LAUREL BEELER, Magistrate Judge.
Petitioner Abdul Mehamed Sied, a Jeberti Muslim originally from Eritrea who is currently in the custody of U.S. Immigration and Customs Enforcement ("ICE"), has brought a motion before an administrative immigration judge ("IJ") to reopen his immigration case and apply for asylum and withholding of removal (deportation).
On paper, Mr. Sied has a statutory right to file a motion to reopen and seek asylum or withholding of removal. What happens in practice is another story. Mr. Sied can file a motion to reopen, but the government maintains that it can deport Mr. Sied to Eritrea before an IJ actually hears his motion. To paraphrase another court that examined the government's position in a similar case, this leaves Mr. Sied with the Kafkaesque prospect that the government might deport him to Eritrea to be tortured or killed, while he awaits a hearing and decision on his motion that he should not be deported to Eritrea because he would be tortured or killed there. Devitri v. Cronen, ___ F. Supp. 3d ___, No. 17-11842-PBS, 2018 WL 661518, at *4 (D. Mass. Feb. 1, 2018).
Mr. Sied filed this petition for habeas corpus, asserting that the government's threat to deport him to Eritrea before the IJ considers his motion to reopen violates his right to constitutional due process. Mr. Sied does not seek to circumvent the standard administrative procedures for filing his motion to reopen. He seeks only a meaningful opportunity for his motion to reopen to be heard — and to not be deported to a country where he could be tortured or killed before he can have that day in court.
The government concedes that Mr. Sied has a statutory right to file a motion to reopen his immigration case. The government further concedes that Mr. Sied's putative motion has merit. The government further concedes that if it deports Mr. Sied to Eritrea, he would not be able to meaningfully pursue his motion. But the government refuses to offer any assurance to not deport Mr. Sied to Eritrea before his motion can be heard. And after Mr. Sied filed his habeas petition, the government challenged the court's jurisdiction to hear Mr. Sied's petition or to provide Mr. Sied with any relief.
It would raise serious constitutional concerns if the government, by deporting Mr. Sied, left him with no meaningful opportunity to be heard, either through administrative remedies before an IJ and Board of Immigration Appeals ("BIA") or through judicial review. The court does not reach the constitutional question, however, because the statutes that the government relies on in arguing that this court lacks jurisdiction over Mr. Sied's petition — 8 U.S.C. § 1252(a)(5), (b)(9), (d)(1), and (g) — do not divest the court of jurisdiction.
The court holds that it has jurisdiction over Mr. Sied's petition and can determine if he should be afforded relief. Additionally, Mr. Sied has met the requirements for a preliminary injunction staying his deportation, and the court therefore enjoins the government from removing Mr. Sied from the United States while his motion-to-reopen process is pending.
Petitioner Abdul Mehamed Sied was born in 1985 in Asmara, in what was then part of Ethiopia and now is the capital of Eritrea.
Mr. Sied attests that in May 2010, Eritrean government agents detained him and accused him of advocating on behalf of Jebertis and being part of a government-opposition group.
Mr. Sied attests that in 2013, he tried to leave Eritrea, but Eritrean government agents caught and beat him and sent him to a political-indoctrination military camp.
When Mr. Sied arrived in the United States, he requested asylum and withholding of removal under the U.N. Convention Against Torture.
The government did not deport Mr. Sied from the United States and return him to Eritrea, apparently because Eritrea historically refused to accept repatriation of its citizens from the United States.
On September 13, 2017, the Department of Homeland Security, in coordination with the State Department, announced that the government would impose visa sanctions on Eritrea (and three other countries) "due to lack of cooperation [of these countries] in accepting their nationals ordered removed from the United States."
On September 28, 2017, Mr. Sied went to ICE for his regular check-in appointment under his order of supervision.
On October 31, 2017, a protest arose in the Akriya neighborhood of Asmara (Mr. Sied's neighborhood).
The Australian newspaper The Age has reported that in the wake of the October 2017 protest, the Eritrean government has detained more than 2000 people, who are being held incommunicado.
On Wednesday, November 22, 2017 — the day before Thanksgiving — ICE woke Mr. Sied at 3:00 a.m. and transported him from the Richmond detention center to an interview with an ICE officer in San Francisco.
Over the Thanksgiving holiday, Mr. Sied's friend was able to get in touch with pro bono counsel.
Counsel intended to file a motion to reopen Mr. Sied's immigration case before his original IJ.
Because the government planned to deport Mr. Sied to Eritrea before counsel could file a motion to reopen before an IJ, on Monday, November 27, counsel filed a petition for a writ of habeas corpus in the Northern District of California and filed a motion for an emergency temporary restraining order (TRO) and for a preliminary injunction enjoining the government from deporting Mr. Sied from the United States (or transferring him out of the Northern District of California) until the court could resolve the merits of his habeas petition.
The court held an emergency hearing that day and granted Mr. Sied's motion for a TRO.
In its briefing and at the December 11 and March 1 hearings, the government argued that the court lacks jurisdiction over Mr. Sied's habeas petition and therefore cannot grant him any relief.
Broadly stated, the government's position is this: Congress enacted certain statutes — 8 U.S.C. § 1252(a)(5), (b)(9), (d)(1), and (g) — that divested federal district courts of jurisdiction over habeas petitions brought by aliens in removal proceedings.
Mr. Sied, for his part, agrees that he can challenge his underlying removal order only through a motion to reopen his immigration case before the IJ who entered the original order in May 2016. On February 26, 2018, Mr. Sied filed a motion to reopen before the IJ.
Instead, in his habeas petition, Mr. Sied challenges an alleged due-process violation.
"An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings." Mata v. Lynch, 135 S.Ct. 2150, 2153 (2015) (citing 8 U.S.C. § 1229a(c)(7)(A)). The motion must be based on material new facts that could not have been discovered or presented at his former hearing. 8 U.S.C. § 1229a(c)(7) ("An alien may file one motion to reopen proceedings under this section . . . . The motion to reopen shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material."); 8 C.F.R. § 1003.23(b)(3) ("A motion to reopen will not be granted unless the Immigration Judge is satisfied that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing."). The Supreme Court has characterized this right to move to reopen as "an `important safeguard' intended `to ensure a proper and lawful disposition' of immigration proceedings." Kucana v. Holder, 558 U.S. 223, 242 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 (2008)).
If a motion to reopen is granted, the alien's original removal order is vacated — "that is, it is as if it never occurred." Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016) (citing Nken v. Holder, 556 U.S. 418, 429 n.1 (2009)). Consequently, the alien is not removable while his now-reopened case is pending and has the opportunity to be heard on the merits of his underlying asylum or withholding-of-removal claim.
Where, as here, an IJ enters an alien's original order of removal and the alien did not appeal, the alien may bring a motion to reopen before the IJ. 8 C.F.R. § 1003.23(b)(1). If the IJ denies the alien's motion to reopen, the alien may appeal the IJ's decision to the BIA. 8 C.F.R. §§ 1003.1(b)(3), 1003.38(a). If the BIA then denies the alien's motion to reopen, the alien may file a petition for judicial review by a federal court of appeals. Mata, 135 S. Ct. at 2153 (citing Kucana, 558 U.S. at 242, 253).
