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Sean B. v. McAleenan

United States District Court, D. New Jersey

September 3, 2019

SEAN B., Petitioner,
KEVIN K. MCALEENAN et al., Respondents.


          Kevin McNulty, United States District Judge.


         Petitioner, Sean B., [1] is an immigration detainee, held at the Hudson County Corrections Facility, in Kearny, New Jersey. He is proceeding by way of counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The government has answered the habeas petition, arguing that it must be dismissed for lack of jurisdiction.

         This Court's jurisprudence has been guided by the principle that the courts must be afforded the opportunity to adjudicate litigants' rights in an orderly manner, and that the parties cannot, by unilateral action, interfere with that essential function of the courts. To vindicate that principle, I have in the past construed liberally the court's power to enter a limited stay in an immigration case, even where, in the end, 1 ruled in favor of the opponent of the stay. See, e.g., Ragbir v. United States, No. 17-1256, 2018 WL 1446407 (D.N.J. Mar. 23, 2018) (ICE case, granting petitioner's application for stay but ultimately ruling in government's favor). Here that concern has particular poignance, because it has a particular constitutional dimension. The very reason that the immigration authorities may act without court intervention- i.e., the reason that the court may permissibly be stripped of habeas jurisdiction-is the existence of an alternative remedy, namely a process of administrative review culminating in review by the Court of Appeals. Here, however, the immigration authorities have acted in such a manner (I do not say with the intention) that the effectiveness of Court of Appeals review is compromised. Under the peculiar circumstances of this case, the Suspension Clause of the U.S. Constitution requires that this Court retain a minimal level of residual habeas jurisdiction.

         For clarity, and to assist in review, I offer a schematic view of the logic that leads me to that result:

1. A petitioner seeking to reopen removal proceedings will seek such relief from an immigration judge (IJ) and can administratively appeal an adverse result to the Board of Immigration Appeals (BIA).[2]
2. While the matter is pending in the agency, the petitioner may seek a stay of removal from the IJ or the BIA. If such an administrative stay is denied, a petitioner may be removed from die country before his petition is adjudicated by the agency. That result, while sometimes harsh, is ordinarily permissible; the Supreme Court has held that the petitioner may be required to pursue his application from abroad, subject to repatriation should the application ultimately be granted.[3]
3. If a petitioner files an appeal from a final decision of the BIA, jurisdiction lodges in the relevant U.S. Court of Appeals. It is only at that point that the Court of Appeals is empowered to enter its own stay of removal pending appeal.[4] As noted in paragraph 2, however, a petitioner denied an administrative stay may already have been deported.
4. The Real ID Act, 8 U.S.C. § 1252(g), strips the U.S. courts of habeas (or any other) jurisdiction to interfere with the agency's execution of a removal order. So while immigration proceedings are pending, the statute bars a district court from granting a stay of removal.
5. The jurisdiction-stripping effect of § 1252(g) is subject to one Constitutional limitation, however. It may not rise to the level of a suspension of the writ of habeas corpus. U.S. Const., art. I, § 9, cl.2.
6. An impermissible suspension of habeas corpus will not be found so long as there is an adequate alternative remedy available. Cases upholding the review scheme summarized above as adequate have relied on the ultimate availability of review in the Court of Appeals. In the vast majority of cases, the § 1252(g) removal of habeas jurisdiction has been found constitutionally valid.
7. Under limited circumstances, however, cases have held that the available alternatives to district court habeas review are not adequate (or not available at all). Under such circumstances, the district court has been found to retain limited habeas jurisdiction, as a constitutional necessity.
8. I find that this is such a case. Petitioner's order of removal was entered in 2009, but he then pled guilty to drug-trafficking charges and became a cooperating witness in the criminal prosecution of a prominent Jamaican drug kingpin. In 2013, the government released him and withheld execution of the order of removal. In January 2019, however, he was placed in custody by ICE for the purpose of executing the 10-year-old order of removal to Jamaica.
9. Petitioner's primary motivation for reopening removal proceedings is that, since his order of removal, his cooperation has exposed him to a realistic threat of being killed if he is returned to Jamaica. The person against whom he testified wielded great influence there.[5] Since Petitioner's testimony, his sister's house was burned down, the house of his children's mother was bombed, six of his cousins have been murdered, and his father was forced to flee the country. He claims that during his recent enforced sojourn in Jamaica, before the court ordered his return, his safety was threatened. The government does not factually rebut these allegations, which I therefore take at face value for present purposes.
10. The IJ denied Petitioner's application to reopen removal proceedings. His appeal to the BIA is still pending. Both the IJ and BIA denied motions to stay. There is no final order, so the Court of Appeals does not yet have jurisdiction. Absent a court order, then, Petitioner may be removed, even though his matter remains pending. In short, he is to be removed to a country where he says he is likely to be killed while the propriety of removing him to such a place is being decided.
11. Under these unusual circumstances, the "adequate alternative" to habeas relief-review by the BIA and appeal to the Court of Appeals- is not an effective alternative, unless supplemented by a stay of removal. To deny habeas relief under such circumstances would amount to a suspension of the writ. I find, therefore, that I have limited jurisdiction to enter a stay.
12. The minimum necessary to meet constitutional standards, I find, is a "bridge" stay sufficient to hold off removal until the BIA grants Petitioner's requested relief or the Court of Appeals takes jurisdiction over an appeal from a final BIA decision.


