United States District Court, D. New Jersey
MCNULTY, UNITED STATES DISTRICT JUDGE.
Ragbir, originally from Trinidad and Tobago, was admitted to
the United States as a lawful permanent resident in February
1994. In November 2000, he was convicted of wire fraud and
conspiracy, and sentenced to 30 months' imprisonment. On
the basis of his conviction of that aggravated felony, in
August 2006 he was ordered removed from the United States. He
was granted multiple stays of removal, but on January 11,
2018, was detained in anticipation of removal. Mr. Ragbir has
petitioned for a writ of coram nobis in this court. He seeks
to vacate his conviction (or alternatively, modify his
sentence). The issues now before the court are (1) whether I
have the authority to issue a stay, and (2) whether to issue
a stay of Mr. Ragbir's removal while this action is
pending. I have determined to grant the stay for a limited
period, so that within 30 days a hearing can be held on the
merits of the coram nobis petition.
emphasize, is not an immigration case; it is a criminal
matter. True, the request for a stay potentially implicates
the scope of 8 U.S.C. § 1252(g), a provision that strips
the federal courts of jurisdiction to overturn the Attorney
General's exercise of discretion in certain matters
related to removal of aliens. This case, however, is not a
challenge to the actions of the immigration authorities; it
is a petition to vacate a criminal conviction, which, in
other proceedings, may have the indirect effect of vitiating
the basis for Mr. Ragbir's order of removal. The stay
sought here is not a creature of immigration law; it is a
component of a federal court's power to preserve the
status quo pending the resolution of a criminal case that is
properly before it. That power inheres in the judicial
function. And that inherent power has a constitutional
dimension, in that it permits the court to maintain a
party's access to the court and preserve the court's
ability to adjudicate the case fully and fairly. Ordinarily
this would not be controversial; if the item in controversy
were not a human being but a valuable painting, few would
quarrel with an order that the artwork be kept within the
jurisdiction while the case is pending.
1252(g) was not intended to be turned loose upon the federal
court system like a sorcerer's apprentice. It was
intended to operate within the scheme of federal
court review of immigration orders. It is a part of section
1252, a section concerned with "judicial review of final
orders of removal." 8 U.S.C. § 1252 (Title);
see also§ 1252 (a)(1). This proceeding is not
one to review actions of the immigration authorities. I think
that the concerns underlying § 1252(g) are at their
weakest, and the inherent judicial power at its strongest, in
this non-immigration proceeding relating to the validity of a
this is a petition within a criminal case strengthens my
determination, in this limited context, to give the bar of
§ 1252(g) a narrow reading. No. one doubts the
court's jurisdiction to decide this coram nobis petition,
irrespective of the petitioner's immigration status.
Inseparable from that jurisdiction is the jurisdiction to
grant a stay pendente lite. I would not lightly
surrender that essential judicial function; the
government's proposed limit on the inherent powers of the
judiciary, if it is to come, must come from a higher
authority than this trial-level court.
stay, moreover, will be granted. The merits are sufficient to
justify preservation of the status quo; deportation would
constitute irreparable harm; and a stay is necessary to
ensure due process and meaningful access to the court.
saying that this is not an immigration case, I do not blind
myself to the reality that, for deportable persons, a stay
may be the object of, rather than an incident of, litigation.
The court will not allow such a stay to be pressed beyond its
proper purpose. To that end, I will schedule a hearing on the
merits of the coram nobis petition within 30 days.
Ragbir is originally from Trinidad and Tobago. (Gov't Ex.
1). He was admitted to die United States as a lawful
permanent resident on February 15, 1994. (Gov't Ex. 1).
Since September 23, 2010, he has been married to Amy M.
Gottlieb, a U.S. citizen. (Castle Cert. ¶¶ 3, 15
& Ex. 1). A community activist, he is, for example, the
Executive Director of the New Sanctuary Coalition of New York
City, a network of interfaith organizations that works with
individuals facing deportation. (Castle Cert. ¶ 13;
Pet'n Ex. B ¶ 3).
