SEAN B. v. MCALEENANSEAN B. v. MCALEENAN
Case Information
*1 UNITED S T A TE S D I S T R I C T COURT D I S T R I C T OF NEW J E R S E Y SEAN B., Civ. No. 19 - 10529 (KM)
P e titi on e r ,
\7 KEVIN K. MCALEENAN e t a l ., O P I N I ON
R e s pond e n t s .
KEVIN MCNULTY, U . S . D . J . : INTRODUCTION
I.
P e titi on e r , S ea n B ., ’ is a n i mm i g r a ti on d e t a i n ee , h e l d a t t h e H ud s on C oun t y C o rr ec ti on s F ac ilit y , in K ea r ny , New J e r s e y . He is p r o cee d i ng by w a y of c oun s e l w it h a p e titi on for a w r it of h a b ea s c o r pu s pu r s u a n t to 28 U . S . C . § 2241 . T h e gov e r n m e n t h a s a n s w e r e d t h e h a b ea s p e titi on , a r gu i ng t h a t it m u s t be d i s m i ss e d for l ac k of j u r i s d i c ti on .
T h i s c ou r t ’ s j u r i s p r ud e n ce h a s b ee n gu i d e d by t h e p r i n c i p l e t h a t t h e c ou r t s m u s t be a ff o r d e d t h e oppo r t un it y to a d j ud i ca t e liti g a n t s ’ r i gh t s in a n o r d e r l y m a nn e r , a nd t h a t t h e p a r ti e s ca nno t , by un il a t e r a l ac ti on , i n t e rf e r e w it h t h a t e ss e n ti a l f un c ti on o f t h e c ou r t s . To v i nd i ca t e t h a t p r i n c i p l e , I h a v e in t h e p a s t c on s t r u e d li b e r a ll y t h e c ou r t ’ s po w e r to e n t e r a li m it e d s t a y in a n i mm i g r a ti on ca s e , e v e n w h e r e , in t h e e nd , I r u l e d in f a vo r of t h e oppon e n t of t h e s t a y . See, e.g., R a gb i r v. United S t a t e s , No. 17 - 125 6 , 20 18 WL 14 46 ( D . N . J . Mar. 23 , 2018 ) (ICE ca s e , g r a n ti ng p e titi on e r’ s a pp li ca ti on for s t a y bu t u lti m a t e l y r u li ng i n gov e r n m e n t ’ s favor). H e r e t h a t c on ce r n h a s p a r ti c u l a r po i gn a n ce , b eca u s e it h a s a p a r ti c u l a r c on s tit u ti on a l d i m e n s i on . The v e r y r ea s on t h a t t h e i mm i g r a ti on a u t ho r iti e s m a y ac t w it hou t c ou r t i n t e r v e n ti on — C o n s i s t e n t with g u i d a n ce regarding privacy c o n ce r n s in social s ec u r i t y a n d I immigration ca s e s by t h e Committee on Court A d m i n i s t r a ti on a n d Case Management of the J ud i c i a l Conference of t h e United S t a t e s , Petitioner is identified h e r e i n only by his first n a m e a n d l a s t initial.
i.e., the reason that the court may permissibly be stripped of habeas jurisdiction—is the existence of an alternative remedy, namely a process of administrative review culminating in review by the Court of Appeals. Here, however, the immigration authorities have acted in such a manner (I do not say with the intention) that the effectiveness of Court of Appeals review is compromised. Under the peculiar circumstances of this case, the Suspension Clause of the U.S. Constitution requires that this Court retain a minimal level of residual habeas jurisdiction.
For clarity, and to assist in review, I offer a schematic view of the logic that leads me to that result:
1. A petitioner seeking to reopen removal proceedings will seek such relief from an immigration judge (IJ) and can administratively appeal an adverse result to the Board of Immigration Appeals (BIA).2 2. While the matter is pending in the agency, the petitioner may seek a stay of removal from the IJ or the BIA. If such an administrative stay is denied, a petitioner may be removed from the country before his petition is adjudicated by the agency. That result, while sometimes harsh, is ordinarily permissible; the Supreme Court has held that the petitioner may be required to pursue his application from abroad, subject to repatriation should the application ultimately be granted.3 3. If a petitioner files an appeal from a final decision of the BIA, jurisdiction lodges in the relevant U.S. Court of Appeals. It is only at that point that the Court of Appeals is empowered to enter its own stay of removal pending appeal.4 As noted in paragraph 2, however, a [2] In this petitioner’s case, those administrative proceedings are occurring in New York. He is, however, confined in New Jersey, so this habeas proceeding is venued here. While this may have occurred, I have not been directed to any example.
Again, because administrative proceedings are ongoing in New York, any such appeal would go to the U.S. Court of Appeals for the Second, not the Third, Circuit. Once an appeal is filed, stays pending appeal are fairly common. Both sides assume that the Court of Appeals would lack jurisdiction to issue a stay in connection with
petitioner denied an administrative stay may already have been deported.
4. The Real ID Act, S U.S.C. § 1252(g), strips the U.S. courts of habeas (or any other) jurisdiction to interfere with the agency’s execution of a removal order. So while immigration proceedings are pending, the statute bars a district court from granting a stay of removal.
5. The jurisdiction-stripping effect of § 1252(g) is subject to one Constitutional limitation, however. It may not rise to the level of a suspension of the writ of habeas corpus. U.S. Const., art. I, 9, cl.2. 6. An impermissible suspension of habeas corpus will not be found so long as there is an adequate alternative remedy available. Cases upholding the review scheme summarized above as adequate have relied on the ultimate availability of review in the Court of Appeals. In the vast majority of cases, the 1252(g) removal of habeas jurisdiction has been found constitutionally valid.
7. Under limited circumstances, however, cases have held that the available alternatives to district court habeas review are not adequate (or not available at all). Under such circumstances, the district court has been found to retain limited habeas jurisdiction, as a constitutional necessity. I find that this is such a case. Petitioner’s order of removal was
8. entered in 2009, but he then pled guilty to drug-trafficking charges and became a cooperating witness in the criminal prosecution of a prominent Jamaican drug kingpin. In 2013, the government released him and withheld execution of the order of removal. In January 2019, however, he was placed in custody by ICE for the purpose of executing the 10-year-old order of removal to Jamaica.
pending administrative proceedings, whether by mandamus or otherwise. See nn. 6 & 7, and cases cited.
