Lopez v. GarlandLopez v. Garland
This matter comes before the Court on Respondents’ Motion to Dismiss. Dkt. 12. Respondents (who the Court also refers to as the government) seek to dismiss Petitioner Mario Rene Lopez‘s Petition for a Writ of Habeas Corpus, Dkt. 1, as amended by his Supplemental Pleading, Dkt. 10. This Court has dispensed with oral argument as it would not aid in the decisional process.
I. BACKGROUND
A. Factual Background1
Mario Rene Lopez emigrated to the United States from El Salvador. Mr. Lopez was born in El Salvador on February 2, 1981. Dkt. 1 (Habeas Petition) ¶ 9. He was born out of wedlock, and his parents never married one another. Id. ¶¶ 9-10. However, Mr. Lopez‘s father was listed on his birth certificate. Id. ¶ 9. Mr. Lopez came to the United States in 1992, when he was eleven years old, and he was admitted as a lawful permanent resident at that time. Id. ¶ 11. His mother also entered as a permanent resident and eventually naturalized as a United States citizen on January 30, 1998. Id. ¶ 12.
When Mr. Lopez was in his early 20s, he got into some legal trouble. He was twice convicted of drug crimes: first, in October of 2004, he was convicted of Possession of a Schedule I or II Drug pursuant to
Some civil immigration issues stemmed from his drug convictions. While his sentence was winding up in 2011, immigration officers visited him in prison three times. Id. ¶ 15. Ultimately, they decided “not to deport Mr. Lopez because they determined that he derived citizenship from his mother” under what was formerly
Armed with that knowledge, Mr. Lopez tried to formally become an American citizen. He filed Form N-600, the Application for a Certificate of Citizenship. Id. ¶ 16. Alongside that application, he “included documentation showing that he acquired citizenship through his mother in 1998 when she naturalized.” Id. The basis for that application was the former
Eventually, ICE began the process of deporting Mr. Lopez. Because he was convicted of a controlled substance and drug trafficking offense after he was admitted as a permanent resident, ICE charged him with deportability. Id. ¶ 20. In his deportation proceedings, Mr. Lopez raised the same arguments that undergirded his N-600 application along with new arguments under the Convention Against Torture, but the immigration judge reviewing his case did not find those to be persuasive. Id. ¶ 21-26. As a result, in September of 2018, the judge ordered that Mr. Lopez should be removed to El Salvador. Id. ¶ 26. Mr. Lopez appealed that decision to the Board of Immigration Appeals, which affirmed the immigration judge‘s findings in part and remanded for further analysis. Id. ¶ 27. The immigration judge entered a new decision one month later (in November 2022) “without any further proceedings.” Id. ¶ 28. Mr. Lopez was then detained in January 2023, and ICE began the process of deporting him. Id. ¶ 29. Mr. Lopez filed a motion to reopen removal proceedings, id. ¶ 30, which was eventually granted in January of 2023, Dkt. 10 ¶ 2.4
As a result, Petitioner is not facing imminent deportation, and he is not subject to a final order of removal. See id. ¶ 3 (noting that Petitioner cannot be deported until the entire removal order process and subsequent appeal to the BIA have been completed).
B. Procedural Background
Petitioner filed an Emergency Petition for a Writ of Habeas Corpus and a Motion for an Order to Show Cause on January 13, 2023. Dkt. Nos. 1; 1-1. He subsequently filed an Emergency Motion for a Temporary Restraining Order or a Preliminary Injunction on January 17, 2023, Dkt. 3. The next day, Petitioner moved to withdraw
This Court then directed service of the Habeas Petition on Respondents on March 13, 2023, Dkt. 15, and Respondents filed a Motion to Dismiss for Lack of Jurisdiction with a supporting Memorandum on March 14, 2023, Dkt. Nos. 12; 13. After Magistrate Judge Davis extended Petitioner‘s time to respond, Dkt. Nos. 18; 23, Petitioner filed a Memorandum in Opposition on April 4, 2023, Dkt. 20. Respondents replied in support of their Motion on April 10, 2023. Dkt. 22. The Court then ordered the parties to submit briefs on the effect (if any) of Axon Enterprise, Inc. v. F.T.C., 598 U.S. 175, 143 S. Ct. 890 (2023). Dkt. 25. Respondents filed such a brief on April 25, 2023, and Petitioner filed his brief on May 19, 2023, Dkt. 28.
II. STANDARD OF REVIEW
A. Rule 12(b)(1) Motions
A Rule 12(b)(1) motion challenges the Court‘s subject matter jurisdiction over a lawsuit.