November 29, 2000, Mr. Ragbir was convicted of wire fraud and
conspiracy based on his work at HFC, a mortgage lending
company. (Gov't Ex. 2; Castle Cert. ¶¶ 5-6).
For Sentencing Guidelines purposes, the parties stipulated
that the loss was more than $350, 000 but less than $500,
000. See U.S.S.G. § 2F1.1. Ragbir was sentenced
to thirty months' imprisonment and was ordered to pay
$350, 001 in restitution. (Gov't Ex. 2). The United
States Court of Appeals for the Third Circuit affirmed his
conviction on direct appeal. United States v.
Ragbir, 38 Fed.Appx. 788 (3d Cir. 2002).
completing his sentence, Mr. Ragbir was transferred to the
custody of Immigration and Customs Enforcement
("ICE"). (Pet'n Ex. B ¶¶ 15-24). On
August 8, 2006, an immigration judge determined that his
conviction of a fraud in excess of $10, 000 constituted an
"aggravated felony" and thus ordered him removed.
(Castle Cert. ¶¶ 7-8; Gov't Ex. 1). The
IJ's decision was upheld by the Board of Immigration
Appeals ("BIA") on March 14, 2007, and summarily
affirmed by the Second Circuit on August 12, 2010. (Gov't
Exs. 3, 4). In December 2011, Mr. Ragbir was granted a stay
of removal by the ICE field office in New York City. (Castle
Cert. ¶ 17). That stay was renewed in February 2013,
March 2014, and January 2016. (Pet'n Ex. I).
on March 15, 2012, Mr. Ragbir requested that the BIA reopen
his removal order and adjust his status. The BIA denied that
request on May 15, 2012. (Castle Cert. ¶ 18). On March
4, 2016, the Second Circuit denied Mr. Ragbir's appeal of
that BIA decision. Ragbir v. Lynch, 640 Fed.Appx.
105 (2d Cir. 2016). (See Castle Cert. ¶
was a second prong to Mr. Ragbir's 2012 attack on the
removal order. On November 30, 2012, he filed a petition for
a writ of coram nobis here in the District of New Jersey, the
district of his conviction. (12cv380, ECF No.
That writ provides for a collateral attack on a criminal
conviction for a person who is no longer "in
custody" and therefore cannot seek habeas
30, 2013, I administratively terminated the coram nobis
action without prejudice on consent, to accommodate
settlement discussions that were then underway. (Castle Cert.
¶ 20; 12cv7380, ECF No. 12). On February 12, 2015, Mr.
Ragbir filed an amended petition. (12cv7380, ECF No. 13). Mr.
Ragbir and the U.S. Attorney's Office again consented to
dismiss the petition without prejudice, this time so that Mr.
Ragbir could pursue an application for a presidential pardon.
(Castle Cert. ¶ 22; 12cv7380, ECF No. 30). On February
22, 2017, having received no communication regarding the
disposition of his pardon application, Mr. Ragbir refiled his
petition for coram nobis in this court. (Castle Cert. ¶
23; 17cv1256, ECF No. 1).
coram nobis petition in its current form challenges Mr.
Ragbir's conviction on three main grounds: that the jury
instructions included fundamental errors, that his conviction
is based on a no-longer-valid theory of honest services
fraud, and that he was prejudiced by ineffective assistance
of counsel. (Pet'n Br. 11-15). He asks that this court
vacate his conviction or, alternatively, vacate his sentence
and provide him with a Fatico hearing to reevaluate
the dollar loss for sentencing purposes, (17cv1256, ECF No.
before the court is the question of whether I have the
authority to issue a stay of Mr. Ragbir's removal order
pending the resolution of his coram nobis petition. The
Government argues that 8 U.S.C. § 1252(g) prevents a
district court from issuing such a stay. Mr. Ragbir's
removal is currently subject to a temporary stay in the U.S.