Where, as here, the alien is seeking asylum or withholding of removal based on changed country conditions, there is no time limit for filing the alien's one statutory motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii).
The filing of a motion to reopen does not prevent the government from removing the alien from the United States while the motion is pending. 8 C.F.R. §§ 1003.2(f), 1003.23(b)(4)(i).
In connection with a motion to reopen, an alien can ask that the IJ or the BIA, as applicable, grant a stay of removal pending disposition of the motion to reopen. 8 C.F.R. § 1003.2(f), 1003.23(b)(4)(i); see U.S. Dep't of Justice, Immigration Court Practice Manual § 8.3 (Nov. 2, 2017), available at https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/ practicemanual.pdf (last visited Mar. 2, 2018) ("IC Manual"); U.S. Dep't of Justice, Board of Immigration Appeals Practice Manual §§ 6.3-6.4 (Feb. 3, 2017), available at https://www.justice. gov/sites/default/files/pages/attachments/2017/02/03/biapracticemanualfy2017.pdf (last visited Mar. 2, 2018) ("BIA Manual").
Filing a motion for a stay of removal does not prevent the government from removing the alien from the United States while the stay motion is pending. See IC Manual § 8.3(c) ("The mere filing of a motion for a discretionary stay of a[ removal] order does not prevent execution of the order. Therefore, the order may be executed unless and until the motion is granted."); BIA Manual § 6.3(c) (same re BIA). This leads to scenarios where an alien can be deported before his motion to reopen is heard and decided, including (1) the time before the IJ rules on a stay motion, (2) if the IJ denies a stay motion and the alien appeals to the BIA, the time before the BIA exercises jurisdiction and rules on a stay motion, and (3) if the BIA denies a stay motion and the alien petitions a federal court of appeals for review, the time before the court of appeals exercises jurisdiction and rules on a stay motion.
If the IJ grants a motion to stay removal, the alien will not be deported while the IJ considers the motion to reopen. 8 C.F.R. § 1003.23(b)(4)(i). But there is no procedure or automatic mechanism to prevent the government from deporting the alien before the IJ decides the stay motion.
The government has submitted a declaration from the Honorable Elisa M. Sukkar, Assistant Chief Immigration Judge for the Executive Office of Immigration Review. Judge Sukkar estimates based on her experience that IJs at the Krome Immigration Court in Miami (the venue of Mr. Sied's original removal proceedings) generally rule on emergency requests for stays of removal within twenty-four hours of receiving them.
First, filing a motion to stay deportation is not the equivalent of receipt of the motion by the IJ. Unlike in federal court, parties cannot file motions with an IJ electronically. IC Manual § 3.1(a)(viii) ("All other filings [other than a notice of entry of appearance] must be submitted as paper submissions to the Immigration Court."). And after a paper motion is filed, it is first reviewed by the immigration-court staff, who check jurisdiction, enter information about the motion into the court's case-management system, contact ICE and inform ICE that the alien has filed a request for a stay, and retrieve other records associated with the alien; only then does the motion make its way to the IJ.
Second, an IJ's receipt of a motion to stay deportation is not necessarily the equivalent of a ruling on the motion. And until the IJ rules, there is no mechanism to prevent the government from deporting the alien while his motion to stay deportation is pending. If the government deports the alien to a country where he may be tortured or murdered, even if the IJ then grants the stay motion and/or the underlying motion to reopen, relief may come too late.
As noted above, if the IJ grants the alien's underlying motion to reopen, the alien's original removal order is vacated. Bonilla, 840 F.3d at 589. Conversely, if the IJ denies the alien's motion to reopen, the alien can appeal the decision to the BIA. 8 C.F.R. §§ 1003.1(b)(3), 1003.38(a). But if the IJ denies only the stay motion and does not simultaneously rule on the motion to reopen, the alien is potentially in limbo, with no way to prevent deportation no matter how meritorious his underlying motion to reopen.
Were an analogous situation to arise in federal court and were a federal district court to deny an analogous stay motion, the applicant could appeal to the court of appeals. 28 U.S.C. § 1292(a)(1). The purpose of the rule that allows litigants in federal court to appeal denials of preliminary injunctions is so that they can "effectively challenge interlocutory orders of serious, perhaps irreparable, consequence." Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (citing Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181 (1955)). There apparently is no analogous right to appeal an IJ's denial of a stay motion. The BIA appears to decline to consider such appeals, leaving aliens with no avenue for relief. See, e.g., In re Villatoro-Avila, No. A090 968 520, 2013 WL 1933533 (B.I.A. Mar. 20, 2013) (declining to hear alien's motion to appeal IJ's denial of stay); In re Rahman, No. A076 492 135, 2009 WL 3063802 (B.I.A. Sept. 17, 2009) (same).
The Supreme Court has indicated that it may be an abuse of discretion to deny a stay if an alien has presented non-frivolous grounds for reopening his case. Dada, 554 U.S. at 21 (holding with respect to motions to stay before the BIA, that "though the BIA has discretion to deny the motion for a stay, it may constitute an abuse of discretion for the BIA to do so where the [alien's] motion states nonfrivolous grounds for reopening"). But if the IJ denies the alien's request for a stay without simultaneously deciding the underlying motion to reopen, the alien may be left with no way to challenge the IJ's stay decision — no matter how much of an abuse of discretion it might have been — or to prevent his deportation. If the government then deports the alien to a country where he may be subject to persecution or torture, the alien may never have the opportunity to be heard on his underlying motion to reopen.
The same considerations are present if the IJ denies the alien's underlying motion to reopen, and the alien appeals that final decision to the BIA. As with a proceeding before the IJ, an appeal to the BIA does not automatically stop deportation, and the alien must therefore separately submit a motion for a stay. If the BIA grants the underlying motion to reopen, the alien's original removal order is vacated. Bonilla, 840 F.3d at 589. Conversely, if the BIA denies the underlying motion to reopen, the alien can petition a federal court of appeals for judicial review. Mata, 135 S. Ct. at 2154. But where the BIA has not ruled on the underlying motion to reopen, and if the BIA either denies the alien's stay motion or does not rule on it at all, the alien is once again left in limbo, potentially subject to deportation without any way to challenge the BIA's inaction or denial of his request for a stay. See Shaboyan v. Holder, 652 F.3d 988, 990-91 (9th Cir. 2011) (holding that a BIA order denying a stay is only an "interim order" and hence the court of appeals lacks jurisdiction to review it).
In some cases, aliens can present their motions to reopen even if they are removed from the United States while their motions are pending.
The U.S. State Department's most recent country report on Eritrea states, "[t]he [Eritrean] government reportedly committed arbitrary killings with impunity and subjected detainees to harsh and life-threatening prison conditions. Prisoners who disappeared were often presumed dead. . . . Security forces tortured and beat . . . persons attempting to flee the country without travel documents, and members of certain religious groups."
