Opinion
23-cv-242 (JGK)
03-23-2023
ANTONIO MONCION RODRIGUEZ, Petitioner, v. WARDEN, ORANGE COUNTY CORRECTIONAL FACILITY, ET AL., Respondents.
MEMORANDUM OPINION AND ORDER
JOHN G. KOELTL UNITED STATES DISTRICT JUDGE:
The petitioner, Antonio Moncion Rodriguez, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking release from immigration custody at the Orange County Correctional Facility in Goshen, New York, while his applications requesting a change in his immigration status remain pending. See Amended Petition, ECF No. 7 (the “Petition”). The respondents, Secretary Alejandro Mayorkas of the Department of Homeland Security (“DHS”) and the Warden of the Orange County Correctional Facility (together, the “Government”), argue that the Court lacks jurisdiction over the Petition. For the reasons set forth below, the Petition is dismissed on that basis.
I.
The following facts are taken from the parties' submissions and from the sworn affidavit filed with the Government's response to the Petition, unless otherwise noted.
The petitioner, a native and citizen of the Dominican Republic, was initially admitted to the United States as a Lawful Permanent Resident (“LPR”) on June 5, 1983. See Finnie Decl., ECF No. 19, at ¶ 4. In March 1999, the petitioner pleaded guilty to one count of criminal possession of a controlled substance in the second degree, and to one count of criminal sale of a controlled substance in the third degree, both in violation of the New York Penal Law. Id. ¶¶ 7-8. The New York Supreme Court for New York County sentenced the petitioner to concurrent terms of one to three years' imprisonment on one count and six years' to life imprisonment on the other count. Id. ¶¶ 78. The petitioner was imprisoned for five years. Id. ¶ 9.
After determining that the petitioner's criminal convictions rendered him deportable under the Immigration and Nationality Act (“INA”), federal immigration authorities arrested the petitioner and served him with a Notice to Appear (“NTA”) in immigration court on a charge of deportability. Id. ¶¶ 10-11. The petitioner appeared in immigration court for his removal hearing on November 8, 1999. Id. ¶ 12. The immigration judge (“IJ”) determined that the petitioner was deportable as charged in the NTA and accordingly issued an order of removal, which stated that the petitioner was “not eligible for relief from removal” and directed that the petitioner be “removed from the United States to [the] Dominican Republic.” IJ's Nov. 1 999 Order of Removal (“Order of Removal”), Gov. Response, Ex. 4, ECF No. 18-4, at 2; see Finnie Decl. ¶ 12. In August 2003, shortly after the completion of the petitioner's criminal sentence in New York, the petitioner was removed to the Dominican Republic pursuant to the IJ's Order of Removal. Finnie Decl. ¶ 13. The petitioner later re-entered the United States unlawfully and without inspection. See id. ¶ 14.
Unless otherwise noted, this Memorandum Opinion and Order omits all alterations, omissions, emphasis, quotation marks, and citations in quoted text. Citations to the Petition and to the exhibits in the record use the pagination provided in the ECF ribbon stamped at the top of each page.
In 2022, the petitioner filed several applications with U.S. Citizenship and Immigration Services (“USCIS”), including an application for LPR status. Id. ¶ 15; see also Petition at 6. All of those applications remain pending. See Finnie Decl. ¶ 15. On January 8, 2023, the petitioner arrived at the John F. Kennedy International Airport in New York after a visit to the Dominican Republic. See id. ¶ 16. Upon arrival at the airport, the petitioner was inspected by officers of U.S. Customs and Border Protection (“CBP”), to whom he presented a Dominican Republic passport and an advance parole card obtained from USCIS. Id. ¶ 17. In a statement given to CBP officers under oath, the petitioner acknowledged that he had been “ordered removed from the United States,” and that he had “[n]o” claim to “United States citizenship” or “Lawful Permanent Residence status.” CBP Record, Gov. Response, Ex. 5, ECF No. 18-5, at 3, 6. He also stated at that time that he had “fear or concern” about returning to the Dominican Republic because he believed certain individuals there would “harm [him] if [he] . . . return[ed].” Id. at 7-8.
