United States District Court, D. New Jersey
OPINION AND ORDER
A. ENGELMAYER, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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
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.
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").
The OSUP Claim
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 ...