M. Hannah Lauck, United States District Judge.
Petitioner Joshua M., a native of Honduras to whom the United States has granted Special Immigrant Juvenile status, has filed a 28 U.S.C. § 2241 habeas petition challenging his removal order and pending deportation. His petition implicates the cross-section between the Executive, Legislative, and Judicial branches, and raises questions regarding how the judicial branch may proceed when the executive branch has detained and ordered removed a person that has received a special legal status in accordance with statutes that the legislative branch enacted. Ultimately, Joshua's success in prevailing against this motion to dismiss turns on his singular (and rarely evaluated by courts) immigration status: he is a Special Immigrant Juvenile. To explain this Court's resolution, this memorandum opinion considers various statutory frameworks set forth in the Immigration and Nationality Act together with complex questions of constitutional law.
After holding a hearing, the Court now addresses Petitioner's Motion for a Temporary Restraining Order, (ECF No. 5), § 2241 Habeas Petition,
To understand the legal issues raised in Joshua's § 2241 Petition, the Court reviews Joshua's childhood in Honduras, his arrival in the United States, the state court orders he acquired in New York to support his Special Immigrant Juvenile ("SIJ") status, and the underlying immigration proceedings leading to his order of removal.
For purposes of this Motion, Respondents do not dispute Joshua's familial history or the factual allegations in his § 2241 Petition. (Dec. 10, 2019 Transcript ("Tr.") 52-53, ECF No. 39.) In this Motion to Dismiss, the Court assumes the truth of the facts alleged by Joshua. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
Joshua was born in Honduras in May 1998. When he was two years old, Joshua's mother left him to come to the United States. (§ 2241 Pet. Ex. 5 "Joshua Affidavit" 7, ECF No. 1-5.) Before his mother left, Joshua's father had also abandoned him to come to the United States. (Id.) After being deserted by his parents as a toddler, Joshua lived with his maternal aunt in San Pedro Sula, Cortes, Honduras. (Id.)
When Joshua became a teenager, a Honduran gang started to threaten him and his aunt. (Id.) The gang told Joshua that he "had to join the gang because [he] lived in their neighborhood and because [his] aunt did not pay the rent." (Id.) The gang threatened to kill Joshua if he did not join them. (Id.) The gang members started to physically harm Joshua. (Id. 8.) "On one occasion, a gang member cut [Joshua] with a knife on [his] left arm." (Id. 8.) Joshua still bears a scar from this attack. (Id.)
Joshua continued to experience substantial violence and trauma at the hands of the gang. In 2011, when Joshua was approximately thirteen years old, gang members surrounded Joshua and his friends and started throwing firecrackers at them. (Id.) A firecracker landed in Joshua's right ear, causing him partial hearing loss. (Id.)
In 2012, gang members killed one of Joshua's friends, Dirke Garcia. (Id.) The gang wanted Dirke to join their ranks, but he refused. (Id.) Dirke was found dead in the river, apparently "beaten to death." (Id.)
In 2013, roughly around age fifteen, Joshua learned that his aunt's husband was physically abusing her. (Id.) Eventually, his aunt left her abusive spouse and she and Joshua moved to Trujillo, Hondruas. (Id.) After moving to Trujillo, the gang continued to threaten Joshua and shot at the house where he and his aunt lived. (Id. 9.) Joshua claims that the gang is still
In May 2014, Joshua left Honduras and entered the United States as an "Unaccompanied Alien Child." (§ 2241 Pet. Ex. 4 "I-589 Application" 2, ECF No. 1-4; § 2241 Pet., Ex. 7 "Motion to Reopen" 2, ECF No. 1-7.) Immigration officials released him to family members in New York. (Mot. Reopen 2.) Despite his efforts, Joshua did not reunite with his parents because of their substance abuse and physical abuse, but he ultimately found a home with an uncle ("Credy") and lived with him in the Bronx. (Id. 2-3.)
In August 2017, Joshua, at age nineteen, filed a petition for guardianship and a motion for special findings with the Bronx County Family Court in New York ("New York Family Court"). (Mot. Reopen 3, ECF No. 1-7; J. Stip. R., ECF No. 40-2.) On January 23, 2019, the New York Family Court issued an order finding that Joshua could not reunite with his parents because his father abused him "by routinely becoming intoxicated and hitting Joshua and throwing household objects at him," neglected "him by regularly abusing alcohol in Joshua's presence," and abandoned him "by failing to provide for him financially or emotionally his entire life and by kicking Joshua out of his home." (Id. 13.) The New York Family Court similarly found that Joshua's mother abandoned him "by failing to provide for him financially or emotionally his entire life and by choosing to live in a home with her abusive husband where Joshua is not welcome," and neglected him by "allowing him to be exposed to violent physical abuse against her and Joshua's half-siblings by her husband, Candido Martinez Gomez." (Id.) As a result, the New York Family Court held that:
(Id. 14.) That same day, the New York Family Court appointed Credy, Joshua's uncle, as his legal guardian. (Id. 15.) The New York Family Court ordered that the appointment "shall last until [Joshua's] 21st birthday, since the subject is over 18 and has consented to the appointment until he/she reaches the age of 21." (Id.)
On February 12, 2019, three weeks after receiving the New York Family Court order, Joshua, then twenty-years-old, applied for Special Immigrant Juvenile ("SIJ") status by filing an I-360 Petition.
In 2018, young immigrants filed a class action lawsuit in the United States District Court for the Southern District of New York challenging USCIS's new policy regarding the eligibility of SIJ applicants between ages eighteen and twenty-one as arbitrary and capricious. On March 15, 2019, one month after Joshua filed his I-360 Petition, the Southern District of New York agreed with the plaintiffs and found that
R.F.M., 365 F. Supp. 3d at 360.
In reaching that conclusion, the RFM court rebuffed the Government's arguments that the court lacked jurisdiction because plaintiff sought to challenge an agency policy, rather than individual claims concerning SIJ status. Id. at 373. Similarly, the RFM court noted that "courts have jurisdiction to review a predicate legal question that amounts to a nondiscretionary determination underlying the denial of relief." Id. (quotations marks and citations omitted).
Turning to the merits of petitioners' claims, the RFM court summarized that the new policy denying SIJ status to applicants between ages eighteen and twenty-one contravened "the plain language of the SIJ statute, lack[ed] a reasoned explanation, [was] premised on erroneous interpretations of state law, and was not enacted with adequate notice, [making] the policy arbitrary and capricious, in excess of statutory jurisdiction, and without observance of procedure required by law." Id. at 383 (quotations marks and citations omitted). Because USCIS's actions violated the Administrative Procedure Act, the RFM court set aside the unlawful USCIS policy that arbitrarily denied SIJ applications like Joshua's. Id.
In February 2019, one month before the RFM decision, Joshua was driving from New York to New Orleans. On the way, he was pulled over for speeding near Fredericksburg, Virginia. He was then charged with reckless driving, in violation of Virginia Code § 46.2-862, and driving without a valid license, in violation of Virginia Code § 46.2-300.
Notably, Joshua has no other criminal history apart from these two misdemeanors.
On June 13, 2019, after being detained for misdemeanor traffic offenses, and with his SIJ application pending, Joshua filed an application for Asylum, Withholding of Removal and Protection under the Convention Against Torture. (I-589 Application 2.) On July 31, 2019, Immigration Judge Raphael Choi denied Joshua's application for asylum. (Mot. Reopen 57.) On August 14, 2019, two months later, Judge Choi entered a one-page removal order showing that Joshua had waived his right to appeal. (Id.) As a result, Joshua was scheduled to be deported in September 2019. (Id. 2.)
During this time, the Southern District of New York certified the RFM class and, in May 2019, sent notice to the class (the "Notice of Class Membership"), which included Joshua, advising class members that the "Court [had] found the Government violated the law for ALL people who have claims like the Plaintiffs." (§ 2241 Pet. Ex. 3 "Notice to RFM Class" 1, ECF No. 1-3.) Although the Notice of Class Membership went to Joshua's residence in
After receiving the Notice regarding the RFM class, Counsel for Joshua filed an expedited request on September 12, 2019, for adjudication of his I-360 Petition to allow Joshua to obtain SIJ status which USCIS's prior unlawful policy had delayed. (Mot. Reopen 3.) Meanwhile, Immigration and Customs Enforcement ("ICE") officials informed Counsel for Joshua that he was scheduled to be "removed on Thursday, September 19, 2019." (Id. 2.) On September 16, 2019, three days before his initial removal date, Counsel for Joshua filed a motion to "reopen his case and vacate the removal order that became final on July 31, 2019." (Id. 1.) The ICE Office of Chief Counsel "agreed to join [Joshua's] motion to stay removal, but declined to join the ... motion to reopen." (Id.) In the motion to reopen, Counsel for Joshua averred that the Immigration Court "was not aware of the fact that Joshua had a pending petition for [SIJ] Status, nor that he was a class member of R.F.M. v. Nielsen." (Id. 5.) Counsel for Joshua further explained that "[a]djudication of Joshua's SIJ[] petition will not automatically cancel a removal order entered by an Immigration Judge; the order must be reopened by the Immigration Court." (Id.) (citation omitted).
On September 18, 2019, USCIS approved Joshua's I-360 Petition after the RFM court set aside USCIS's unlawful policy denying applicants between ages eighteen and twenty-one such status in contravention of the SIJ statutes. (§ 2241 Pet. Ex. 6, ECF No. 1-6; § 2241 Pet. Ex. 9 "Motion to Reopen Supplement" 14, 16, ECF No. 1-9.) On September 20, 2019, Counsel for Joshua supplemented the motion to reopen with "new evidence that was not available or obtainable at the time of filing," his SIJ classification. (Mot. Reopen Supp. 2.) In that supplement, Counsel for Joshua explained that the Immigration Court "ordered Joshua removed on July 31, 2019. At the time, Joshua's I-360 Petition was still pending." (Id.) Counsel then explained that Joshua's I-360 Petition had been granted and asked the Immigration Judge to consider Joshua's SIJ status. (Id.)
In a one-page order entered on October 7, 2019, Judge Choi denied Joshua's motion to reopen. (Id. 21.) The one-page order stated only that the Immigration Judge agreed with the reasons stated in the opposition to the motion, and explained that
(Id. (citations omitted).)
