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Ragbir v. United States

United States District Court, D. New Jersey

March 23, 2018

RAVIDATH RAGBIR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          KEVIN MCNULTY, UNITED STATES DISTRICT JUDGE.

         Ravidath 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.

         This, I 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.

         Section 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 criminal conviction.

         That 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.

         The 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.

         In 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.

         I. BACKGROUND[1]

         Mr. 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).

         On 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).

         After 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).

         Meanwhile, 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. ¶ 19.)[2]

         There 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. 1).[3] 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 relief.[4]

         On May 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).

         The 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. 1).

         Now 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.

         II. DISCUSSION

         A. Removability and the Scope of § 1252(g)

         In the 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).

         The 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 [2][h] (1998)).

         The 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, supra).

         In 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 chapter.

8 U.S.C. § 1252(g).

         The § 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).

         Section 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.

         I find 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).[5] 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.

         In Part 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).

         Justice 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 [1] to commence proceedings, [2] adjudicate cases, or [3] 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.

         Jennings, a recent, authoritative restatement of the Reno view of § 1252(g), I take as a guide to interpretation.[6]

         The 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 discretion.

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.[7]

         More 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.

         From 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.

         B. Stays, § 1252(g), and Coram Nobis Proceedings

         A 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. 1988).

         Nothing 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 criminal trial.

         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.

         Now it 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.

         i. "Claim" or "cause" "arising from"

         I first 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 ...


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