The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Represented by retained counsel, Petitioner Billa Singh, a/k/a Makkhan Singh, a/k/a Makhan Singh ("Singh" or "Petitioner"), commenced this proceeding by a pleading titled "Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and Request for TRO and/or Preliminary Injunction and Complaint for Writ of Mandamus" (hereinafter, "the Petition"). (Docket No. 1). Singh, a native of India and an alien under a final order of exclusion from the United States, challenges a decision by the former Immigration and Naturalization Service ("INS") rescinding the grant of asylum in August 1997. Singh is not presently in the physical custody of Respondents (hereinafter collectively referred to as "DHS"); he has posted bond and is subject to reporting requirements set forth in an Order of Supervision issued by DHS. However, the parties do not dispute that Singh is "in custody" for purposes of 28 U.S.C. § 2241.
II. Factual Background and Procedural History
On February 3, 1993, Singh arrived at JFK International Airport in New York City and attempted to enter the United States without valid documentation. While he was detained, Singh provided an affidavit stating his name was "Makhan Singh." Although the spelling "Makkhan" was used on the forms completed by the INS, when Singh signed his name he used the spelling "Makhan." Singh was assigned an "A number" at that time.
Because it did not appear that Singh was eligible to enter this country legally, exclusion proceedings were commenced by service upon him of a "Notice to Applicant for Admission, Detained/Deferred For Hearing Before Immigration Judge" ("NTA") on February 4, 1993. See 8 U.S.C. §§ 1229(a), 1229a, 1225.
On July 8, 1993, Singh filed his first request for asylum in connection with his exclusion proceedings. On the Biographical Information Form ("the G-325A"), Singh gave his name as "Makhan Singh" and his birth-year as 1962.*fn1 Singh asserted that he did not use any aliases. Asserting that he had been detained and tortured in the past for associating with individuals affiliated with the Sikh movement, he requested asylum based upon his fear that he would be tortured and killed by the police if he returned to India because he favored creation of an independent Sikh nation.
In November 1994, an immigration judge ("IJ") in San Francisco, California issued an exclusion order*fn2 against Makkhan Singh. The IJ also denied Singh's request for asylum. The exclusion order was never executed, as Singh did not appear when served with a notice of removal.
Singh never appealed the exclusion order and does not challenge it in this proceeding. Nor did he appeal the denial of his 1993 request for asylum by the IJ in November 1994. Instead, Singh filed an employment application and an asylum application under a different name and provided false biographical information in both. Specifically, on December 22, 1994, Singh signed a request-for-asylum form under his true name, Billa Singh,*fn3 and a different "A number" than the number given to him when he initially was admitted to this country. The application appears to have been filed on December 30, 1994, with the former Immigration and Naturalization Service ("the INS").*fn4 Singh listed his birth-year as 1963 (instead of 1962) and gave false information about his arrival in the United States, asserting that he had entered this country on October 10, 1994, at San Diego, California. Finally, Singh gave a different basis for asylum than in his first asylum application, newly claiming that his brother had been killed by the Indian police because he supported the Sikh cause, and that he (Singh) feared persecution on the basis of his Sikh religion were he to return to India. The biographical information provided in this request for asylum was consistent with the 1994 G-325A but inconsistent with Singh's first request for asylum filed under the name Mahkan Singh in 1993. At the time, the INS was not aware that Makhan Singh, Makkhan Singh, and Billa Singh were the same individual.
Singh also filed a form G-325A in connection with an employment application, giving his name as Billa Singh and his birth-year as 1963. This information contradicted his 1993 G-325A and request for asylum in which he gave his first name as Makhan and his birth-year as 1962. Singh also denied having used any aliases, which was contradicted by his affidavit upon entry to this country giving his name as Makkhan Singh. Singh further provided contradictory information regarding his previous addresses. He provided a false date of arrival and false location of entry into the United States. Finally, he averred that he had never applied for asylum in the United States.
While Singh's 1994 asylum application under the name Billa Singh was pending, the INS sent a notice on January 11, 1995, to "Makkhan Singh" directing him to report for removal on February 14, 1995. The name Makkhan Singh was used since that was the name set forth on the November 1994 exclusion order.
Singh did not report for removal. "Billa Singh" was granted an interview with an asylum officer in San Francisco on March 28, 1995, to whom he stated he was a member of the Sikh religion from the state of Punjab. Singh asserted that if returned to India, he would likely be arrested, detained, tortured, and imprisoned for life or killed by the Indian government because of his religion and his work towards a separate state for Sikhs. Petitioner asserted that his eldest brother (also a Sikh), as well as many of his Sikh friends, had been killed by the Punjabi police. Following the interview the INS asylum officer found Singh to be believable, consistent, detailed, and credible, and that his asserted fears were consistent will reports of then-prevailing conditions in India. See Exhibit F to the Petition. The asylum officer found that Petitioner had a well-founded fear of future persecution based upon his Sikh religious affiliation and the allegation that his brother had been killed by the Punjabi police. On April 11, 1995, Petitioner was notified by letter addressed to "Billa Singh" that his asylum request based on the December 1994 application had been granted.