Even assuming Mr. Sied were not formally detained by the Eritrean government, he apparently would not be able to communicate with counsel and meaningfully pursue a motion to reopen if he were deported. As Senior Research Fellow Martin Plaut attested:
On February 20, 2018, the court asked the government to provide its position on the following questions:
The government responded:
The government argues that four subsections of 8 U.S.C. § 1252 — 8 U.S.C § 1252(a)(5), (b)(9), (d)(1), and (g) — divest this court of jurisdiction to hear Mr. Sied's petition.
As the Supreme Court and the Ninth Circuit have advised, courts "should narrowly construe restrictions on jurisdiction." Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1141 (9th Cir. 2002) (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482-83 (1999)). For the reasons described below, the court holds that it has jurisdiction to hear Mr. Sied's petition and that Sections 1252(a)(5), (b)(9), (d)(1), and (g) do not divest it of jurisdiction.
Section 1252(a)(5) provides, in relevant part:
Section 1252(b)(9) provides, in relevant part:
These statutes were enacted in their current form in the REAL ID Act of 2005. Pub. L. No. 109-13 div. B, 119 Stat. 231, 302-23 (2005). As the Ninth Circuit has held, "determining when the REAL ID Act preempts habeas jurisdiction requires a case-by-case inquiry turning on a practical analysis, and . . . there are many circumstances in which an alien subject to an order of a removal can properly challenge his immigration detention in a habeas petition without unduly implicating the order of removal." Singh v. Holder, 638 F.3d 1196, 1211 (9th Cir. 2011) (Vijendra Singh) (citing cases).
The seminal Ninth Circuit opinion interpreting Sections 1252(a)(5) and (b)(9) is Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) (Amarjeet Singh). The Ninth Circuit held there that "Section 1252(a)(5) is prominently directed to `judicial review of an order of removal.'" Id. at 978. The Ninth Circuit similarly held that Section 1252(b)(9), which covers only "an action taken or proceeding brought to remove an alien," "applies `only with respect to review of an order of removal under 8 U.S.C. § 1252(a)(1).'" Id. (emphasis in original, internal brackets omitted) (quoting INS v. St. Cyr, 533 U.S. 289, 313 (2001)). Based on the statutory language, legislative history, and applicable precedent, the Ninth Circuit held that Sections 1252(a)(5)'s and (b)(9)'s "jurisdiction-stripping provisions do[] not apply if the claim is not a direct challenge to an order of removal." Id. (emphasis in original, internal brackets and ellipsis omitted) (quoting Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) and citing other cases and legislative history).
A majority of the Supreme Court recently confirmed that Section 1252(b)(9) does not apply and does not divest courts of jurisdiction where "[aliens] are not asking for a review of an order of removal; they are not challenging the decision to detain them in the first place or to seek removal; and they are not . . . challenging any part of the process by which their removability will be determined." Jennings v. Rodriguez, 583 U.S. ___, No. 15-1204, 2018 WL 1054878, at *8 (Feb. 27, 2018) (plurality opinion); see also id. at *44 (Breyer, J., dissenting) ("8 U.S.C. § 1252(b)(9), . . . by its terms applies only with respect to review of an order of removal") (internal quotation marks and brackets omitted).
In sum, if a habeas petition is not a direct challenge to an order of removal, nothing in Section 1252(a)(5) or (b)(9) prevents a district court from exercising jurisdiction to hear the petition.
In Amarjeet Singh, the Ninth Circuit identified a category of habeas petitions that are not direct challenges to an order of removal: habeas petitions brought when (1) the grounds for the petition arose only after the removal order was entered, and (2) the relief sought by the petition is only to have a "day in court," i.e., to be heard, at a subsequent proceeding challenging the underlying removal order (as opposed to a habeas petition that itself directly challenges the merits of the removal order). Amarjeet Singh, 499 F.3d at 979.
The petitioner in that case was an Indian citizen who applied in the United States for asylum and withholding of removal. Id. at 972. The IJ denied asylum and withholding, and the BIA affirmed the IJ and issued a final order of removal. Id. at 972-73. One of Mr. Singh's lawyers (identified as "Lawyer 2" in the opinion) filed a petition for review before the Ninth Circuit, but the lawyer's filing was untimely, and the Ninth Circuit denied it on that basis. Id. at 973. Mr. Singh then filed a habeas petition in federal district court in the Northern District of California, alleging (among other things) that he was denied due process because his lawyer, in missing his filing deadlines, provided ineffective assistance of counsel. Id. at 974. The district court dismissed Mr. Singh's habeas petition, holding that Sections 1252(a)(5) and (b)(9) divested it of jurisdiction to consider the petition. Id. at 974. Mr. Singh appealed to the Ninth Circuit.
The Ninth Circuit first observed that Mr. Singh was not challenging his underlying removal order that was entered by the IJ and BIA. Instead, he was challenging events that occurred only after his removal order had been entered — namely, his lawyer's failure to appeal that order after it became final. Id. at 979 ("At the time Lawyer 2 filed the late petition for review before this court, the removal order against Singh had become final. The alleged ineffective assistance of Lawyer 2 occurred after the issuance of the final order of removal[.]") (emphasis in original). The Ninth Circuit then observed that "the claimed injury that Singh suffered as a result was the deprivation of an opportunity for direct review of the order of removal in the court of appeals," and "a successful habeas petition in this case will lead to nothing more than `a day in court'" for Mr. Singh. Id. Relief on Mr. Singh's habeas petition would not result in a vacatur or modification of his underlying removal order. Id. The Ninth Circuit held that these facts established that Mr. Singh's petition "cannot be construed as seeking judicial review of his final order of removal" and hence was not barred by Section 1252(a)(5) or (b)(9). Id.
Mr. Singh's ultimate goal, of course, was "to overturn that final order of removal" — but that did not govern how a court should evaluate his habeas petition, because the habeas petition did not challenge his order of removal. Id. Granting his habeas petition would not affect his underlying removal order or call that order into question. It would afford him only the opportunity to petition the Ninth Circuit — in a separate and subsequent proceeding — to review his removal order. It is that separate and subsequent proceeding — not the preliminary habeas petition requesting that subsequent proceeding — that would involve the "judicial review of an order of removal" at issue in Sections 1252(a)(5) and (b)(9).
The two elements that the Ninth Circuit identified in Amarjeet Singh — (1) the grounds for the petition arose only after the removal order was entered, and (2) the relief sought by the petition is only to have a "day in court" to be heard on a subsequent challenge to the removal order, not a challenge on the merits to the removal order itself — are both present in Mr. Sied's petition. First, the grounds for Mr. Sied's petition are the changed circumstances in Eritrea beginning with the demonstration in October 2017 and the government crackdown thereafter, which arose after Mr. Sied's May 2016 removal order. Second, Mr. Sied seeks only a "day in court" on his motion to reopen. He does not ask this court to review his May 2016 removal order or address whether Eritrea's country conditions have in fact changed, or whether he should in fact be afforded asylum or withholding of removal. He asks only for the opportunity to make those arguments before the IJ (and, if necessary, the BIA and a court of appeals) without the government's deporting him before he is heard. Mr. Sied's petition meets the elements set out in Amarjeet Singh and is not a direct challenge to a removal order. Sections 1252(a)(5) and (b)(9) do not divest this court of jurisdiction.