9. Petitioner’s primary motivation for reopening removal proceedings is that, since his order of removal, his cooperation has exposed him to a realistic threat of being killed if he is returned to Jamaica. The person against whom he testified wielded great influence there.5 Since Petitioner’s testimony, his sister’s house was burned down, the house of his children’s mother was bombed, six of his cousins have been murdered, and his father was forced to flee the country. He claims that during his recent enforced sojourn in Jamaica, before the court ordered his return, his safety was threatened. The government does not factually rebut these allegations, which I therefore take at face value for present purposes.
10. The IJ denied Petitioner’s application to reopen removal proceedings. His appeal to the BIA is still pending. Both the lJ and BIA denied motions to stay. There is no final order, so the Court of Appeals does not yet have jurisdiction. Absent a court order, then, Petitioner may be removed, even though his matter remains pending. In short, he is to be removed to a country where he says he is likely to be killed while the propriety of removing him to such a place is being decided.
11. Under these unusual circumstances, the “adequate alternative” to habeas relief—review by the BIA and appeal to the Court of Appeals— is not an effective alternative, unless supplemented by a stay of removal. To deny habeas relief under such circumstances would amount to a suspension of the writ. I find, therefore, that I have limited jurisdiction to enter a stay.
As background, I take notice that Mr. Coke was the head of an extremely violent drug gang active in Jamaica, the United States, and elsewhere. Efforts to extradite him sparked what amounted to an armed insurrection that cost 70 lives. A sample of news coverage of his conviction and sentence may be found at
https:/ /www.nytimes.com/topic/person/christopher-coke. The Immigration Judge opined that the threat was stale, but the criminal organization involved, the Jamaican Shower Posse, apparently remains active.
12. The minimum necessary to meet constitutional standards, I find, is a “bridge” stay sufficient to hold off removal until the BIA grants Petitioner’s requested relief or the Court of Appeals takes jurisdiction over an appeal from a final BIA decision.
II. BACKGROUND AND PROCEDURAL HISTORY Petitioner is a native and citizen of Jamaica. After being twice removed from the United States, Petitioner was arrested for illegal entry in 2009 and again ordered removed later that year. This time he was not actually removed. Instead, he pled guilty to drug-trafficking charges and became a cooperating witness in the federal government’s criminal prosecution of then then-head of a violent Jamaican drug gang, Christopher “Dudus” Coke. Apparently he testified under an alias, an unusual procedure and one indicative of a government belief that he was in danger. Following Petitioner’s cooperation, the government granted him deferred action, released him, and permitted him to work in the United States from October 2013 until early 2019. On January 15, 2019, however, the Department of Homeland Security, Immigration and Customs Enforcement, (“ICE”) placed Petitioner in immigration custody for the purpose of executing his long-deferred removal order.
Petitioner moved before an immigration judge (“IJ”) to reopen his removal proceeding, asserting materially changed circumstances and seeking asylum.6 The United States District Court for the District of New Hampshire has usefUlly summarized the procedural background of a motion to reopen.
Congress has granted aliens facing a removal order the right to file
a single motion to reopen removal proceedings within 90 clays of the
entry of a removal order. 8 U.S.C. 1229a(c)(7). Aliens also are entitled
to obtain judicial review in the courts of appeals from decisions denying
motions to reopen. Mata v. Lynch, _U.S._,
Petitioner filed an appeal and an application to stay removal pending appeal with the Board of Immigration Appeals (“BIA”). On April 12, 2019, the BIA denied Petitioner’s request for a stay, finding little likelihood of success on appeal. (See DE 14-5). It seems the BIA has not yet ruled on the merits of Petitioner’s appeal. The parties seem to agree that, although the Court of Appeals will have jurisdiction over any appeal from the final decision of the BIA, and may, once it has taken jurisdiction, issue a stay pending appeal, it lacks the current power to hear an appeal from the BIA’s denial of a stay.7
barred the filing of motions to reopen after removal and deemed existing motions to be withdrawn once an alien is removed.
The filing of a motion to reopen in the BIA does not automatically stay proceedings. 8 C.F.R. § 1003.2W. An alien, however, may request an emergency stay of removal. See BIA Practice Manual § 6.4(b), 6.4(d)(i),1999 WL 33435431 at *23. An emergency stay request is discretionary and “may be submitted only when an alien is in physical custody and is facing imminent removal.” BIA Practice Manual § 6.4(d)(i), 1999 WL 33435431 at *3 Further, because judicial review in the court of appeals is “available only in judicial review of a final order,” an alien may not appeal the denial of an emergency motion to stay. 8 U.S.C. § 1252(b)(9); Gando-Coeflo v. LN.S.,857 F.2d 25 , 26 (1st Cir. 1988) (holding, under previous immigration statute, that circuit court jurisdiction is limited to review of “final orders of deportation,” and that “a denial of a stay of deportation pending disposition of a motion to reopen is not a ‘final order’”) (citing 8 U.S.C. 1 105a(a)). For the same reason, an alien cannot file with the court of appeals a motion to stay pending the BIA’s disposition of a motion to reopen. In other words, whether or not an alien files an emergency motion to stay with the BIA, and whether or not the BIA acts on such a motion, the court of appeals is without jurisdiction to entertain a request to stay in connection with a motion to reopen pending before the BIA.
Compere ii. Nielsen,
that the federal courts of appeals “have ample authority to halt the
execution of a removal order.” Docket No. 68 at 7. But that is not true,
because the circuit courts only have jurisdiction over a denial of a motion
to reopen, see Gando—Coeflo,
On April 16, 2019, acting through counsel, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of New York. Two days later, District Judge Paul A. Engelmayer determined that this was the wrong venue for Petitioner’s habeas claims. Although immigration proceedings were centered in New York, Petitioner was detained in New Jersey when the petition was filed. Accordingly, Judge Engelmayer transferred the proceeding to this Court.
