cf. judicial review availability limited the Ctr., Inc., McNary Refugee v. Haitian to a re- challenges and streamlined all single proceeding: order into a moval that if (suggesting L.Ed.2d 1005 See, e.g., for petition review. Congress provision intended a certain § (barring review it expansively, the INA to be read more certain removal orders and exercises used lan- expansive could have more 1252(b)(3)(C) discretion); executive Congress For guage). example, would briefing (establishing filing strict to” instead have used term “related proceedings); deadlines from.” “arising Humphries [v. 1252(b)(9) challenges (consolidating Employees], Various Fed. USINS review). petition into (5th Cir.1999) [936,] (suggest- 943[ ] 1252(b)(9) Although Id. has been de- signifies a some- “related to” ‘zipper’ from”). scribed as “unmistakable “arising what looser nexus than clause,” AADC, U.S. at S.Ct. Here, Id. Hamdi’s claim raises his distinct judi- scope its reaches claims for alleges constitutional that he his “arising taken cial review adversely affects. mother’s removal order brought an alien.” proceeding to remove can decide this of Hamdi’s consti- issue 1252(b)(9). has Supreme Court rights separately tutional from the merits 1252(b)(9) 1252(g), contrasted his itself of the order of mother’s removal juris- stating is broader rights is this issue of Hamdi’s legali- limitation dictional for review of the his question from the of whether distinct than ty of final orders of order of removal is invalid based mother’s § 1252(g) and “the normal failure to the effects of demonstrates on DHS’s consider imposing juris- separation from his mother. [general potential manner of such a