In addition to habeas petitions that meet the two-part test in Amarjeet Singh, other Ninth Circuit precedents have identified another category of habeas petitions that are not direct challenges to an order of removal: habeas petitions requesting a stay of removal in connection with a motion to reopen based on changed country conditions. Sections 1252(a)(5) and (b)(9) do not divest district courts of jurisdiction to hear such petitions.
First, a motion to reopen based on changed country conditions is not a direct challenge to an order of removal. As the Ninth Circuit and other courts have held, "a court may not directly review the original denial of asylum [or withholding of removal] on a motion to reopen." Toufighi v. Mukasey, 538 F.3d 988, 995 n.13 (9th Cir. 2008) (citing Bhasin v. Gonzales, 423 F.3d 977, 986 n.3 (9th Cir. 2005)); accord, e.g., Sanchez v. Keisler, 505 F.3d 641, 647 (7th Cir. 2007) ("[m]otions to reopen . . . do not challenge the correctness of an earlier decision based on the existing record") (quoting Mungongo v. Gonzales, 479 F.3d 531, 534 (7th Cir. 2007)); see also, e.g., Cobos-Luna v. Boente, 678 F. App'x 498, 499-500 (9th Cir. 2017) (distinguishing between a "motion to reopen the original removal order," on the one hand, and a request for "review . . . of the original removal order," on the other) (citing Lin v. Gonzales, 473 F.3d 979, 981 n.1 (9th Cir. 2007)).
Second, a request for a stay of removal is not a direct challenge to the underlying order of removal. As the Ninth Circuit has held, "[e]ven if [an alien] were granted the stay of removal, the order granting that stay would not attack the validity of the underlying removal order. `The granting of a stay pending . . . consideration of the motion to reopen d[oes] not attack the deportation order itself, nor [i]s it a determination on which the final order of deportation [i]s contingent.'" Shaboyan, 652 F.3d at 990 (quoting Dhangu v. INS, 812 F.2d 455, 459 (9th Cir. 1987)).
Because a motion to reopen based on changed country conditions is not a direct challenge to a removal order, and a request for a stay of removal is not a direct challenge to a removal order, it follows that a habeas petition for a stay of removal to allow a hearing on a motion to reopen based on changed country conditions is not a direct challenge to a removal order either. Sections 1252(a)(5)'s and (b)(9)'s jurisdiction-stripping provisions — which apply only to habeas petitions that seek "judicial review of an order of removal," Amarjeet Singh, 499 F.3d at 978 — do not apply and do not divest a district court of jurisdiction to hear such a petition.
Mr. Sied's petition is a habeas petition requesting a stay of removal so that he can be heard on his motion to reopen based on changed country conditions. Under Toufighi and Shaboyan, Mr. Sied's petition is not a direct challenge to his underlying order of removal. Consequently, Sections 1252(a)(5) and (b)(9) do not divest the court of jurisdiction to hear his petition.
Two district courts in this circuit have confronted the question raised here: when aliens have a statutory right to file a motion to reopen their immigration proceedings, but the government threatens to remove the aliens from the United States before their motions can be heard, does a district court have jurisdiction to hear a habeas petition from the aliens requesting a stay of removal? Both have answered yes.
In Chhoeun v. Marin, No. SACV 17-01898-CJC(GJSx), 2018 WL 566821 (C.D. Cal. Jan. 25, 2018), ICE seized 92 Cambodian citizens without warning; they potentially faced immediate deportation. Id. at *1. The aliens sought to file motions to reopen their immigration cases before IJs or the BIA. Id. at *1, *6. The government threatened to deport them before their motions to reopen could be filed and heard. Id. at *1 ("ICE still has not afforded Petitioners an adequate opportunity to challenge their current detention or the underlying orders of removal. Instead, ICE continues to detain most of them and plans to deport most of them to Cambodia at any time."). The petitioners filed habeas petitions in district court, asking to stay deportation so that their motions to reopen could be heard. The government opposed, arguing that Sections 1252(a)(5) and (b)(9) divested the district court of jurisdiction to hear the petitions. The district court rejected the government's argument and affirmed that it had jurisdiction, holding:
Id. at *9 (exercising jurisdiction over habeas petitions and issuing preliminary injunction staying removals) (citing Amarjeet Singh, 499 F.3d at 979).
Similarly, in Gbotoe v. Jennings, No. C 17-06819 WHA, 2017 WL 6039713 (N.D. Cal. Dec. 6, 2017), appeal docketed, No. 18-15181 (9th Cir. Feb. 5, 2018), a Liberian citizen subject to an order of removal filed motions to reopen his immigration case and motions to stay removal, first before an IJ and then before the BIA. Id. at *1-2. The BIA denied his motion for a stay, without ruling on his motion to reopen. Id. at *2. The day after the BIA denied his stay, the government informed Mr. Gbotoe that they would deport him that evening (without waiting for the BIA to hear and rule on his still-pending motion to reopen). Id. Mr. Gbotoe filed a habeas petition in district court and requested a stay of removal. Id. The government opposed, arguing that Sections 1252(a)(5) and (b)(9) divested the district court of jurisdiction. The court rejected the government's argument, holding that "[i]f Gbotoe's request for a stay is denied, he will be removed from the United States before ever having the merits of his motion to reopen determined by the BIA." Id. at *4. Given that "Gbotoe is seeking review of [changed country conditions] that arose after a final removal decision, and a grant of relief will lead to nothing more than `a day in court . . . which is consistent with Congressional intent underlaying [sic] the REAL ID Act,'" the court held that it had jurisdiction and that Sections 1252(a)(5) and (b)(9) did not apply. Id. at *4 (emphasis and ellipsis in original) (citing Amarjeet Singh, 499 F.3d at 979; Shaboyan, 652 F.3d at 990).
Mr. Sied's petition is no different than the petitions in Chhoeun and Gbotoe. The court follows those decisions as persuasive. They confirm this court's reading of applicable Ninth Circuit precedent, that Sections 1252(a)(5) and (b)(9) do not divest the court of jurisdiction over Mr. Sied's habeas petition.
The government's primary argument with respect to Sections 1252(a)(5) and (b)(9) is that an alien's habeas petition must "stand alone" from his challenge to his underlying removal order for a district court to have jurisdiction over the petition, citing Vijendra Singh, 638 F.3d at 1212.
The basis of Mr. Sied's habeas petition is not the same as the basis of his motion to reopen before the IJ. The basis for the motion to reopen is that country conditions in Eritrea have changed and that Mr. Sied faces persecution or torture there, and hence he is entitled to asylum or withholding of removal. By contrast, the basis for Mr. Sied's habeas petition is not whether country conditions in Eritrea have changed: it is whether the government denies him due process by threatening to deport him before he can make his changed-country-conditions argument. These two bases are not the same: it may be a due-process violation for the government to threaten to remove him and prevent him from making his country-conditions argument, even if his underlying changed-country-conditions argument is not a winning one. As discussed above, Sections 1252(a)(5) and (b)(9) do not divest the court of jurisdiction to address that due-process question. Cf. Vijendra Singh, 638 F.3d at 1212 (holding that Section 1252(a)(5) divests district courts of jurisdiction where an alien's "habeas challenge rests entirely on his assertion that he has presented a meritorious argument in his petition for review," but not when the habeas challenge "could stand alone").