There are two types of 12(b)(1) motions: facial challenges and factual challenges. In a facial challenge, the defendant argues “that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). On the other hand, a factual challenge contends that “the jurisdictional allegations are not true.” Id. In evaluating a facial challenge, a court takes the alleged jurisdictional facts as true and evaluates whether those facts are sufficient to establish subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In evaluating a factual challenge, the court resolves disputed jurisdictional facts and does not apply the “presumption of truthfulness normally accorded [to] a complaint‘s allegations.” Id.
A plaintiff bears the burden to demonstrate that subject matter jurisdiction exists. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). A court should only grant a 12(b)(1) motion to dismiss “if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
III. ANALYSIS
Following Petitioner‘s modification of his claims, three remain: (1) Count One, which seeks a declaratory judgment that “Mr. Lopez is a United States citizen” and asks this Court to “order USCIS to issue a certificate of citizenship,” Pet. at 10; (2) Count Two, which brings a Due Process Claim challenging ICE‘s detention of Petitioner, because “ICE cannot detain American citizens,” id. at 13; and (3) Count Five, which states that interpreting “8 U.S.C 1252(g) to bar judicial review violates the Suspension Clause,” id. at 18. See also Dkt. 10 (Petitioner‘s supplemental pleading, withdrawing Counts Three and Four).
Count Five is not a claim for relief. In that Count, Petitioner explains why the Suspension Clause is applicable to him and bars this Court from concluding that
As a result, two counts remain. First, Count One, which asks this Court to declare that Mr. Lopez is a United States citizen, which the Court refers to as the “citizenship claim.” Second, Count Two, which challenges Mr. Lopez‘s detention by ICE, which the Court refers to as the “detention claim.”
A. Subject Matter Jurisdiction
Respondents argue that this Court does not have jurisdiction over those two claims for several reasons. First, Respondents argue that this Court lacks jurisdiction pursuant to
Petitioner, of course, disagrees. He first contends that the facts alleged show that he is a citizen of the United States. Dkt. 20 at 10-13. He further argues that the law did not require him to appeal the initial denial of Form N-600 before bringing suit in this Court. Id. at 13-15. As to Respondents’ argument that section 1252 strips this Court of jurisdiction, Petitioner avers that the statute “does not limit the Court‘s jurisdiction to review legal and constitutional questions,” and that the statute does not apply to him in any event. Id. at 15-19. Moreover, according to Petitioner, even if the relevant provisions in section 1252 did apply, he believes the Suspension Clause of the Constitution renders the jurisdiction-stripping sections of the statute unconstitutional as applied to him, meaning that this Court should still exercise jurisdiction.
1. 8 U.S.C. § 1252
There are two sections of
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction,
by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.
Second,
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
Respondents claim that both of these statutes independently strip the Court of jurisdiction in this case.
The language of those sections of
With that in mind, this Court starts, as it must, with the plain language of the statute. Williams v. Taylor, 529 U.S. 420, 431 (2000). The key term in both sections is the word “arising“: § 1252(g) precludes judicial review of all questions “arising” from the three listed actions of the Attorney General, while § 1252(b)(9) does not allow for district court review of issues “arising” from removal. The word “arising” has a plain meaning that conveys that an issue only arises from an action when it originates with that action‘s occurrence. See Arise, BLACK‘S LAW DICTIONARY (11th ed. 2019) (defining “arise” as “to originate; to stem (from)“); Arise, MERRIAM-WEBSTER DICTIONARY ONLINE, https://perma.cc/MR2F-WA8Z (defining “arise” as “to begin to occur or exist; to come into being or to attention” and “to originate” from a source (emphasis added)); Arise, WEBSTER‘S NINTH NEW COLLEGIATE DICTIONARY (1991) (similar).6 And when courts have interpreted the word “arising” in other contexts, the meaning they ascribe to it comports with those dictionary definitions. See, e.g., Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (finding that the “common usage” of the word “arise” means to “come into being;
Start with section 1252(b)(9), the zipper clause. That clause precludes district court review of “all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States.”
The same logic applies to section 1252(g). That section deprives district court jurisdiction from claims “arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”
Respondents’ efforts to fight the plain meaning of both statutes is unavailing. In their reply, they argue that Petitioner‘s reading of the statute “effectively rewrites” section 1252(b)(9), claiming that his reading would impliedly insert the word “first” after the word “arising.” Dkt. 22 at 5-6. But it is Respondents who attempt to rewrite the statute. They ignore that the plain meaning of the word “arising” inherently suggests that the issues that Congress divested from this Court must originate in a removal proceeding (or other official actions taken by the Attorney General). There is no “good reason” to believe that Congress intended a different meaning, and so this Court “must give effect to [Congress‘s] plain language.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97 (1983).