CBP determined that the petitioner lacked a valid entry document and was accordingly subject to expedited removal pursuant to the INA, see 8 U.S.C. § 1225(b)(1), pending an interview to evaluate his claim of fear. See CBP Record at 11; Finnie Decl. ¶ 17. CBP issued a Notice and Order of Expedited Removal, see Jan. 8, 2023 Expedited Removal Order, Gov. Response, Ex. 6, ECF No. 18-6, and then turned the petitioner over to Immigration and Customs Enforcement (“ICE”) for expedited removal proceedings and for reinstatement of the existing November 1999 Order of Removal against him. See CBP Record at 11; see also Finnie Decl. ¶¶ 1718. On January 9, 2023, ICE took the petitioner into custody at the Orange County Correctional Facility pursuant to 8 U.S.C. § 1231(a), which mandates the detention of individuals “ordered removed” for, among other reasons, the “[r]einstatement” of an existing removal order against a noncitizen who has “reentered the United States illegally.” Id. §§ 1231(a)(5), (2); see also Finnie Decl. ¶ 19. On January 23, 2023, the petitioner withdrew his claim that he feared returning to the Dominican Republic. See Finnie Decl. ¶ 20. ICE subsequently secured the travel documents needed to remove the petitioner, and the Government has advised that it intends to remove the petitioner imminently. See id. ¶ 21; ECF Nos. 11, 14.
The petitioner filed his original habeas petition on January 11, 2023. ECF No. 1. In response to the Court's Order to Amend, the petitioner filed an amended petition (the Petition at issue here) on February 2, 2023. See ECF Nos. 3, 7. In the Petition, the petitioner alleges that he has been “held without reason” in “violation of due process” while his application for “lawful permanent resident” status remains “pending before the USCIS.” Petition at 2, 6. The Petition accordingly seeks the “release of the petitioner.” Id. at 7.
The Court directed the Government to answer the Petition and set a schedule for the Government's response and the petitioner's reply. ECF No. 8. Upon receipt of the Government's subsequent letters advising that the petitioner's removal would not be postponed pending a decision on the Petition, the Court expedited the existing briefing schedule. ECF No. 13. On March 8, 2023, the Government responded to the Petition. See Gov. Response, ECF No. 18. The petitioner's reply was due on March 13, 2023, but to date, no reply has been filed.
II.
In its response to the Petition, the Government argues that (1) the INA divests this Court of jurisdiction to review the Petition, and (2) in any event, the petitioner's due process challenge fails on the merits. The jurisdictional question is considered first, and the Court must dismiss the Petition if subject-matter jurisdiction is lacking. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583-84 (1999); Fed.R.Civ.P. 12(h)(3).
To the extent the petitioner challenges his custody in furtherance of his expedited removal to the Dominican Republic, this Court lacks jurisdiction over the Petition. The INA, as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, established a system for the “expedited removal” of certain noncitizens “who arrive[] in the United States” and are found to be “inadmissible” upon a mandatory inspection by an immigration officer. See 8 U.S.C. §§ 1225(a)-(b); see generally DHS v. Thuraissigiam, 140 S.Ct. 1959, 1964-66 (2020) (describing these “expedited procedures”). Pursuant to Section 1225(b), “arriving” noncitizens who lack valid entry documents or who make material misrepresentations to procure admission “shall [be] order[ed] removed . . . without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i). Because the petitioner in this case has withdrawn his initial claim that he fears returning to the Dominican Republic, the January 2023 order authorizing his expedited removal “without further hearing or review” remains in effect. Id.
Section 1252(a)(2)(A), “which establishes the jurisdiction of courts to hear challenges to the expedited removal proceedings set forth in 8 U.S.C. § 1225(b)(1),” Shunaula v. Holder, 732 F.3d 143, 146 (2d Cir. 2013), imposes a broad prohibition on judicial review of expedited removal determinations, procedures, and policies, with narrow exceptions “provided in subsection (e)” of the same section. 8 U.S.C. § 1252(a)(2)(A). The exceptions in Section 1252(e) do permit “[j]udicial review of [certain expedited removal] determination[s]” in “habeas corpus proceedings,” but such review is strictly “limited to determinations of . . . (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under [the expedited removal] section, and (C) whether the petitioner . . . is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title.” Id. § 1252(e)(2)(A)-(C). With respect to the question of whether a petitioner was “ordered removed” pursuant to Section 1225(b), “the court's inquiry” must be “limited to whether such an order in fact was issued and whether it relates to the petitioner”; courts are barred from considering “whether the alien is actually inadmissible or entitled to any relief from removal.” Id. § 1252(e)(5).