As discussed above, binding authority — including Amarjeet Singh, Toufighi, and Shaboyan — compels the conclusion that Sections 1252(a)(5) and (b)(9) do not divest this court of jurisdiction over Mr. Sied's petition. The government does not cite any binding authority to the contrary that supports its conclusion that Section 1252(a)(5) or (b)(9) divest this court of jurisdiction.
The government primarily relies on Iasu v. Smith, 511 F.3d 881 (9th Cir. 2007). But that case is distinguishable. Iasu involved a petitioner who was subject to an order of removal and who subsequently filed a habeas petition claiming that he was a U.S. citizen. Id. at 884. During his initial immigration case before an IJ, Mr. Iasu did not challenge removal on the basis of claimed U.S. citizenship. Id. at 885. The IJ entered a final order of removal, and Mr. Iasu waived his right to appeal to the BIA. Id. Mr. Iasu did not seek to reopen his immigration proceedings or challenge the IJ's ruling before the IJ or the BIA. Id. at 884. Instead, Mr. Iasu brought a habeas petition in district court to directly challenge his removal, asserting for the first time that he was a U.S. citizen and hence the government could not remove him. Id. at 885. The Ninth Circuit held that this was a direct challenge to his removal order and that Section 1252(a)(5) thus stripped the district court of jurisdiction to hear his habeas petition. Id. at 887. The Ninth Circuit also held that Mr. Iasu could file a motion to reopen his immigration case with the IJ — and that a motion to reopen, and not a habeas petition, was the way for Mr. Iasu to raise his citizenship argument and challenge his order of removal. Id. at 892.
Iasu does not change the outcome here. Mr. Iasu directly challenged the basis for his removal order: he argued that he was a U.S. citizen and hence the government could not remove him. By contrast, Mr. Sied does not directly challenge the basis for his removal order: he does not argue that he should have been granted asylum or withholding from removal based on the country conditions in Eritrea in 2016. Also, Mr. Iasu filed a habeas petition to directly challenge the IJ's order of removal instead of filing a motion to reopen. The Ninth Circuit rejected that approach, holding that Mr. Iasu could challenge his removal order only in a motion to reopen before the IJ, not in a habeas petition. Mr. Sied, by contrast, has filed a motion to reopen before an IJ. He wants to pursue the motion-to-reopen process, just as Iasu instructed he should. He filed this habeas petition only to prevent the government's deporting him before his motion to reopen can be heard. If the government were willing to promise not to deport Mr. Sied until he could have his motion to reopen be heard, Mr. Sied would not have brought a habeas petition at all. This is different from Iasu, which does not control here. And other than Iasu, the government cites no other Supreme Court or Ninth Circuit cases where a court rejected a habeas petition for lack of jurisdiction under Section 1252(a)(5) or (b)(9).
The government cites several decisions from other courts of appeal. They do not support the government's contention that Section 1252(a)(5) or (b)(9) divest this court of jurisdiction over Mr. Sied's petition.
First, the government cites Alexandre v. United States Attorney General, 452 F.3d 1204 (11th Cir. 2006) and Enwonwu v. Gonzales, 438 F.3d 22 (1st Cir. 2006), but these decisions are inapposite. Both involved a special provision in the REAL ID Act that provided that habeas petitions pending when the REAL ID Act went into effect in 2005 would be transferred directly to a court of appeals (and hence would still be heard by a federal court). Pub. L. No. 109-13, § 106(c), 119 Stat. at 311; see Alexandre, 452 F.3d at 1206 (pending "habeas petition [was] construed as a petition for review and transferred to [the court of appeals] by the district court where he filed it"); Enwonwu, 438 F.3d at 27 (generally same). If Mr. Sied's habeas petition could be reviewed immediately by the court of appeals, like the petitions in Alexandre and Enwonwu, there would be no need for this court to exercise jurisdiction. But unlike those petitioners, Mr. Sied can make his way to the Ninth Circuit only after going through the IJ and the BIA. And the government threatens to deport him while he tries to make his way through that process. Alexandre and Enwonwu do not apply.
Second, the government cites Muka v. Baker, 559 F.3d 480 (6th Cir. 2009). That case is factually distinguishable. There, the petitioners applied for asylum and withholding of removal before an IJ, who denied their applications and ordered them removed. Id. at 481. The petitioners then appealed to the BIA, which affirmed the IJ, and then filed a petition for review with the Sixth Circuit, which denied the petition. Id. Following this denial, the petitioners filed a habeas petition in district court, directly challenging the order of removal. Id. The petitioners asked the district court "to review the lawfulness of the order of removal entered against [them] and to issue an immediate stay of removal pending the outcome of these proceedings." Id. By contrast, Mr. Sied does not challenge his removal order.
Finally, the government cites Luna v. Holder, 637 F.3d 85 (2d Cir. 2011). That case, like Muka, is factually inapposite. Luna did not involve a habeas petition filed in district court. Rather, the petitioners filed petitions for review in the Second Circuit of the BIA's final decisions and thus had been afforded the opportunity to pursue the entire administrative process from IJs to the BIA and then to the court of appeals. Id. at 88.
Moreover, Luna's legal analysis supports Mr. Sied's position and not the government's. The issue in Luna was that the petitioners' petitions to the Second Circuit were untimely. Id. at 87-88. The petitioners argued that the filing requirement deadline, as applied to them, was unconstitutional, because it barred them from raising constitutional claims through a subsequent habeas petition. Id. at 87. The Second Circuit held, however, that the petitioners could file motions to reopen before the BIA, those motions were an "adequate and effective substitute for habeas," and the process was therefore constitutional. Id. at 104.
In reaching that holding, the Second Circuit stressed that (among other things) "[f]or a motion to reopen to be a constitutionally adequate substitute for habeas, it cannot be `subject to manipulation' by the Government." Id. at 99 (quoting Boumediene v. Bush, 553 U.S. 723, 765-66 (2008)). An issue in Luna was a regulation (the "departure-bar regulation") that provided that if an alien were removed from the United States before his motion to reopen was decided, the motion would be considered withdrawn. Id. at 100 (citing 8 C.F.R. § 1003.2(d)). The Second Circuit held that the departure-bar regulation would allow the government to manipulate the process by deporting aliens before their motions to reopen were decided, and then rejecting their motions out-of-hand as barred by the departure-bar regulation. Id. at 99-102. This would allow the government to deprive aliens of their statutory right to move to reopen their proceedings. Id. The Second Circuit therefore held that the departure bar regulation was unenforceable: "because the writ of habeas corpus is `designed to restrain' the Government's power, the Government must ensure that the motion to reopen process remains an adequate and effective substitute for habeas." Id. at 102 (citing Boumediene, 553 U.S. at 765-66).
