United States District Court, D. New Jersey
MCNULTY, UNITED STATE DISTRICT JUDGE.
Dereck Hounakey, is an immigration detainee currently held at
the Essex County Correctional Facility, in Newark, New
Jersey. On April 23, 2018, through counsel, he filed a
petition for writ of mandamus, under 28 U.S.C. § 1361,
seeking an order staying his removal pending review of a
motion to reopen before the Board of Immigration Appeals
("BIA"). Presently before this Court is an
application for an order to show cause why an order of
mandamus should not issue directing the BIA to grant an
emergency stay of removal, which order would also directly
preclude Mr. Hounakey's detention or removal. (ECF No.
4.) For the reasons explained herein, Mr. Hounakey's
application for an order to show cause is denied and his
complaint is dismissed for lack of subject-matter
Hounakey's complaint and memorandum of law indicate that
he is a citizen of Togo, who entered this country as a legal
permanent resident in 2001. He reports that in 2010, he was
convicted for conspiracy to commit forced labor and
trafficking with respect to forced labor, under 18 U.S.C.
§§ 371, 1589, and 1590, and sentenced to 55 months
in prison. Immigration removal proceedings were subsequently
commenced against Mr. Hounakey. He submitted an I- 589
application for asylum and for withholding of removal under
the Convention Against Torture. An immigration judge denied
Mr. Hounakey's asylum application and ordered his removal
in January 2012. The BIA upheld the removal order in a
decision issued in June 2012.
Hounakey reports that, in August 2017, he filed with the BIA
a motion to defer removal under the Convention Against
Torture, which the BIA construed as a motion to reopen its
2012 decision. The BIA denied the motion to reopen. On April
6, 2018, Mr. Hounakey filed another motion to reopen,
accompanied by a request for an emergency stay of removal.
The BIA apparently denied the request for an emergency stay
of removal on April 9, 2018, but has not yet rendered a
decision on the new motion to reopen.
Hounakey urges that, if removed, he would leave behind a wife
and two young children, as well as a child from a prior
relationship, all of whom he has been supporting with his job
managing gasoline stations. He submits numerous exhibits
purporting to show that, if returned to Togo, he would face a
risk of torture or other reprisals by families of "the
young women who were victimized by [Mr. Hounakey] and [his
mother], " as well as conditions of general lawlessness
and danger. (Mem. of Law, ECF No. 4, at 7-9 & Exs.) He
has, as in his past applications to the immigration courts,
relied on the assertions of a former Togolese gendarme, who
opines that Mr. Hounakey "will be targeted, imprisoned
and tortured by the authorities if returned to Togo."
(Id. at 8; ECF No. 4-5, Exs. IV.d. & IV.e.)
application and order to show differ somewhat as to the
precise form of relief Mr. Hounakey is seeking, although the
distinctions do not matter in the end. Paragraph 33 of the
complaint states that Mr. Hounakey seeks an order of mandamus
requiring the Department of Homeland Security Office of
Enforcement and Removal Operations to stay his removal
pending a decision on the motion to reopen presently before
the BIA. The prayer-for-relief paragraph seeks such a stay
"pending further order of the Court." (ECF No. 1,
at 9.) Mr. Hounakey's memorandum of law states that
"Petitioner is asking the District Court to review the
denial of emergency stay of deportation by the [BIA] and
command the BIA to initiate a temporary stay of
deportation." (ECF No. 4 at 1-2; see also Id.
at 5 ("The April 9, 2018 denial of an emergency stay of
removal is the subject of the within motion.").) The
proposed order to show cause would direct the respondents to
show cause "why a Writ of Mandamus should not be issued
Ordering that Petitioner's Request for Emergency Stay of
Removal be Granted, " though it additionally would
order "that during the pendency of this action,
Respondents are not to detain nor remove Petitioner."