Petitioner then filed a motion seeking a temporary restraining order barring the respondents from removing him from the United States. (DE 12). Petitioner argued that, because of his cooperation in the Dudus prosecution, he would likely be killed if he is returned to Jamaica. He alleges that Dudus exercised extensive control over parts of Kingston, over the police, and over a major political party in Jamaica; that Dudus’s aunt threatened him during the trial; and that, since his testimony, his sister’s house was burned down, the house of his children’s mother was bombed, six of his cousins have been murdered, and his father was forced to flee the country. The government has not submitted any factual refutation of Petitioner’s allegations regarding the danger he would be exposed to upon his return to Jamaica.
On May 29, 2019, I issued an order granting Petitioner’s motion for a temporary restraining order and temporarily staying removal pending further briefing by the litigants and a determination as to the Court’s jurisdiction. The order was not entered on the clerk’s docket until the following day, May 30,
appeals’jurisdiction does not attach until there is a final administrative order), which can happen after removal, see Diaz v. Sessions, No. 17- 3669,2018 WL 443879 , at *2 (6th Cir. Jan. 17, 2018) (noting that BIA denied petitioner’s motion to reopen approximately one month after she was removed to Mexico). As the Government acknowledges, meaningful judicial review is critical to a finding that a statutory scheme provides an adequate substitute for habeas relief. See St. Cyr,533 U.S. at 314 n.38,121 S.Ct. 2271 .
Devild v. Cronen,
A briefing schedule was set. At the court’s request, Petitioner’s counsel submitted a supplemental letter brief on the issue of the Court’s jurisdiction on June 4, 2019. (DE 26). The government filed a response to the habeas petition focused primarily on the jurisdictional issue on June 28, 2019. (DE 27). Petitioner did not file any reply within the time permitted.
III. ARGUMENTS AND ANALYSIS
A. Habeas Jurisdiction Generally
“Federal courts are not courts of general jurisdiction” and that they “have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress.” Bender v. Williamsport Area 5th. Dist., 475 U.S. 534, 541 (1986). Congress has granted the federal courts much of their jurisdiction, and Congress has the power to limit that jurisdiction, so long as the result is not unconstitutional. See Patchak v. Zinlce, 138 5. Ct. 897, 907—08 (2018).
Generally, a district court may exercise jurisdiction over a habeas
petition, under 28 U.S.C. § 2241, when the petitioner is in custody and alleges
that this custody violates the constitution, laws, or treaties of the United
States. 28 U.S.C. 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). A
petitioner must typically seek 2241 relief in the district in which he is in
custody. United States v. Figueroa,
Unlike most habeas petitioners in the custody of ICE, Petitioner here raises no direct challenge to the propriety of his confinement per se.8 Instead, the petition asks the Court to bar Petitioner’s removal pending the BIA’s review of the IJ’s denial of Petitioner’s motion to reopen. (See Pet., DE 17). In the words of the petition, “Petitioner asks this Court to review whether ICE has the legal authority to remove Petitioner pursuant to a valid removal order without first affording him the opportunity to have his claims heard in an immigration court as permitted by DHS regulations.” (Id. ¶ 22). The petition asserts two claims: (1) that “execution of the removal order would strip Petitioner of his right to seek agency review and thereby violate his due process rights” and (2) that “execution of the removal order would violate petitioner’s rights under the lAdministrative Procedure Aeti.” (Id. at 9 26—30).
The government argues in opposition that 8 U.S.C. 1252(g) deprives this Court of jurisdiction to enjoin the agency’s execution of a removal order. (DE 14 at 3). It asserts that Petitioner had failed to establish any right to relief under the Refugee Act of 1980 or any “constitutional right to be free from detention during the pendency of an appeal of a denial of a discretionary motion to reopen.” (Id. at 3—4). It contends that the BIA, not this Court, is the proper entity to review the IJ’s denial of Petitioner’s application to reopen his case or to determine whether a stay of removal is warranted. (Id. at 4). It further argues that Petitioner had failed to identify a constitutional right implicated by his potential removal. (Id.).
In his supplemental brief regarding jurisdiction, Petitioner contends that the government fails to “precisely specify how this Court is stripped of jurisdiction pursuant to the REAL ID Act.” (DE 26 at 2). He asserts that the cases relied upon by the government are distinguishable, and that the Supreme Court has emphasized the narrow scope of the jurisdiction-stripping Although the petition contains a boilerplate list of forms of relief, including supervised release from custody or a bond hearing, the rest of the petition presents no legal or factual basis for awarding such relief (See DE 17).
provisions o f 1252. (Id. at 2—4, 7—8). He urges that “[s]ection 1252(g) does not apply to a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that question forms the backdrop against which the Attorney General will later exercise discretionary authority.” (Id. at 8—9). Petitioner claims that he is not challenging the government’s discretion in executing removal orders, but instead challenges the legal authority to execute a removal order while he “has an alleged right to seek relief made available.” (Id.). Petitioner concludes that “[wjhether Respondents’ actions were legal is not a question of discretion, and, therefore, falls outside the ambit o f 1252(g).” (Id.).
In its answer to the petition, the government reiterates that this Court is barred by § 1252 from exercising any jurisdiction over Petitioner’s claims. (See DE 27). It specifically contends that § 1252 bars review of the constitutionality of discretionary determinations. (Id. at 6). The government asserts that the Suspension Clause applies only to core applications of the writ of habeas corpus and that, as Petitioner challenges his removal rather than his detention, he is not protected by the Suspension Clause. (Id. at 10—11).
C. Background of § 1252(g)
The government, citing 8 U.S.C. § 1252(g), asserts that “Petitioner’s last- minute attempt to halt his removal is precisely the type of claim that Congress sought to bar.” (See DE 14 at 2—3). I agree that 1252(g) is the provision most relevant to jurisdiction over Petitioner’s claims.9
Historically, non-citizens could raise legal challenges to removal orders
by way of habeas petitions. See INS v. St. Cyr,
The government makes tangential mentions of other paragraphs of the statute, but they are not central to the analysis here.