That holding — that motions to reopen are not adequate where the government can manipulate the motion-to-reopen process — supports Mr. Sied's position, not the government's. If motions to reopen are not adequate if the government can deport an alien and thereby render him unable to pursue his motion because he is barred by regulation, it follows that they are not adequate if the government can deport an alien and thereby render him unable to pursue his motion because he may be tortured or killed. Luna undermines the government's position that motions to reopen are adequate substitutes for habeas, at least where — as here — the government can manipulate the process.
Finally, the government cites cases where district courts have held that Section 1252(a)(5) or (b)(9) divested them of jurisdiction to hear habeas petitions. These decisions do not persuade. First, one of the cases that the government cites — De Leon v. Napolitano, No. C 09-3664 JW, 2009 WL 4823358 (N.D. Cal. Dec. 10, 2009) — involves a different fact scenario. The De Leon petitioner sought review of ICE's denial of her application for a stay of removal. Id. at *1. The Ninth Circuit issued a temporary stay. Id. After the government denied her request for deferral of action, the petitioner filed a habeas petition in district court, and the district court granted her unopposed motion for a stay of execution of removal. Id. at *2. The petitioner then voluntarily dismissed her Ninth Circuit petition. Id. In her district-court habeas petition, the petitioner asked for a stay of removal and a review of her underlying removal order. Id. ("Petitioner moves the Court to review the BIA's May 25, 2005 final administrative order of removal"). Because the habeas petition was a direct challenge to an order of removal, the court held that it lacked jurisdiction under Sections 1252(a)(5) and (b)(9). Id. at *3-4. By contrast, Mr. Sied does not challenge his underlying removal order, and he has not forgone his remedy in the Ninth Circuit.
The government cites other cases that present a true conflict. Certain district courts are split on the extent of Sections 1252(a)(5) and (b)(9)'s reach. For example, in Lopez v. DHS, No. CV 10-7929 AG(JC), 2010 WL 4279314 (C.D. Cal. Oct. 21, 2010) and Ma v. Holder, 860 F.Supp.2d 1048 (N.D. Cal. 2012), the petitioners filed motions to reopen and requested stays of removal from an IJ and the BIA, respectively, and when the IJ and BIA did not rule on the motions, filed district-court habeas petitions to stay removal. Lopez, 2010 WL 4279314, at *1-2; Ma, 860 F. Supp. 2d at 1050-51, 1054. The courts held that Sections 1252(a)(5) and (b)(9) divested them of jurisdiction to consider the petitions. Lopez, 2010 WL 4279314, at *1-2; Ma, 860 F. Supp. 2d at 1061-62. But those decisions arguably conflict with Gbotoe. There, a different district court held that it had jurisdiction to consider a habeas request for a stay in connection with a motion to reopen: "[i]f this Court declines to exercise jurisdiction to review his stay, Gbotoe will have no forum to seek review of the agency's decision prior to his removal." Gbotoe, 2017 WL 6039713, at *4 (emphasis in original). The judge in Gbotoe distinguished his earlier opinion, Arce v. Holder, No. C 12-04063 WHA, 2012 WL 3276994 (N.D. Cal. Aug. 9, 2012). In Arce, he held that he did not have jurisdiction to consider a habeas request for a stay to allow a motion to reopen because Mr. Arce had not filed a motion to stay before the BIA. By contrast, the petitioner in Gbotoe had filed a motion for a stay before the BIA. Gbotoe, 2017 WL 6039713, at *3. This distinction arguably conflicts with Chhoeun, where a different district court held that it had jurisdiction to consider a habeas request for a stay even though the petitioners had not yet filed motions for stay before IJs or the BIA. Chhoeun, 2018 WL 566821, at *1 ("Petitioners request that their removals be enjoined . . . in order to file motions to reopen" that had not yet been filed).
Faced with these different district-court decisions, the court looks to binding Ninth Circuit precedent. As discussed above, given the Ninth Circuit's decisions in Amarjeet Singh, Toufighi, and Shaboyan, the court concludes that Sections 1252(a)(5) and (b)(9) do not divest it of jurisdiction over Mr. Sied's petition.
Section 1252(d)(1) provides, "A court may review a final order of removal only if — the alien has exhausted all administrative remedies available to the alien as of right." By its own terms, Section 1252(d)(1) does not apply when the alien is not requesting a review of his underlying removal order. See, e.g., Curva v. U.S. Citizenship & Immigration Servs., No. CV 09-06086 DDP (Ex), 2010 WL 11530932, at *3 (C.D. Cal. Jan. 11, 2010) (citing ANA Int'l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004)). Mr. Sied is not requesting a review of his underlying removal order on this habeas petition, and hence Section 1252(d)(1) does not apply.
Separately, to the extent that the government is arguing that Section 1252(d)(1)'s exhaustion requirement means that Mr. Sied must fully pursue the motion-to-reopen process before he can bring this habeas petition, its argument fails for at least two additional reasons. First, Section 1252(d)(1) does not require aliens to exhaust motions-to-reopen remedies before bringing a claim in federal court. Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). Second, requiring Mr. Sied to exhaust the motion-to-reopen process before he can bring a habeas petition places him in an untenable catch-22: the basis for Mr. Sied's habeas petition is that the government may block him from exhausting the motion-to-reopen process. The government cannot insist that Mr. Sied exhaust the motion-to-reopen process before he can bring a claim in federal court, on the one hand, while reserving for itself the right to deport him and thereby prevent him from being able to fully exhaust the process, on the other. Because the administrative motion-to-reopen process does not provide an avenue for Mr. Sied to challenge that the process itself is unconstitutional, he is not required to exhaust it before he can bring his habeas claim. Cf. Padilla-Padilla v. Gonzales, 463 F.3d 972, 977 (9th Cir. 2006) (rejecting argument that aliens failed to exhaust their remedies as required by Section 1252(d)(1) "[b]ecause the BIA could not have addressed the [petitioners]' constitutional due process claim, [so] the [petitioners] were not required to exhaust the issue before the BIA.").
For the foregoing reasons, Section 1252(d)(1) does not divest this court of jurisdiction to hear Mr. Sied's habeas petition.
Section 1252(g) provides, in relevant part, "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 cases, or execute removal orders against any alien under this chapter." Section 1252(g) differs from Sections 1252(a)(5), (b)(9), and (d)(1) in that it does address judicial review of an underlying removal order. Kwai Fun Wong v. United States, 373 F.3d 952, 964 (9th Cir. 2004) (holding that Section 1252(g)'s provision stripping jurisdiction with respect to executing removal orders "should be interpreted narrowly, and not as referring to the underlying merits of the removal decision") (citing Maharaj v. Ashcroft, 295 F.3d 963, 965 (9th Cir. 2002)). Instead, Section 1252(g) divests courts of jurisdiction only over certain discretionary decisions by the Attorney General. Catholic Soc. Servs., Inc. v. INS, 232 F.3d. 1139, 1150 (9th Cir. 2000) (en banc) ("As interpreted by the Supreme Court in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482-83 (1999), [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not to all claims relating in any way to deportation proceedings.").