Respondents’ reliance on Johnson v. Whitehead, 647 F.3d 120 (4th Cir. 2011), is also misplaced, as Johnson is analytically different. As the government acknowledges, in Johnson, the citizenship question
Moreover, Johnson is clearly not relevant to Petitioner‘s detention claim. The petitioner in Johnson only challenged the immigration court‘s finding that he was not a citizen. Johnson, 647 F.3d at 124. He did not simultaneously raise an unlawful detention claim. As a result, ”Johnson did not directly decide whether a claim of unlawful detention, based on an underlying citizenship claim, ‘arises from’ removal proceedings for § 1292(b) purposes.” Duncan v. Kavanagh, 439 F. Supp. 3d 576, 584 (D. Md. 2020).
This reading of both statutory provisions is consistent with the Supreme Court‘s consistent narrow interpretation of the Immigration and Nationality Act. In Reno, the Supreme Court rejected a broad reading of section 1252(g) that both the government and the respondents advanced and chose a narrower route in applying it to only three actions that the Executive takes vis-à-vis immigration. 525 U.S. at 477-82. The Court took a similar path in Jennings in interpreting § 1252(b)(9). 138 S. Ct. at 840. Moreover, in Jennings, the Court explicitly rejected an expansive interpretation of the term “arise from.” It recognized that an “extreme” interpretation of the phrase “arise from” could sweep in virtually all legal and factual questions tangentially related to a detained alien. Id. at 840-41. But the Court rejected that interpretation and found that it had jurisdiction. Id. at 841. Thus, it is similarly consistent to interpret “arise from” in the natural, narrower way, rather than in the expansive way Respondents urge. Cf. Rios-Valenzuela v. Dep‘t of Homeland Sec., 506 F.3d 393, 398-99 (5th Cir. 2007) (interpreting section 1503 and concluding that the word “arose” in that statute “focuses on the proceeding in which the particular claim to citizenship originates, not the proceeding in which it is being pursued“).
Simply put, on their face, neither
2. 8 U.S.C. § 1503
Respondents contend that even if § 1252 does not apply here,
To be clear,
However, the Court must still evaluate whether the fact that
This is not an issue that the Fourth Circuit has addressed, but a district court within the Fourth Circuit has. In Duncan v. Kavanagh, 439 F. Supp. 3d 576, the Maryland district court concluded that an unlawful detention claim that was based on an assertion that the petitioner was an American citizen rose and fell with the jurisdiction-stripping provisions in section 1252 (which applied in that case). Relying on Ninth Circuit case law, the court held that the “substance of the relief” the petitioner sought in both the citizenship and detention claims was a “finding of non-removability on the basis of U.S. citizenship.” Duncan, 439 F. Supp. 3d at 586. The Duncan court recognized that the Ninth Circuit case it was primarily relying on—Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008)—held that district courts have jurisdiction over challenges to “detention based on a claim to U.S. citizenship” when they are made before a “final order of removal.” Duncan, 439 F. Supp. 3d at 585. However, citing “subsequent developments in Ninth Circuit case law” that it claimed “call[ed] the continued validity of [the Flores-Torres] holding into question,” the Duncan court concluded that the jurisdiction-stripping provisions of section 1252 applied to citizenship and detention claims alike. Id. at 585-86.
While this Court agrees with the Duncan court that Flores-Torres is readily applicable here, it does not agree with the Duncan court‘s characterization of the state of the relevant law in the Ninth Circuit. The Duncan court posited that the Ninth Circuit had cabined Flores-Torres to situations where petitioners brought claims that were wholly “collateral to, or independent of” the removal process. Duncan, 439 F. Supp. 3d at 585 (quoting J.E.F.M. v. Lynch, 837 F.3d 1026, 1032 (9th Cir. 2016)). But Flores-Torres addressed the issue of detention claims intertwined with citizenship claims pending in removal proceedings head-on. The Ninth Circuit explicitly rejected the government‘s argument that “because the question of its authority to detain [petitioner] is intertwined with the citizenship claim at issue in his removal proceedings, Torres must wait until the conclusion of those proceedings before receiving a judicial determination as to whether he is a citizen and as to whether his detention by ICE is lawful.” Flores-Torres, 548 F.3d at 711. The government‘s argument, according to the Ninth Circuit, was entirely at odds with the “plain language of § 1252” and the “well-established principle” that courts do not find “habeas review foreclosed” absent a “particularly clear statement” from Congress. Id. at 712 (quoting Demore v. Kim, 538 U.S. 510, 517 (2003)). And the Flores-Torres court highlighted the fact that the petitioner was claiming to be a United States citizen unlawfully detained under the INA. Id. Its holding was explicit: “Congress has never enacted any statute that would deprive a citizen of his right to a judicial determination of the legality of his detention simply because his case is pending before an administrative agency.” Id.
