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rejecting petitioner's Suspension Clause arguments where "even if the process leading to Barros's removal were fatally deficient, he has not shown, on the facts here, that the administrative remedies available to him, including, ultimately, a petition for review before the Second Circuit, are an inadequate or ineffective substitute for habeas review."
Summary of this case from Bumu v. BarrOpinion
18 Civ. 7493 (PAE)
2019-07-08
Edisson Mauricio BARROS ANGUISACA, Petitioner, v. Thomas DECKER, et al., Respondents.
Adriene L. Holder, Jennifer Ann Williams, The Legal Aid Society, Gregory Paul Copeland, Sarah Telo Gillman, NSC Community Legal Defense, New York, NY, for Petitioner. Christine Schessler Poscablo, Michael James Byars, U.S. Attorney Office, New York, NY, for Respondents.
Adriene L. Holder, Jennifer Ann Williams, The Legal Aid Society, Gregory Paul Copeland, Sarah Telo Gillman, NSC Community Legal Defense, New York, NY, for Petitioner.
Christine Schessler Poscablo, Michael James Byars, U.S. Attorney Office, New York, NY, for Respondents.
ORDER
PAUL A. ENGELMAYER, District Judge:
Petitioner Edisson Mauricio Barros Anguisaca ("Barros"), a native and citizen of Ecuador, seeks here a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 1651, against respondents William P. Barr, Attorney General of the United States; Thomas Decker, in his capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement ("ICE"); and Kevin K. McAleenan, Acting Secretary of Homeland Security for the U.S. Department of Homeland Security (collectively, "respondents" or "the government"). He requests a stay of removal. Respondents argue that Barros' habeas petition should be dismissed for lack of jurisdiction or, alternatively, denied in its entirety. For the following reasons, the Court dismisses Barros' petition for lack of jurisdiction.
Kevin K. McAleenan has been substituted for his predecessor, Kirstjen M. Nielsen, as Acting Secretary of the Department of Homeland Security under Fed. R. Civ. P. 25(d).
I. Background
The Court draws its account of facts from the following documents: Barros' Second Amended Petition, Dkt. 26 ("SAP"), and the exhibits attached thereto; the declaration of Geraldo Paoli, Dkt. 34 ("Paoli Decl."), and the exhibits attached thereto; and Barros' reply in support of his SAP, Dkt. 36 ("Barros Reply").
Barros is a native and citizen of Ecuador and has resided in the United States for more than 25 years. SAP ¶¶ 2, 15. He is 46 years old and married with two U.S.-citizen daughters. Id. ¶ 15. Barros first entered the United States without inspection in 1993 at the U.S.-Mexico border. Id. ¶ 16. He was arrested by U.S. Customs and Border Patrol ("CBP") agents and was returned to Mexico. Id. Several days later, he crossed the U.S.-Mexico border undetected. Id. In 1997, Barros married his first wife, who filed a Form I-130 petition on his behalf. Id. ¶ 17. On February 14, 1997, that petition was approved. However, Barros and his then-wife did not attend the adjustment-of-status interview. Id.
In 2000, Barros obtained advance parole to travel to Ecuador to visit his family. Id. ¶ 18. His advance parole was approved indefinitely. Id. After spending approximately one month abroad, Barros returned to the United States and was inspected and admitted at the Newark International Airport. Id. In 2003, Barros again traveled to Ecuador to attend to family matters. Id. ¶ 19. When he returned to the United States, he presented advance parole documents to CBP at the John F. Kennedy International Airport. Id. Upon secondary inspection, CBP officers determined that Barros was inadmissible to the United States and arrested and detained him. Id.
On February 13, 2003, the U.S. Immigration and Naturalization Service ("INS") filed a notice to appear ("NTA") that did not specify the time and place of Barros' removal proceedings. Id. ¶ 20; Id. , Ex. 7 (NTA). Barros was charged with inadmissibility under 8 U.S.C. § 1182(a)(6)(C)(i), which renders inadmissible an alien who seeks to procure a visa, other documentation, or admission to the United States by means of fraud; and § 1182(a)(7)(A)(i)(I), which renders inadmissible an alien who applies for admission to the United States without a valid visa, reentry permit, or other valid entry document. SAP ¶ 20.
