The opinion of the court was delivered by: Wolfson, United States District Judge,
Petitioner Dhanna Singh (a/k/a Dhanvir Toora) ("Singh" or "Petitioner") is currently detained in a facility in Perry, Alabama awaiting removal to India pursuant to a 1997 order of Immigration Judge ("IJ"). He brings the instant immigration suit against Respondents, Edmond C. Cicchi ("Cicchi"), in his official capacity as Warden of Middlesex County Adult Correction Center; Scott Weber ("Weber"), in his official capacity as Field Officer Director for Detention and removal Operations, Newark District Office; Julie L. Meyers ("Meyers"), in her official capacity as Assistant Secretary of United States Immigration and Customs Enforcement; Emilio T. Gonzalez ("Gonzalez"), in his official capacity as Director of the Citizenship and Immigration Services; Michael Chertoff ("Chertoff"), in his official capacity as the Secretary of the United States Department of Homeland Security; and Michael B. Mukasey ("Mukasey"), in his official capacity as Attorney General of the United States (collectively, "Respondents"), challenging his removal order by arguing that the rescission of his grant of asylum is a violation of his substantive and procedural due process rights. As such, he seeks mandamus and declaratory relief, as well as a writ of habeas corpus. Presently before the Court is Respondents' motion to dismiss Petitioner's complaint. For the reasons set forth below, the Court finds that Petitioner's asylum claims challenging his removal are outside this Court's jurisdiction and therefore his habeas petition will be dismissed without prejudice.
On February 26, 1995, Singh, a native and citizen of India, entered the United States near Brownsville, Texas without inspection. (Ex. 1) He was taken into custody under the name Dhanvir Toora (Ex. 1) and ordered to show cause why he entered without inspection on February 27, 1995. (Ex. 2.) He was released on bond (Ex. 5), and went to live with his brother-in-law in Long Island City, New York. (Ex. 6.) Singh was scheduled for an April hearing before an IJ in Los Fresnos, Texas. (Ex. 7.) However, Singh then voluntarily left the United States on March 23, 1995 to visit his family in India. Respondents dispute this egress from the United States, believing that Singh never left. On April 3, 1995, the IJ in Texas, unaware and uninformed of Singh's departure, ordered Singh deported in absentia. (Ex. 8.) Singh's deportation order (Ex. 10) became final on May 3, 1995, when the time period for Singh to appeal his deportation order before the Board of Immigrantion Appeals ("BIA") expired. (Ex. 8.)
On August, 27 1995, Singh returned to the United States from India, although this is disputed by Respondents. Under the name Dhanna Singh, Singh applied to the San Francisco Asylum Office for asylum on September 9, 1995, based on his membership in a persecuted student group and religion in India for which he was tortured. (Ex. 11) Singh did not reveal that he was previously ordered deported under the name Dhanvir Toora. (Ex. 11.) The San Francisco Asylum Office granted Singh's asylum on October 30, 1995. (Ex. 12); (Ex. 13.) Singh maintained his asylum grant and lived in the United States for 12 years.
On April 10, 1997, Singh filed for an adjustment of his status. (Ex. 14.) On December 6, 2006, officer RJH423 of the U.S. Citizenship and Immigration Services ("CIS") filed an interoffice memorandum noting that Dhanna Singh and Dhanvir Toora were the same person.*fn1 (Ex. 15.) On March 28, 2007, CIS notified Singh that, pursuant to 8 C.F.R. § 103.5(a)(5)(ii), CIS was reconsidering Singh's grant of asylum and intending to rescind his asylum status because only the IJ had jurisdiction over asylum applications of a person placed in deportation, pursuant to 8 C.F.R. § 208.2(b). (Ex. 16.) Singh attempted to rebut this rescission by arguing that he had self-executed the deportation order when he left the United States on March 23, 1995. (Ex. 17.) Singh provided affidavits, a personal statement, and a hospital letter from India in support of his argument. (Ex. 17.) However, Singh did not provide evidence of entry to or exit from India. (Ex. 17.) On June 28, 2007, CIS considered the rebuttal information provided by Singh and deemed it insufficient to overcome the grounds for rescission. As such, CIS rescinded Singh's grant of asylum. (Ex. 18.)