The Ninth Circuit has held consistently that Section 1252(g) should be interpreted narrowly. United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc) (citing Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir. 2001)). The focus of Section 1252(g) is to limit "judicial constraints upon prosecutorial discretion." Id. (citing Am.-Arab Anti-Discrimination, 525 U.S. at 485 n.9).
By contrast, Section 1252(g) does not divest courts of jurisdiction over cases that do not address prosecutorial discretion and address "a purely legal question, which does not challenge the Attorney General's discretionary authority[.]" Id. Among other things, Section 1252(g) does not "prevent [a] district court from exercising jurisdiction over . . . due process claims [that] do not arise from a `decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien,' but instead constitute `general collateral challenges to unconstitutional practices and policies used by the agency.'" Barahona-Gomez, 236 F.3d at 1118 (quoting Walters v. Reno, 145 F.3d 1032, 1052 (9th Cir. 1998)).
Consequently, the Ninth Circuit has rejected arguments that Section 1252(g) divests courts of jurisdiction to hear claims of due-process violations such as allegations that the government violated due process by refusing to issue any decisions granting aliens a suspension of deportation, see Barahona-Gomez, 236 F.3d at 1117-21, allegations that the government violated due process by refusing to accept aliens' legalization applications, see Catholic Soc. Servs., 232 F.3d at 1144, 1150, or allegations that the government violated due process by seizing aliens' green cards and failing to provide them notice that they had to surrender for deportation, see Sulit v. Schiltgen, 213 F.3d 449, 452-53 & n.1 (9th Cir. 2000).
The government cites no Supreme Court or Ninth Circuit cases that have held that Section 1252(g) divests a district court of jurisdiction to hear a habeas petition asking to stay removal or alleging a due-process violation. The government relies on the same district-court decisions it cited in connection with its Sections 1252(a)(5) and (b)(9) arguments, but again, district-court decisions are split on the issue. Compare, e.g., Chhoeun, 2018 WL 566821, at *8 (holding that Section 1252(g) did not divest court of jurisdiction to hear habeas petitions requesting stays of removal) with, e.g., Lopez, 2010 WL 4279314, at *2 (holding that Section 1252(g) did divest court of jurisdiction). Given the Ninth Circuit's pronouncements that Section 1252(g) should be interpreted narrowly, Hovsepian, 359 F.3d at 1155, and that it does not "prevent [a] district court from exercising jurisdiction over . . . `general collateral challenges to unconstitutional practices and policies used by the agency,'" Barahona-Gomez, 236 F.3d at 1118, and given the lack of countervailing Supreme Court or Ninth Circuit precedent, the government has not established that Section 1252(g) divests the court from hearing Mr. Sied's habeas petition.
As discussed above, Sections 1252(a)(5), (b)(9), (d)(1), and (g) do not divest the court of jurisdiction over Mr. Sied's petition. But if they did divest jurisdiction, given the specific facts of this case, they would violate the Suspension Clause of the U.S. Constitution.
The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." U.S. Const. art. I, § 9, cl. 2. "The Supreme Court has held that `because of that Clause, some judicial intervention in deportation cases is unquestionably required by the Constitution.'" Singh v. Mukasey, 553 F.3d 1103, 1106 (9th Cir. 2008) (Massa Singh) (internal brackets omitted) (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). For a statute to be read as limiting the writ of habeas corpus, it "must overcome both the strong presumption in favor of judicial review of administrative action and the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction." St. Cyr, 533 U.S. at 298.
"Congress may eliminate the writ without running afoul of the Suspension Clause so long as it provides `a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention.'" Massa Singh, 533 F.3d at 1106 (quoting Swain v. Pressley, 430 U.S. 372, 381 (1977)). "An adequate substitute for habeas corpus must fulfill the traditional role of the writ, which is to give the petitioner `a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law.'" Id. (inner internal quotation marks omitted) (quoting Boumediene, 553 U.S. at 779). As the en banc Ninth Circuit has held, leaving an alien in "legal limbo" — where the alien is left with no "judicial remedy — may raise serious constitutional concerns because the Suspension Clause `unquestionably' requires `some judicial intervention in deportation cases.'" Lolong v. Gonzales, 484 F.3d 1173, 1177 (9th Cir. 2007) (en banc) (quoting St. Cyr, 533 U.S. at 300). If a substitute does not give a petitioner a meaningful opportunity to test his detention, the unavailability of the habeas writ may violate the Suspension Clause and therefore be unconstitutional. Massa Singh, 533 F.3d at 1107 ("To accept that Congress eliminated habeas corpus without providing these aliens with any substitute for review would pose serious Suspension Clause concerns.") (citing St. Cyr, 533 U.S. at 300).
The government argues that Mr. Sied can file a motion to reopen before an IJ and that the motion-to-reopen process provides an adequate substitute for habeas relief.
Luna, 637 F.3d at 98-99 (quoting Boumediene, 553 U.S. at 765-66); accord Massa Singh, 533 F.3d at 1107 (depriving aliens of adequate substitute process where their claims would be reviewed may violate Suspension Clause); Lolong, 484 F.3d at 1177 (same); see also Castaneda-Suarez v. INS, 993 F.2d 142, 145 (7th Cir. 1993) (entering stay of deportation while alien's motion to reopen was pending before the BIA and the government refused to agree to stay deportation, because "the execution of deportation order before the final resolution of any (non-frivolous) [motion to reopen] would raise significant equitable, if not constitutional concerns") (citing cases).
Other courts have recently addressed this issue in the context of habeas petitions similar to Mr. Sied's petition and have held that interpreting Section 1252(a)(5), (b)(9), (d)(1), or (g) to divest them of jurisdiction to hear those petitions would violate the Suspension Clause. In Hamama v. Adducci, 258 F.Supp.3d 828 (E.D. Mich. 2017), appeal docketed, No. 17-2171 (6th Cir. Sept. 28, 2017), 114 Iraqi nationals who were subject to orders of removal brought habeas petitions seeking stays of deportation. The petitioners sought to file motions to reopen on the basis of changed country conditions in Iraq, including the rise of ISIS, that arose only after their original removal orders were entered. Id. at 830-32. The government argued that Section 1252(g) divested the district court of jurisdiction to hear the petitions. Id. at 834. The court held that such an interpretation would violate the Suspension Clause. Id. The court held that Section 1252(g) was not facially unconstitutional, but that it was unconstitutional as applied to the petitioners at issue. Id. at 839-40. In rejecting the government's arguments that motions to reopen provided an adequate substitute for habeas, the court wrote:
Id. at 840-42 (citations omitted).