On February 21, 2003, Barros appeared before an immigration judge ("IJ"). Id. ¶ 21. The IJ sustained the charge of inadmissibility under § 1182(a)(7)(A)(i)(I) and ordered Barros removed from the United States to Ecuador. Id. Barros was removed to Ecuador but later reentered the United States without inspection. Id. Since reentering the United States after his removal in 2003, Barros has re-married, had two U.S.-citizen children, and worked as a New York City taxi cab driver. Id. ¶ 2.
On July 16, 2018, Barros appeared at the Queens County Criminal Court in connection with a misdemeanor charge arising from a verbal dispute. Id. ¶ 22. Barros pled guilty to one count of disorderly conduct, in violation of N.Y.P.L. § 240.20, and was sentenced to 3 days of community service and one year of conditional discharge. Id. Immediately following his court appearance, Barros was arrested and detained by ICE agents.
While held in immigration detention, Barros was informed by ICE agents that he would be immediately removed to Ecuador because of the 2003 final administrative order of removal against him. Id. ¶ 23. Removal was scheduled for August 18, 2018. Id. On July 31, 2018, Barros' previous counsel filed a motion to reopen and stay deportation before the immigration court. Id. ¶ 24.
Barros' current counsel, The Legal Aid society, was first retained to represent Barros on August 16, 2018. SAP ¶ 24.
On August 17, 2018, an IJ denied Barros' motion to reopen and stay removal. Id. ¶ 25. The IJ concluded that the motion was time-barred and Barros "has neglected to submit an application for cancellation of relief, and has not [submitted] supporting documents to show that he meets statutory requirements of cancellation, namely, that he meets the physical presence requirement." SAP, Ex. 13 ("August 17, 2018 IJ Order") at 4. The IJ further concluded that Barros' circumstances did not warrant the sua sponte reopening of his removal order. Id. at 5.
On September 18, 2018, Barros, now represented by different counsel, timely appealed the IJ's decision denying the motion to reopen. Id. ¶ 26. On November 1, 2018, in light of the Supreme Court's decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018), discussed below, Barros also filed a motion to reopen before the Board of Immigration Appeals ("BIA") to reopen his removal proceedings. Id. ¶¶ 6, 26. In the motion before the BIA, he also alleges that the counsel that litigated the motion to reopen before the IJ provided ineffective assistance. Id. ¶ 6. Barros' motion to reopen before the BIA is currently pending.
Barros ultimately hopes to pursue, before the BIA, cancellation of removal. Id. Cancellation of removal is a discretionary form of relief under which a noncitizen who is subject to removal proceedings may obtain cancellation of an order of removal if he (1) has accrued 10 years of continuous physical presence, (2) was of good moral character during those 10 years, (3) has not been convicted of specific offenses, and (4) establishes that removal would result in "exceptional and extremely unusual hardship" to a U.S. citizen or legal permanent resident spouse, parent, or child. 8 U.S.C. § 1229b(b). The continuous presence requirement is calculated according to the "stop-time rule," whereby "any period of ... continuous physical presence in the United States shall be deemed to end ... when the alien is served a notice to appear ...." Id. § 1229b(d)(1). Barros asserts that he has accrued 10 years of continuous physical presence and may be eligible for cancellation of removal.
B. Procedural History
On August 16, 2018, Barros filed an emergency petition for a writ of habeas corpus in this District before Judge Katherine Polk Failla, who was then sitting in Part I. Id. Judge Failla issued a temporary restraining order preventing Barros' deportation. Id. ; Dkt. 1. After an emergency hearing on the evening of August 16, 2018, Judge Failla issued an oral order temporarily staying Barros' removal. Dkt. 6.
The matter was then assigned to this Court. On September 27, 2018, Barros filed an amended habeas petition. Dkt. 11. On October 19, 2018, the government responded to the amended petition and requested that the matter be transferred to another District. Dkt. 14. On November 2, 2018, Barros filed a reply in support of his amended petition. Dkt. 17.