District Court for the Southern District of New York, which
may expire as early as March 26, 2018. He faces imminent
deportation when the temporary stay expires. Thus I do not
regard the stay application before me as redundant or moot.
Removability and the Scope of § 1252(g)
Immigration and Nationality Act ("INA"), Congress
has specified classes of aliens who may be removed from the
United States. 8 U.S.C. § 1227. An alien may be
deportable for a number of reasons, including conviction of
an aggravated felony. 8 U.S.C. §§ 1227-28. An
aggravated felony includes "an offense that. . .
involves fraud or deceit in which the loss to the victim
exceeds $10, 000." 8 U.S.C. § 1101(a)(43)(M)(i).
See Nijhawan v. Holder, 557 U.S. 29, 42, 129 S.Ct.
2294, 2303 (2009) (upholding immigration authorities' use
of stipulated Sentencing Guidelines dollar loss amount to
determine whether federal conviction for mail, wire, and bank
fraud constituted an aggravated felony).
deportation of aliens, however, is subject to the Attorney
General's broad discretion. "Federal officials, as
an initial matter, must decide whether it makes sense to
pursue removal at all." Arizona v. United
States, 567 U.S. 387, 396 (2012) (internal citation
omitted). The Attorney General has the discretion to decline
to institute removal proceedings, to terminate proceedings,
or to decline to execute a final order of deportation.
Reno v. American-Arab Anti-Discrimination Comm., 525
U.S. 471, 484 (1999).
This commendable exercise in administrative discretion,
developed without express statutory authorization, originally
was known as nonpriority and is now designated as deferred
action. A case may be selected for deferred action treatment
at any stage of the administrative process. Approval of
deferred action status means that, for the humanitarian
reasons described below, no action will thereafter be taken
to proceed against an apparently deportable alien, even on
grounds normally regarded as aggravated.
Id. at 484 (quoting 6 C. Gordon, S. Mailman, &
S. Yale-Loehr, Immigration Law & Procedure
§ 72.03 [h] (1998)).
development of executive discretion in these matters had the
unintended consequence of "open[ing] the door to
litigation in instances where the [Government] chose
not to exercise it." Id. For instance,
aliens who were not granted deferred action or nonpriority
sometimes maintained that the prosecution of removal
proceedings against them was selective, in that it violated
equal protection or due process through improper reliance on
political considerations, race, religious affiliations, or
political opinions. Id. at 485 (quoting Gordon,
response, Congress enacted (inter alia) 8 U.S.C.
§ 1252(g) to limit the courts' jurisdiction to hear
challenges to the Government's exercise of its discretion
to prosecute removal proceedings. Section 1252(g), as
amended, provides as follows:
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
8 U.S.C. § 1252(g).
§ 1252(g) case law deals primarily with direct review of
ICE decisions, as opposed to cases, like this one, where the
effect on ICE processes is ancillary. Still, that case law is
useful in the interpretation of the scope of § 1252(g).
1252(g) was designed to prohibit district court review of the
Government's exercise of prosecutorial discretion in
removal matters. It does not, however, prohibit district
court review of all decisions relating to removal or
deportation. The Supreme Court has explained that section
1252(g) applies to only three listed discretionary actions of
the Attorney General:
[Section 1252(g)] applies only to three discrete actions that
the Attorney General may take: her 'decision or
action' to 'commence proceedings,
adjudicate cases, or execute removal
orders.' (Emphasis added).... It is implausible that the
mention of three discrete events along the road to
deportation was a shorthand way of referring to all claims
arising from deportation proceedings.
Reno, 525 U.S. at 482.
further support for Reno's view of the limited
scope of 1252(g) in the recent case of Jennings v.
Rodriguez, which interpreted 8 U.S.C. § 1252(b)(9)
(discussing judicial review of orders regarding aliens who
are applying for admission). 583 U.S.___, 2018 WL 1054878 at
*7-*8, slip op. at 8-11 (2018). Because that case is recent
and therefore unfamiliar, I discuss it at greater length than
it might otherwise warrant.