Joshua appealed the denial of his motion to reopen. (Id. 27.) In the appeal, Joshua asserted that the Immigration Judge
(Id.) Joshua further asserted that "USCIS's illegal policy of denying or delaying adjudication of I-360 Petitions like [Joshua's] may have had an adverse effect on [Joshua], because he could not have presented evidence of his I-360 Approval at his Individual Hearing on July 31, 2019." (Id.) Joshua claimed that the Immigration Judge erred when he did not consider his RFM class membership, and the Immigration Judge "did not substantively respond to any of [Joshua's] legal arguments in his 3-line handwritten decision." (Id.) Joshua remained in detention and subject to an order of removal while his appeal pended before the Board of Immigration Appeals ("BIA"). Facing immediate removal while his appeal progressed in the BIA, and without the ability to appeal any decision to the court of appeals, Joshua sought relief in federal district court. The Court turns now to the procedural history of the instant § 2241 Petition.
On October 20, 2019, Joshua filed in the Southern District of New York a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and an emergency motion for a temporary restraining order and preliminary injunction. The next day, the Southern District of New York transferred Joshua's case to this Court because he is detained in Farmville, Virginia, which is located in the Eastern District of Virginia. (ECF No. 7.) On October 23, 2019, following a brief review of the issues raised in Joshua's pleadings, the Court concluded that the § 2241 Petition raised "facially valid claims that warrant service." (Oct. 23, 2019 Order 2, ECF No. 10.) The Court directed Joshua to serve the Respondents: (1) William Barr, in his official capacity as the Attorney General of the United States; (2) Kevin McAleenan, in his official capacity as then-Acting Secretary for the United States Department of Homeland Security; and (3) Kenneth Cuccinelli, in his capacity as Acting Director for United States Citizenship and Immigration Services. (Id.)
The Court also granted in part the emergency motion for a restraining order and ordered "a temporary 60-day administrative stay of [Joshua's] removal to preserve the status quo pending further briefing before this Court."
In the § 2241 Petition, Joshua sought relief "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 Article I, Section 9, Clause 2, of the United States Constitution (`Suspension Clause') and the Fifth Amendment of the United States Constitution." (§ 2241 Pet. 1.) Joshua claimed jurisdiction under the same legal provisions along with federal question jurisdiction, 28 U.S.C. § 1331, and the
(§ 2241 Pet. 23-28.)
In his Procedural Due Process Claim, Joshua contends that he "has a vested liberty interest in preventing his removal" because he has received SIJ status. (Id. 23.) Because, in accordance with the plain language of the SIJ statute, "physical presence in the United States is a condition of SIJ Status, [Joshua's] SIJ Status is nullified once he is removed." (Id.) Joshua avers that his removal would "trigger additional immigration violations that would make it impossible" to maintain his SIJ designation and pursue adjustment of status. (Id.) Joshua contends "the threats faced if removed" would further inhibit his ability to preserve his SIJ status. (Id.)
In his APA Claim, Joshua asserts that his pending removal violates "the APA and causes prejudice ... per 8 C.F.R. § 215.3(h) for four key reasons." (Id. 24.) Those reasons include: (1) rendering him statutorily ineligible for SIJ status; (2) depriving him of due process; (3) losing the ability to pursue the adjustment of his immigration status; and, (4) improperly altering the substantive rules concerning SIJ status without the APA required notice-and-comment period. (Id. 24-26.) Because his deportation "would render him statutorily ineligible for SIJ Status," and such action "is not in accordance with the law and is an abuse of discretion," Joshua claims Respondents' actions violate the APA. (Id. 24.)
In his Stay of Removal Claim, Joshua argues that the Court should stay his removal to protect his statutory rights under the INA and the APA. (Id. 27.) Because Joshua "faces the pros[p]ect of being killed by gang members who have threatened his life," he believes that he will be unable to adjudicate his motion to reopen from Honduras. (Id.).
Lastly, in his Suspension Clause Claim, Joshua argues that if 8 U.S.C. § 1252 "did strip jurisdiction from this case, that statute would be unconstitutional as applied" to Joshua. (Id. 10.) Specifically, § 1252(g) would violate the Suspension Clause because it would deny Joshua "any opportunity for meaningful judicial review of the unlawfulness of [his] removal." (Id. 28.)
As relief, Joshua asks that the Court do eight things:
(Id. 29.)
In response to the § 2241 Petition, Respondents filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),
Importantly, because Respondents rest their argument on this statute, they do not challenge the facts alleged in Joshua's § 2241 Petition. (Id. 2-5.) Rather, Respondents claim that on its face the § 2241 Petition fails to show subject matter jurisdiction.
Respondents further assert that the Suspension Clause does not save Joshua's petition from this jurisdictional bar for two reasons. First, although Respondents do not contest that Joshua, as a beneficiary of SIJ status, may invoke the Suspension Clause, Respondents contend that the "Suspension Clause does not apply here because [Joshua] is not seeking release from custody and thus is not actually requesting habeas relief." (Id. 2)
Second, Respondents argue that Joshua has an adequate alternative remedy to habeas because he may pursue his motion to reopen and the related BIA appeal even after removal to Honduras. (Id. 14.) Respondents explain that "[t]he applicable court of appeals also has jurisdiction to review final orders of removal, but the deadline for [Joshua's] filing a petition for review of his July 31, 2019 removal order has passed." (Id. 17 n.13.) Because another avenue exists for judicial review, Respondents state that Joshua's § 2241 Petition for a writ of habeas corpus does not trigger the Suspension Clause.
Regarding Joshua's SIJ status, Respondents reframe the issue to posit that "for purposes of § 1252(g)'s jurisdictional bar and the Suspension clause, [the question] is not whether Petitioner has a liberty interest in or will lose any benefits of his SIJ classification. The question is instead whether the motion to reopen administrative review process followed by court of appeals review is an adequate and effective substitute for habeas." (Id. 18.) Respondents also argue that Joshua's SIJ classification will not be "revoked without notice and an opportunity to be heard" and that, should he win his administrative appeal from abroad, "USCIS will treat [Joshua] as though he had not been removed." (Id. 20 (quotations omitted).) Respondents cite a Frequently Asked Questions (FAQs) website, https://www.ice.gov/faq/facilitating-return,
Lastly, Respondents assert that the "special circumstances" exception, also known as the "home country danger" exception, to the general rule that the administrative process and court of appeals review provide an effective substitute for habeas inapplicable because Joshua does not "claim to face country-wide threats or persecution that would prohibit him from pursuing his administrative process and petition for review from Honduras." (Id. 22-23.) In sum, "[b]ecause the Court lacks jurisdiction under § 1252(g) and because [Joshua] has an adequate and effective substitute for habeas," Respondents argue that the Court should dismiss the Petition for lack of jurisdiction. (Id. 2.)
On December 6, 2019, four days before the hearing to discuss the status of Joshua's removal proceedings and BIA appeal, the Immigrant Justice Corps, Kids in Need of Defense, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, the New Jersey Consortium for Immigrant Children, the Northwest Immigrant Rights Project, the Political Asylum/Immigration Representation Project, Public Counsel, and the Young Center for Immigrant Children's Rights (collectively, "Amici"), filed an amicus brief addressing the policy implications of Joshua's § 2241 Petition and Respondents' position in this case. (Amicus Br., ECF No. 33.) In their brief, Amici highlight the inherent friction created by the executive branch taking steps to remove individuals to whom the legislative branch has afforded statutory protections. (Amicus Br. 13-15.) For instance, Amici assert that Respondents will render SIJ status "worthless if each Special Immigrant Juvenile is nevertheless subject to removal while awaiting the opportunity to adjust status." (Id. 12.) Amici further contend that because "SIJ [status] is revocable only through a procedure prescribed by statute and regulation ... [Respondents unlawfully] attempt[] an end-run around this revocation procedure by seeking to remove Joshua while he pursues an appeal of his removal order." (Id.)
Amici further argue that Respondents propose "to remove Joshua, and potentially thousands of other Special Immigrant Juveniles who are also [awaiting visas], on the very ground this [SIJ] statute waives—because he arrived in the United States without inspection. Such a removal would violate the statute and subvert congressional intent." (Id. 18.) Amici survey the legislative history underlying the SIJ statutes, including the statutory waiver of certain grounds of removability, remarking that "[e]ach of these congressional actions reflects an unmistakable intent to permit SIJ [status] beneficiaries to remain in the United States to pursue lawful permanent residency, absent independent and legally sufficient reasons to remove them." (Id. 15.) Amici contend that Respondents' arguments, "that it can deprive a SIJ [status] beneficiary of all the advantages of SIJ [status] through removal ... are irreconcilable with the intent and purposes of the laws giving rise to SIJ [status]." (Id. 23.)
Lastly, Amici express concerns that, from a policy perspective, the "repercussions of this case are wide-reaching." (Id. 28.) Although thousands of SIJ status
At the December 10, 2019 status conference, Respondents informed the Court that Joshua's appeal of his "motion to reopen remains pending at the BIA" and Joshua "remains at [Immigration Centers of America] Farmville here in the Eastern District" of Virginia. (Tr. 3.) Respondents clarified that they could not make "any representation about the amount of time it will take before the BIA rules." (Id. 4.) Respondents further stated that Joshua's "SIJ classification-related claims ... are live issues in the BIA." (Id.) Respondent confirmed that absent this Court's stay, Joshua would have been removed from the United States. (Id. 11.)
Respondents further averred that if the BIA denied Joshua's motion to reopen, then he "would have the ability to file a petition for review with the applicable court of appeals." (Id. 6.) At the status hearing, Respondents argued that Joshua faced no "procedural impediment that would prevent [him] from continuing to litigate the case from Honduras," (id. 12), and that Joshua's case did not meet the "specific set of circumstances for home country danger or inability to litigate" his case from Honduras, (id. 13).
The Court then asked for "the government's position about what constitutes Joshua's criminal history." (Id. 18.) Respondents explained that "there was an allegation in the petition that referenced the criminal history, and therefore [Respondents] put it in the brief as a matter of information." (Id.) When the Court stated, "I just want to be clear because there is no criminal history because there's no charge," (id. 19), Respondents answered, "[that]'s correct, Your Honor," (id.) Respondents emphasized that Joshua is not "being removed because of that [criminal] investigation" and "[h]is SIJ classification is not being revoked because of that." (Id.)