On November 30, 2018, the Court issued an Order explaining that Barros' Second Amended Petition presented a combination of "core" claims, meaning claims that challenge the conditions and fact of physical detention, and "non-core" claims, meaning challenges to forms of legal, non-physical custody. Dkt. 18. As to "core" claims, the Court explained that it, like the substantial majority of judges in this Circuit, had previously held that jurisdiction lies in the district where a petitioner's immediate physical custodian is located. Id. at 2; see Almazo v. Decker , No. 18 Civ. 9941 (PAE), 2018 WL 5919523, at *2 (S.D.N.Y. Nov. 13, 2018). However, the Court explained, as to "non-core" claims, courts in this Circuit rely on a combination of venue and personal jurisdiction principles in deciding whether they have jurisdiction. Dkt. 18 at 2. Insofar as Barros was being physically held in the District of New Jersey and had been at the time of his petition, the Court noted, this District lacked jurisdiction, at a minimum, over his "core" claims. Given this, the Court observed, the government's request to transfer the case to the District of New Jersey was well-founded. The Court directed that if Barros wished to maintain his action before this Court, he would be required to amend his petition so as to present only "non-core" claims, i.e. , claims not challenging his physical confinement. Id.
Barros chose to amend his petition so as to present only "non-core" claims that could be brought in this District. On December 14, 2018, he filed his Second Amended Petition. Dkt. 26. Barros alleges there that respondents' attempt to remove him pursuant to an allegedly defective NTA (1) violates the Due Process Clause of the Fifth Amendment; (2) is arbitrary and capricious, in violation of the Administrative Procedure Act; and (3) violates 8 U.S.C. § 1229(a), which sets forth requirements regarding NTAs.
The Court directed respondents to file their response by December 31, 2018, showing cause why the Second Amended Petition should not be granted. Dkt. 27. On December 21, 2018, the Court extended this deadline to January 18, 2019. Dkt. 31. On December 27, 2018, in light of the lapse of funding to the United States Department of Justice, Chief District Court Judge Colleen McMahon stayed this action pending restoration of funding. Dkt. 32. On January 28, 2019, that stay was lifted. On February 15, 2019, the government filed its opposition to Barros' Second Amended Petition, Dkt. 33, as well as a memorandum of law, Dkt. 35, and a declaration, Dkt. 34, in support of its position. On February 23, 2019, Barros filed his reply in support of the Second Amended Petition. Dkt. 36.
II. Discussion
A. Jurisdiction
At the threshold, the Court must determine whether it has jurisdiction over this action. See, e.g. , Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 434, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ("[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press."). Respondents argue that a provision of the REAL ID Act of 2005, 8 U.S.C. § 1252 (" § 1252"), strips this court of jurisdiction to issue stays of removal or otherwise review or interfere with final removal orders. Barros disagrees. Further, he argues, even if § 1252 deprives this Court of jurisdiction, application of § 1252 here would violate the Suspension Clause.
1. The REAL ID Act
The REAL ID Act of 2005 amended the immigration laws to provide that "[n]otwithstanding any other provision of the law (statutory or nonstatutory), ... a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter." 8 U.S.C. § 1252(a)(5). The Second Circuit has held that, in allocating challenges to removal orders uniquely to the federal courts of appeals, § 1252(a)(5) "clearly preclude[s] [a] district court's entertaining of a direct challenge to a removal order," Delgado v. Quarantillo , 643 F.3d 52, 55 (2d Cir. 2011). That prohibition, the Second Circuit has further stated, "applies equally to preclude ... an indirect challenge," id. At the same time, the Second Circuit has noted, "a suit brought against immigration authorities is not per se a challenge to a removal order; whether the district court has jurisdiction will turn on the substance of relief that a plaintiff is seeking." Id.