L. No. 104-208, § 304—307, 110 Stat. 3009, 3009-587 through 3009-614 (1996). These acts together largely eliminated a district court’s jurisdiction to review a removal order, in effect channeling review to the BIA and ultimately the Courts of Appeals. See 8 U.S.C. § 1252(a). The original version of 8 U.S.C. § 1252(g), enacted at that time, read as follows:
Except as provided in this section and notwithstanding any other provision of law, 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 Act.
IIRIRA, § 306,
Shortly thereafter, the Supreme Court considered the impact of these
amendments upon habeas jurisdiction, in St. yr,
Thereafter, Congress enacted the Real ID Act of 2005 (“Real ID”), which modified the provisions of 1252 to specifically remove jurisdiction under 28 U.S.C. § 2241, as well as any other sort of habeas jurisdiction. See Real ID, Pub. L. No. 109-13, 106, 119 Stat. 231, 310—11(2005). As amended, l252(g) now reads as follows:
Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutonj), 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.
8 U.S.C. § 1252(g) (emphasis of amendment added). There is now no question that Congress intended this law, and other parts of § 1252 similarly modified, to limit habeas jurisdiction.10
11 Applicability and Constitutionality of § 1252(g)
Petitioner here argues that § 1252(g) does not preclude this court’s jurisdiction, for two reasons: (1) the statutory bar to jurisdiction must be narrowly construed in a manner that does not encompass his claims; and (2) that even if it does encompass his claims, such a restriction of habeas jurisdiction would violate the Suspension Clause of article 1 of the Constitution.
1. Narrow Statutory Construction I first address the Petitioner’s narrow-construction argument. (See DE 26 at 3—4, 8). 1 find that the statute, on its face, does purport to remove habeas jurisdiction over Petitioner’s claims.
In Reno v. American-Arab Anti-Discrimination Committee,
Narrow the categories may be, but I conclude that Petitioner’s claims fall within one of them: the bar against review of the Attorney General’s “decision or action” to “execute removal orders.” The primary, perhaps only, goal of this petition is to halt the execution of a removal order. (See DE 17 at pp. 8—10). Real ID did not, all however, close avenues of review. It relegated judicial review of constitutional and legal questions to the Court of Appeals, to avoid the potential constitutional Suspension Clause issues identified by the Supreme Court in St. yr. See Real ID Act 106 (codified at 8 U.S.C. 1252(a)(2)(D)).
Petitioner does not legitimately call into question the validity of the issuance of
the 2009 order for his removal, nor does he raise any arguments concerning
the propriety of his confinement.Lt (See Id.). As to this narrow point, I follow the
reasoning of the Courts of Appeals for the Second and Sixth Circuits. See
Ragbir v. Homun,
Petitioner argues that § 1252(g) “does not apply to a purely legal question that does not challenge the Attorney General’s discretionary authority, even if the answer to that question forms the backdrop against which the Attorney General will later exercise discretionary authority.” (DE 26 at 8). Elaborating, he proposes a statutory distinction between administrative decisions and administrative actions:
[Hjere, the habeas petition does not challenge the discrete decision to remove Petitioner. The question before the Court is not why the Secretary chose to I note that, in his supplemental brief concerning jurisdiction, Petitioner additionally asserts that he should be considered eligible for a reasonable-fear interview by immigration officials. (DE 26 at 11). As this was not asserted in his petition, I do not consider it as a claim before the Court. As discussed further below, the Second Circuit ultimately concluded that the
Suspension Clause required that the district court exercise jurisdiction to hear
Ragbir’s claims because, although 1252(g) facially limited such jurisdiction, the
government had not disputed Ragbir’s assertion that there existed no adequate
alternative to habeas relief under the peculiar circumstances of that case. See Ragbir,
Petitioner might frame his claim as a challenge, not to the execution of the
removal order, but to the agency’s revocation of its decision to defer action on that
order. The distinction does not persuade, and I believe that the 1252(g) bar would still
apply. The very case that Petitioner cites to in support of the proposition that
revocation of deferred action implicates due-process rights also explicitly found “that 8
. precludes the District Court from exercising jurisdiction over
U.S.C. 1252(a)(4) .
.
[such a] habeas petition.” Khouzam u. Att’y Gen. of US.,
execute the removal order. Rather, the question is whether the way Respondents acted accords with the Constitution and the laws of this country. Whether Respondents’ actions were legal is not a question of discretion, and, therefore, falls outside the ambit of 1252(g). (Id. (emphasis added)). This suggested distinction, I find, is not supported by the statutory language or the relevant case law.
First, Petitioner’s argument that the statute applies only to the reasoning
underlying a decision but not to the actions of ICE in executing a removal order
runs contrary to the language of 1252(g). Section 1252(g) explicitly applies to
a “decision or action” to “execute [a] removal order[].” (emphasis added).
Petitioner’s interpretation would render the phrase “or action” superfluous, a
result disfavored under ordinary principles of statutory construction. See TRW
Inc. v. Andrews,
Second, the cases cited by Petitioner do not support his interpretation. In
this connection, Petitioner cites United States v. Hovsepian,
Petitioner also points to Garcia case, a reported decision by the U.S.