The Court asked Respondents several questions regarding how Joshua's removal may impact his SIJ status or his ability to return to the United States should he win his BIA appeal. Specifically, the Court asked Respondents whether "Joshua could pursue his SIJ status from Honduras if he were not present in the United States." (Tr. 20-21.) Counsel for Respondents acknowledged the "definition of SIJ classification" includes "presence" in the United States, and that, if removed to Honduras, Joshua "would no longer be physically present in the United States." (Tr. 21.) Counsel for Respondents then argued that Joshua could regain his SIJ classification if "he were returned" to the United States, but did not direct the Court toward any authority for that proposition apart from a frequently asked questions website that USCIS operates, which may reflect USCIS policy regarding immigrant removals and returns. (Id. 22.)
The Court also asked Respondents if any case examines potential exceptions to the removal process when a person has received SIJ status. Respondents answered that "between the Court and counsel"
At the status hearing, Counsel for Joshua stated in response that "the more fundamental piece [of Joshua's case] is that once he is removed from the country, he is no longer physically present, and he automatically loses his SIJ status." (Id. 30.) Counsel for Joshua noted that Respondents relied "solely on a nonbinding policy directive and a set of frequently asked questions from a website as their assurance that there is an adequate procedure" for Joshua to retain his SIJ status. (Id.) Both parties acknowledged that Joshua's SIJ status, lack of meaningful criminal history, and imminent deportation made this an unusual case. (Id. 18, 35-36, 76.) Given the complex and novel issues raised at the status hearing, neither party objected to an additional extension of the temporary stay. (Id. 35-36, 76.)
At the end of the hearing, the Court extended the temporary stay an additional sixty days to February 24, 2020. The Court ordered that the parties jointly supplement the record and submit limited briefing to address additional issues raised during the hearing. The Court also provided Respondents the opportunity to respond to the Amicus Brief. The Court ordered the Parties to provide a final status update no later than February 10, 2020, regarding Joshua's related immigration proceedings. (Dec. 11, 2019 Order, ECF No. 37.)
In the jointly-filed supplement to the record filed on January 10, 2020, the Parties presented information regarding Joshua's December 2, 2019 custody review that took place before USCIS. (J. Stip. R., ECF No. 40.) In that supplement, Counsel for Joshua submitted documentation showing that Joshua has no other criminal history apart from his traffic offenses. (J. Stip. R. 2-3, ECF No. 40-2.) Documents showed that Counsel for Joshua had "again implore[d]" the Office of Enforcement and Removal Operations to send legal information to Joshua's attorneys, which the office repeatedly failed to do "despite having a G-28 on file and having had several email exchanges with [Officer Torres] and Officer Paul Trump." (Id. 2.) On December 6, 2019, following Joshua's custody review, USCIS issued a one-page letter informing Joshua that it had reviewed his "custody status" and "it [had] determined that [Joshua] will not be released from the custody of U.S. Immigration and Customs Enforcement (ICE) at this time." (J. Stip. R., ECF No. 40-4.) Specifically, USCIS found that Joshua's "illegal entry, criminal history and Final Order of Removal deem [him] a flight risk and a danger to the community." (Id.) Apart from that sentence, the letter made no specific statements about Joshua's case. (Id.)
In response to the Amicus Brief, also filed on January 10, 2020, Respondents state that Amici made "one argument that has not yet been addressed." (Resp. 2, ECF No. 41.) Although Amici asserted that Respondents "propose[] to remove Joshua ... on the very ground this [SIJ] statute waives—because he arrived in the United States without inspection," Respondents argue that 8 U.S.C. § 1227(c) does not apply to Joshua because that statute addresses deportation. (Id. (quotations omitted).) Respondents instead claim
Respondents repeat that Joshua may pursue his motion to reopen from Honduras and that he has not established that specific circumstances that would preclude him from doing so. (Id. 5-6.) Respondents point to Mejia v. Sessions for the proposition that courts find the administrative review process inadequate only when "petitioners allege that they would face country-wide threats or persecution that would prohibit them from pursuing the administrative process and petition for review from anywhere in their home countries." (Id. 4-6 (citing Mejia v. Sessions, 866 F.3d 573, 590 (4th Cir. 2017))). Because Joshua has not alleged home country danger, Respondents see no reason why the administrative review proves inadequate for the relief he seeks. (Id. 6.)
On January 28, 2020, Amici filed a reply brief to address Respondents' arguments regarding the SIJ statutory framework. (Reply Br., ECF No. 45.) On February 10, 2020, the Parties informed the Court that Joshua's appeal remains pending before the BIA and he remains in detention in Farmville, Virginia. (Feb. 10, 2020 Notice, ECF No. 46.)
Having received additional briefing and updates, the Court turns to the merits of the Motion to Dismiss.
Federal district courts are courts of limited subject-matter jurisdiction. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005)). This Court must, as a result, determine whether it has jurisdiction over the claims at issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("The requirement that jurisdiction be established as a threshold matter `spring[s] from the nature and limits of the judicial power of the United States' and is `inflexible and without exception.'") (quoting Mansfield, C. & L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 28 S.Ct. 462 (1884)). "The objection that a federal court lacks subject-matter jurisdiction ... may be raised by a party, or by a court on its own initiative, at any stage in the litigation...." Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing Fed. R. Civ. P. 12(b)(1)).
Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move to dismiss a plaintiff's complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "A district court should grant a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Upstate Forever v. Kinder Morgan Energy
A motion to dismiss brought pursuant to Rule 12(b)(1) can attack subject-matter jurisdiction in two ways. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). First, a Rule 12(b)(1) motion may attack the complaint on its face, asserting that the complaint fails to state a claim upon which subject-matter jurisdiction can lie. See Int'l Longshoremen's Ass'n v. Virginia Intern. Terminals, Inc., 914 F.Supp. 1335, 1338 (E.D.Va. 1996) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). "When a defendant makes a facial challenge to subject matter jurisdiction, the plaintiff, in effect, is afforded the same procedural protection as he [or she] would receive under a Rule 12(b)(6) consideration." Kerns, 585 F.3d at 192. In such a challenge, a court assumes the truth of the facts alleged by plaintiff.
Alternatively, a Rule 12(b)(1) motion may challenge the existence of subject-matter jurisdiction in fact, apart from the pleadings. When a litigant raises a Rule 12(b)(1) motion to challenge "the factual basis for subject matter jurisdiction," the petitioner bears "the burden of proving subject matter jurisdiction." Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In such a case, because a party challenges the court's "`very power to hear the case,'" the trial court may weigh evidence to determine the existence of jurisdiction. Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338 (quoting Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). No presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims. See Int'l Longshoremen's Ass'n, 914 F. Supp. at 1338.; see also Adams, 697 F.2d at 1219.
In sum, when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged. Kerns, 585 F.3d at 193. On the other hand, when the defendant challenges the veracity of the facts underpinning subject matter jurisdiction, the trial court may go beyond the complaint, conduct evidentiary proceedings, and resolve the disputed jurisdictional facts. Id. "And when the jurisdictional facts are inextricably intertwined with those central to the merits, the court should resolve the relevant factual disputes only after appropriate discovery, unless the jurisdictional allegations are clearly immaterial or wholly unsubstantial and frivolous." Kerns, 585 F.3d at 193; see also Navy Fed. Credit Union v. LTD Fin. Servs., LP, 368 F.Supp.3d 889, 893 (E.D. Va. 2019) ("When such a factual challenge is made to jurisdiction, the jurisdictional facts must be determined with the same procedural safeguards as afforded through a motion for summary judgment").
To resolve whether this Court has subject matter jurisdiction to hear Joshua's § 2241 Petition, the Court first summarizes the SIJ Statutes and the United States' basis for removing Joshua. Second, the Court examines 8 U.S.C. § 1252(g), which purportedly strips this Court of habeas jurisdiction. Lastly, the Court discusses the writ of habeas corpus statute, 28 U.S.C. § 2241, in conjunction with the Suspension Clause.
The Immigration and Nationality Act (the "INA") largely governs immigration law. First enacted in 1952, Congress has amended the INA several times. See, e.g., I.N.S. v. St. Cyr, 533 U.S. 289, 297, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (discussing amendments to various sections of the INA over time). In 1996, for example, Congress amended the INA through the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009 (1996). "IIRIRA established `admission' as the key concept in immigration law and defines the term as `the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.'" E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 756 (9th Cir. 2018).
Critical to the case at bar are the INA statutes concerning SIJ status, as the Court must consider how such status may affect Joshua's claims.
Accordingly, a juvenile who received SIJ status could be removed on certain grounds, such as serious criminal convictions, but could not be removed for having the entered the country somewhere other than at an official checkpoint. See 8 U.S.C. § 1227(c).
Congress has amended the statute providing for SIJ status, currently codified at 8 U.S.C. § 1101(a)(27)(J), at various points over its thirty-year history. The amendments generally reflect Congressional intent to grant vulnerable young immigrants legal protections. See R.F.M., 365 F. Supp. 3d at 363 (discussing SIJ legislative history and congressional efforts to expand SIJ status eligibility over time). As the United States Court of Appeals for the Fourth Circuit recently explained, Congress has consistently engaged in "efforts to expand eligibility for SIJ status and increase protections for vulnerable immigrant children." Perez v. Cuccinelli, 949 F.3d 865, 878 (4th Cir. 2020). In 2008, for instance, Congress revised the SIJ statute through "the William Wilberforce Trafficking Victims Protection Reauthorization Act" to enhance "efforts to combat the trafficking of children, particularly unaccompanied immigrant minors." Perez, 949 F.3d at 878.