Relevant too, 8 U.S.C. § 1252(g) provides that "[n]otwithstanding any other provision of law," including "any ... habeas corpus provision, ... 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." The Supreme Court has "narrowly read § 1252(g) to apply only to three discrete actions that the Attorney General may take—i.e. , his decision or action to commence proceedings, adjudicate cases, or execute removal orders." Vidhja v. Whitaker , No. 19 Civ. 613 (PGG), 2019 WL 1090369, at *4 (S.D.N.Y. Mar. 6, 2019) (internal quotation marks, alterations, and emphases omitted).
The Second Circuit's decision in Delgado , supra , frames this Court's jurisdictional analysis. The petitioner there sought a stay of removal pending adjudication of an I-212 waiver, which in turn was a necessary prerequisite for the petitioner to obtain an adjustment of status that would render her a permanent resident. The Circuit accordingly held the petitioner's lawsuit precluded by § 1252. It explained that "a nunc pro tunc Form I-212 waiver of inadmissibility and the adjustment of status to that of a lawful permanent resident would render the [removal] order invalid." Id. (citation, internal alteration, and quotation marks omitted). Because the relief the petitioner sought would therefore automatically render her removal order invalid, the Circuit held, she was indirectly challenging such order. Id.
Courts in this District have applied Delgado to preclude district courts from exercising jurisdiction in cases where aliens have moved to stay pending immigration adjudications that necessarily stood, if successful, effectively to vacate the underlying removal order. See, e.g. , Vidhja , 2019 WL 1090369, at *3–5 (finding no jurisdiction to consider habeas petition seeking stay of removal while motion to reopen was pending because such challenge was an indirect challenge to the removal order); Singh v. USCIS , No. 15 Civ. 1411 (JMF), 2016 WL 1267796 (S.D.N.Y. Mar. 30, 2016), aff'd , 878 F.3d 441 (2d Cir. 2018) (finding indirect challenge to removal order where motion challenged denial of application for adjustment of status to lawful permanent residency); Nieto-Ayala v. Holder , No. 08 Civ. 8347 (LMM), 2011 WL 3918156, at *2–3 (S.D.N.Y. Aug. 30, 2011) (finding indirect challenge to removal order where petitioner sought to compel government to continue his enlargement on bond pending immigration adjudication); but see S.N.C. v. Sessions , No. 18 Civ. 7680 (LGS), 2018 WL 6175902, at *4 (S.D.N.Y. Nov. 26, 2018) (finding there was not an indirect challenge to removal order where the relief sought, a T-visa application, would not "subject [her removal order] to automatic cancellation," but would instead require her to file a motion to reopen and terminate such order). Barros seeks to distinguish Delgado and the line of cases following it. He argues that he "is not directly or indirectly challenging his removal order" and states that he seeks only "a meaningful opportunity for his motion to reopen ... to be heard by the BIA and not be deported." Barros Reply at 9.
The Court is unpersuaded. Barros's Second Amended Petition asks, as relief, that the Court "stay his removal" and enjoin his removal from the New York City area. It further seeks "declaratory and injunctive relief," on the ground that the final "removal order is premised on a defective charging document, a [NTA], which was insufficient to vest jurisdiction over [Barros] in an immigration court." SAP ¶¶ 5, 8. In other words, as respondents aptly observe, Barros' argument on the merits is that the removal order must be vacated because the immigration court that issued the removal order lacked jurisdiction to do so. But as the Nieto-Ayala court concluded, if this Court were to grant the relief Barros seeks and bar the government from removing Barros, "then the Government would be without a mechanism to enforce the removal order" until such time that the BIA adjudicated Barros' motion. 2011 WL 3918156, at *3. Barros' challenge, therefore, on its face is a sure, if indirect, attack on the removal order itself. The effect of any stay by this Court would be to compel the adjudication of Barros' motion, and thus, "like the I-212 application in Delgado , [Barros' motion] is ‘inextricably linked’ to his removal order ...." Id. (quoting Delgado , 643 F.3d at 55 ).