II of that opinion, Justice Alito (joined only by Chief
Justice Roberts and Justice Kennedy) interpreted, and by
analogy relied on, § 1252(g), the provision at issue
here. Id. (citing 8 U.S.C. § 1252(g) and
Reno, 525 U.S. at 482-83). Justice Alito wrote that
§ 1252(b)(9)'s jurisdictional exclusion of "all
questions of law and fact... arising from any action
taken or proceeding brought to remove an alien" is not
broad enough to encompass all actions that might arise in the
context of an alien's custody. Id. (citing 8
U.S.C. § 1252(b)(9) (emphasis added)). He gave three
illustrative examples of what he meant: Surely, Justice Alito
reasoned, the jurisdictional exclusion would not bar a
detained alien's Bivens claim based on allegedly
inhumane conditions of confinement, a state-law claim for
assault against a guard or fellow detainee, or a tort claim
for a personal injury that occurred during transportation to
a detention facility:
The "questions of law and fact" in all those cases
could be said to "aris[e] from" actions taken to
remove the aliens in the sense that the aliens' injuries
would never have occurred if they had not been placed in
detention. But cramming judicial review of those questions
into the review of final removal orders would be absurd.
Id., 2018 WL 1054878 at *7. The phrase "arising
from, " wrote Justice Alito, cannot be read so broadly
as to encompass any issue that would not have occurred but
for the alien's detention. "[W]hen confronted with
capacious phrases like 'arising from, ' [the Court]
ha[s] eschewed 'uncritical literalism' leading to
results that 'no sensible person would have
intended." Id. at *8 (citing Gobeille v.
Liberty Mat. Ins. Co., 577 U.S.___, 136 S.Ct. 936, 943
(2016) and collecting cases).
Alito concluded that the aliens' applications for release
on bail did not implicate the section 1252(b)(9) bar on
jurisdiction. Explicitly analogizing to § 1252(g), he
wrote that the court must look to whether the alien's
claim or cause of action arose from one of
the "three listed actions of the Attorney General":
"the decision or action by the Attorney General  to
commence proceedings,  adjudicate cases, or  execute
removal orders against any alien under this chapter."
Id., slip op. at 10 (quoting 8 U.S.C. §
1252(g); bracketed numbers added). Approached literally, the
grant of the detained aliens' applications for bail in
Jennings could be viewed as affecting the Attorney
General's execution of removal orders, the third action
identified in Reno. Nevertheless, wrote Justice
Alito, those bail applications did not in any meaningful
sense arise from the execution of a removal order.
a recent, authoritative restatement of the Reno view
of § 1252(g), I take as a guide to
United States Court of Appeals for the Third Circuit has also
elaborated on the Reno interpretation of §
1252(g). That section, in the Third Circuit's view, is
neither a limited grant of jurisdiction nor a comprehensive
door-closing provision. Rather, it removes certain specified
challenges to the Attorney General's prosecutorial
discretion from the courts' general jurisdiction:
[Section 1252(g)] is not a sort of 'zipper' clause
that says 'no judicial review in deportation cases unless
this section provides judicial review, ' as it is
implausible that the mention of three discrete events along
the road to deportation was a shorthand way of referring to
all claims arising from deportation proceedings. Instead,
§ 1252(g) was directed against a particular evil:
attempts to impose judicial constraints upon prosecutorial
Chehazeh v. Attorney General, 666 F.3d 118, 134 (3d
Cir. 2012) (internal citations and quotation marks omitted);
see also Reno, 525 U.S. at 485 n.9. Section 1252(g),
then, prohibits judicial review of the Government's
prosecutorial discretion to choose certain aliens for removal
from among the larger class of those eligible for removal.