         Petitioner is a native and citizen of Jamaica. After being twice removed from the United States, Petitioner was arrested for illegal entry in 2009 and again ordered removed later that year. This time he was not actually removed. Instead, he pled guilty to drug-trafficking charges and became a cooperating witness in the federal government's criminal prosecution of then then-head of a violent Jamaican drug gang, Christopher "Dudus" Coke. Apparently he testified under an alias, an unusual procedure and one indicative of a government belief that he was in danger. Following Petitioner's cooperation, the government granted him deferred action, released him, and permitted him to work in the United States from October 2013 until early 2019. On January 15, 2019, however, the Department of Homeland Security, Immigration and Customs Enforcement, ("ICE") placed Petitioner in immigration custody for the purpose of executing his long-deferred removal order.

         Petitioner moved before an immigration judge ("IJ") to reopen his removal proceeding, asserting materially changed circumstances and seeking asylum.[6] The IJ denied the motion to reopen as untimely. (See DE 14-4). The IJ further found that Petitioner had failed to demonstrate changed country circumstances or grounds for granting asylum or withholding of removal under the Convention Against Torture. (See id.).

         Petitioner filed an appeal and an application to stay removal pending appeal with the Board of Immigration Appeals ("BIA"). On April 12, 2019, the BIA denied Petitioner's request for a stay, finding little likelihood of success on appeal. (See DE 14-5). It seems the BIA has not yet ruled on the merits of Petitioner's appeal. The parties seem to agree that, although the Court of Appeals will have jurisdiction over any appeal from the final decision of the BIA, and may, once it has taken jurisdiction, issue a stay pending appeal, it lacks the current power to hear an appeal from the BIA's denial of a stay.[7] Thus ICE, unless restrained in some manner, is free to deport Petitioner at any time, and has demonstrated a determination to do so.

         On April 16, 2019, acting through counsel, Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of New York. Two days later, District Judge Paul A. Engelmayer determined that this was the wrong venue for Petitioner's habeas claims. Although immigration proceedings were centered in New York, Petitioner was detained in New Jersey when the petition was filed. Accordingly, Judge Engelmayer transferred the proceeding to this Court.

         Petitioner then filed a motion seeking a temporary restraining order barring the respondents from removing him from the United States. (DE 12). Petitioner argued that, because of his cooperation in the Dudus prosecution, he would likely be killed if he is returned to Jamaica. He alleges that Dudus exercised extensive control over parts of Kingston, over the police, and over a major political party in Jamaica; that Dudus's aunt threatened him during the trial; and that, since his testimony, his sister's house was burned down, the house of his children's mother was bombed, six of his cousins have been murdered, and his father was forced to flee the country. The government has not submitted any factual refutation of Petitioner's allegations regarding the danger he would be exposed to upon his return to Jamaica.

         On May 29, 2019, I issued an order granting Petitioner's motion for a temporary restraining order and temporarily staying removal pending further briefing by the litigants and a determination as to the Court's jurisdiction. The order was not entered on the clerk's docket until the following day, May 30, 2019. Meanwhile, on the morning of May 30, before the government had received notice of the temporary restraining order, Petitioner was removed to Jamaica. I ordered Petitioner to be returned safely to the United States, and he was returned as of June 2, 2019. It seems he has remained in immigration custody since that time.

         A briefing schedule was set. At the court's request, Petitioner's counsel submitted a supplemental letter brief on the issue of the Court's jurisdiction on June 4, 2019. (DE 26). The government filed a response to the habeas petition focused primarily on the jurisdictional issue on June 28, 2019. (DE 27). Petitioner did not file any reply within the time permitted.


         A. Habeas Jurisdiction Generally

         "Federal courts are not courts of general jurisdiction" and that they "have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). Congress has granted the federal courts much of their jurisdiction, and Congress has the power to limit that jurisdiction, so long as the result is not unconstitutional. See Patchak v. Zinke, 138 S.Ct. 897, 907-08 (2018).