Barros argues that he is merely seeking a stay of removal pending adjudication of his claim by the BIA. However, "[n]umerous courts in this Circuit have held ... that a request for a stay of removal constitutes a challenge to a removal order, and that accordingly district courts lack jurisdiction to grant such relief." Vidhja , 2019 WL 1090369, at *3 (internal quotation marks omitted); see also Scott v. Napolitano , 618 F. Supp. 2d 186, 191 (E.D.N.Y. 2009) ("[T]hese provisions of § 1252 operate to strip district courts of jurisdiction to stay an order of removal ...."); Joseph v. U.S. Attorney General , No. 17 Civ. 5008 (PKC), 2017 WL 6001776, at *1 (E.D.N.Y. Dec. 4, 2017) ("Since District Courts cannot review removal orders, they also cannot consider requests for stays of removal."); Vasquez v. United States , No. 15 Civ. 3964 (JGK), 2015 WL 4619805, at *4 (S.D.N.Y. Aug. 3, 2015) ("[Petitioner] argues that, in this case, she is not challenging the removal order; she is challenging the constitutionality of the actions of federal officials following her detention. But the relief sought by the current motion is a stay of her removal. Accordingly, whatever the merits of her underlying claims, the Court does not have jurisdiction to grant this motion"); Nieto-Ayala , 2011 WL 3918156, at *3. Respondents, therefore, are correct that § 1252 deprives this court, being a district court, of jurisdiction to adjudicate Barros's habeas petition and his request for a stay of removal.
2. The Suspension Clause
Barros alternatively—and principally—argues that if § 1252 is held to deprive a district court of jurisdiction to hear his action, it "would preclude [him] from raising his legal claim in a manner which comports with the law, in violation of the Suspension Clause" of the Constitution. Id. He argues that, to avoid constitutional infirmities, § 1252 should not be so construed.
The Suspension Clause, contained in Article I of the Constitution, provides: "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. Const. art. I, § 9, cl. 2. The protections of the Suspension Clause "extend fully to aliens subject to an order of removal." Ragbir v. Homan , 923 F.3d 53, 73 (2d Cir. 2019). It is, however, settled that Congress may "without raising any constitutional questions [under the Suspension Clause], provide an adequate substitute through the courts of appeal." I.N.S. v. St. Cyr , 533 U.S. 289, 314 n.38, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). As the Supreme Court held more than 40 years ago: "[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Swain v. Pressley , 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977).
Here, Barros takes issue with the administrative avenues open to him to challenge his removal. These, he contends, are an inadequate substitute for his habeas challenge. He concedes, however, that there are procedural processes available through which he may pursue relief. Barros has filed an appeal of the IJ's decision denying his motion to reopen his removal proceedings. He has requested a stay of removal with the BIA. Most significant, as respondents observe, if the BIA affirms that decision and leaves him subject to the order of removal, Barros may then challenge that decision in the Second Circuit.
Notwithstanding the protections provided him by the opportunity to petition a federal court of appeals for relief, Barros argues that there is a risk that he may be removed from the United States before he has exhausted these procedural remedies. That argument, however, is also problematic. "Under normal circumstances, removal does not bar a petitioner from filing a post-removal motion to reopen removal proceedings from outside the United States." Hussein v. Brackett , Civil No. 18-cv-273-JL, 2018 WL 2248513, at *5 (D.N.H. May 16, 2018) (citing Santana v. Holder , 731 F.3d 50, 55–56 (1st Cir. 2013) ); see also Luna v. Holder , 637 F.3d 85, 96–104 (2d Cir. 2011) (holding that the post-departure bar, 8 C.F.R. § 1003.2(d), may not be applied to prohibit statutory motions to reopen brought by deported noncitizens, and that post-removal motions to reopen process generally are an adequate substitute for habeas). The risk of removal pending the exhaustion of administrative processes before the BIA therefore typically does not present a risk of violating the Suspension Clause, because the movant retains viable means to pursue relief even after removal.
Barros counters that, if he is removed while his appeal before the BIA is pending, this removal necessarily will defeat his claim on the merits before the BIA, insofar as his removal—whether via deportation or in the form of voluntary departure in anticipation of deportation—would break his continuous physical presence. And, he notes, the particular form of the relief to which he aspires, cancellation of removal, requires such presence, as it is available only to those who, inter alia , "ha[ve] been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of" the application for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(A). If Barros is removed while his administrative appeal is pending, he will lose the ability to challenge removal on this ground, insofar as he no longer will be able to demonstrate 10 years of continuous physical presence.
