United States District Court, D. New Jersey
McNulty, United States District Judge.
Sean B.,  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.
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.
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. 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
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. As noted in paragraph 2, however,
a petitioner denied an administrative stay may already have
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. 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.
BACKGROUND AND PROCEDURAL HISTORY
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.
moved before an immigration judge ("IJ") to reopen
his removal proceeding, asserting materially changed
circumstances and seeking asylum. 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.
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. Thus ICE, unless restrained in some
manner, is free to deport Petitioner at any time, and has
demonstrated a determination to do so.
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.
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.
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.
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.
ARGUMENTS AND ANALYSIS
Habeas Jurisdiction Generally
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).
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).
The Parties' Arguments Regarding Jurisdiction in this
most habeas petitioners in the custody of ICE, Petitioner
here raises no direct challenge to the propriety of his
confinement per se. 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
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.).
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.).
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).
Background of § 1252(g)
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.
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
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 ...