On June 24, 1996, "Billa Singh" signed another G-325A in conjunction with an Application to Register Permanent Residence or Adjust Status (Form I-485), which was filed on July 2, 1996. The biographical information provided by Singh in this application was consistent with that provided in the 1994 forms but inconsistent with that provided in the 1993 forms.
On June 25, 1997, Singh appeared before an immigration officer as "Billa Singh" for an interview in connection with his status adjustment. The immigration office ran a fingerprint check and discovered that Singh had previously been ordered excluded and denied asylum under the name of Makkhan Singh and a different A number. In light of these revelations, the application for permanent resident status was not granted.
On August 25, 1997, the INS rescinded Singh's asylum status in a letter titled "Rescission of Asylum Approval" addressed to "Billa Singh a/k/a Makhan Singh" and listing both of Singh's "A numbers". The letter notes that Singh had been ordered excluded and, "[i]n accordance with Title 8 Code of Federal Regulations 208.2, Immigration Judges have 'exclusive jurisdiction over asylum applications filed by an alien who has been served [with]. . . Form I-122, Notice to Applicant for Admission Detained for a Hearing Before an Immigration Judge . . . .'" Rescission Letter (citing former 8 C.F.R. § 208.2(b)(3)). The First Rescission Letter concluded by stating, "[t]he INS did not have jurisdiction over your asylum application, because you were placed in exclusion proceedings prior to the filing of your affirmative asylum application. Therefore, the decision to grant your asylum is rescinded as of August 25, 1997. . . ." Id. The Rescission of Asylum Approval letter notified Singh that he could pursue his request for asylum before the Executive Office for Immigration Review ("EOIR"). Id.
Singh did not respond to the First Rescission Letter and did not pursue his request for asylum before the EOIR. He apparently moved from California to Buffalo, New York, in October 1998, where he has been residing and working ever since. Singh eventually retained counsel (his current attorneys) who, on March 5, 2001, requested and received an extension of 30 days in which respond to the Rescission of Asylum Approval.
Following consideration of the submission by Singh's attorneys, the INS issued a second Notice of Rescission of Asylum. The basis for the rescission was contained in the INS Procedures Manual for the Office of International Affairs (Asylum Division), dated January 18, 2000, which states that where an applicant is under the jurisdiction of the EOIR at the time asylum is approved--as Singh was--the asylum office does not have jurisdiction and any asylum approval issued under such circumstances must be rescinded.
In 2002, Singh filed a 28 U.S.C. § 2241 petition challenging the exclusion order in this Court. See Singh v. Holmes, Docket No. 02-CV-0121(WMS)(W.D.N.Y.). While this petition was pending, Congress passed the REAL ID Act, which divested the district courts of jurisdiction over challenges to exclusion and removal orders. In particular, Section 106(c) REAL ID Act of the requires that any case pending in district court on the date of enactment that was brought challenging an order of removal under the general habeas statute, 28 U.S.C. § 2241, be transferred to the court of appeals for the circuit "in which a petition for review could have been properly filed." The court of appeals is to "treat the transferred case as if it had been filed pursuant to a petition for review" under 8 U.S.C. § 1252, except that the thirty-day deadline ordinarily imposed on such petitions by 8 U.S.C. § 1252(b)(1) does not apply. Marquez-Almanazar v. INS, 418 F.3d 210, 215 (2d Cir. 2005) (citing Pub. L. No. 109-13, § 106(c), 119 Stat. 231, 311 (2005)). This Court (Skretny, D.J.) transferred Singh's 2002 habeas petition to the Ninth Circuit in 2005, since the underlying exclusion order had been issued by an IJ in California.
The Ninth Circuit summarily dismissed the petition on December 14, 2009. Singh v. Holder, 357 Fed. Appx. 161, at *161, 2009 WL 4825226, at **1 (9th Cir. Dec. 14, 2009) ("We lack jurisdiction over Singh's contentions that the IJ's November 29, 1994, exclusion order is not valid because Singh failed to exhaust his administrative remedies. See 8 U.S.C. § 1252(d)(1)*fn5 ; Puga v. Chertoff, 488 F.3d 812, 815 (9th Cir. 2007). To the extent Singh is challenging the government's decision to execute the exclusion order, we lack jurisdiction. See 8 U.S.C. § 1252(g).").