         Generally, a district court may exercise jurisdiction over a habeas petition, under 28 U.S.C. § 2241, when the petitioner is in custody and alleges that this custody violates the constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). A petitioner must typically seek § 2241 relief in the district in which he is in custody. United States v. Figueroa, 349 Fed.Appx. 727, 730 (3d Cir. 2009). Petitioner was detained within this district when he filed his habeas petition and, as the District Court for the Southern District of New York concluded, this Court is the proper one to hear Petitioner's core habeas claims. (See DE 7).

         B. The Parties' Arguments Regarding Jurisdiction in this Case

         Unlike most habeas petitioners in the custody of ICE, Petitioner here raises no direct challenge to the propriety of his confinement per se.[8] Instead, the petition asks the Court to bar Petitioner's removal pending the BIA's review of the IJ's denial of Petitioner's motion to reopen. (See Pet., DE 17). In the words of the petition, "Petitioner asks this Court to review whether ICE has the legal authority to remove Petitioner pursuant to a valid removal order without first affording him the opportunity to have his claims heard in an immigration court as permitted by DHS regulations." (Id. ¶ 22). The petition asserts two claims: (1) that "execution of the removal order would strip Petitioner of his right to seek agency review and thereby violate his due process rights" and (2) that "execution of the removal order would violate petitioner's rights under the [Administrative Procedure Act]." (Id. at ¶¶ 26-30).

         The government argues in opposition that 8 U.S.C. § 1252(g) deprives this Court of jurisdiction to enjoin the agency's execution of a removal order. (DE 14 at 3). It asserts that Petitioner had failed to establish any right to relief under the Refugee Act of 1980 or any "constitutional right to be free from detention during the pendency of an appeal of a denial of a discretionary motion to reopen." (Id. at 3-4). It contends that the BIA, not this Court, is the proper entity to review the IJ's denial of Petitioner's application to reopen his case or to determine whether a stay of removal is warranted. (Id. at 4). It further argues that Petitioner had failed to identify a constitutional right implicated by his potential removal. (Id.).

         In his supplemental brief regarding jurisdiction, Petitioner contends that the government fails to "precisely specify how this Court is stripped of jurisdiction pursuant to the REAL ID Act." (DE 26 at 2). He asserts that the cases relied upon by the government are distinguishable, and that the Supreme Court has emphasized the narrow scope of the jurisdiction-stripping provisions of § 1252. (Id. at 2-4, 7-8). He urges that "[s]ection 1252(g) does not apply to a purely legal question that does not challenge the Attorney General's discretionary authority, even if the answer to that question forms the backdrop against which the Attorney General will later exercise discretionary authority." (Id. at 8-9). Petitioner claims that he is not challenging the government's discretion in executing removal orders, but instead challenges the legal authority to execute a removal order while he "has an alleged right to seek relief made available." (Id.). Petitioner concludes that "[w]hether Respondents' actions were legal is not a question of discretion, and, therefore, falls outside the ambit of § 1252(g)." (Id.).

         In its answer to the petition, the government reiterates that this Court is barred by § 1252 from exercising any jurisdiction over Petitioner's claims. (See DE 27). It specifically contends that § 1252 bars review of the constitutionality of discretionary determinations. (Id. at 6). The government asserts that the Suspension Clause applies only to core applications of the writ of habeas corpus and that, as Petitioner challenges his removal rather than his detention, he is not protected by the Suspension Clause. (Id. at 10-11).

         C. Background of § 1252(g)

         The government, citing 8 U.S.C. § 1252(g), asserts that "Petitioner's last-minute attempt to halt his removal is precisely the type of claim that Congress sought to bar." (See DE 14 at 2-3). I agree that § 1252(g) is the provision most relevant to jurisdiction over Petitioner's claims.[9]

         Historically, non-citizens could raise legal challenges to removal orders by way of habeas petitions. See INS v. St. Cyr, 533 U.S. 289, 306-10 (2001). In 1996, however, Congress curtailed that jurisdiction by enacting the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"). See AEDPA, Pub. L. No. 104-132, §§ 401-443, 110 Stat. 1214, 1258-81 (1996); IIRIRA, Pub. L. No. 104-208, §§ 304-307, 110 Stat. 3009, 3009-587 through 3009-614 (1996). These acts together largely eliminated a district court's jurisdiction to review a removal order, in effect channeling review to the BIA and ultimately the Courts of Appeals. See 8 U.S.C. § 1252(a). The original version of 8 U.S.C. § 1252(g), enacted at that time, read as follows:

Except as provided in this section and notwithstanding any other provision of law, 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 ...

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