As currently defined in the INA, an SIJ is "an immigrant who is
8 U.S.C. § 1101(a)(27)(J) (emphasis added).
Pursuant to § 1101(a)(27)(J), applicants must complete a two-step process before receiving SIJ status. First, the juvenile must apply to a state "juvenile court" for a predicate order finding that:
8 U.S.C. § 1101(a)(27)(J).
Second, the juvenile must submit an application to USCIS, which includes the state juvenile court order, demonstrating his or her statutory eligibility. See Perez v. Cissna, 914 F.3d 846, 849-50 (4th Cir. 2019), on reh'g en banc sub nom. Perez v. Cuccinelli, 949 F.3d 865 (4th Cir. 2020) ("To become an SIJ, an immigrant child must apply for that status with the Agency."). After satisfying these two steps, the Secretary of Homeland Security, generally through USCIS's directors, must consent to the grant of SIJ status for each applicant, which functions as an acknowledgement that the applicant made a bona fide request for SIJ classification. Osorio-Martinez, 893 F.3d at 170; 8 U.S.C. §§ 1101(a)(27)(J)(i), (ii); 8 C.F.R. § 204.11.
In accordance with this process, juvenile immigrants like Joshua receive SIJ status only after: (1) satisfying a set of rigorous, congressionally-defined eligibility criteria, including that a juvenile court found that it would not be in the child's best interest to return to his or her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state; and, (2) USCIS approves of the application and the Secretary of Homeland Security consents to the applicant receiving SIJ status. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c). As a result, receiving SIJ status establishes "a successful applicant as a ward of the United States with the approval of both state and federal authorities." Osorio-Martinez, 893 F.3d at 168.
SIJ status, once received, provides significant benefits for young immigrants
Other provisions dealing with SIJ applications and eligibility for adjustment of status are found in 8 U.S.C. § 1255(a) and § 1255(h). Those two subsections provide:
8 U.S.C. § 1255 (emphasis added).
In a case involving the expedited removal of juvenile immigrants, the United States Court of Appeals for the Third Circuit recently examined these statutes and
Osorio-Martinez, 893 F.3d at 163-64.
Here, the parties agree that Joshua received SIJ status from USCIS following successful litigation in the class action lawsuit R.F.M. v. Nielsen, 365 F.Supp.3d 350 (S.D.N.Y. 2019). Considering the benefits Joshua's SIJ status confers, which sets his case apart from other § 2241 proceedings, the question at the heart of this dispute is whether his SIJ status legally alters the Court's jurisdiction to consider the arguments raised in his § 2241 Petition. To help answer that question, the Court examines next how SIJ classification impacts adjustment of status, inadmissibility, deportability, and removal.
"An alien who enters the United States without required documentation, and who remains present here, is deportable. The INA and its regulations offer several avenues by which such an alien may seek relief from deportation and lawfully remain in the United States." Xing Yang Yang v. Holder, 770 F.3d 294, 296 (4th Cir. 2014), as amended (Nov. 5, 2014). SIJ status presents one statutory avenue that may provide relief from removal in some instances because it allows young immigrants to be deemed "paroled" into the United States for adjustment of status purposes. "Adjustment of status is another distinct form of relief, and does not focus on the effects of removal. Rather, such relief permits the Attorney General, in his [or her] discretion, to adjust a deportable alien's status to that of lawful permanent resident." Id. at 296.
Joshua's SIJ status puts him in a special parole status. In particular, 8 U.S.C. § 1255(h) provides that "[i]n applying this section to a special immigrant [like Joshua] such an immigrant shall be deemed, for purposes of subsection (a) of this section, to have been paroled into the United States." 8 U.S.C. § 1255(h)(1) (emphasis added). In accordance with this statute, Joshua has been deemed "paroled" into the United States for purposes of adjustment. 8 U.S.C. § 1255(h).
Adjustment of status refers to the process an individual, like Joshua, can use to apply for lawful permanent resident status when present in the United States. INA Section 245, codified at 8 U.S.C. § 1255, authorizes nonimmigrant aliens to apply for an adjustment of status. 8 U.S.C. § 1255. To apply for permanent residency, the applicant must not be "removable" from the United States. An application for adjustment of status cannot be filed by someone who is not in the United States, 8 U.S.C. § 1255(i); 8 C.F.R. § 245.1(a), and the application is deemed abandoned if the applicant leaves the country without having been granted advance parole. 8 C.F.R. § 245.2(a)(4)(ii)(A)-(B). Regulations similarly confirm that a "special immigrant described under section 101(a)(27)(J) of the Act shall be deemed, for the purpose of applying the adjustment to status provisions of section 245(a) of the Act, to have been paroled into the United States, regardless of the actual method of entry into the United States." 8 C.F.R. § 245.1(a).
Case law likewise explains that "[a]n alien granted SIJ status is deemed paroled into the United States for purposes
In response to the Amicus Brief, Respondents contend that whether an alien is removable in the first instance depends on whether the alien is inadmissible or deportable. For purposes of the instant Motion to Dismiss, the Court briefly addresses the statutes concerning inadmissibility and deportability.
"Federal immigration law governs both the exclusion of aliens from admission to this country and the deportation of aliens previously admitted." Judulang v. Holder, 565 U.S. 42, 45, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). Non-citizens of the United States do not constitute a single, homogenous group that receives identical treatment or benefits under federal immigration laws. Rather, the immigration laws of the United States have "historically distinguished between aliens who have `entered' the United States and aliens still seeking to enter (whether or not they are physically on American soil)." Jama v. Imm. & Customs Enf't, 543 U.S. 335, 349, 125 S.Ct. 694, 160 L.Ed.2d 708 (2005) (citing Leng May Ma v. Barber, 357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d 1246 (1958) ("It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission ...
As a result, immigration proceedings, as historically understood, comprised two distinct sets of proceedings depending on the position of the alien—inadmissibility proceedings and deportation proceedings. "An inadmissible alien is one who was not admitted legally to the United States and is removable under § 1182, whereas a deportable alien is in the United States lawfully and is removable under § 1227." Vasquez-Hernandez, 590 F.3d at 1055. Before 1996, "these two kinds of actions occurred in different procedural settings," but since Congress enacted the IIRIRA, "the Government has used a unified procedure, known as a `removal proceeding,' for exclusions and deportations alike." Judulang, 565 U.S. at 45-46, 132 S.Ct. 476 (citing 8 U.S.C. §§ 1229, 1229a).
Despite eliminating these discrete forms of proceedings, the INA retained the distinction between inadmissibility and deportability by retaining separate statutory provisions for each form of removal. IIRIRA § 304(a)(3); see 8 U.S.C. §§ 1229, 1229a. Although officially distinct, these statutory provisions have significant overlap. For instance, the conviction or commission of a crime involving moral turpitude can subject an alien to both inadmissibility and deportability. Compare 8 U.S.C. § 1182(a)(6)(A)(i)(I) with 8 U.S.C. § 1227(a)(2)(A)(i). Aliens are both inadmissible and deportable on identical security-related grounds, for engaging in terrorist activities, for participating in Nazi-related persecution and genocide, and for committing severe violations of religious freedom. Compare 8 U.S.C. § 1182(a)(3), with 8 U.S.C. § 1227(a)(4). Alien smuggling provides grounds for both inadmissibility and deportability, as does making a false claim of United States citizenship.
Yet there are important differences between the two classes of "removable" immigrants. Some of these distinctions relate to systemic differences. Because inadmissibility targets those who are generally not yet in the United States, whereas deportability targets those who are present in the United States, aliens who have been previously ordered removed or have accrued a period of unlawful presence in the United States are inadmissible. 8 U.S.C. § 1182(a)(9) (inadmissibility because of prior order of removal or the accrual of unlawful presence in the United States). Similarly, aliens may be charged with inadmissibility
Specifically, Section 1182, titled "[i]nadmissible aliens," begins with the header "[c]lasses of aliens ineligible for visas or admission."
In contrast, Section 1227, titled "[d]eportable aliens," begins with classes of deportable aliens: "[a]ny alien (including an alien crewman) in and admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is within one or more of the following classes of deportable aliens." 8 U.S.C. § 1227(a). Section 1227(c) states that grounds of inadmissibility described in that statute "shall not apply to a special immigrant described in section 1101(a)(27)(J) ... based upon circumstances that existed before the date the alien was provided such immigrant status." 8 U.S.C. § 1227(c). Respondents contend that this provision does not apply to Joshua because he is being removed, not deported. Respondents assert that Joshua "is instead being removed under 8 U.S.C. § 1229a for having been inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i) because of his initial unlawful entry." (Resp. 2, ECF No. 41.) Once an immigrant is found removable, he or she may seek relief from removal through cancellation of removal pursuant to 8 U.S.C. § 1229b. "Unlike the removal statutes, cancellation of removal does not treat inadmissible and deportable aliens differently." Vasquez-Hernandez, 590 F.3d at 1055.
Assuming without deciding that Respondents are correct that Joshua is being removed as inadmissible pursuant to 8 U.S.C. § 1229a, the Court turns next to whether Joshua's § 2241 Petition states a claim that survives Respondents' Rule 12(b)(1) Motion to Dismiss after considering his SIJ status and the relevant removal statutes.
In this Motion to Dismiss the Court need only determine whether it may have subject matter jurisdiction based on the facial validity of the § 2241 Petition and the claims Joshua raises. Upstate Forever, L.P., 887 F.3d at 645-46 ("A court's determination of subject matter jurisdiction addresses whether the court has the authority to entertain a particular kind of case, not whether a claim for relief is viable under a particular construction of a statute.").
Relevant to this portion of the subject matter jurisdiction analysis, Respondents cite 8 U.S.C. § 1182(a)(6)(A)(i) as the grounds for Joshua's removal. That statute grants the government authority to remove individuals who have never been admitted or paroled into the United States. Specifically, that subsection provides,
8 U.S.C. § 1182(a)(6)(A)(i) (emphasis added). Respondents also cite 8 U.S.C. § 1229a as the statute providing the basis for Joshua's removal. See, e.g., 8 U.S.C. § 1229a(a)(2) ("An alien placed in proceedings under this section may be charged with any applicable ground of inadmissibility under section 1182(a) of this title or any applicable ground of deportability under section 1227(a) of this title.").
But § 1255(h) states that § 1182(a)(6)(A) "shall not apply" to a "special immigrant described in section 1101(a)(27)(J)," such as Joshua. And § 1182 applies only to individuals not admitted or paroled, which is contrary to Joshua's circumstances.