627 (“[Rjemoval proceedings id at 11 are and piecemeal See nature of the pro- determining particu- previously to whether cess that had sway confined held in re- gard to deported.” (citing proceedings,” lar alien should be 8 removal Aguilar, 1229a(c)(l)(A))). 9, judicial § 510 F.3d at and instead A de- is consistent U.S.C. precedents with that chal- termination Hamdi’s constitutional allowed in lenges proceed to the by are from district court be- rights separation violated his petitioner cause the did not judicial challenge is distinct determina- mother from order of removal13 or because an questions any available “arising tion from remedy would not affect the re- order of or proceeding brought taken to remove moval.14 id at 10-12 (finding 1252(b)(9); support § McNary v. alien.”12 see Hai- 1252(b)(9) reading for “a bounded Ctr., Inc., 479, [§ ]” Refugee tian 498 U.S. 494- “the fact certain claims are exclud- 888, S.Ct. 112 1005 111 L.Ed.2d 1252(b)(9) sweep ed from by section (distinguishing Ringer, Heckler v. [i.e., legislative virtue of intent re- habeas (1984), 104 622 S.Ct. 80 L.Ed.2d judicial view of precedent detention] granting general federal- ground [i.e., legality of detention and bail availabil- jurisdiction would not have effect question ity]”). deciding pro- in a merits of claims ceeding separate to prior from and though Even we conclude judicial-review 1252(b)(9) prescribed process does not bar Hamdi’s claim statute). approach the relevant This does proceeding from under general federal- disregard “Congress[’s] plain[ subject-matter in- question jurisdiction, ] not put to an end to the scattershot must still tension] consider district court’s abili- See, Gonzales, e.g., Payne-Barahona 474 remote or attenuated connection re- to the (1st Cir.2007) alien”). (holding petitioner 2-3 moval of an standing parent had to raise citizen children's Amendment claim his removal ("[A] Fifth related to Singh, 499 F.3d at 14.See 979 successful proceedings, but did violate chil- removal not petition in this case habeas will lead to noth- dren's constitutional have father to ing day peti- more than 'a in court' for [the INS, country); present 1252(b)(9)], Newton 736 F.2d by tioner allowed con- which is (6th Cir.1984) ('“[A] minor child Congressional underlying sistent with intent fortuitously par- to his reasons, who born here due ID Act. For [the REAL these country, decision to has ents' reside this petitioner’s] second [ineffective-assistance-of- exercised a to not deliberate decision make seeking cannot counsel] claim be construed as home, country Congress removal, did not judicial review of his final order of give ability such a child the to confer immi- notwithstanding goal his ultimate to or desire gration parents (quot- benefits on his removal.”); final overturn that order of at id. INS, cases); Servs., Perdido v. 420 F.2d (citing Catholic Soc. cf. 1969))). Inc., 53-56, Cir. (con- 509 U.S. at 113 S.Ct. 2485 1255a(f)(l) struing preclude juris- to then- Gonzales, only challenges 13. See Kellici v. 472 F.3d 419- diction over that either refer (6th Cir.2006) ("Where rely adjustment-of-status case does to denial habeas order, address not applications provision relating not the final it is covered because to Act.”); plain language judicial scope only of the [REALID] review defined its to reach denials); 485-94, Mukasey, McNary, also see 552 F.3d 274 n. 498 U.S. at Ruiz (2d Cir.2009) 1160(e)'s (holding (construing ju- that neither S.Ct. 1252(b)(9) provisions special agricultur- nor a district bars dicial-review exercising subject-matter jurisdic- application al worker status denials not petition preclude federal-question to review general an 1-130 denial be- challenges cause "unrelated to action or in the district courts for (in- proceeding"); Aguilar, agricultural pro- administration worker terpreting "arising gram statutory language not under” was "sweep scope enough encompass challenges). within its claims broad such they given if are will be defeated A tion and remedy requested. ty grant ” Co., 523 U.S. at another.’ Steel can be sufficient Hood, 327 U.S. (quoting Bell if it is unsuc- S.Ct. purposes “even 773, 678, 682, 685, L.Ed. 939 66 S.Ct. the fool- verging on possibly cessful (1946)). interpreta- But under the current barring prior precedent hardy light in 1252(b)(9), no federal court has Primax, at tion of 433 F.3d sought.” relief the omitted). (internal authority to review the order of remov- the quotation marks 519 “ Elgharib the mother to determine the averments al of possibility that ‘[T]he of the child Hamdi’s on whether a violation a cause of action might fail to state ” imposition renders the actually constitutional could recover’ petitioners or mother’s removal order invalid subject- of the defeat a district court’s does not Immigration Court would so whether jurisdiction, which remains valid matter “ decided, discretion, in not to order its right petitioners ‘the of the long as if en- Elgharib’s removal it had otherwise complaint will be sus- recover under their presented tertained the claims now if the and the laws tained Constitution agree with Hamdi Hamdi.15 Were we to given are one construc- the United States injury by a deci- appeal will be redressed favorable We that we decide this note stated, sion.”). Supreme As the Court has ground that Hamdi has failed to state a claim argu- granted, distinction between can rather than "the fundamental upon which relief be ing arguing no Article jurisdictional grounds, it no cause of action and is not redressability, ar- subject complaint that the III ... that the former [is] matter of Hamdi’s gument squarely jurisdic- prohibits, but rather the relief that he is not directed at statute Recoveries, Inc., itself, Primax rather at the a seeks. See but existence of so, doing remedy alleged we are at 518-19. In mindful of for the violation of federal Supreme jurisdictional "to use the rights, Court's admonishment which issue is not of the ‘jurisdiction’ id. at precision,” term with more the Court raises on its own mo- sort which Co., (citing Ryan, U.S. Kontrick U.S. at 118 S.Ct. tion.” Steel (2004)), (internal 157 L.Ed.2d 867 124 S.Ct. quotation marks alteration by using clarity added). Here, the term omitted) so as "to ‘facilitate’ (emphasis the ulti- 'jurisdictional' only " apposite” when it is as requested, securing mate relief cancellation delineating 'prescriptions the classes of judicial after of his mother’s order of removal (subject-matter jurisdiction) review, and the cases injury remedy would Hamdi's persons (personal jurisdiction)’ implicating satisfying standing Article III concerns fact— for adjudicatory] authority,” and not [the court’s redressability grant the court cannot —but Elsevier, rules,” "claim-processing Reed as requested law—im- the relief under current - Muchnick, -, -, Inc. v. plicating failure-to-state-a-claim concerns. 1237, 1243-44, id.; Hood, 678, 681-84, 176 L.Ed.2d 17 130 S.Ct. Bell 327 U.S. Kontrick, (2010) (quoting 540 U.S. at (1946). 66 S.Ct. 90 L.Ed. 939 "Stand- 906). S.Ct. by showing 'the can be established may practical consequence recognize ap order] the court's [of that Hamdi’s claim standing prob significant pear present Article III ... would amount to increase an grant plaintiff inability a court to the likelihood that the would obtain lem based on an injury redressability directly suf- requested, potential relief that redresses the relief ” Earth, Wright, Arthur R. v. Laid fered.’ 13A Charles A. issue. See Friends Inc. (TOC),Inc., Envtl. 528 U.S. H. law Servs. Cooper, & Edward Practice Miller Federal 3531.6, (3d ed.2008) 180-81, at 417 120 S.Ct. 145 L.Ed.2d 610 And Procedure Evans, (1) (2000) ("[A] plaintiff (quoting Utah v. must show it has J.) (a) (Breyer, 'injury 153 L.Ed.2d 453 in fact’ that is concrete 122 S.Ct. suffered (b) (2002)). Unlike the situation where the com- particularized and actual or immi nent, (2) merely allege appropri- plainant failed to conjectural hypothetical; has not relief, alleged proper challenged has re- injury fairly to the ate traceable fact, defendant; injury likely, relief but a it is dressable for his action of the grant relief under merely speculative, federal court such opposed to interpretation and endorse different CONCURRENCE 1252(b)(9) regard judicial GIBBONS, JULIA SMITH Circuit alien, of an actual order of removal of an Judge, concurring. he have a claim that could then would majority, Like the I would affirm the a Rule motion to survive dismiss. dismissal of complaint, my but we cannot endorse such an inter- Because reasoning differs in respects some Kucana, law, see current pretation under majority opinion. I fully While 838-39; AADC, 525 U.S. at agree jurisdictional 482-86, 936; bar of 8 Elgharib, 119 S.Ct. 603-04; Muka, U.S.C. is inapplicable at 600 n. 559 F.3d at to Hamdi’s 483-85, we conclude that Hamdi has failed they claims because are not brought “on upon to state a claim which relief could be mother, disagree behalf of’ his I with the granted.16 pleaded, No other relief was majority opinion’s analysis respect with identify and we can no other available 1252(a)(5) 1252(b)(9). Taken to- injury relief that would redress Hamdi’s gether, these sections do indeed create a running prec- fact without afoul of current jurisdictional bar to Hamdi’s claims. 1252(b)(9). interpreting edent There- Essentially, Hamdi seeks to challenge fore, we hold that Hamdi has failed to the order removing his mother from this upon a claim can state relief be country. Under granted, and the district court did not err 1252(b)(9),judicial review of such an order in dismissing complaint. Hamdi’s can only occur petition context of a for review filed with appropriate court III. CONCLUSION appeals. The subsections make no dis- plight, understand Hamdi’s and we tinction between the individual against are not to the insensitive substantial hard- whom the order of explicitly removal is ship that he endure if and when his directed and a party third in establishing finally mother is removed from coun- petition for review as the sole vehicle However, try. reasons, foregoing for the Thus, for a challenge. such giving we AFFIRM the district court’s order dis- its channeling effect results in missing complaint prejudice Hamdi’s funneling challenge Hamdi’s to the based on our conclusion that Hamdi failed upon petition review, to state a claim which a order into a federal may grant relief. even though party Hamdi was not a to the City current law. Holt only prohibits Civic Club v. statute a federal Tuscaloosa, 60, 65-66, 'hear[ing]’ says court from alien claims and ("[A] nothing powers. 58 L.Ed.2d 292 federal court about the Court's remedial result, cogniza- should not As a [the child] dismiss meritorious constitution- citizen has a redress, injury complaint al ble that the Court claim because the seeks one can even if sought-after remedy plainly relief would have appropri- rather than another the inciden- order, one.”). nullifying tal benefit of ate a removal if the even Court would not have express opinion types 16. We no as to what grant parent] brought [the relief if had requested jurisdic- (citation relief could avoid omitted)); 1252’s right.” a claim in her own Baker, provisions, Deljevic tional-bar and hold that the F.Supp.2d cf. requested (E.D.Mich.2006) ("The appropri- relief here —the sole relief petitioner has cited no case, statute, injury pre- ate to redress Hamdi’s in fact as regulation proposition appeal granted sented on be under authority that district courts have the re- —cannot Coleman, F.Supp.2d current law. See validity deportation view the vel non of orders ("Nor 1252(g) preclude pronouncements does Section or make as to their continu- rendering none.”). validity, Court from the removal order void and this Court has found and could not have proceeding immigration America, UNITED STATES constitutional violations his claim of