See Chehazeh, 666 F.3d at 134.
broadly, § 1252(g) should be viewed in the context of
its role within the statutory scheme and the evident
statutory goal of limiting piecemeal interlocutory review. It
is part of Congress's rewriting of immigration law to
consolidate review of removal orders in a single appeal from
a final administrative order, brought before the Court of
Appeals. Thus Reno stresses that § 1252(g) is
aimed at precluding review of specified non-final
discretionary decisions, which might or might not in the end
result in actual removal. 525 U.S. at 482-85. The section is
"specifically directed at the deconstruction,
fragmentation, and hence prolongation of removal
proceedings." Id. at 486.
this case law, then, it is apparent that § 1252(g) is
aimed at precluding judicial review of claims "arising
from"-ordinarily, challenging- three discretionary
decisions of the Attorney General along the road to removal.
Outside of that specific area, a district court retains
jurisdiction, even if the claims before it happen to touch
upon removal proceedings.
Stays, § 1252(g), and Coram Nobis
district court has jurisdiction under the All Writs Act, 28
U.S.C. § 1651, to issue a writ of coram nobis. That
traditional writ permits an individual to collaterally attack
his or her criminal conviction. Chaidez v. United
States, 568 U.S. 342, 345 n.l (2013). Coram nobis
roughly serves the function of habeas corpus, permitting
correction of errors "of the most fundamental
character." United States v. Morgan, 346 U.S.
502, 512, 74 S.Ct. 247 (1954). The difference is that it
applies to a person no longer in custody, but still suffering
the collateral effects of a criminal conviction. See id.;
United States v. Osser, 864 F.2d 1056, 1059-60 (3d Cir.
about Mr. Ragbir's status as a removable alien affects
the Court's jurisdiction to review his underlying
conviction. I do not understand any party to be saying that
§ 1252(g) deprives this Court of jurisdiction to
entertain the coram nobis petition itself, merely because its
outcome might undercut the basis of an order of removal. The
authorities reviewed above- Reno, Jennings, and
Chehazeh-suggest that such an expansive view would
be untenable. The coram nobis petition does not in itself
entail review of any action by the Attorney General or ICE,
let alone any exercise of prosecutorial discretion in removal
proceedings. It asserts claims of error in the conduct of a
§ 1252(g) challenge is often intertwined with the issue
of whether a petition to review actions of the ICE may be
brought in federal court (or in a federal district court, as
opposed to the Court of Appeals). No. such issue arises here.
The cause of action asserted here-a challenge to a criminal
conviction via coram nobis-is one the court can and
must hear. Rather, the more specific question is whether,
incident to that unquestioned jurisdiction, the
court retains its usual inherent authority to issue a stay
pendente lite. And the question within that question
is whether § 1252(g) negates that usual inherent
authority because a stay would affect the removal, or at
least the date of the removal, of the petitioner.
is true that the issuance of a stay, while it does not impair
the validity of the order of removal, may delay the execution
of it. Nonetheless, I conclude that this court retains the
authority to issue a stay here for three reasons. (1) Neither
a coram nobis petition nor this motion for a stay is a
"cause or claim" that "aris[es] from" the
Attorney General's discretionary actions, within the
meaning of § 1252(g); (2) § 1252(g), as interpreted
in Reno, bars only judicial review of certain
enumerated exercises of executive discretion to prosecute
removal proceedings; and (3) The power to grant a stay is an
inherent judicial power incident to the court's
jurisdiction over a coram nobis petition, which has a
Constitutional dimension in that it ensures orderly review
and meaningful access to the court. The first two reasons are
rooted in the technicalities of § 1252(g), but are
necessary prerequisites to the presentation of the third,
which is the heart of the court's analysis.
"Claim" or "cause" "arising
focus on two key phrases in the statute. Section 1252(g),
recall, is not a general ban. It provides that, except as
explicitly provided, "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." (Emphasis added.) What is barred, then is a
"cause" or "claim" that "aris[es]
from" three identified exercises of prosecutorial
discretion in removal matters. See Section II.A,
supra. The stay sought here is not a
"cause" or "claim" at all; it is an
administrative step in a criminal case. Nor does it