Joshua asserts, among other things, that because his SIJ status deems him paroled into the United States at the time of his entry, 8 U.S.C. § 1182(a)(6)(A)(i) no longer provides a basis for his removal. (§ 2241 Pet. 16 (citing 8 U.S.C. § 1255(h)). Respondents argue that this Court need not reach that question because "this Court lacks jurisdiction over the [§ 2241] Petition." (Mem. Supp. Mot Dismiss 1; ECF No. 20.) Respondents further contend that Joshua must follow the "administrative process followed by court of appeals review," which "provides a process for protecting his SIJ benefits, even if he is correct that removal would affect them." (Mem. Supp. Mot. Dismiss 2.)
At the December 10, 2019 status hearing, Respondents explained that in a typical removal case, "an alien who has never been admitted to the United States and applies for adjustment of status under [§] 1255, that adjustment of status can be denied on the basis of never having been admitted under this [§] 1182(a) provision." (Tr. 9.) But, as Respondents recognized, due to "SIJ [status] ... that person's adjustment of status cannot be denied on that basis." (Tr. 9.) In other words, Joshua's "adjustment could not be denied on the basis of that initial illegal entry." (Tr. 10.) Nonetheless, Respondents emphasize that Joshua is facing deportability, not inadmissibility. (Resp., ECF No. 41.)
The Court pauses to note the lack of case law on this point. That is, neither the parties nor the Court have found a case involving the removal of an individual with SIJ status who lacks meaningful criminal history. Generally, it does not appear that Respondents frequently remove from the United States individuals who hold SIJ status and lack meaningful criminal history. But see Osorio-Martinez, 893 F.3d at
Despite the dearth of case law, Garcia v. Holder provides the Court with some guidance regarding the removability of those with SIJ status. 659 F.3d 1261, 1272 (9th Cir. 2011). In that case, the United States Court of Appeals for the Ninth Circuit found "that the grant of SIJ [status]-based parole qualifies as an admission `in any status' for cancellation of removal purposes." 659 F.3d at 1272. The Ninth Circuit noted that Congress had given SIJ status recipients "recognition and opportunity to make contacts in this country, and for that reason [they] should not be wrenched away without adequate process." Id. at 1271. The Ninth Circuit remarked that "SIJ [status]-based parolees" were given "permission to remain in the country pending the outcome of their adjustment of status application, employment authorization, exemption from certain inadmissibility grounds applicable to other aliens." Id. The Ninth Circuit further explained that Congress wanted extra protection for SIJ-eligible minors through the applicable statutes:
659 F.3d at 1272. Based on these statutory benefits, the Ninth Circuit held that a grant of SIJ status-based parole counts as both admission and a provision of status for the individual for purposes of § 1229b(a), the statute that addresses cancellation of removal. Id. at 1272.
Here, the § 2241 Petition raises complex legal questions regarding the interplay of the SIJ statutes within the INA and whether Congress has waived certain grounds for removal regardless of how the juvenile entered the United States. The Court does not yet resolve this claim on its merits, however, because, at this stage of the litigation, Respondents argue only that 8 U.S.C. § 1252 strips this Court of jurisdiction to consider Joshua's habeas petition, including his claims that his SIJ status affects his deportability. As a result, the Court turns next to the jurisdiction stripping provision contained in 8 U.S.C. § 1252.
Before the INA's enactment in 1952, habeas corpus provided the vehicle through which aliens could ask federal district
After the 1996 amendments,
McConnell, Judicial Review, 51 N.Y.L. Sch. L. Rev. at 81. In so doing, the 1996 amendments raised questions regarding whether Congress had stripped federal district courts of jurisdiction to review habeas corpus petitions concerning challenges to removal orders, and courts ultimately differed in their answers.
In 1999, the United States Court of Appeals for the Fourth Circuit issued two opinions about this jurisdictional bar. In Mapoy v. Carroll, one of the primary cases on which Respondents rely in their Motion to Dismiss, the Fourth Circuit held that the amendments stripped district courts of jurisdiction because requests to stay removal generally fall within § 1252(g)'s jurisdictional bar. 185 F.3d 224, 230 (4th Cir. 1999) ("Congress could hardly have been more clear and unequivocal that courts shall not have subject matter jurisdiction over claims arising from the actions of the Attorney General enumerated in § 1252(g) other than jurisdiction that is specifically provided by § 1252."). That same year, the Fourth Circuit held in Bowrin v. Immigration and Naturalization Service that federal district courts retained jurisdiction
Two years later, the Supreme Court resolved any dispute when it held in Immigration and Naturalization Service v. St. Cyr that the 1996 amendments had not stripped the courts of habeas jurisdiction to review a question of law pertaining to whether certain statutorily provided discretionary relief was available for a removable alien. 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). Because the INA, as amended in 1996, did not clearly foreclose habeas review, and because foreclosure would raise serious constitutional questions with respect to the suspension of habeas corpus, the Supreme Court construed the statute as allowing review. Id. at 314, 121 S.Ct. 2271. In a footnote, the Supreme Court added: "As to the question of timing and congruent means of review, we note that Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals." Id. at 314 n. 38, 121 S.Ct. 2271. Accordingly, the Supreme Court's resolution of the habeas corpus issue was that, at a minimum, habeas corpus jurisdiction remained in the district court for criminal aliens raising "pure" questions of law relating to discretionary relief that could not be heard in the court of appeals on direct review. Id.
After the Supreme Court's decision in St. Cyr, Congress overhauled the judicial review scheme through the REAL ID Act. Enacted in 2005, the REAL ID Act "amended section 242(a)(2) of the INA to eliminate habeas corpus jurisdiction [in district courts] over removal orders for any alien. Thus, section 106 of the REAL ID Act responded directly to the Supreme Court's decision in St. Cyr by expressly removing habeas jurisdiction." McConnell, Judicial Review, 51 N.Y.L. Sch. L. Rev. at 105. INA § 242 now requires that an appeal of a removal order be filed directly with the courts of appeals through a petition for review. 8 U.S.C. § 1252(a)(1).
Notably, the REAL ID Act added § 242(a)(5) to the INA, codified at 8 U.S.C. § 1252(a)(5), which states that:
8 U.S.C. § 1252(a)(5).
In the REAL ID Act, Congress also amended INA § 242(b)(9), codified at 8 U.S.C. § 1252(b)(9), to reinforce its "channeling" of constitutional and statutory claims to the circuit courts. That section now provides that:
8 U.S.C. § 1252(b)(9).
Additionally, Congress amended INA § 242(g), codified at 8 U.S.C. § 1252(g), to address the potential for claims being raised in other courts. That section now provides:
8 U.S.C. § 1252(g).
Accordingly, the REAL ID Act forecloses nearly all habeas claims from those seeking review of removal orders, shifting work from the federal district courts to the court of appeals and from habeas to petitions for review. Jahed v. Acri, 468 F.3d 230, 233 (4th Cir. 2006); see also Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 324 n.3 (2d Cir. 2006) ("a primary effect of the REAL ID Act ... is to convert habeas corpus petitions filed by criminal aliens seeking review of their removal orders into petitions for review in order to limit all aliens to one bite of the apple ... [and thereby] streamline what the Congress saw as uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)"). "The plain language of these amendments, in effect, strips the district court of habeas jurisdiction over final orders of removal, including orders issued prior to the enactment of REAL ID Act." Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005).
Following enactment of the REAL ID Act, constitutional questions and questions of law that arise in the context of a claim for cancellation of removal are generally only reviewable by courts of appeals. Jean v. Gonzales, 435 F.3d 475, 480 (4th Cir. 2006) (observing that the REAL ID Act limits direct judicial review in the court of appeals to "constitutional questions or questions of law arising from the agency's decision to deny discretionary relief"); see also Kporlor v. Holder, 597 F.3d 222, 226 (4th Cir. 2010) (noting statutory exception to § 1252(a)(2)(C), added as part of the 2005 REAL ID Act and codified in 8 U.S.C. § 1252(a)(2)(D), that covers only claims raising constitutional or legal issues). The statute makes clear that federal district courts remain limited in their ability to review habeas petitions challenging removal orders.
Here, Respondents contend that "federal courts have no jurisdiction over any
As to Joshua's invocation of the Suspension Clause, Respondents contend that § 1252(g)'s jurisdictional bar does not violate that Clause because (1) Joshua is not seeking habeas relief because he does not request release from custody; and, (2) "even if the Suspension Clause applied, Joshua has adequate and effective substitute procedures available: the motion to reopen and BIA appeal administrative process followed by courts of appeals review." (Id. 12.) To resolve Respondents' Motion to Dismiss, the Court turns next to the writ of habeas corpus and the Suspension Clause.
Joshua bases his habeas corpus petition on 28 U.S.C. § 2241, which broadly grants federal courts the power to award habeas corpus relief to petitioners who are in custody in violation of federal law. Respondents aver that this writ is not available to Joshua under § 1252(g). To resolve this dispute, the Court undertakes the following three steps. First, the Court must determine whether Joshua's claims fall within the scope of § 2241 habeas corpus review. If so, the Court must then determine whether Joshua may invoke the Suspension Clause. If Joshua may invoke the Suspension Clause, the Court must decide whether the administrative remedies available to Joshua to test the lawfulness of the government's proposed action are either inadequate or ineffective as a substitute for habeas corpus relief.
Habeas corpus is "a writ employed to bring a person before a court, most frequently to ensure that the party's imprisonment or detention is not illegal." Boumediene v. Bush, 553 U.S. 723, 737, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (quoting Black's Law Dictionary 728 (8th ed. 2004)). The Court does not find persuasive Respondents' argument that Joshua's claims do not fall within the scope of § 2241—the statute which Joshua relies on for relief—because he "does not seek relief from custody." (Mem. Supp. Mot. Dismiss 13.) It is true that petitioners invoking the writ of habeas corpus often seek relief from custody, but as the Fourth Circuit has recently explained, § 2241 "provides that habeas corpus relief can extend to several classes of persons, including those `in custody under or by color of the authority of the United States' and those `in custody in violation of the Constitution or laws or treaties of the United States.'" D.B. v. Cardall, 826 F.3d 721, 731 (4th Cir. 2016) (quoting 28 U.S.C. § 2241(c)(1), (3)).