On July 11, 2007, Singh was taken into custody by Immigrations and Customs Enforcement ("ICE") and detained based on the outstanding April 3, 1995 deportation order. (Ex. 25.) Singh was issued a Warrant of Removal/Deportation and a Warning to Alien Ordered Removed or Deported on July 16, 2006. (Ex. 19; Ex.20.) Initially, Singh was confined at the Middlesex County Adult Correction Center in New Brunswick, NJ. ICE made a formal request to the Indian Consulate to obtain travel documents for Singh on September 19, 2007. (Ex. 24.) Singh was presented in person to the Indian Consulate on November 2, 2007. (Ex. 25.) The Indian Consulate orally informed ICE that it believed Singh to be Dhanna Singh, but Singh refused to cooperate in this inquiry as to his identity. (Ex 22; Ex. 23.) Consequently, Singh was deemed "non-compliant" by his custody review on November 7, 2007, for not providing evidence of his true identity. (Ex. 25, 7.) The deciding official recommended Singh remain in custody and that ICE retain jurisdiction until Singh provides evidence of his true identity or information that can be researched by the Indian Consulate to establish his true identity. (Ex. 25, 7.) CIS issued a Notice of Failure to Comply Pursuant to 8 C.F.R. § 241.4(g), informing Singh that he was still within the removal period, and would remain in custody until he demonstrated he was making reasonable efforts to comply with his deportation order. (Ex. 27.)
Singh filed this present action on December 28, 2007, challenging the rescission of his grant of asylum on substantive and procedural due process grounds, as well as petitioning for the grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On February 20, 2008, Singh was transferred to the custody of a facility in Perry, Alabama.
a. Jurisdiction over Challenges to Removal Order
Singh challenges the deportation order entered against him on April 3, 1995, by the IJ in Los Fresnos, Texas, based on his October 30, 1995 subsequent grant of asylum. Respondents argue that this Court is without jurisdiction to hear Petitioner's asylum matters. This Court agrees. Singh asserts that he is entitled to remain in the United States, notwithstanding the removal order, because his asylum status was illegally rescinded by Respondents. Without delineating his arguments in detail, it suffices to say that essentially Petitioner's arguments challenging his underlying asylum status directly implicate his removal order. As such, these arguments should be brought in the Court of Appeals for the Fifth Circuit pursuant to the REAL ID Act. See 8 U.S.C. § 1252(a)(5).
In a strikingly similar case, Seck v. Bureau of Immigration and Customs Enforcement, a petitioner also filed in the District Court of New Jersey a habeas application along with his challenge to asylum findings made by an IJ and BIA as incorrect. Seck v. Bureau of Immigration and Customs Enforcement, No. 07-2360, 2007 U.S. Dist. LEXIS 49607, at *4 (D.N.J. July 10, 2007). However, without reaching the substantive merits of petitioner's challenge to the IJ and BIA's asylum findings, the court in Seck held that "this Court lacks jurisdiction over any claims asserted by Petitioner which seek to challenge his underlying removal order, pursuant to the REAL ID Act." Id. (citing 8 U.S.C. § 1252(a)(5)) (emphasis added). The driving distinction for jurisdiction purposes is discussed below:
We must be careful to maintain the distinction Congress made in the REAL ID Act between those challenges that must be transferred and those that must be retained in and decided by the district court. Arguably, any challenge by an alien who seeks to remain in this country could be construed as challenging his or her "removal, deportation, or exclusion," but such a broad interpretation would be counter to Congress' express intent. Instead, only challenges that directly implicate the order of removal . . . ...