(ECF No. 4-1.) Thus there is some ambiguity, then, as to
whether Mr. Hounakey is asking this Court to stay his removal
directly, attempting to appeal the denial of a stay by the
agency, or asking this Court to compel the BIA or the
Department of Homeland Security to stay his removal. This
Court, however, lacks subject-matter jurisdiction to grant
the relief, however it is characterized.
provisions of 8 U.S.C. § 1252, as modified by the
Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 ("IIRIRA") and the Real ID Act, grant
exclusive jurisdiction to review removal orders and related
matters to the Courts of Appeal and thus deprive District
Courts, like this one, of any such review power. See
8 U.S.C. § 1252(a)(5), (b)(9), (g); see also Vasquez
v. Aviles, 639 Fed.Appx. 898, 900-01 (3d Cir. 2016);
Gonzalez-Lora v. Warden Fort Dix FCI, 629 Fed.Appx.
400, 401 (3d Cir. 2015). In particular, § 1252(a)(5)
states that "a petition for review filed with an
appropriate court of appeals ... shall be the sole and
exclusive means for judicial review of an order of
removal." 8 U.S.C. § 1252(a)(5).
§ 1252(g) states,
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). Judges in districts across the
country, including this one, have found that this
jurisdictional bar applies to applications to stay removal,
even when the court might otherwise have jurisdiction over
the claims presented. See Fermin v. United States,
No. 17-cv-1862, 2018 WL 623645 (D.N.J. Jan. 29, 2018)
(finding that "any challenge to the validity of that
removal order or a request for a stay of that Order
could be entertained only by the Court of Appeals");
Vasquez v. United States, No. 15-cv-3946, 2015 WL
4619805, at * (S.D.N.Y. Aug. 3, 2015) ("District courts
within this Circuit and across the country have routinely
held that they lack jurisdiction under § 1252 to grant a
stay of removal."); see also Ingram v. Holder,
No. 12-cv- 390, 2012 WL 1339919 (N.D. Ala. Apr. 13, 2012);
Lage v. Chapdelaine, No. 10-cv-1030, 2010 WL 4688820
(D. Conn. Nov. 10, 2010); Sanchez v. Florida, No.
09-cv-1223, 2009 WL 1953002 (M.D. Fla. July 6, 2009);
Watson v. Stone, No. 13-cv-480, 2013 WL 6072894
(M.D. Ga. Nov. 18, 2013); Camick v. United States,
No. 16-cv-3030, 2016 WL 8943170 (D. Kan. June 7, 2016);
Tejada v. Cabral, 424 F.Supp.2d 296 (D. Mass. 2006);
Sanchez-Ronquillo v. Adducci, No. 17- cv-11395, 2017
WL 3386318 (E.D. Mich. Aug. 7, 2017); Cole v. 5yam,
No. 11-cv-115, 2011 WL 1166899 (W.D. Mich. Feb. 25, 2011);
Calderon-Rodriguez v. Terry, No. 12-cv-691, 2013 WL
1897821 (D.N.M. Apr. 30, 2013); Rosales v, Artus,
No. 10-cv-2742, 2011 WL 3845906 (E.D.N.Y. Aug. 30, 2011);
Eisa v. ICE, No. 08-cv-6204, 2008 WL 4223618
(S.D.N.Y. Sept. 11, 2008); Adames v. Hinton, No.
16-cv-963, 2016 WL 7386348 (S.D. Ohio); Guzman v.
ICE, No. C-06-23, 2006 WL 2345995 (S.D. Tex. Aug. 10,
statutory jurisdiction-stripping provisions make specific
reference to the mandamus statute, 28 U.S.C. § 1361,
which Mr. Hounakey cites in this case. Thus the court cannot,
in particular, issue an order of mandamus compelling a
government official to take an action or make a decision that
the court itself is barred from making. Accordingly, this
Court lacks any jurisdiction to stay Mr. Hounakey's
removal or to compel the Department of Homeland Security or
the BIA to issue such a stay.
finding that this Court lacks subject-matter jurisdiction to
grant the relief sought by Mr. Hounakey's application for
an order to show cause applies equally to his complaint as a
whole, as it seeks, essentially, the same relief.
Accordingly, the complaint will be dismissed sua
sponte, without prejudice to the subsequent filing of
any pleading over which the Court may properly exercise
jurisdiction. See Wachovia Bank v. Schmidt, 546 U.S.
303, 316 (2006) ("[S]ubject-matter jurisdiction must be
considered by the court on its own motion, even if no party
raises an objection.").
Mr. Hounakey's application for an order to show cause
will be denied and this proceeding ...