JOSE L. LINARES, Chief District Judge.
Presently before the Court is the Amended Petition for a Writ of Habeas Corpus and Motion for a Preliminary Injunction of Petitioner, John Doe, filed pursuant to 28 U.S.C. § 2241 (ECF No. 17, 24). The Government filed a response to the Amended Petition and Motion, (ECF No. 27), to which Petitioner has replied. (ECF No. 31). The Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the following reasons, the Amended Petition shall be dismissed without prejudice and Petitioner's Motion for a Preliminary Injunction shall be denied without prejudice as moot in light of the dismissal of his petition.
Petitioner, John Doe, is a native and citizen of Afghanistan. (See ECF No. 27-1 at 2). Between 2012 and 2017, Petitioner was employed as a waiter and cashier by a United States contractor performing services at the U.S. Embassy in Kabul. (Id.). In December 2016, Petitioner was granted a Special Immigrant Visa under the SQ1 program, which provides special visas to "Afghan nationals who have been employed by or on behalf of the United States Government in Afghanistan and who have experienced an ongoing serious threat as a consequence of such employment." (Id.). On March 12, 2017, Petitioner boarded a flight to Newark, New Jersey, where he arrived the following day. (Id.).
Upon his arrival, Petitioner, as an applicant for admission into the United States, was reviewed by a primary-inspection and processing agent. (Id.). After an initial review, this agent stamped Petitioner's passport "admitted," which the Government contends was done erroneously, as Petitioner's admission review had not yet been completed. (Id.). In any event, Petitioner was not permitted to leave the airport at that time, but was instead referred to secondary-inspection processing for further review and an interview. (Id.). At some point between the conclusion of the initial review and the completion of secondary-inspection, customs officials contacted the Department of State concerning Petitioner's visa and apparently requested that the visa be revoked. (Id.). The Department of State thereafter revoked the visa and informed the customs officials about the revocation. (Id. at 3). Petitioner was thereafter prepared to be returned to Afghanistan and was scheduled for departure on March 15, 2017. (Id.).
In preparation for his flight, Petitioner was temporarily transferred to the Elizabeth Detention Center. (Id.). Counsel thereafter filed a habeas petition on Petitioner's behalf seeking Petitioner's release, as well as a motion for an emergency injunction seeking to block Petitioner's removal from the country. (Id.; see also ECF No. 1). This Court denied that injunction request, and Petitioner appealed. (ECF No. 7, 8). On March 15, 2017, the Third Circuit granted Petitioner a temporary stay from removal without ruling on any of Petitioner's other requests or addressing this Court's prior opinion and order. (ECF No. 10). Petitioner thereafter withdrew his appeal with the Government's consent so that he could complete the litigation of his habeas petition. (ECF No. 12).
On March 24, 2017, an asylum officer interviewed Petitioner and determined that he had a credible fear of persecution if he returned to Afghanistan. (ECF No. 27-1 at 3). That same day, DHS issued Petitioner a Notice to Appear, alleging that he was inadmissible. (Id.). As part of those proceedings, Petitioner filed a motion before the immigration court in which he argued that his removal proceedings should be terminated because he had been admitted to the United States as an SQ1 immigrant when his passport was stamped, and that the revocation was invalid. (See id. at 7). By way of an opinion and order issued on August 11, 2017, an immigration judge denied that motion, finding that, because Petitioner had never completed secondary inspection, he had never been admitted into the country for immigration purposes, and that Petitioner therefore remained an applicant for admission following the revocation of his visa. (Id. at 7-9). After determining that the relevant statutes and regulations permit the State Department to revoke Petitioner's SQ1 visa at any time prior to admission into the United States, the immigration judge explained his determination that Petitioner had never actually been admitted, regardless of the stamp in his passport, as follows:
(ECF No. 27-1 at 7-8 (citations omitted)). The immigration judge, based on his finding that Petitioner remained an applicant for admission without a valid visa, sustained the charge that Petitioner was inadmissible, denied Petitioner's motion to terminate his proceedings, and denied Petitioner's request for a bond redetermination, as the immigration court has no authority to conduct bond hearings for applicants for admission detained under 8 U.S.C. § 1225. (Id. at 9).
