United States District Court, D. New Jersey
OPINION & ORDER
MCNULTY UNITED STATES DISTRICT JUDGE
plaintiff, Oscar Baptiste, is an immigration detainee
currently held at the Essex County Correctional Facility in
Newark, New Jersey. He is subject to a final order of
removal. He has recently written the court stating that he
physically resisted being placed on a plane to Panama, his
country of origin, because he did not know whether the
removal order was final, and because he had certain
applications pending. (DE 9) That is not a basis for
resisting lawful removal. Here, however, I write to deal with
a pending motion for a stay and to clarify Mr. Baptiste's
an action seeking a writ of mandamus compelling the United
States Citizenship and Immigration Service
("USCIS") to adjudicate (i.e., grant) his N-400
application for naturalization as a U.S. citizen. On February
1, 2019, Mr. Baptiste filed a motion for stay of removal
pending resolution of this action. (DE 6). The United States
filed a response on February 19, 2019. (DE 8) For the reasons
stated herein, the application for a stay is
PROCEDURAL HISTORY & CURRENT STATUS
petitioner, a native and citizen of Panama, was declared a
lawful permanent resident in 2003. On July 27, 2007, he
submitted an N-400 application for naturalization. On May 24,
2008, he was arrested on a domestic violence charge, and an
order of protection was entered. (See DE 1-5 at pp.
4-11) On July 31, 2008, USCIS denied the N-400 application.
(DE 8-3; DE 1-5 at pp. 13-15) Mr. Baptiste did not appeal
March 14, 2011, after the domestic violence matter had
concluded, Mr. Baptiste filed a new N-400 application. (See
DE 1-5 at pp. 23-26.) On July 28, 2011, he was arrested on
charges of importing cocaine. On March 15, 2013, he was
convicted in the U.S. District Court for the District of
South Carolina of importing 500 grams or more of cocaine in
violation of 21 U.S.C. §§ 952 &
96O(b)(2)(B)(ii), and sentenced to 108 months'
imprisonment. Upon his release from prison, he was placed in
proceedings were instituted, based upon Mr. Baptiste's
"conviction of an aggravated felony and a controlled
substance offense. (See DE 8-1) On January 23, 2018, Mr.
Baptiste moved to terminate the removal proceedings, claiming
derived citizenship and stating that the denial of his
earlier N-400 application was erroneous. [See DE 1
at 1-10). Mr. Baptiste acknowledges that this was "the
sole issue" he raised in opposition to removal. (DE 1-1
at p. 2) Ultimately, on June 8, 2018, the motion was denied,
and an order of removal to Panama was entered. (DE 1 5 at pp.
37-39; see also DE 8-6 at p. 3.) On November 2,
2018, the BIA denied Mr. Baptiste's appeal, rendering the
order of removal final. (See DE 8-6 at p. 3; DE 1-1 at p. 2,
Baptiste sought review of the BIA order in the U.S. Court of
Appeals for the Third Circuit (Docket No. 18-3618). The Third
Circuit issued a temporary stay, but on January 17, 2019, it
vacated that stay, holding that "Petitioner has not
shown a likelihood of success on the merits of his petition
for review." (DE 8-5) In short, the order of removal is
final and is not currently subject to any stay.
February 14, 2019, USCIS issued a decision denying Plaintiffs
N-400 application on the basis that he is statutorily
ineligible for naturalization based on the fact he is subject
to a final order of removal and is an aggravated felon. (DE
8-6) USCIS also denied Plaintiffs N-336 seeking to reopen or
reconsider his 2007 USCIS application as untimely.
February 1, 2019, Mr. Baptiste filed the motion that is now
before the Court. (DE 6) He seeks a stay of removal until the
merits of this action, in the nature of a petition for a writ
of mandamus, are adjudicated.
REAL ID Act
Baptiste is subject to a final order of removal. The relief
sought on this motion is that this district court stay the
execution of that order of removal while the merits of this
mandamus petition are being adjudicated. The government
responds that, under the REAL ID Act, this district court
lacks jurisdiction to enter such an order. I agree.
of the REAL ID Act, Congress limited the courts'
jurisdiction to hear challenges to the Government's
exercise of its discretion to prosecute removal ...