Court of Appeals for the Third Circuit. Garcia, of course, is binding, but less
relevant. It was a direct petition to the Court of Appeals for review of a final BIA
order of removal, as expressly authorized by 8 U.S.C. 1252(b). See Garcia,
Appeals reversed and remanded to the BIA, finding that Bamidele’s
interpretation of the statute of limitations issue should have been applied. Id.
at 728, 729. In doing so, it rejected the government’s argument that § 1252(g)
precluded review. The application of the statutory limitations period, the Third
Circuit reasoned, did not challenge the Attorney General’s discretion. Id. at
728—29. Citing AADC, Garcia concluded that § 1252(g) “has nothing to do with
petitions for review of final orders of deportation, or indeed with any sort of
review of such orders.” Id. (quoting Shah v. Reno,
Context, again, is key. The Garcia Court, under Section 1252, possessed jurisdiction to review the agency’s final orders of removal. It was reversing as legally erroneous a final agency decision, affirmed by the BIA, that misapplied binding authority, namely Bamidele. Here, by contrast, Petitioner has filed a habeas petition asking this Court to directly bar the government from executing a facially valid (if old) removal order in an ongoing matter.’5
Petitioner’s proposed differentiation between administrative decisions and actions is not sustainable. Many a challenge to an immigration action could readily be reframed as a “pure legal question.” On the other hand, an exercise of discretion, with no relevant legal question implicated, might not trigger habeas review at all; a habeas claim under 2241 typically depends on an allegation that the government’s conduct is “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 224 1(c)(3) (emphasis added). In support of his argument that § 1252(g) permits review of purely legal
‘5 questions that do not clrnllenge discretionary decisions, Petitioner additionally cites to the oral argument in a case in this District, Tazu v. Barr, No. 19-7872. I note that District Judge Esther Salas denied Tazu’s request to stay his removal pending the adjudication of his motion to reopen, finding that he lacked any right to a final reopening decision before removal. See Tazu, No. 19-7872, DE 39 at 5—9.
Petitioner correctly observes that the Supreme Court in AADC construed
§ l252(g) to apply narrowly to three situations. This is one of them. AADC itself
concluded that § 1252(g), however narrowly construed, eliminated jurisdiction
over the plaintiffs’ claims that the commencement of removal proceedings
against them violated their constitutional righLs. See A4DC,
2. Constitutionality Under the Suspension Clause I therefore move to the second, constitutional step of the analysis.
Petitioner argues that, if 12 52(g) is interpreted to remove habeas jurisdiction here, the result will be an unconstitutional suspension of the writ of habeas corpus.
The Suspension Clause reads as follows: “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.” U.S. C0NST. art I, 9, cl. 2. If, as
here, a statute is found to remove jurisdiction over a petitioner’s habeas claim,
the Court must then determine whether “Congress has provided adequate
substitute procedures for habeas corpus.” Boumediene v. Bush,
(a) Application of Suspension Clause to removal A threshold issue is whether the Suspension Clause even applies to an application, not for release from illegal confinement (the traditional concern of the habeas remedy), but instead to bar Petitioner’s removal from the country. *18 (See DE 27 at 10—11). The government asserts that “Petitioner does not seek a traditional exercise of habeas jurisdiction that is protected by the Suspension Clause and it thus does not even come into play in this case.” (Id.).
The Supreme Court began its analysis of the Suspension Clause in St.
Cyr with the statement that “[ajt 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.” St. Cyr, 533 u.s. at
301. In Munaf v. Geren,
Petitioner’s requested relief—a stay of his removal pending BIA review of
the IJ’5 denial of his motion to reopen—does not self-evidently fall within the
“historical core” of habeas relief Ironically, his petition might be seen from one
angle as one to remain in ICE custody. Nevertheless, the St. Cyr Court’s
reference to the “core” of habeas protections may be viewed as a floor, not a
ceiling. See
In Hamama, the Sixth Circuit, examining St. Cyr and Munaf, concluded that petitioners who sought to prevent the execution of removal orders were not In Munaf the petitioners were U.S. citizens who were in the custody of U.S. forces in Iraq while awaiting criminal prosecution in the Iraqi court system. See Munaf 553 U.S. at 679—85. They filed habeas petitions and sought injunctions against their release to Iraqi authorities. Id. The Supreme Court determined that the writ of habeas corpus did not apply to such circumstances. Id. at 689—705.
seeking the kind of habeas relief (i.e., release from custody) that the
Suspension Clause protects. See
Habeas corpus is the ultimate backstop against the executive’s illegal application of force to detain a person. To my mind, “release” from detention does not encompass the (by hypothesis) illegal, involuntary transportation of that individual to a foreign nation. I think that the broad, remedial purposes of the Great Writ may—all other things being equal, see infra—encompass a challenge to an illegal order of removal.
I will therefore conclude what Harnama assumed arguendo: that the effect of 1252(g) is to limit otherwise-available habeas relief. I proceed to the second step of the Suspension Clause analysis: whether “adequate substitute procedures” nevertheless remain available.
{b) Adequacy of alternatives to habeas relief. As noted above, the Suspension Clause does not bar a limitation on habeas jurisdiction if adequate substitute procedures are in place. I conclude, however, that under the narrow circumstances of this case, substitute procedures are inadequate or unavailable.
Petitioner here seeks a stay of removal pending the BIA’s review of the IJ’s order denying his motion to reopen. (See DE 17). The alternatives to habeas relief in this court, he says, are inadequate for several reasons. Petitioner asserts that permitting his removal prior to a final decision would violate his due process rights and the APA, in that he would be “left without a timely forum for review.” (Id. ¶ 26—30). He argues that
[executing [his} removal order ithout consideration of evidence of his past persecution, the attempts to harm him during the short period he was in Jamaica following his recent removal conlvicting [sic] with this Court’s temporary restraining order, and The Harnarna Court was perhaps less than certain that this principle was settled, however. Although this first-step issue should have been dispositive, the court nevertheless proceeded to the second step of a Suspension Clause analysis. Ultimately it concluded that the petitioners had an adequate alternative to habeas relief—namely, the petition-for-review process. Id. at 876—77.
fear of future persecution, would violate U.S. statutory and international law because he is likely to be persecuted and tortured once again if removed to Jamaica.
(DE 26 at 11). The stay is thus sought as a step in the process of reopening the immigration proceeding and obtaining relief from the removal order.’8
Initially, of course, Petitioner’s due process forum consisted of proceedings before the Immigration Judge. After he was taken into immigration custody, Petitioner filed a motion to reopen his removal proceedings and to stay his removal. (DE 17 ¶ 18). He acknowledges that an IJ denied his motion, finding it untimely but also “determin[ing] that the motion failed to establish changed country conditions to warrant reopening to permit [Petitioner] to apply for relief.” (Id. ¶ 19).19
The second layer of review is the BIA. Petitioner appealed this decision to the BIA and moved to stay his removal. (Id. ¶ 19, 21). The BIA denied Petitioner’s motion to stay on the basis that “there is little likelihood that the appeal will be sustained.” (DE 14-5). The BIA has not, however, ruled on the merits of the appeal.