The Supreme Court has similarly explained that § 2241, the statute invoked here, "implements the constitutional command
Joshua asserts in his § 2241 Petition that his detention and pending removal violate federal statutes and the Constitution. Because Joshua seeks relief that may alter the fact or execution of his detention and such detention presents a clear restraint on his liberty, habeas presents the appropriate procedural vehicle for him to employ. His contentions, which rest on violations of federal law and the Constitution, "therefore fall within the traditional scope of § 2241 habeas corpus review." D.B. v. Cardall, 826 F.3d at 731.
As explained above, through the enactment of the REAL ID Act, Congress has stripped Article III courts of jurisdiction over many types of immigration disputes and instead channeled those disputes into administrative proceedings. See Higuit v. Gonzales, 433 F.3d 417, 420 (4th Cir. 2006) ("[T]he REAL ID Act reflects a congressional intent to preserve [a] broad effort to streamline immigration proceedings and to expedite removal while restoring judicial review of constitutional and legal issues."). Specifically, two jurisdiction-stripping provisions potentially apply in this case. The first, 8 U.S.C. § 1252(b)(9), provides that "judicial review of all questions of law and fact ... arising from any action taken or proceeding brought to remove an alien from the United States ... shall be available only in judicial review of a final order under this section." 8 U.S.C. § 1252(b)(9). The statute then deprives district courts of jurisdiction to review such orders, leaving an appeal to the court of appeals from a final agency order as the only form of judicial review. The second provision, 8 U.S.C. § 1252(g), strips district courts of jurisdiction "to hear any case 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." 8 U.S.C. § 1252(g).
The writ of habeas corpus, however, may not be easily extinguished through statute. The "great writ of liberty," Darr v. Burford, 339 U.S. 200, 225, 70 S.Ct. 587, 94 S.Ct. 761 (1950) (Frankfurter, J., dissenting), is "the only common-law writ to be explicitly mentioned" in the Constitution. Hamdi v. Rumsfeld, 542 U.S. 507, 558, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (Scalia, J., dissenting) (citing U.S. CONST. ART. I, § 9, cl. 2.). The Suspension Clause forbids suspension of the writ of habeas corpus "unless when in Cases of Rebellion or Invasion the public Safety may require it."
To determine whether a jurisdiction-stripping statute violates the Suspension Clause, the Court must proceed through the two-step analysis that the Supreme Court announced in Boumediene v. Bush. 553 U.S. at 739, 128 S.Ct. 2229. "[This Court must] first determine whether a given habeas petitioner is prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention." Osorio-Martinez, 893 F.3d at 166 (internal quotation marks and citations omitted). "Then, if the petitioner is not prohibited from invoking the Suspension Clause, [this Court must] turn to the question whether the substitute for habeas is adequate and effective to test the legality of the petitioner's detention (or removal)." Id. "[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Swain v. Pressley, 430 U.S. 372, 381, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977). Conversely, however, a statute may violate the Suspension Clause where habeas corpus relief is foreclosed and alternative remedies are inadequate to ensure that the petitioner's continued detention does not violate federal law. See Boumediene, 553 U.S. at 792, 128 S.Ct. 2229.
After completing the two-step Boumediene inquiry, the Court concludes that at this stage of the litigation, when considering Respondents' Motion to Dismiss, Joshua has alleged facts sufficient to invoke the Suspension Clause. See Upstate Forever, L.P., 887 F.3d at 645-46 ("A court's determination of subject matter jurisdiction addresses whether the court has the authority to entertain a particular kind of case, not whether a claim for relief is viable under a particular construction of a statute."). As a result, for the reasons discussed below, the Court will assume jurisdiction over the § 2241 Petition and deny Respondents' Motion to Dismiss.
Turning to the first Boumediene inquiry, the Court concludes that Joshua is not prohibited from invoking the Suspension Clause given the circumstances of his detention.
As to the first factor—his citizenship and status—although Joshua is not a citizen, he has received a special immigration status in accordance with the SIJ statutes. Joshua's SIJ status includes statutory and constitutional protections. As the Third Circuit has explained, "[t]hat is because ... (1) [Joshua has] satisfied rigorous eligibility criteria for SIJ status, denoting [him] as [a] ward of the state with obvious implications for [his] relationship to the United States; (2) Congress accorded [such] children a range of statutory and procedural protections that establish a substantial legal relationship with the United States; (3) with [his] eligibility for application for permanent residence assured and [his] application awaiting only the availability of [a] visa ... and the approval of the Attorney General, [Joshua has] more than "beg[un] to develop the ties that go with permanent residence, and (4) ... SIJ designees' connection to the United States is consistent with the exercise of Congress's plenary power." Osorio-Martinez, 893 F.3d at 168; see also J.L. v. Cissna, 374 F.Supp.3d 855, 869 (N.D. Cal. 2019) ("Plaintiffs have plausibly alleged that they have a protected property interest in SIJ status.").
Here, Joshua alleges that he has developed ties to the United States, having lived here for five years without incident. Apart from two traffic infractions, he has no criminal history. His connections, bolstered through his SIJ status, are sufficient to establish Joshua within the "class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community." United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990). His Uncle Credy is his legal guardian. Additionally, his SIJ status inherently recognizes that he is a ward of the United States with the approval of both state and federal authorities. His SIJ status puts this case in a unique procedural posture given the Congressional protections provided to young immigrations through the enactment of the SIJ statutes.
As to the second factor—the nature and the site of his apprehension and detention —Joshua was detained in the United States for two minor traffic offenses: speeding and driving without a license. As to the third factor—practical obstacles to resolving the writ—there are no serious practical obstacles to permitting habeas corpus proceedings other than the kind of "incremental expenditure of resources" that the Supreme Court deemed not dispositive to the question of granting the writ. Boumediene, 553 U.S. at 769, 128 S.Ct. 2229. Joshua readily meets the three Boumediene factors. Consequently, Joshua appears entitled to constitutional protections, including those provided by the Suspension Clause.
Turning to the second Boumediene inquiry, whether the substitute for habeas is adequate and effective to test the legality of the petitioner's detention (or removal), the Court concludes that, taking the allegations in Joshua's § 2241 Petition as true, adequate alternatives to a habeas petition do not exist. As a result, the Court must deny Respondent's 12(b)(1) Motion to Dismiss,
For this subsection of the analysis, Respondents contend that § 1252(g)'s jurisdictional bar does not violate the Suspension Clause because Joshua may pursue "his motion to reopen his removal proceedings even after his removal and can ultimately petition for review in the applicable court of appeals, including constitutional claims and questions of law, for any BIA denial of his motion to reopen." (Mem. Supp. Mot. Dismiss 14.) Respondents further assert that Joshua's SIJ status does not change this calculus because the question "is not whether [Joshua] has a liberty interest or will lose any benefits of his SIJ status. The question is instead whether the motion to reopen administrative review process followed by court of appeals review is an adequate and effective substitute for habeas." (Id. 18.)
In response, Joshua argues that "[d]eporting Joshua eliminates his path to lawfully pursue full status and is a deprivation of his constitutional rights." (Opp'n Mot. Dismiss 1, ECF No. 25.) Because removal outside of the United States would strip Joshua of his SIJ status, rights he claims he can never regain if removed, Joshua asserts that appealing through the BIA does not provide an adequate alternative to habeas. "Furthermore, it is far from clear that Joshua would actually be able to access the benefits of SIJ status after removal and re-entry, even if the BIA appeal is ultimately sustained." (Id. 12.) Joshua also states that the threats to his life in Honduras and the danger he faces there will make it difficult to pursue his appeal from that country.
To determine whether the administrative review process provides an adequate and effective substitute for habeas, the Court first reviews the procedures available to Joshua and then turns to the factual allegations in his § 2241 Petition.
The motion to reopen is an "important safeguard" intended "to ensure a proper and lawful disposition" of immigration proceedings. Kucana v. Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010). The filing of a motion to reopen in the BIA does not automatically stay proceedings. 8 C.F.R. § 1003.2(f). An alien, however, may request an emergency stay of removal. See BIA Practice Manual §§ 6.4(b), 6.4(d)(i), 1999 WL 33435431 at *2-3. An emergency stay request is discretionary and "may be submitted only when an alien is in physical custody and is facing imminent removal." BIA Practice Manual § 6.4(d)(i), 1999 WL 33435431 at *3.
Further, because judicial review in the court of appeals is "available only in judicial review of a final order," an alien may not appeal the denial of an emergency motion to stay. 8 U.S.C. § 1252(b)(9). For the same reason, an alien cannot file with the court of appeals a motion to stay pending the BIA's disposition of a motion to reopen. In other words, whether an alien files an emergency motion to stay with the BIA, and whether the BIA acts on such a motion, the court of appeals lacks jurisdiction to entertain a request to stay in connection with a motion to reopen pending before the BIA. In any event, the United States might deport an immigrant, like Joshua, while he or she awaits a hearing and decision on the motion to reopen. 8 C.F.R. §§ 1003.2(f); 1003.23(b)(4)(i); see also Sied v. Nielsen, 2018 WL 1142202 at *7-*8 (N.D. Cal. Mar. 2, 2018) (explaining that no procedure or automatic mechanism exists to prevent the government from deporting the alien before the immigration
In general, courts recognize that a petition for review can be pursued from abroad. See generally Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009); Ashqar v. Hott, No. 1:19-CV-716, 2019 WL 2712276, at *5 (E.D. Va. June 5, 2019) (stating that "petitioner may continue to pursue from abroad an appeal of the Immigration Court's denial of his motion to reopen"). Such a process normally provides an adequate alternative to habeas where the petitioner can pursue his or her appeal from outside the United States. For example, in Budiono v. Barr, the district court found that because the petitioner could pursue a motion to reopen from abroad, he had an adequate alternative to habeas relief. No. 4:19-CV-01635, 2019 WL 5569182, at *6 (M.D. Pa. Oct. 29, 2019). In that case, the district court noted that the record lacked any "indication of a specific threat to Budiono." Id. Once he returned to his native country, Budiono did not need to hide away in his home, he could travel freely, and contact the outside world, meaning he could "effectively pursue a motion to reopen from Indonesia." Budiono, at *6. As a result, the district court concluded that it lacked jurisdiction to stay Budiono's removal because he had an adequate alternative to habeas relief: pursuing his appeal from overseas.
While the administrative process followed by courts of appeals review generally satisfies the Suspension Clause, the Court must examine whether it does so considering the facts (taken as true), that Joshua alleges in his § 2241 Petition. (See § 2241. Pet. 10 (specifying 8 U.S.C. § 1252(g) unconstitutional as applied to Joshua)).