Pursuant to 28 U.S.C. § 2241(c), this Court has jurisdiction to provide an immigration detainee with habeas relief only when the detainee is "in custody" and that custody is allegedly "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). As Petitioner is currently detained within this Court's jurisdiction, by a custodian also within the Court's jurisdiction, and asserts that his continued detention violates due process, this Court has jurisdiction over his claims. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 500 (1973); see also Zadvydas v. Davis, 533 U.S. 678, 699 (2001).
Petitioner contends that he was admitted to the United States when his passport was stamped, that he automatically became a lawful permanent resident whose visa could not be revoked at that time, and that he is therefore not an arriving alien or applicant for admission subject to ongoing detention. (See generally ECF No. 17-2). In making this argument, Petitioner, either directly or indirectly, asks this Court to overrule the findings of the immigration judge quoted above — that Petitioner did not complete his inspection upon his arrival at the airport, that the revocation of his visa was both proper and occurred prior to the conclusion of his immigration inspection, and that Petitioner was therefore never admitted and remains an arriving alien who is treated as an applicant for admission. The Government contends, however, that this Court has no jurisdiction to make such a determination, as it was stripped of such jurisdiction by the REAL ID Act. (ECF No. 27 at 11-14).
In adopting the REAL ID Act, Congress restricted the jurisdiction of district courts to grant relief to Petitioner's challenging their orders of removal or actions related to such orders through habeas petitions. See 8 U.S.C. § 1252(a)(5). Pursuant to the Act:
8 U.S.C. § 1252(a)(5). The statute likewise provides that:
8 U.S.C. § 1252(b)(9). As the Third Circuit has explained, Congress's goal in passing the REAL ID Act was to "streamline . . . uncertain and piecemeal review of orders of removal, divided between the district courts (habeas corpus) and the courts of appeals (petitions for review)," which Congress sought to achieve "[b]y placing all review in the courts of appeals [thus providing] an adequate and effective alternative to habeas corpus." Verde-Rodriguez v. Att'y Gen., 734 F.3d 198, 206-07 (3d Cir. 2013). The limitations on jurisdiction imposed upon the courts by sections 1252(a)(5) and (b)(9), however, are inapplicable where a petitioner is not challenging an order of removal, including in those cases where a removal order has yet to be entered. See Chehazeh v. Att'y Gen., 666 F.3d 118, 133 (3d Cir. 2012); Kumarasamy v. Att'y Gen., 453 F.3d 169, 172 (3d Cir. 2006). Because Petitioner has yet to receive an order of removal, the REAL ID Act does not bar his claims.
The Government also argues that Petitioner's claims that he was admitted into the United States and is therefore a lawful permanent resident have not been properly exhausted, and that this Court lacks jurisdiction to address them for that reason. (ECF No. 27 at 15). Immigration detainees seeking habeas corpus relief must administratively exhaust their claims before they may seek relief through the filing of a petition for habeas corpus. See Duvall v. Elwood, 336 F.3d 228, 233-34 (3d Cir. 2003); Yi v. Maugans, 24 F.3d 500, 503-04 (3d Cir. 1994). "[E]ven when an alien is attempting to prevent . . . [removal] proceeding[s] from taking place in the first instance and is thus not, strictly speaking, attacking a final order of [removal] . . ., it is well settled that judicial review is precluded if the alien has failed to avail himself of all administrative remedies" including both removal proceedings and an appeal to the Board of Immigration Appeals. Duvall, 336 F.3d at 233 (quoting Massieu v. Reno, 91 F.3d 416, 421 (3d Cir. 1996) (quotations omitted)). The exhaustion requirement both protects the authority of the administrative body and fosters judicial economy and efficiency. Id. Because the exhaustion requirement is jurisdictional, the failure of a habeas petitioner to present his claims first to the immigration courts and then to the Board is "fatal to the District Court's jurisdiction over [his] habeas petition." Id.
Although an immigration judge has rejected his claim that he was admitted into the United States for the reasons quoted, Petitioner has yet to complete his proceedings before the immigration judge and has not presented that claim to the Board of Immigration Appeals. Petitioner has thus failed to exhaust his administrative remedies as to that claim, and this Court has no jurisdiction to address that claim until such time as it has been exhausted.
As Petitioner requested, and was denied parole, (see ECF No. 24-2 ¶ 8), he has exhausted his claim that his continued detention under § 1225(b) without a bond hearing violates Due Process and the Court can, and will, address that claim.
