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Andoh v. Barr

United States District Court, D. New Jersey

September 18, 2019

WILLIAM BARR, in his official capacity as the Attorney General of the United States; THOMAS DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents.



         Petitioner Antoine N'Gouan Andoh pursues a writ of habeas corpus pursuant to 28 U.S.C. § 2241; the All Writs Act, 28 U.S.C. § 1651; the Immigration and Nationality Act ("INA") and regulations thereunder; the Administrative Procedure Act ("APA"), 5 U.S.C. § 701; and the Suspension Clause, U.S. Const, art. I, § 9, cl. 2. Andoh, who faces deportation, claims that his removal would be unlawful. He urges the Court (1) to issue a writ of habeas corpus directing the Government to provide him constitutionally adequate process and (2) to stay his removal until he can fully litigate his claims currently pending before the Board of Immigration Appeals ("BIA").

         For the following reasons, the Court holds that, to the extent that Andoh's petition challenges his removal, as it does predominantly, this Court lacks jurisdiction to resolve his claims and therefore dismisses these claims, without prejudice, for want of jurisdiction. The Court also holds that, to the extent that Andoh challenges his present detention, this District is the improper venue for his claims. The Court therefore transfers the habeas petition to the District of New Jersey to address these claims. The Court extends the present stay of Andoh's removal by one week, until September 25, 2019, to give Andoh time to pursue habeas relief in the District of New Jersey, and to enable to him, if he chooses, to pursue his removal-related claims in the Second Circuit, where jurisdiction would be proper.

         I. Background

         Andoh is a citizen of the Ivory Coast. Dkt. 14 ("Gov't Mem.") at 2. On June 26, 1990, he entered the United States with nonimmigrant student status. Dkt. 1 ("Pet.") ¶ 2. After he overstayed his visa, the Government placed Andoh in removal proceedings and issued an order of removal. Gov't Mem. at 2. On April 10, 1991, that order of removal became final. See Pet. ¶¶ 6, 47. But, after the Government failed to secure the necessary travel documents to deport Andoh to the Ivory Coast, it placed him under an order of supervision ("OSUP"). Gov't Mem. at 3. After various immigration proceedings, on February 23, 2007, Andoh received a second final order of removal. See Id . Andoh was again placed under an OSUP. Id. at 4.

         Andoh has not left the United States since his arrival in 1990 and has been in full compliance with the terms of his OSUP since 1991. Pet. ¶ 5. On May 10, 2019, the Government obtained the necessary travel documents to deport him to the Ivory Coast. Gov't Mem. at 4; see also Dkt. 20 ("Oral Arg. Tr.") at 33-34. On July 30, 2019, Andoh, pursuant to his OSUP, went to a regularly scheduled appointment with Immigration and Customs Enforcement ("ICE"), where he was detained. See Pet. ¶ 53. ICE served him with a notice that the Government was revoking his OSUP because there was a "changed circumstance" in his case, namely, that it had obtained the travel documents needed for his deportation. Gov't Mem. at 4, On August 7, 2019, Andoh filed a motion with the BIA to reopen his 2007 deportation proceedings and to issue an emergency stay of removal while such proceedings are pending. See Dkt. 1-5 ("Motion to Reopen") at 2. The BIA denied the request for a stay, Dkt. 1-6 ("BIA Order") at 1, and has yet to issue a final decision on the motion to reopen.

         On August 27, 2019, Andoh, while detained in an immigration facility in New Jersey, filed the instant petition for a writ of habeas corpus. See Pet. It asserts three bases for relief. First, it claims that removal of Andoh from the country would violate the INA, federal regulations, and the Due Process Clause, because the Government improperly revoked his OSUP (the "OSUP claim"). See Id . at 18-21. Second, the petition asserts that removal of Andoh prior to the adjudication of his motion to reopen, pending before the BIA, would violate the APA, the INA, and federal regulations (the "motion to reopen claim"). See Id . at 21-22. Third, and finally, it claims that removal of Andoh would violate the Suspension Clause (the "Suspension Clause claim"). See Id . at 22, On August 28, 2019, upon discovery that he was due to be removed from the country imminently, Andoh moved this Court for a temporary restraining order preventing his removal. Dkt. 5. That day, given the urgent nature of the case, the Court issued a temporary restraining order, barring Andoh's removal until September 9, 2019, to enable Andoh's request for emergency relief to be litigated before his removal. Dkt. 6. The Court also solicited a response from the Government by September 3, 2019 and scheduled a hearing for the morning September 9, 2019. Id. On August 30, 2019, Andoh filed a letter, requesting a modified briefing schedule and that the hearing be adjourned until the afternoon of September 9. Dkt. 7. The Court approved these requests. Dkt. 8.

         On September 4, 2019, the Government filed its response, Dkt. 10, accompanied by a declaration of Deportation Officer Naquan Bacchus, Dkt. 11, and on September 5, 2019, an amended memorandum of law, Gov't Mem. The Government argues, inter alia, that the Court lacks jurisdiction over the petition. See Gov't Mem. at 7-15. As to the OSUP claim, the Government asserts that the petition addresses detention, and thus, the correct venue for the petition is the District of New Jersey. Id. at 7-8. And as to the motion to reopen claim, the Government argues that the REAL ID Act of 2005, 8 U.S.C. § 1252, strips all district courts of jurisdiction over this kind of claim and the associated request for a stay. See Id . at 8-15.

         On September 6, 2019, Andoh filed his reply. Dkt. 16 ("Pet'r Reply"). First, Andoh asserts that venue for the OSUP claim is proper here because his petition is a "non-core" habeas petition which challenges the processes the Government used in revoking his OSUP. See Id . at 9-10. Even if this were a core habeas petition, Andoh argues that venue is proper because his ICE custodians are located in this District. Id. Second, Andoh argues that his challenge to the process used for revoking the OSUP falls outside the REAL ID Act's jurisdiction stripping provision. See Id . at 11-15.

         On September 9, 2019, before argument, the Government filed a second declaration in opposition to Andoh's motion to stay, from Deportation Officer Daniel T. McDonough. Dkt. 17. The Court then heard argument and continued the stay of Andoh's removal, pending its decision. Dkt. 18. On September 10, 2019, the Government filed a letter stating that it would not remove Andoh until after September 27, 2019. Dkt. 19 ("Gov't Letter").

         II. Discussion

         A. The OSUP Claim

         1. Venue Standard

         This Court has repeatedly held that in "core" habeas petitions, where a petitioner challenges his present physical confinement, venue is proper only in the district of confinement. See Almazo v. Decker, No. 18 Civ. 9941 (PAE), 2018 WL 5919523 (S.D.N.Y. Nov. 13, 2018); see also Li v. Barr, No. 19 Civ. 5085 (PAE); Blake v. McAleenan, No. 19 Civ. 3371 (PAE); Lateef v. Decker, No. 19 Civ. 2294 (PAE). The substantial majority of judges in this District to consider this question have reached the same conclusion, holding that a defendant detained in New Jersey who seeks to challenge his detention, even if under the ...

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