Section 1252(e) contains another exception that permits limited judicial review in the U.S. District Court for the District of Columbia “of constitutional challenges to the validity of the expedited removal system and statutory challenges to its implementing regulations and written policies.” Shunaula, 732 F.3d at 146; see 8 U.S.C. § 1252(e)(3)(A)(i)-(ii). Because the petitioner “does not challenge the expedited removal system generally, its implementing regulations, or any written policies,” this exception is inapplicable here. Shunaula, 732 F.3d at 146.
If none of the exceptions set forth in Section 1252(e) apply, then “‘[n]otwithstanding' any other ‘habeas corpus provision' --including 28 U.S.C. § 2241 -- ‘no court shall have jurisdiction to review' any other ‘individual determination' or ‘claim arising from or relating to the implementation or operation of an order of [expedited] removal.'” Thuraissigiam, 140 S.Ct. at 1966 (quoting 8 U.S.C. § 1252(a)(2)(A)); see also Shunaula, 732 F.3d at 146 (noting that Section 1252(a)(2)(A) “deprives [a] court of jurisdiction to hear challenges relating to the Attorney General's decision to invoke expedited removal, his choice of whom to remove in this manner, his ‘procedures and policies,' and the ‘implementation or operation' of a removal order” (also quoting 8 U.S.C. § 1252(a)(2)(A))). In short, unless a limited exception applies, Section 1252(a)(2)(A) precludes judicial review of any “collateral attack on [an] order of expedited removal.” Shunaula, 732 F.3d at 147.
In this case, all of the determinations that the Court would be authorized to make pursuant to Section 1252(e)(2), the provision that allows limited judicial review of expedited removal orders in habeas corpus proceedings, are already resolved. It is undisputed that the petitioner, a foreign national and native of the Dominican Republic, is an “alien” within the meaning of the INA. See 8 U.S.C. § 1101(a) (defining “alien” as “any person not a citizen or national of the United States”). Moreover, the record establishes that the petitioner was ordered removed pursuant to the expedited removal provisions in Section 1225(b), see, e.g., Jan. 8, 2023 Expedited Removal Order, and the Court is not entitled to inquire any further into the basis for that expedited removal order. See 8 U.S.C. § 1252(e)(5). Finally, it is plain that the petitioner is not an LPR, asylee, or refugee. The petitioner's LPR status was revoked when he was ordered removed in 1999 based on his narcotics convictions, see 8 U.S.C. § 1227(a)(2), and as the Petition states, the petitioner's new application for LPR status remains pending, see Petition at 6. Moreover, the petitioner withdrew his claim of fear of returning to the Dominican Republic, such that he could not establish the “credible fear of persecution” required to proceed through the asylum application process, see 8 U.S.C. § 1225(b)(1)(B), and the record does not otherwise suggest that the petitioner has secured asylee or refugee status.
In light of the above, the limited questions for which Section 1252(e) permits habeas review of expedited removal proceedings are already settled, see 8 U.S.C. § 1252(e)(2)(A)-(C), and the Court is otherwise barred from reviewing “any other ‘individual determination' or ‘claim arising from or relating to the implementation or operation of an order of [expedited] removal,'” Thuraissigiam, 140 S.Ct. at 1966 (quoting 8 U.S.C. § 1252(a)(2)(A)). This broad jurisdictional bar necessarily encompasses review of the petitioner's due process challenge to the steps taken in order to implement and effectuate the existing expedited removal order against him.
Even without the jurisdiction-stripping provisions applicable to expedited removal proceedings in particular, the INA would deprive this Court of jurisdiction to adjudicate the petitioner's due process challenge. That is because the INA, as amended by the REAL ID Act of 2005, vests exclusive jurisdiction over all claims and issues arising out of deportation and removal proceedings in the federal courts of appeals. See 8 U.S.C. §§ 1252(a)(5), (b)(9). Specifically, Section 1252(a)(5) provides that, “[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, . . . a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal.” Id. § 1252(a)(5). Moreover, Section 1252(b)(9) provides as follows:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, 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 [of removal] under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, . . . or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.Id. § 1252(b)(9). “[T]aken together, § 1252(a)(5) and § 1252(b)(9) mean that any issue -- whether legal or factual -arising from any removal-related activity can be reviewed only through a petition for review filed with an appropriate court of appeals.” Asylum Seeker Advocacy Project v. Barr, 409 F.Supp.3d 221, 224 (S.D.N.Y. 2019) (emphasis in original).