The third layer of review is an appeal of the BIA’s final decision to the U.S. Court of Appeals for the Second Circuit. That Court has full powers to adjudicate appeals from final orders of the immigration courts and to grant stays pending appeal. Indeed, it was in order to save 1252(g) from a Suspension Clause challenge that Congress, in removing habeas jurisdiction, simultaneously lodged jurisdiction in the Courts of Appeals to hear petitions for review of immigration cases.
I note at the outset that alternative procedures are not considered inadequate merely because relief has been denied. The Suspension Clause does not guarantee success; it requires an adequate forum for presentation of claims.
Petitioner does not seem to be claiming that conditions have changed in Jamaica since 2009. Rather, he claims that his decision to cooperate with the U.S. government subsequently made Jamaica a dangerous place for him.
Court of Appeals review is an integral, constitutionally required
component of that review scheme; without it, § 1252(g) would violate the
Suspension Clause. Hamama has held, and I agree, that “[wihen Congress
stripped the courts of jurisdiction to grant habeas relief in 1252(g), it
provided aliens with an alternative method to challenge the legality of removal
orders: a motion to reopen followed by a petition for review filed in a court of
appeals. See 8 U.S.C. 1252(a)(5), (2)(D). Because this process provides an
alien with the same scope of relief as habeas, the REAL ID Act does not violate
the Suspension Clause.”
For all of these reasons, I, too, hold that the jurisdiction-stripping provisions of 1252 do not facially run afoul of the Suspension Clause, and must be deemed facially effective.
That, however, does not end the matter. I must also consider whether the alternative remedy is adequate under the circumstances of this case. I find that, under these unusual circumstances, the alternative remedy is not Petitioner objects that the IJ’s decision to deny Petitioner’s motion to reopen was premised, at least in part, on grounds of untimeliness, rather than the merits of the claim. That relief was denied on procedural grounds does not undermine the adequacy of the alternative procedure for purposes of the Suspension Clause analysis. See Gonzalaez-Lora v. Warden Fort Dix FCV, 629 F. Appx 400, 402 (3d Cir. 2015) (“[T]he fact that the argument failed due to lack of exhaustion does not demonstrate that his remedies were inadequate or ineffective.”).
a d e qu a t e . A d m i n i s t r a ti v e p r o cee d i ng s , f o ll o w e d by C ou r t o f A pp ea l s r e v i e w , a r e no t a d e qu a t e h e r e un l e ss s upp l e m e n t e d by a s t a y p e nd e n t e lit e .
T h e a lt e r n a ti v e r e m e dy p r opo s e d by t h e gov e r n m e n t i s t h a t P e titi on e r b e d e po r t e d t o J a m a i ca , a nd t h a t h e a ss e r t h i s a pp ea l r i gh t s fr o m t h e r e . I t i s t r u e t h a t i n g e n e r a l , a p e titi on f o r r e v i e w ca n b e pu r s u e d fr o m a b r o a d . S ee g e n e r a ll y N k e n u. H o l d e r , 556 u . s . 418 , 435 , 129 S . C t . 1749 ( 2009 ) . N o t s o h e r e , ho w e v e r .
P e titi on e r a ll e g e s p l a u s i b l y t h a t b eca u s e o f h i s c oop e r a ti on w it h t h e U n it e d S t a t e s gov e r n m e n t i n t h e D udu s p r o s ec u ti on , h e w ou l d li k e l y b e k ill e d i f h e i s r e t u r n e d t o J a m a i ca . D udu s , t h e h ea d o f a v i o l e n t d r ug t r a ff i c k i ng o r g a n i za t i o n , e x e r c i s e d c o n t r o l o v e r p a r t s o f K i ng s t o n , t h e p o li ce , a n d ce r t a i n po liti ca l f i gu r e s ; D udu s ’ s a un t t h r ea t e n e d h i m du r i ng t h e t r i a l; a nd , s i n ce h i s t e s ti m ony , h i s s i s t e r’ s hou s e w a s bu r n e d do w n , t h e hou s e o f h i s c h il d r e n ’ s m o t h e r w a s bo m b e d , s i x o f h i s c ou s i n s h a v e b ee n m u r d e r e d , a nd h i s f a t h e r w a s f o r ce d t o f l ee t h e c oun t r y . P e titi on e r a ll e g e s t h a t h e w a s t h r ea t e n e d w h e n h e w a s i nvo l un t a r il y r e t u r n e d t o J a m a i ca i n l a t e M a y : . T h e gov e r n m e n t o ff e r s no f ac t u a l r e s pon s e t o t h e s e c on t e n ti on s .
I f i nd it qu it e li k e l y t h a t a p e r s on i n t h a t po s iti on i n J a m a i ca — i n h i d i ng , a nd und e r a t h r ea t o f d ea t h — c ou l d no t e ff ec ti v e l y liti g a t e a n i mm i g r a ti on a pp ea l i n t h e B I A o r t h e C ou r t o f A pp ea l s . N o t t o pu t t oo f i n e a po i n t on it , t h e d ea t h t h r ea t s , i f ca rr i e d ou t , w ou l d m oo t a nd d e f ea t t h e r e v i e w p r o ce ss .
A n a rr o w , a s - a pp li e d e x ce p ti on t o t h e 1252 ( g ) b a r h a s b ee n r ec ogn i ze d i n t h e v e r y f e w ca s e s w i t h c o m p a r a b l e f ac t s .