What‘s more, Flores-Torres is on all fours with this case. There, like here, the petitioner was “born out of wedlock,” moved to the United States from El Salvador with his mother (who eventually became a naturalized citizen), and himself became a lawful permanent resident. Id. at 709. And again, like here, the petitioner was convicted of a felony and then charged with removability. Id. Finally, like Mr. Lopez, petitioner was not subject to a final
3. The Suspension Clause
Even if
The language of the Suspension Clause is absolute. It reads: “The 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.”
The question, then, is whether the writ of habeas corpus would be suspended if the Court applies the jurisdiction-stripping provisions as Respondents urge. The parties agree that the framework that guides how to answer that question
Three factors are relevant to the inquiry of whether Petitioner should be allowed to invoke the Suspension Clause. “(1) the citizenship and status of [Mr. Lopez] and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles in resolving [Mr. Lopez‘s] entitlement to the writ.” Boumediene, 553 U.S. at 766; Joshua M., 439 F. Supp. 3d at 671-72 (applying these three factors at step one). Boumediene included those factors to address situations where prisoners of war invoke habeas corpus even though they have never been in the United States, were foreign citizens, and were captured, imprisoned, and tried outside of the United States. See Boumediene, 553 U.S. at 766-77 (citing Johnson v. Eisentrager, 339 U.S. 763, 777 (1950)). For those sorts of petitioners, the application of habeas corpus is dubious. That is not the case here, and Respondents do not appear to contest that Mr. Lopez should be allowed to invoke the Suspension Clause.
The facts alleged in the Petition confirm that Mr. Lopez is entitled to invoke the Suspension Clause. First, he has “longstanding ties” to the United States, as he has lived here since 1992 after arriving legally. Siahaan v. Madrigal, No. PWG-20-2618, 2020 WL 5893638, at *7 (D. Md. Oct. 5, 2020); Pet. ¶ 11. While Mr. Lopez does have two drug convictions, the Court is convinced that his longstanding residence in this country for over three decades, with no other criminal convictions, is sufficient to put him within “the class of persons who are a part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community,” and thus the first factor weighs in favor of the Suspension Clause applying here. Joshua M., 439 F. Supp. 3d at 672 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). Second, Mr. Lopez was apprehended in “Virginia in early January 2023” and is still being detained in Virginia. Pet. ¶ 29. The fact that he was detained in the United States tilts the second factor in favor of the Suspension Clause being available to Mr. Lopez. Joshua M., 439 F. Supp. 3d at 672; see Budiono v. Barr, No. 4:19-cv-1635, 2019 WL 5569182, at *4 (M.D. Pa. Oct. 29, 2019) (the fact that the petitioner was apprehended and detained in the United States was sufficient for second factor to weigh in favor of petitioner invoking the Suspension Clause). Finally, there do not appear to be any “practical obstacles to resolving the writ” here “other than the kind of ‘incremental expenditure of resources‘” that is “not dispositive to the question of granting the writ.” Joshua M., 439 F. Supp. 3d at 672 (quoting Boumediene, 553 U.S. at 769). Accordingly, all three factors indicate that the first step of the Boumediene test is satisfied.
Next, the Court must consider the alternatives to a habeas petition. “[T]he substitution of a collateral remedy which is
Mr. Lopez‘s citizenship claim can be adequately addressed through other avenues. Many district courts within the Fourth Circuit have held that the review process provided for in section 1252(g) which concludes with review in the federal appellate courts—is an adequate substitute for a habeas petition that seeks to challenge the legality of removal. See, e.g., id. at *5 (holding that petitioner‘s appeal rights following the immigration court‘s denial of his [motion] to reopen was a sufficient alternative); Duncan, 439 F. Supp. 3d at 586 (same). Several courts of appeals have held the same. See, e.g., Gonzalez-Alarcon v. Macias, 884 F.3d 1266, 1277-79 (10th Cir. 2018) (holding that the appeal process following an immigration court decision regarding citizenship was adequate alternative to habeas and citing cases from the Second and Eighth Circuits); Iasu v. Smith, 511 F.3d 881, 888 (9th Cir. 2007) (similar). This situation is no different; the appeal procedures Mr. Lopez can pursue following the inevitable resolution by the immigration court is an adequate alternative, and thus the Suspension Clause is not implicated for his citizenship claim.