In accordance with the second Boumediene step for determining whether revocation of habeas jurisdiction violates the Suspension Clause, the Court finds that under the facts alleged Joshua does not have an adequate alternative to habeas.
Although the jurisdiction-stripping provisions of § 1252 do not facially run afoul of the Suspension Clause, the Court finds the alternative administrative remedy inadequate under the circumstances of this case. Three important facts differentiate Joshua's § 2241 Petition from others. First, apart from two minor traffic infractions, Joshua has no criminal history, though he has been detained in Farmville for twelve months. Second, Joshua has asserted —with supporting documentation— that he will be unable to litigate this motion to reopen upon returning to his country due to the dangerous conditions that he faces in Honduras. The Court takes as true that Joshua has received specific threats to his life should he return to Honduras, which Respondents do not dispute, and he bears physical scars reflecting the violence he suffered there. The Honduran gangs also continued to threaten Joshua in Honduras, even after he and his aunt relocated to Trujillo.
Third, and most critically, Joshua has received SIJ status and does not have an alternative method of preserving that status
In the few cases with comparable facts, district courts have recognized a narrow, as-applied exception to the § 1252(g) bar. For example, in Diaz-Amezcua v. Barr, the district court denied the Government's motion to dismiss for lack of jurisdiction after finding that petitioner sufficiently alleged that he would be unable to pursue his motion to reopen from Mexico. 402 F.Supp.3d 963, 967 (W.D. Wash. 2019). In that case, petitioner asserted that his cousin had been shot as part of an ongoing gang feud involving his extended family and that he "would be a target in that feud if returned to Mexico." Diaz-Amezcua, 402 F. Supp. 3d at 965.
Similarly, in Sean B. v. McAleenan, the district court concluded that alternatives to habeas relief were inadequate because the petitioner could not litigate an immigration or appeal in the BIA or the Court of Appeals "in hiding, under a threat of death." 412 F.Supp.3d 472, 488 (D.N.J. 2019) ("Not to put too fine a point on it, the death threats, if carried out, would moot and defeat the review process."). In that case, the petitioner had testified against a violent drug trafficking organization in Jamaica. After he provided testimony against that organization, he had been threatened directly, "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." Sean B., 412 F.Supp.3d at 478. Thus, the district court found that § 1252(g), as applied, violated the Suspension Clause because the petitioner would not be able to effectively pursue his appeal from abroad.
These two courts are not alone in concluding that, as applied, § 1252(g) violates the Suspension Clause in certain circumstances. See Compere v. Nielsen, 358 F.Supp.3d 170, 173, 179 (D.N.H. 2019) (holding that § 1252(g) does not violate the Suspension Clause where a noncitizen can continue to litigate motion to reopen after removal, but that the petitioner would be unable to litigate his motion to reopen if he were removed to Haiti, and therefore the Suspension Clause prevented § 1252(g) from stripping district court of habeas jurisdiction); Devitri v. Cronen, 289 F.Supp.3d 287, 294 (D. Mass. 2018) (holding that the BIA's processes for adjudicating motions to reopen and motions to stay were not adequate alternatives to habeas for the petitioners, who sought to file motions to reopen based on changed conditions in Indonesia that occurred after their original removal orders were entered); Ibrahim v. Acosta, 2018 WL 582520, at *5-*6 (S.D.
This Court likewise concludes that, as applied to Joshua, § 1252(g) violates the Suspension Clause. After receiving his SIJ status, Joshua filed a motion to reopen in the immigration court. The immigration court denied his motion to reopen and Joshua appealed to the BIA. As Respondents confirmed at the December 10, 2019 status hearing, Joshua would have been removed from the United States absent this Court's order temporarily staying his removal. Had Joshua been removed, he would have needed to try and pursue his appeal from Honduras. And as the record shows, Joshua would likely have received threats of violence or suffered physical harm upon his return there. Moreover, the New York Family Court
Critically, Respondents cite no legal authority to assure that removal would not deprive Joshua of his SIJ status. Respondents provide no case law, statute, or regulation to rebut the plain language of the statute that provides SIJ status is available only for persons "present in the United States." 8 U.S.C. § 1101(27)(a)(J). Because Joshua does not have an adequate alternative remedy to challenge his removal —as the removal process may inherently jettison his SIJ status for lack of presence in the United States and subject him to violence in Honduras—Joshua's habeas petition invokes the Suspension Clause.
Here, the Court takes into consideration at the Motion to Dismiss stage both the danger Joshua faces should he return to Honduras and the potential loss of his SIJ status and ability to seek adjustment of status in the United States. The risks to his life would deprive him of the opportunity to pursue his appeal from abroad. Although Respondents contend that Joshua does not face "country-wide threats or persecution," meaning that he may be able to find a safe location somewhere in Honduras to pursue his appeal, the Court does not find this argument persuasive.
The Court recognizes that this outcome rests on the preliminary procedural posture it faces. To be sure, the Court sees that when Congress stripped the district courts of jurisdiction § 1252(g) to grant habeas relief, it provided aliens with an alternative method to challenge the legality of removal orders: a motion to reopen followed by a petition for review filed in a court of appeals. See 8 U.S.C. § 1252(a)(5), (2)(D). Thus, in general, the Courts of Appeals have rejected Suspension Clause challenges on the ground that a motion to reopen plus a petition for review in the court of appeals would be an adequate substitute for habeas corpus. See, e.g., Iasu v. Smith, 511 F.3d 881, 893 (9th Cir. 2007) (rejecting as-applied challenge); Mohamed v. Gonzales, 477 F.3d 522, 526 (8th Cir. 2007) (same); Alexandre v. U.S. Att'y Gen., 452 F.3d 1204, 1206 (11th Cir. 2006) (per curiam) (rejecting facial challenge).
But that is not the question raised here. The Court concludes, under these unusual circumstances—involving a person with SIJ status, stemming in part from the RFM class action lawsuit, who has no meaningful criminal history and who faces specific threats should he return to Honduras —the alternative remedy to litigate from abroad does not provide an adequate substitute for habeas. Joshua therefore satisfies the second Boumediene inquiry and the Court may exercise subject matter jurisdiction over his § 2241 Petition.
Finally, having found that the Court possesses jurisdiction, the Court must determine whether to extend the temporary stay given to Joshua's motion for a temporary restraining order and the issues raised in his § 2241 Petition. (See Mot. Temporary Restraining Or., ECF No. 5.) The Court concludes that the circumstances of this case, particularly considering Joshua's SIJ status, warrant a stay.
"A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case."
As to the first Nken requirement, the likelihood of success on the merits, the Court finds this factor satisfied. In his § 2241 Petition, Joshua brings a Procedural Due Process Claim, an APA Claim, a Stay of Removal Claim, and a Suspension Clause Claim. At this procedural posture, Joshua raises viable claims.
Regarding Joshua's Procedural Due Process Claim, the Fifth Amendment to the United States Constitution provides, in pertinent part, that "[n]o person shall be ... deprived of life, liberty, or property, without due process of law." U.S. CONST. AMEND. V. In accordance with the Fifth Amendment, due process claims may have procedural and substantive components. At its core, procedural due process guarantees the right to notice and an opportunity to be heard. Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). In contrast, "[t]he substantive component of due process bars certain government actions regardless of the fairness of the procedures used to implement them." D.B. v. Cardall, 826 F.3d at 740 (internal quotations marks and citations omitted).
Unlike many other removal cases, Joshua has received a special legal status, his SIJ status, that he received in accordance with federal statutes. This SIJ status reflects the determination of "Congress to accord those abused, neglected, and abandoned children a legal relationship with the United States and to ensure they are not stripped of the opportunity to retain and deepen that relationship without due process." Osorio-Martinez, 893 F.3d at 170. As discussed in Osorio-Martinez, Congress afforded these juvenile aliens a host of procedural rights designed to sustain their relationship to the United States and to ensure they would not be stripped of SIJ status protections without due process. See also D.B., 826 F.3d at 741-43 (discussing due process considerations raised in immigrant detention
Also, the "good and sufficient cause" necessary to revoke Joshua's SIJ status does not appear on the record before the Court. And removal may likely cause Joshua to lose his SIJ status and the benefits such status confers because, once removed, he will no longer satisfy the plain language of the statutes as "an immigrant who is present in the United States." 8 U.S.C. § 1101(a)(27)(J). Moreover, stripping Joshua of his SIJ status, without "good and sufficient cause," appears to contravene the purpose of the SIJ statutes: establishing protection and a pathway to permanent residency for a specific subset of immigrant children. These considerations further weigh in favor of success on his due process claim.
Nor does the record show how Joshua could regain his SIJ status once removed. Because the SIJ statutes require that he remain within the United States, Joshua's removal would cut against the plain language of the statutes. And, if Joshua were to lose his SIJ status upon removal, it does not appear that he would be able to pursue adjustment of his status from SIJ to a lawful permanent resident because doing so requires physical presence within the United States. 8 U.S.C. § 1255(a).
In addition his Procedural Due Process Claim, Joshua raises an APA Claim, asserting that "ICE's sudden decision to prohibit some abused noncitizen youth from realizing the protections that Congress specifically enacted for them—a prohibition accomplished in this case by detaining, attempting to remove [Joshua] in the midst of his efforts to legalize his immigration status, and to render him statutorily ineligible for a form of relief he is currently eligible for—improperly alters these substantive rules without notice-and-comment rulemaking, in violation of the APA." (§ 2241 Pet. 26.)
"[T]he APA authorizes a court to set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Perez, 949 F.3d at 872 (citing 5 U.S.C. § 706(2)(A)). To that end, "[t]he APA requires that all `rules' be issued through a statutorily prescribed notice-and-comment process." Children's Hosp. of the King's Daughters, Inc. v. Azar, 896 F.3d 615, 619 (4th Cir. 2018) (citing 5 U.S.C. § 553(a)-(c)). The APA's notice and comment requirements apply only to "legislative" or "substantive" rules. Lincoln v. Vigil, 508 U.S. 182, 196, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (citing 5 U.S.C. § 553(b)). The notice and comment procedures do not govern: (i) interpretative rules; (ii) general statements of policy; or, (iii) rules of agency organization, procedure, or practice. Id. (citing 5 U.S.C. § 553(b)). Failure to comply with the APA's notice and comment procedures renders a "legislative" or "substantive" rule invalid. See Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1341 n.9 (4th Cir. 1995) (explaining that if the Attorney General promulgates a substantive interim rule "it would have been invalid from the date of its issuance for failure to comply with the notice [and comment] requirements under 5 U.S.C. § 553").