T h e s ce n e i s s e t by t h e op i n i on o f t h e S ec ond C i r c u it i n R a gbb ; w h i c h h e l d t h a t t h e S u s p e n s i on C l a u s e s e r v e d t o p r e s e r v e a m od i c u m o f d i s t r i c t c ou r t j u r i s d i c ti on d e s p it e 1252 ( g ) . T h e r e , t h e p a r ti e s d i d no t “ d i s pu t e t h a t R a gb i r h a [ d ] no ‘ a d e qu a t e s ub s tit u t e ’ f o r a h a b ea s p e titi on ” und e r t h e c i r c u m s t a n ce s . R a yb i r , 923 F . 3d a t 74 . U n li k e t h e c l a i m s i n H a m a m a , “ R a gb i r’ s c on s tit u ti on a l c l a i m s a r o s e o n l y a f t e r h i s r e m o v a l o r d e r b ec a m e f i n a l a n d a f t e r h e h a d t a k e n f u ll a dv a n t a g e o f t h e r e v i e w p r o ce ss p r e s c r i b e d by s t a t u t e , i n c l ud i ng f illi ng a *23 petition for review and the one motion to reopen to which he was entitled.” Id. at 74 n.27 (emphasis added). Petitioner here, like Raghir, seeks to avoid removal based on circumstances that arose after the time for a challenge had passed. Unlike Ragbir, he is still in the midst of a petition to reopen (although the 13 has rejected it as untimely). But this case shares with Raghira procedural posture that tends to render his alternative remedies ineffectual, and therefore requires that the residual habeas remedy be preserved.
Closer factually to this case is Compere v. Nielsen,
Taken in combination—the possibility of detention while awaiting the drug task force, the potential that he will be detained in temporary housing if his uncle is unable to retrieve him, the security threats under which he will live when he is housed with Mr. Renois—the record demonstrates that, more likely than not, Compere would be unable to litigate his motion to reopen if he is removed to Haiti.
Id. at 182. The court ordered relief limited to “a stay of removal that will remain in place until Compere’s motion to reopen is resolved and he has been given an opportunity to appeal any adverse ruling.” Id.
Devitri v. Cronen,
Finally, in Thrahirn v. Acosta, No. 17-24574,
As applied in these circumstances, the jurisdictional bar in 8 U.S.C. 1252(g) would preclude Petitioners from raising their new legal claims in a manner which comports with the law, in violation of the Suspension Clause. Therefore, the Court finds that the jurisdiction stripping provisions of the REAL ID Act are unconstitutional as applied to Petitioners, based on the extraordinary circumstances of this case, because it suspends *25 t h e i r r i gh t to h a b ea s r e li e f w it hou t p r ov i d i ng a n a d e qu a t e a nd e ff ec ti v e a lt e r n a ti v e .
Id. a t *6.
H e r e , it ca nno t b e s a i d t h a t p r o cee d i ng s on t h e m o ti on to r e op e n h a v e lit e r a ll y b ee n e xh a u s t e d , a s in R a gb i r . N e v e r t h e l e ss , t h i s ca s e s h a r e s w it h R a gb i r , C o m p e r e , Devitri, a nd Thrahim a k e y d e t e r m i n a ti v e f ac t o r : T h e c on s tit u ti on a ll y r e qu i r e d a d e qu a t e a lt e r n a ti v e r e m e dy h a s b ee n r e nd e r e d i n e ff ec ti v e . As in C o m p e r e a nd Devitri, P e titi on e r h e r e f ace s po t e n ti a l v i o l e n ce if h e is r e t u r n e d , p e nd e n t e lite, to t h e v e r y l o c u s of t h e t h r ea t . S ee Devith, 289 P. S upp . 3d a t 294 (“[Tjhey will be r e m ov e d b ac k to t h e very c oun t r y w h e r e t h e y f ea r p e r s ec u ti on a nd t o r t u r e w h il e a w a iti ng a d ec i s i on on w h e t h e r t h e y s hou l d be s ub j ec t to r e m ov a l b eca u s e of t h e i r f ea r s of p e r s ec u ti on a nd t o r t u r e . ” ) . T h e c on s tit u ti on a ll y r e qu i r e d r e v i e w p r o ce ss ca nno t p r o cee d a d e qu a t e l y und e r t ho s e c i r c u m s t a n ce s .
F u r t h e r , a s i n Thrahim, t h e p ec u li a r ti m i ng of e v e n t s h a s r e nd e r e d o r d i n a r y r e v i e w i n e ff ec t u a l . T h i s P e titi on e r’ s p r o ce du r a l qu a nd a r y a r i s e s b eca u s e h i s c oop e r a ti on ( t h e c i r c u m s t a n ce t h a t p l ace s h i m in d a ng e r) a r o s e l ong a f t e r t h e ti m e to c h a ll e ng e h i s 2009 o r d e r of r e m ov a l h a d p a ss e d . He is a tt e m p ti ng to r e op e n t h a t d ec i s i on , bu t in t h e m ea n ti m e , h e o cc up i e s a j u r i s d i c ti on a l no - m a n ’ s l a nd . C ou r t of A pp ea l s r e v i e w , r e m e m b e r , is t h e v e r y r ea s on t h a t t h i s c ou r t ca n c on s tit u ti on a ll y be d e n i e d h a b ea s j u r i s d i c ti on ; y e t it is t h a t v e r y l ac k of j u r i s d i c ti on t h a t p e r m it s t h e a g e n c y to ac t w it hou t j ud i c i a l i n t e r v e n ti on in a m a nn e r t h a t will d e f ea t t h e e ff ec ti v e n e ss of C ou r t of A pp ea l s review.