Similarly, in Devitri v. Cronen, __ F. Supp. 3d __, No. 17-11842-PBS, 2018 WL 661518 (D. Mass. Feb. 1, 2018), appeal of earlier order docketed, No. 17-2160 (1st Cir. Dec. 6, 2017), 50 Indonesian Christians who were subject to orders of removal brought habeas petitions seeking stays of deportation. The petitioners sought to file motions to reopen on the basis of changed country conditions in Indonesia due to a "rising tide of extremist Islam" that arose only after their original removal orders were entered. Id. at *2. The government argued that Section 1252(g) divested the district court of jurisdiction to hear the petitions. Id. at *4. In rejecting the government's arguments that motions to reopen provided an adequate substitute for habeas, the court wrote:
Id. (emphasis in original, citations omitted).
Similarly, in Ibrahim v. Acosta, No. 17-cv-24574-GAYLES, 2018 WL 582520 (S.D. Fla. Jan. 26, 2018), Somali nationals who were subject to orders of removal brought habeas petitions seeking stays of deportation. The petitioners sought to file motions to reopen on the basis of changed country conditions in Somalia, including the rise of Al-Shabaab (and a botched attempt by the United States to deport them to Somalia, which resulted in extensive media coverage that only put the petitioners further on Al-Shabaab's radar as targets for persecution and execution), that arose only after their original removal orders were entered. Id. at *2-3. The government argued that Sections 1252(a)(5), (b)(9), and (g) divested the district court of jurisdiction to hear the petitions. Id. at *4-5. In rejecting the government's arguments that motions to reopen provided an adequate substitute for habeas, the court wrote:
Id. at *6 (citations omitted).
The reasoning of these decisions is compelling. The motion-to-reopen process is a facially adequate substitute for habeas when it does not deprive an alien of his opportunity to be heard. It is not a constitutionally adequate substitute process in the facts of this case, where the government can manipulate the process by deporting Mr. Sied before he can be heard, to a country where he may be tortured or killed.
For the foregoing reasons, the court holds that Sections 1252(a)(5), (b)(9), (d)(1), and (g) do not apply and that it has jurisdiction to hear Mr. Sied's habeas petition.
The court now turns to Mr. Sied's request for a preliminary injunction staying the government from deporting him.
"A plaintiff seeking a preliminary injunction must establish [(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest." Winter v. Nat'l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). Additionally, where the plaintiff has satisfied the second, third, and fourth factors, the first factor is also satisfied if the plaintiff has raised "at least serious questions on the merits." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011); accord Leiva-Perez v. Holder, 640 F.3d 962, 970 (9th Cir. 2011) ("[A] petitioner seeking a stay of removal must show that irreparable harm is probable and either: (a) a strong likelihood of success on the merits and that the public interest does not weigh heavily against a stay; or (b) a substantial case on the merits and that the balance of hardships tips sharply in the petitioner's favor.").
Mr. Sied has raised serious questions on the merits of his habeas claim, namely, that the government is depriving him of his due-process rights. As the Ninth Circuit has held, "it [is] absurd to conclude that Congress intended to allow motions to reopen to be filed but not heard. . . . Preventing aliens from receiving decisions on their motions to reopen would eliminate all possibility of redress if their circumstances changed." Azarte v. Ashcroft, 394 F.3d 1278, 1289 (9th Cir. 2005), overruled on other grounds by Dada, 554 U.S. 1.
Mr. Sied has shown that he is likely to suffer irreparable harm in the absence of a stay. The government's position threatens to deprive Mr. Sied of due process, and "[i]t is well established that the deprivation of constitutional rights `unquestionably constitutes irreparable injury.'" Hernandez v. Sessions, 872 F.3d 976, 994 (9th Cir. 2017) (quoting Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)). Additionally, Mr. Sied has submitted unrebutted evidence that if he is deported to Eritrea, he may be tortured or killed. Torture and death are irreparable harm. The second preliminary-injunction factor is satisfied.
The balance of equities sharply favors Mr. Sied. The government has not identified any meaningful burden or hardship that it would suffer if a stay were granted (other than possibly the custodial expense of detaining Mr. Sied). A stay maintains the status quo. By contrast, without a stay, if the government deports Mr. Sied, he potentially would suffer great burden and hardship: the effective loss of his statutory right to file a motion to reopen (because, as the government concedes, he would not be able to pursue the motion from Eritrea), and the potential loss of his life and liberty if the Eritrean government persecutes him. The third preliminary-injunction factor is satisfied.
A stay of removal to allow Mr. Sied to be heard on his motion to reopen is in the public interest. The public interest favors proper and lawful dispositions of immigration proceedings. As the Supreme Court has held, motions to reopen are "an `important safeguard' intended `to ensure a proper and lawful disposition' of immigration proceedings." Kucana, 558 U.S. at 242 (quoting Dada, 554 U.S. at 18). "[T]here is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm." Nken, 556 U.S. at 436. While there is a countervailing "public interest in prompt execution of removal orders," id., that interest is outweighed here, given the potential due-process issues that a rushed "prompt" deportation of Mr. Sied would raise. Hernandez, 872 F.3d at 996 ("Generally, public interest concerns are implicated when a constitutional right has been violated, because all citizens have a stake in upholding the Constitution.") (quoting Preminger v. Principi, 422 F.3d 815, 826 (9th Cir. 2005)).
The court grants Mr. Sied's motion for a preliminary injunction staying the government from deporting Mr. Sied while he pursues his motion to reopen.
The court has jurisdiction to hear Mr. Sied's habeas petition. The court issues a preliminary injunction and orders that the government may not remove Mr. Sied from the United States. This injunction and order will terminate in connection with any of the following events:
In Vijendra Singh, the Ninth Circuit limited this "intertwin[ing]" holding. The petitioner in that case filed a habeas petition in district court, arguing that he was denied due process during a bail hearing before the IJ. Vijendra Singh, 638 F.3d at 1201. The Ninth Circuit held that the district court had jurisdiction to consider that argument. Id. at 1202. Mr. Singh also argued that "the district court should have `looked to the underlying merits of [his] removal to determine if he has raised a substantial argument that he is unremovable' and therefore entitled to habeas relief." Id. at 1210 (internal brackets omitted). That argument, on its face, was a challenge to his underlying order of removal, and the Ninth Circuit held that Section 1252(a)(5) divested the district court to hear that argument. Id. at 1210-11. The Ninth Circuit wrote that Mr. Singh's "habeas petition [wa]s wholly intertwined with the merits of his removal order. . . . [and] does nothing more than attack the IJ's removal order," and the courts "lacked jurisdiction to review it other than on a petition for review." Id. at 1211 (citations and internal quotation marks omitted). The Ninth Circuit addressed Flores-Torres by holding that "in Flores-Torres, the [habeas] challenge could stand alone," whereas Mr. Singh's could not. Id. at 1212.
Given that Mr. Sied's habeas petition is not intertwined with the merits of his motion to reopen, the court need not parse precisely what amount and type of intertwining brings a habeas petition within the ambit of Sections 1252(a)(5) and (b)(9). It is sufficient to note that intertwining does not per se divest a court of jurisdiction and that, instead, "determining when the REAL ID Act preempts habeas jurisdiction requires a case-by-case inquiry turning on a practical analysis." Vijendra Singh, 638 F.3d at 1211; accord Flores-Torres, 548 F.3d 708, 711-12 & n.6.
