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Baptiste v. Attorney General of United States

United States District Court, D. New Jersey

March 8, 2019

OSCAR BAPTISTE, Plaintiff,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Defendant.

          OPINION & ORDER

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         The 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 status.

         This is 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 denied.[1]

         II. PROCEDURAL HISTORY & CURRENT STATUS

         The 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 that ruling.

         On 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 ICE custody.

         Removal 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, )

         Mr. 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.

         On 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. Id.

         III. ANALYSIS

         On 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.

         A. REAL ID Act

         Mr. 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.

         As part of the REAL ID Act, Congress limited the courts' jurisdiction to hear challenges to the Government's exercise of its discretion to prosecute removal ...


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