Also relevant is Section 1252(g), another provision introduced by the REAL ID Act, which provides that “notwithstanding any other provision of law . . . including section 2241 of Title 28, or any other habeas corpus provision, . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 8 U.S.C. § 1252(g). “[B]y its plain terms, [Section] 1252(g) strips district courts of jurisdiction over claims attacking the Government's decisions or actions to execute removal orders.” Yearwood v. Barr, 391 F.Supp.3d 255, 263 (S.D.N.Y. 2019).
The Second Circuit Court of Appeals has held that these REAL ID Act provisions “appl[y] equally to preclude” district courts from exercising jurisdiction over both “direct” and “indirect challenges” to orders of removal, and also that “whether the district court has jurisdiction will turn on the substance of the relief” sought. Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011); see Yearwood, 391 F.Supp.3d at 263; see also Barros Anguisaca v. Decker, 393 F.Supp.3d 344, 349 (S.D.N.Y. 2019) (“The Second Circuit's decision in Delgado frames th[e] [district court's] jurisdictional analysis.”). In this case, the petitioner has been ordered removed not only pursuant to the expedited removal procedures set forth in Section 1225(b), but also in accordance with the IJ's November 1999 Order of Removal -- a final order of removal that has been reinstated against him. Moreover, reading the Petition as a whole, it is plain that the petitioner seeks an end to his detention, which was undertaken for the precise purpose of effectuating his existing removal orders, so that he may remain in the United States until such time as USCIS can resolve his “pending” applications and potentially “make the petitioner [a] lawful permanent resident.” Petition at 6. Because such an outcome would effectively operate as a stay of removal pending adjudication of the petitioner's applications, and because “the adjustment of [the petitioner's] status to that of a lawful permanent resident would render the [petitioner's removal] order[s] invalid,” the Petition is an “indirect challenge” to those orders of removal. Delgado, 643 F.3d at 55; see, e.g., Barros Anguisaca, 393 F.Supp.3d at 349 (collecting cases where Delgado was applied to “preclude” district court jurisdiction over a noncitizen's request for a “stay pending immigration adjudications that necessarily stood, if successful, . . . to vacate the underlying removal order”); see also Yearwood, 391 F.Supp.3d at 263 (“The ultimate relief that the petitioner seeks -- an order . . . preventing the respondents from detaining him or removing him during the pendency of any appeals -- is a . . . challenge to the order of removal, regardless of the fact that the petitioner frames his claim as a challenge to the process through which he was removed.”). Thus, this Court lacks jurisdiction to review the Petition. See Delgado, 643 F.3d at 55. To the extent any court has jurisdiction to review the petitioner's constitutional due process challenge, that jurisdiction is vested solely in the Second Circuit Court of Appeals, and the appropriate vehicle for raising such a challenge would be a petition for review of a final order of removal. See 8 U.S.C. §§ 1252(a)(5), (b)(9).
District courts retain jurisdiction over habeas corpus petitions in certain circumstances where detained noncitizens challenge aspects of their detention unrelated to any underlying removal order and seek relief with no effect on a removal order. See, e.g., Delgado, 643 F.3d at 55 (noting, in holding that the jurisdictional inquiry turns on the “substance of the relief” sought, that a “district court, not [a] court of appeals,” may have jurisdiction “where plaintiffs' habeas petitions challenge[] only the constitutionality of the arrest and detention, not the underlying administrative order of removal”); see also Velasco Lopez v. Decker, 978 F.3d 842, 846 (2d Cir. 2020) (affirming district court's decision to grant an ICE detainee's habeas petition and “order[] a new bond hearing” on the grounds that the petitioner “was denied due process because he was incarcerated for fifteen months . . . with no end in sight” pending a hearing on his removability). No such circumstances exist in this case.
In sum, the federal immigration laws deprive this Court of jurisdiction to adjudicate the petitioner's challenge to his custody pending his removal from the United States pursuant to the existing removal orders against him. Because the Petition must be dismissed for lack of jurisdiction, the Court need not address the Government's arguments regarding the merits of the due process claim.
CONCLUSION
The Court has considered all of the arguments presented in the papers. To the extent not specifically addressed above, the arguments are either moot or without merit. For the reasons explained above, the Petition (ECF No. 7) is dismissed for lack of jurisdiction.
The Clerk of Court is respectfully directed to mail a copy of this Memorandum Opinion and Order to the pro se petitioner at both addresses listed on the docket, to note such mailing on the docket, and to close this case.
SO ORDERED.