Indeed, in the August 17, 2018 IJ Order that Barros is now administratively appealing, the IJ denied Barros' request for a stay of removal and to reopen removal proceedings because Barrios (1) "neglected to submit an application for cancellation of relief," and (2) "has not [submitted] supporting documents to show that he meets statutory requirements of cancellation, namely, that he meets physical presence requirements. " August 17, 2018 IJ Order at 4 (emphasis added).
Although Barros appears correct factually that this particular form of relief would be extinguished were he removed, the ultimate issue under the Suspension Clause is different. It is whether the procedural processes now available to Barros to challenge his removal, including his right to reopen removal proceedings, would be an inadequate or ineffective substitute for habeas review. Barros has not identified any case authority—and the Court is not aware of any—holding the Suspension Clause is violated in such a circumstance. And the cases on which Barros relies, in which courts have held the post-removal motion to reopen process an inadequate substitute for habeas relief, are readily distinguishable. Each involved circumstances in which the petitioner not only "(1) could be removed before the motion is adjudicated" but also, vitally important, "(2) ha[d] a credible fear of persecution or torture in the country of removal, such that he may not have an opportunity to file or have adjudicated a post-removal motion to reopen." Hussein , 2018 WL 2248513, at *5 ; see also Devitri v. Cronen , 289 F. Supp. 3d 287, 293 (D. Mass. 2018) ; Sied v. Nielson , No. 17-cv-06785, 2018 WL 1142202, at *31 (N.D. Cal. Mar. 2, 2018) ; Ibrahim v. Acosta , No. 17-cv-24574, 2018 WL 582520, at *5–6 (S.D. Fla. Jan. 26, 2018). But see Hamama v. Adducci , 912 F.3d 869, 876 (6th Cir. 2018) (rejecting claim that post-removal review was inadequate substitute because of threat of persecution). This "specific set of circumstances," Hussein , 2018 WL 2248513, at *5, is not present here, as Barros has not claimed to have a credible fear of future persecution if he is removed.
Independently, the Court notes that, although Barros's memorandum of law centers his Suspension Clause argument on his concern that the break in his continuous physical presence requirement would impair his prospects of attaining cancellation of removal if deported, his habeas petition here was focused on a different argument altogether. Barros relied there (and in his motion to reopen before the BIA) on the Supreme Court's recent decision in Pereira v. Sessions , ––– U.S. ––––, 138 S. Ct. 2105, 201 L.Ed.2d 433 (2018). See SAP ¶ 6 ("In light of the Pereira v. Sessions decision ... Barros filed a motion to reopen before the [BIA] to reopen his removal proceedings because Pereira controls this case."). Pereira held that service of an NTA that failed to reference the time or place of a hearing does not trigger the INA's "stop-time" rule for purpose of cancellation of removal. Id. at 2113–14. Barros' petition asserts that his removal proceedings are unlawful because his NTA did not include the time and date for his initial hearing, and therefore deprived the immigration court that ordered his removal of jurisdiction over him. See SAP ¶¶ 6, 26. But Barros could pursue this very line of attack, post-removal, under the authorities above, in the service of a post-removal motion to reopen. Accordingly, even if the process leading to Barros's removal were fatally deficient, he has not shown, on the facts here, that the administrative remedies available to him, including, ultimately, a petition for review before the Second Circuit, are an inadequate or ineffective substitute for habeas review. In sum, the Court holds that, pursuant to § 1252, it lacks jurisdiction to grant Barros a stay of removal.
Barros' habeas petition references physical presence requirements only twice, and in passing. See SAP ¶¶ 6, 25.
CONCLUSION
For the reasons stated above, the Court dismisses this action for lack of jurisdiction. The Court hereby vacates the stay of petitioner's removal and respectfully directs the Clerk of Court to close this case.
SO ORDERED.