The Court finds that Joshua raises a claim whose likely success on the merits
Additionally, the record does not make clear to the Court whether Respondents are acting pursuant to a policy or other agency guidance regarding the removal of individuals with SIJ status, a necessary consideration for Joshua's APA claim. If so, nothing on the record indicates, at this stage of the litigation, whether Respondents have adopted a policy or guidance in compliance with the APA. By way of comparison, in the RFM class action, the government defendants argued that no new policy existed when USCIS began unlawfully denying SIJ applications in contravention to the plain terms of the SIJ statute. R.F.M., 365 F. Supp. 3d at 366. Although the RFM Court observed that no formal policy existed, that court recognized that "both parties agree[d] that prior to taking its new position regarding the New York Family Court, the USCIS regularly approved SIJ petitions made by juveniles who were between eighteen and twenty-one years of age when the Family Court issued a Special Findings Order, but that in early 2018 the agency began denying virtually all of these petitions." Id. As a result, the RFM court found that such action supported plaintiff's APA claim because the uniform denial of the SIJ applications constituted a new policy that contravened both state and federal law. See generally R.F.M., 365 F. Supp. 3d at 380-82.
Given the incompatibility between removal with the statutory rights of SIJ designees, the Court finds this first Nken factor, probability of success, satisfied. Through the SIJ statutes, Congress granted individuals, like Joshua, certain rights, including eligibility to apply for adjustment to lawful permanent resident status, protection against having their SIJ status revoked without following the statutory process, and due process rights that attach to SIJ beneficiaries. The record also does not make clear what authority or guidance Respondents adhere to in this instance, or whether such policy regarding the removal of individuals with SIJ status comports with the APA. The first factor weighs in favor of extending the stay.
As to the second Nken requirement, irreparable harm, the Court also finds that this factor satisfied. The parties do not dispute that Joshua's parents left him in Honduras as a two-year-old child. The record shows that his lack of parental protection made him vulnerable to the members of a local gang, who began targeting Joshua. While the United States characterizes the harm as not being "countrywide," the record shows that gang members slashed Joshua with knives and caused lasting hearing damage by launching a firecracker at his head. Gang members continued to pursue Joshua after he moved to a different city in Honduras. Joshua fled Honduras at age sixteen to escape the gang's death threats and after the gang killed one of his friends.
As to the third Nken requirement, the balance of the equities, the Court finds this factor weighs in favor of Joshua. The significant irreparable harms that Joshua faces in the absence of a stay outweigh any potential harm the United States may incur for this period. The Court also observes that the dearth of case law on this issue could suggest that SIJ removal has been uncommon in the past. If true, this would undermine the urgency surrounding Joshua's removal.
Furthermore, by approving Joshua's SIJ application, USCIS recognized that Joshua has been abused, abandoned, or neglected by a parent and that it is not in his best interests to return to Honduras. The Court finds that the third factor, the balance of the equities, weighs in favor of extending the stay.
As to the fourth and final Nken requirement, the public's interest, the Court finds this factor satisfied. The Court recognizes that "[t]here is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and permits and prolongs a continuing violation of United States law." Nken, 556 U.S. at 436, 129 S.Ct. 1749. But the Court also recognizes that there is a public interest in preventing immigrants from being wrongfully removed, particularly to countries where they are likely to face substantial harm. Id.
For five years, Joshua has lived in the United States without incident until he was pulled over for speeding. The vague (now year long) assertion that Joshua has a criminal history—on information and belief —because he is supposedly under investigation for sexual assault and threatening a police officer does not alter this Court's determination. (Mem. Supp. Mot. Dismiss, Ex. A., Trump Decl. ¶¶ 13-15.) Not only does an investigation fail to constitute a criminal history, it does not amount to a criminal charge, and carries no authority in these proceedings. The circumstances of this case therefore weigh against the need for Joshua's prompt removal: the record does not show that he is dangerous, he lacks meaningful criminal convictions, and he has received SIJ status in accordance with federal statutes, through which Congress has recognized that a special subset of juvenile immigrants such as Joshua should not return to their native countries. The Court finds that the fourth factor, the public's interest, weighs in favor of extending the stay.
In his § 2241 Petition, Joshua contends that "the rushed efforts to remove him prior to the exhaustion of his lawful claims" violates the laws of the United States. (§ 2241 Pet. 1.) Joshua challenges the "process employed by [R]espondents" to remove him, asserting violations under the APA, the Fifth Amendment Due Process Clause, the Suspension Clause, and the INA. But here, Respondents moved only to dismiss Joshua's § 2241 Petition pursuant to Rule 12(b)(1), asserting that, even accepting his factual allegations as true, the Court lacks subject matter jurisdiction on the face of the petition.
The Court will deny the Motion to Dismiss after finding that Joshua has articulated facts and set forth legal claims sufficient to invoke this Court's jurisdiction.
The Court should next evaluate the merits of Joshua's four claims and resolve questions of law to determine whether Respondents may remove immigrants, like Joshua, who have received SIJ status. To aid the Court in reaching the merits of Joshua's claims, the Parties shall jointly propose a briefing schedule to the Court no later than Friday, March 13, 2020.
The Court recognizes, however, that an order continuing an injunction becomes an immediately appealable interlocutory order. 28 U.S.C. § 1292(a)(1). Should the Parties pursue an appeal, such an action would render a jointly proposed briefing schedule unnecessary.
Either way, the record demonstrates that Joshua has been detained since February 2019. As discussed at the December 10, 2019 status hearing, the Court has concerns about Joshua's continued detention, particularly because he lacks any meaningful criminal history and has been granted SIJ status, which affords him significant benefits in accordance with a statutory scheme that Congress enacted for the protection of young immigrants. See 8 U.S.C. § 1226(a) (permitting release of non-criminal aliens pending their removal proceedings). At this juncture, case law does not appear to answer whether Joshua's ongoing detention comports with the Due Process Clause. While Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, provides some guidance, it addressed a different question: indefinite detention in the post-removal period. See also Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830, 200 L.Ed.2d 122 (2018) (discussing how long a noncitizen may be detained during removal proceedings); Clark v. Martinez, 543 U.S. 371, 386, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) ("Since the Government has suggested no reason why the period of time reasonably necessary to effect removal is longer for an inadmissible alien, the 6-month presumptive detention period we prescribed in Zadvydas applies"); Pensamiento v. McDonald, 315 F.Supp.3d 684, 690 (D. Mass. 2018) (observing that "while the Supreme Court has held that § 1226(a) does not mandate that a clear and convincing evidence burden be placed on the government in bond hearings, it left open the question of whether the Due Process Clause does").
As a result of Joshua's ongoing detention, which has now exceeded one year, the
For the reasons articulated above, the Court will deny the Motion to Dismiss. (ECF No. 20).
An appropriate Order shall issue.
28 U.S.C. § 2241.
During a December 10, 2019 status conference, the Court asked for "the government's position about what constitutes Joshua's criminal history." (Tr. 18.) Respondents explained that "there was an allegation in the petition that referenced the criminal history, and therefore [Respondents] put it in the brief as a matter of information." (Id.) When the Court stated, "I just want to be clear because there is no criminal history because there's no charge," (id. 19), Respondents answered, "[that]'s correct, Your Honor," (id.)
Of course, in the criminal context United States law recognizes that individuals are innocent until proven guilty. See also Aguilera-Enriquez v. Immigration & Naturalization Serv., 516 F.2d 565, 570 (6th Cir. 1975) ("The Immigration authorities must look to judicial records to determine whether a person has been `convicted' of a crime. They may not determine on their own an alien's guilt or innocence.") Most commonly, felonies, not misdemeanors, constitute removable offenses. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ("The Immigration and Nationality Act, 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq., lists a set of offenses, conviction for any one of which subjects certain aliens to removal from the United States, § 1227(a).").
The Parties have not requested discovery or an evidentiary hearing to resolve this Rule 12(b)(1) Motion to Dismiss, which further supports the notion that Respondents bring only a facial challenge to the § 2241 Petition. Because the jurisdictional allegations raised here are not clearly immaterial or wholly frivolous, the Court finds that the better course of action is to allow the case to proceed in order to consider any necessary discovery or evidence. Kerns, 585 F.3d at 193 (directing that "when the jurisdictional facts are inextricably intertwined with those central to the merits, the court should resolve the relevant factual disputes only after appropriate discovery, unless ... allegations are clearly immaterial or wholly unsubstantial and frivolous").
As discussed in this memorandum opinion, the Court recognizes the technical differences between inadmissibility, deportability, and removability. For example, the burden of proof in removal proceedings differs depending on an alien's immigration status at the time USCIS commences his or her proceedings. See Ibragimov v. Gonzales, 476 F.3d 125 (2d Cir. 2007). An "applicant for admission" bears the burden of proving he or she is not inadmissible under 8 U.S.C. § 1182, while the government bears the burden of showing removability when a noncitizen has been lawfully admitted to the United States. 8 U.S.C. §§ 1229a(c)(2)-(3). In a removal proceeding commenced after an alien has been formally "admitted" to the country, the United States has the burden of establishing by "clear and convincing evidence" that "the alien is deportable." 8 U.S.C. § 1229a(c)(3)(A).
Because Respondents challenge only this Court's jurisdiction, the question of whether Joshua may immediately receive a visa cannot be addressed in the instant Rule 12(b)(1) Motion to Dismiss.
McConnell, Judicial Review, 51 N.Y.L. Sch. L. Rev. at 85.
Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir.), cert. granted sub nom. Dep't of Homeland Sec. v. Thuraissigiam, ___ U.S. ___, 140 S.Ct. 427, 205 L.Ed.2d 244 (2019). Although Thuraissigiam addresses different statutory provisions, the Supreme Court's decision in that case may provide further guidance on the invocation of the Suspension Clause in immigration proceedings.