Petitioner argues that, even if he was not admitted to the United States and was an arriving alien at the time he was taken into custody, he should now be entitled to a bond hearing because his detection is overlong. (ECF No. 24-1 at 14-28). Preliminarily, Petitioner contends that, once a § 1225 detainee is placed into removal proceedings, his status becomes the same as that of an alien who was found within the United States who is subjected to removal proceedings, and his detention therefore converts detention pursuant to 8 U.S.C. § 1226. (Id. at 15-16). Petitioner, however, provides no support for that contention, and this Court is aware of no binding or persuasive authority for such a proposition. As both this Court and the Third Circuit have explained, § 1225 provides a basis for detention throughout removal proceedings separate and apart from that provided by § 1226. See, e.g., Tineo v. Ashcroft, 350 F.3d 382, 387 (3d Cir. 2003); Damus v. Tsoukaris, Civil Action No. 16-933 (JLL), 2016 WL 4203816, at *2 (D.N.J. Aug. 8, 2016). Indeed, § 1225 explicitly calls for the mandatory detention of an alien following an asylum officer's determination that an alien, such as petitioner, has a credible fear of persecution in his home country. See 8 U.S.C. § 1225(b)(1)(B)(ii). Section 1226, by contrast, controls the detention of aliens who have already effected entry into the United States and are now removable as a result of having committed a felony. See, e.g., Gregorio-Chacon v. Lynch, Civil Action No. 16-2768 (SDW), 2016 WL 6208264, at *2 (D.N.J. Oct. 24, 2016). Because Petitioner was not admitted into the country, and remains an applicant for admission subject to removal proceedings, he is detained pursuant to § 1225(b)(1)(B)(ii), and not § 1226(a).
Petitioner contends that even if he is subject to § 1225(b) detention, he should still be entitled to a bond hearing because his detention has become overlong and therefore Due Process would be violated if he were to continue to be held without a bond hearing. While this Court has not addressed such an argument in relation to detention under § 1225(b)(1)(B)(ii), this Court has addressed detention for unadmitted applicants for admission under § 1225(b)(2). See Damus, 2016 WL 4203816 at *2-4. As this Court explained:
Damus, 2016 WL 4203816, at *2-4.
Although this Court's opinion in Damus addressed a different subsection of § 1225(b) — specifically § 1225(b)(2)(A) — rather than § 1225(b)(1)(B)(ii), under which Petitioner is detained, the controlling factor for determining what level of Due Process protection applies, as explained above, is the alien's entry status. Id. This Court therefore finds that the reasoning of Damus would apply equally to § 1225(b)(1)(B)(ii) detainees as they, like § 1225(b)(2)(A) detainees, are applicants for admission who are legally treated as if they remain at the border. Applying that rule to Petitioner, the record indicates that he has been detained for only ten months — nearly two months less than the petitioner in Damus. As this Court explained in Damus, detention for less than a year under § 1225(b) does not violate Due Process and Petitioner is therefore not entitled to relief based on the length of his detention at this time. The Court will therefore dismiss his Due Process challenge to § 1225(b) detention without prejudice, with permission to file a subsequent petition in the event that his detention does continue for a period sufficient to call the propriety of his continued detention without bond into question.
Petitioner also attempts to argue that the decision to deny his parole requests was improper because it did not follow certain administrative guidelines laid out by the Department of Homeland Security. 8 U.S.C. § 1182(d)(5)(A) provides the basis for the granting of parole for applicants for admission and states that the "Attorney General may . . . in his discretion parole into the United States," on a case-by-case basis, an alien who has not been admitted. Based on the language of the statute, it is clear that release of a § 1225(b) detainee on parole is a discretionary administrative decision. See Shimisany v. Thompson, Civil No. 16-1755 (RBK/JS), 2017 WL 592160, at *3, *3 n.3 (D.N.J. Feb. 14, 2017). Congress specifically deprived this Court of jurisdiction to consider claims attacking certain discretionary decisions, including parole determinations, in 8 U.S.C. § 1252(a)(2)(B)(ii), which states that "[n]otwithstanding any . . . habeas corpus provision . . . no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or The Secretary of Homeland Security the authority for which is specified in this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security." The effect of this statute on habeas claims challenging discretionary parole denials is clear — the Government "can and often does release . . . alien[s] on parole, but [the] decision to do so is not judicially reviewable." Bolante v. Keisler, 506 F.3d 618, 621 (7th Cir. 2007) (citations omitted); see also Shimisany, 2017 WL 592160 at *3 (declaring the Secretary of Homeland Security's decision to revoke parole unreviewable). This Court is therefore without jurisdiction to review Petitioner's claim that the denial of his parole request was improper, and that claim also fails to provide Petitioner a basis for relief at this time.