To s t op t h e s p i nn i ng of t h i s j u r i s d i c ti on a l m e rr y - go -r ound , on l y m od e s t m ea s u r e s a r e r e qu i r e d . T h e m i n i m u m h a b ea s j u r i s d i c ti on t h a t will e n s u r e t h e a d e qu ac y of t h e c on s tit u ti on a ll y r e qu i r e d a lt e r n a ti v e p r o ce du r e s is a “bridge” s t a y , p e r m itti ng P e titi on e r to r e m a i n in t h e U n it e d S t a t e s un til a d m i n i s t r a ti v e p r o cee d i ng s a r e c on c l ud e d a nd a n a pp ea l m a y be t a k e n to t h e C ou r t of A pp ea l s , if n ece ss a r y . To e n s u r e t h a t t h e a lt e r n a ti v e to t h e w r it , r e qu i r e d by t h e *26 S u s p e n s i on C l a u s e , is a d e qu a t e , t h i s C ou r t m u s t r e t a i n t h e r e s i du a l h a b ea s j u r i s d i c ti on to c on s i d e r a nd , if a pp r op r i a t e , g r a n t s u c h a s t a y . S t a y o f R e m ov a l
E. F i n a ll y , h a v i ng f ound t h a t I po ss e ss j u r i s d i c ti on , I c on s i d e r w h e t h e r to i ss u e a s t a y . S u c h a s t a y is in t h e n a t u r e of a n a rr e s t of p r o cee d i ng s b a s e d on t h e ce r t a i n t y of i n j u r y to P e titi on e r’ s p r o ce du r a l a nd c on s tit u ti on a l r i gh t s :
A s t a y , by c on t r a s t [to a n o r d i n a r y i n j un c ti on ] , is “[tjhe po s t pon e m e n t or h a lti ng of a p r o cee d i ng , j udg m e n t o r t h e like.” S t a y , B l ac k ’ s Law D i c ti on a r y ( 9 t h ed. 2009 ) . It is no t a n ac ti on a g a i n s t a p a r t y o r i nd i v i du a l . “ [I j n s t ea d of d i r ec ti ng t h e c ondu c t of a p a r ti c u l a r ac t o r , a s t a y op e r a t e s upon t h e j ud i c i a l p r o cee d i ng itself.” N k e n v. H o l d e r , 5 5 6 U.S. 4 1 8 , 4 2 8 , 129 S . C t . 1749 , L . E d . 2d 550 ( 2009 ) . A s t a y is t hu s a t e m po r a r y m ea s u r e , pu t i n p l ace w h il e t h e ac t u a l ca u s e o r c l a i m is b e i ng a d j ud i ca t e d . A s t a y is no t a c h a ll e ng e to t h e b a s i s of r e m ov a l o r a ny ac ti on t a k e n by t h e i mm i g r a ti on a u t ho r iti e s . T h e r e qu e s t e d s t a y is m e r e l y a “ t e m po r a r y s e tti ng a s i d e of t h e s ou r ce of t h e G ov e r n m e n t ’ s a u t ho r it y to r e m ov e , ” id. a t 429 , 129 S . C t . 1749 , w h il e t h e c ou r t a d j ud i ca t e s t h e ac t u a l und e r l y i ng ca u s e o r c l a i m .
R a gb i r v. United S t a t e s , No. 2 : 17 - C V - 1256 - K M , 2018 WL 1446407 , a t *8 (D.N.J. Mar. 23 , 2018 ) , a pp ea l d i s m i ss e d , No. 18 - 2142 , 2018 WL 6133744 (3d Cir. Nov. 15, 2018 ) ( no ti ng t r a d iti on a l e qu it a b l e f ac t o r s , a d a p t a b l e to t h e c i r c u m s t a n ce s of t h e ca s e , o f li k e li hood of s u cce ss , i rr e p a r a b l e h a r m , b a l a n c i ng h a r m to t h e gov e r n m e n t , a nd t h e pub li c i n t e r e s t ) . I s u r v e y e d t h e c ou r t ’ s t r a d iti on a l a u t ho r it y to i ss u e s u c h a s t a y in R a gb i r , id. a t *10_*12 , a l b e it w i t h ou t t h e a dd it i on a l c on s t it u ti on a l u r g e n c y of a v i o l a ti on of t h e S u s p e n s i o n C l a u s e . T h a t a n a l y s i s is i n c o r po r a t e d by r e f e r e n ce h e r e .
O n li k e li hood of s u cce s s , I m u s t ob s e r v e t h a t t h i s is no t t h e u s u a l p r e li m i n a r y i n j un c ti on p e nd e n t e lite, no r do e s t h i s C ou r t p l ace it s e l f in t h e po s iti on of r e v i e w i ng t h e d ec i s i on s of t h e I J or t h e BIA, o r h a nd i ca pp i ng P e titi on e r’ s c h a n ce s on a hypo t h e ti ca l a pp ea l . T h a t , I b e li e v e , is no t r e qu i r e d by t h e S u s p e n s i on C l a u s e a n d h e n ce w ou l d e x c ee d t h e b o un d s of p e r m i s s i b i l i t y und e r R ea l ID. I a m m o s t m ov e d h e r e by t h e c on s tit u ti on a l n ece ss it y of a s t a y und e r t h e S u s p e n s i on C l a u s e , s ee s up r a , a nd t h e li k e li hood of a v i o l a ti on of *27 Petitioner’s procedural and constitutional rights if it is not granted. Petitioner may or may not prevail before the BIA or the Court of Appeals; the Constitution requires, however, that his opportunity to put his case be preserved.
Irreparable injury requires little or no discussion. While deportation might not inflict irreparable injury in every case, it does so here, for the reasons stated above.
The balance of harms and the public interest also weigh in favor of a stay. Petitioner’s order of removal was entered ten years ago. For the last six years, the government has deferred action on his removal, based on his valuable cooperation in the Dudus case. There is no particular urgency to removing Petitioner now. The government was free, and remains free, to accelerate the disposition of the matter by the simple expedient of having the BIA render its final decision.
IV. CONCLUSION
Petitioner makes a plausible claim that removal to Jamaica, delayed for many years and hardly urgent, would expose him to great danger based on his assistance to the prosecuting authorities in the United States. It does not seem to be too much to ask that he be permitted to pursue the constitutionally required process of review from the relative safety of a U.S. jail cell. To remove him to Jamaica now, I have found, will drain the review procedure of efficacy and violate the Suspension Clause. The Constitution requires, at a minimum, that this court retain the residual habeas jurisdiction to grant a stay so that the review process may unfold in an orderly and efficacious manner. I will therefore enter a separate order staying his removal until 14 days after the BIA renders its final decision.
DATED: September 3, 2019
KEVIN MCN LTY United States District Judge