In his present 28 U.S.C. § 2241 petition filed in this Court on June 14, 2010, Singh seeks to have this Court consider matters relating to the INS's grant and rescission of asylee status. Significantly, however, Singh does not challenge the legality of the exclusion order entered in November 1994. Nor does he dispute that he is in fact the person identified as Makhan Singh. See Petition, ¶¶ 11-12. In fact, Singh acknowledged his use of the two different names, Makhan Singh and Billa Singh, in his affidavit of January 28, 2000. See Affidavit, attached as an exhibit to the Vaccaro Decl., pp. 39-42 (Docket No. 5-2). Thus, Singh does not dispute that the fingerprint check performed by the INS confirms that Billa Singh and Makhan Singh are the same person.
Respondents have moved pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), for dismissal of the Petition for lack of jurisdiction and for failure to state a claim upon which relief may be granted. Alternatively, Respondents have moved for summary judgment in accordance with Fed. R. Civ. P. 12(d).Respondents argue, inter alia, that Singh has failed to establish any basis for subject matter jurisdiction; Singh has failed to exhaust his administrative remedies; pursuant to 8 U.S.C. § 1158(a)(2)(C), an alien who has filed a previous asylum application that has been denied may not apply again for asylum; aliens, such as Singh, have no liberty or property interest in asylum that warrants Fifth Amendment protection; and Singh cannot meet the requirements for mandamus relief. In short, Respondents argue, there is no legal basis for this Court to exercise jurisdiction and, moreover, that there is no legal basis for the relief sought in Singh's Petition. Singh has filed a Statement of Material Facts, a number of which Respondents dispute. After reviewing the record, the Court agrees with Respondents that any purported factual disputes are immaterial to the resolution of the instant proceeding.
The parties have extensively briefed the issues and the matter is ripe for decision. As discussed more fully infra, Respondent's motion for summary judgment dismissing the petition is granted.
III. The Jurisdictional Issues
A. Divestiture of Jurisdiction by the INA
Respondents characterize Singh's Petition as "no more than a thinly disguised attempt to collaterally attack his removal order on constitutional grounds[,]" which this Court is precluded from reviewing based upon the REAL ID Act of 2005 ("the RIDA"), Pub. L. No. 109-13, 119 Stat. 231, 310-311 (May 11, 2005). Respondents' Memorandum of Law ("Resp't Mem.") at 4 (Docket No. 6). Respondents note that district court jurisdiction over final orders of removal was eliminated by the RIDA, which vested such review solely and exclusively in the circuit courts of appeal. Id. (citing 8 U.S.C. § 1252(a)(5)). The Government contends that the effect of the RIDA is to divest this Court of jurisdiction to adjudicate any legal issue that is intertwined with Singh's 1994 order of exclusion, unless such a question is entirely independent of the exclusion order. See Calcano Martinez v. INS, 232 F.3d 328, 340 (2d Cir. 2000).
Singh asserts that jurisdiction lies under the Immigration and
Nationality Act of 1952, as amended ("the INA"); the Administrative
Procedures Act ("APA"), 5 U.S.C. § 703; the Mandamus Act, 28 U.S.C. §
1361; the statute providing for federal question jurisdiction, 28
U.S.C. § 1331; the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq.;
and the All Writs Act, 28 U.S.C. § 1651. With regard to
the preclusive effect of the RIDA, Singh argues that his habeas petition
is not seeking to challenge the 1994 exclusion order,*fn6
and therefore this Court has not been divested of
jurisdiction over his claim by 8 U.S.C. § 1252(a). Instead, Singh
argues that the instant petition only seeks to challenge the legality
of the INS's decision to rescind his grant of asylum by way of the
First and Second Rescission Letters. Singh essentially contends that
the challenge to the rescission of asylum amounts to a challenge to
the legality of his detention, since a alien who has been granted
asylum cannot as a matter of law be detained by the federal government
for purposes of effectuating deportation. Singh maintains that his
present habeas challenge is substantively unrelated to the 1994 order
As Respondents note, Section 106(a) of the RIDA made several significant amendments to the Immigration and Nationality Act's jurisdictional statute at 8 U.S.C. § 1252. Most important for purposes of this matter is the RIDA's divestiture of federal district courts' jurisdiction--habeas or otherwise--over any removal order for any alien, criminal or non-criminal. E.g., Spina v. Department of Homeland Sec., 470 F.3d 116, 124 (2d Cir. 2006) (quotation omitted). District courts retained jurisdiction only over an alien's challenge to his detention in custody by the immigration authorities. Hernandez v. Gonzales, 424 F.3d 42, 42-43 (1st Cir. 2005) (citing H.R. Cong. Rep. No. 109-72, at 2873 (May 3, 2005) ("As indicated in the legislative history of the Act, those provisions were not intended to "preclude habeas review over challenges to detention that are independent of challenges to removal orders.") and collecting cases)).
This is an unsettled area of law. The Second Circuit has not directly addressed the factual circumstances presented by Singh's case, and district courts throughout the country have reached differing conclusions on the effect of the REAL ID Act on such claims. Also unsettled is the question of whether federal district courts have subject matter jurisdiction over claims attacking the legality ...