In his final pair of claims, Petitioner asserts that the revocation of his visa was the result of anti-Muslim animus on the part of the Trump Administration, and therefore the revocation violates both the First Amendment and the Equal Protection Clause. (ECF No. 17-2 at 26-28; ECF No. 24-1 at 29-30). The Court notes that Petitioner did not raise this claim before the immigration judge. Generally, Due Process and constitutional claims are exempt from the exhaustion requirement, because they are beyond the scope of the authority of the immigration courts. Sewak v. I.N.S., 900 F.2d 667, 670 (3d Cir. 1990). Yet Petitioner provides no meaningful evidence to support his assertion that the revocation of his visa was related to any governmental anti-Muslim bias. Indeed, in support of the contention that the visa was revoked based on such a bias, Petitioner points only to the fact that he was apparently questioned by officers about religious items in his possession, certain decontextualized statements made by President Trump during his campaign, and the two travel ban orders the Trump Administration put into place restricting travel to the United States from certain enumerated countries — a list which Petitioner admits did not include Afghanistan. (See ECF No. 17-2 at 27-28). In his various filings, Petitioner provides nothing to connect the alleged anti-Muslim animus of the Trump Administration to the actual revocation of his visa. Instead, he merely notes that one of the travel ban orders was to enter effect near the time of his visa revocation, and that the Government has provided no other basis for the decision to revoke his visa. (Id.).
Unfortunately for Petitioner, he is incorrect in stating that there was no other apparent basis for the revocation of Petitioner's visa in the administrative record. As the immigration judge noted in his decision, "the State Department revoked [Petitioner's] visa on the basis that `information ha[d] come to light indicating that [he] may be inadmissible to the United States and ineligible to receive a visa,'" which the immigration judge concluded was a valid basis for revocation of a visa by the State Department. (ECF No. 27-1 at 7). Thus, the administrative record indicates that there was a reason unrelated to Petitioner's religion for the revocation of his visa, and Petitioner has provided no evidence to support his contention that the alleged anti-Muslim bias of the Trump Administration was in any way involved in the revocation of his visa.
Petitioner also requests an evidentiary hearing. Pursuant to Rule 8 of the Rules Governing Section 2254 Cases, applicable to § 2241 petitions through Rule 1(b), the decision of whether to hold an evidentiary hearing in a habeas matter is left to the discretion of the Court. Because the Federal Rules of Civil Procedure apply to a habeas proceeding where not inconsistent with the habeas rules, see Rule 12 of the Rules Governing Section 2254 Cases, this Court may dismiss summarily any habeas claim which fails to allege sufficient facts "to raise a right to relief above the speculative level" pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Given the lack of any real evidence suggesting that anti-Muslim bias played a part in the revocation, and given the evidence to the contrary, this Court finds that, to the extent Petitioner's claim is not subject to exhaustion, Petitioner's religious discrimination claims do not rise above the level of speculation, and are insufficient to warrant habeas relief at this time and must be dismissed as such. For the same reasons, this Court concludes that no evidentiary hearing is warranted.
For the reasons set forth above, this Court will dismiss all of Petitioner's claims either because Petitioner has not exhausted his administrative remedies, because Petitioner's detention has not yet violated Due Process, or because Petitioner has presented no more than a speculative claim for relief. Petitioner's habeas petition must therefore be dismissed in its entirety without prejudice. Because this Court is dismissing Petitioner's habeas petition without prejudice, Petitioner's request for a preliminary injunction shall in turn be denied without prejudice as moot.
For the reasons expressed above, this Court will dismiss Petitioner's habeas petition without prejudice, and will deny his Motion for a Preliminary Injunction as moot. An appropriate order follows.