raised Plaintiff-Appellee, there. characteriza- from the This result stems challenge claim as a Hamdi’s

tion of SLIWO, Defendant-Appellant. Amar involving legal is- and one removal order No. 09-1136. immigra- “arising from” his mother’s sues If Hamdi’s claims were proceeding. Appeals, United States Court process, the removal instead collateral Circuit. Sixth brought they could be my then in view Aug. 2010. Argued: majority opinion the APA. As 8, 2010. Sept. Decided and Filed: notes, jurisdiction over we would and international- constitutional based claims under law -necessary waiv- provides

And the APA sovereign immunity permit

er of Because the claims proceed.

claims to collateral, they would not be

were indeed in which the INA

immigration proceedings analytical APA.

supplants the Under

route, analyze complaint’s we would whether a claims to determine

individual granted could had

claim on relief be But I not think stated. do

been categorized

that Hamdi’s claims can be process, I will

collateral to the analysis.

undertake this majority opinion’s view of the sub- close to

stance of Hamdi’s seems

mine, problem it concludes that but sought. Proper conceptu- in the relief

lies task, easy

alization of this case is not that, my

but own view is based 1252(b)(9), juris- we lack over Hamdi’s claim.

diction

Case Details

Case Name: Hamdi Ex Rel. Hamdi v. Napolitano

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Sep 7, 2010

Citation: 620 F.3d 615

Docket Number: 19-2264

Court Abbreviation: 6th Cir.