Mr. Lopez‘s detention claim, however, is different, and the government‘s own reply brief explains why. Mr. Lopez‘s detention claim is the quintessential claim that the Suspension Clause is directed at, as it seeks the “traditional remedy of ‘simple release’ from ‘unlawful executive detention.‘” Dkt. 22 at 12 (quoting Dep‘t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140 S. Ct. 1959, 1970-71 (2020)). And the detention that Mr. Lopez challenges is a harm he is currently suffering, “before any [petitions for review] [are] ever ruled on.” Id. That makes Mr. Lopez‘s detention claim much more similar to other cases where courts have invoked the Suspension Clause when petitioners were at risk of, or were contemporaneously suffering, harm absent review of their habeas petition. See id. (citing cases).12
There is no adequate alternative to Petitioner‘s detention claim. “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.” I.N.S. v. St. Cyr, 533 U.S. 289, 301 (2001). That is precisely what Petitioner challenges here, and the appeals process following the immigration court‘s resolution of his motion to reopen is neither “adequate” nor “effective.” True, the appeals process would eventually resolve his claim. But regardless of the eventual decision regarding citizenship (whether by the Fourth Circuit or an immigration court), his detention claim becomes moot on finality. For example, if he is found to be a citizen, ICE must release him; however, he would have suffered months (or years) of unjustified and unlawful detention without any review. It is hard to call a process that potentially results in extended unlawful detention “adequate” and “effective.” Indeed, it is anything but.
Because Petitioner should be allowed to invoke the Suspension Clause and there are no adequate alternatives to habeas to evaluate his detention claim, the Court finds that if the provisions of
* * *
This Court‘s reading of the statutory scheme, and its interplay with the Suspension Clause, is analytically sound. Someone like Mr. Lopez—whose citizenship issue arose (and appeared to be resolved) long before the government instituted removal proceedings—is in a far different position than an alien who is facing removal proceedings but never had the question of whether he is a citizen addressed. And, in his detention claim, Mr. Lopez is not challenging the Attorney General‘s decisions to commence proceedings, adjudicate his case, or execute a removal order, which
To be clear, this is a unique situation, as there are scant circumstances where a district court has jurisdiction to decide a citizenship question. But they do exist. See, e.g., Salinas Moya v. Limon, 793 F. App‘x 296 (5th Cir. 2019) (reviewing appeal from district court decision finding that plaintiff was not a citizen of the United States); Mundo-Violante v. Kerry, No. 5:15-cv-64, 2016 WL 3748625, at *2-4 (W.D. Va. July 8, 2016) (reviewing question of whether plaintiff was a citizen of the United States); Martinez v. Blinken, No. 1:18-cv-92, 2023 WL 3452063, at *1-6 (S.D. Tex. May 15, 2023) (same).13 And this is an extraordinary situation, as Mr. Lopez has a bona fide claim that he is a United States citizen, which carries weighty constitutional questions, as members of the Supreme Court have recognized. See Dep‘t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103, 140 S. Ct. 1959, 1989 (2020) (Breyer, J., concurring) (“Could Congress . . . deny habeas review to someone ordered removed despite claiming to be a . . . U.S. citizen?“); see generally Chin Yow v. United States, 208 U.S. 8, 10-13 (1908) (Holmes, J.,) (directing for a writ of habeas corpus to be issued to alleged Chinese alien claiming that he was a citizen). The separation of powers and the Suspension Clause commands
IV. CONCLUSION
For the reasons set forth above, this Court GRANTS-IN-PART and DENIES-IN-PART Respondents’ Motion to Dismiss; and it is
FURTHER ORDERED that Counts I, III, IV, and V are DISMISSED WITH PREJUDICE; and it is
FURTHER ORDERED that within seven (7) days of the date of this Memorandum Opinion and Order, each party shall file a brief, no longer than ten (10 pages), indicating whether they believe discovery is necessary or whether this matter is ripe for Summary Judgment.
IT IS SO ORDERED.
July 10, 2023 Alexandria, Virginia
Rossie D. Alston, Jr.
United States District Judge