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Kabenga v. Holder

United States District Court, S.D. New York

January 2, 2015

MUSAFIRI G. KABENGA, Petitioner,
v.
ERIC H. HOLDER, Jr., et al., Respondents

For Petitioner: Amy V. Meselson, Esq., Legal Aid Society, New York, NY.

For Respondents: Shane P. Cargo, Assistant U.S. Attorney, Southern District of New York, New York, NY.

Page 481

OPINION AND ORDER

Shira A. Scheindlin, United States District Judge.

I. INTRODUCTION AND BACKGROUND

Musafiri Kabenga is a Congolese national who first came to the United States in 1985.[1] In 1993, he became a lawful permanent resident (" LPR" ) after marrying a United States citizen and successfully petitioning for a status adjustment.[2] In 2012, Kabenga was removed from the United States on the basis of a 2002 guilty plea for aggravated assault under Texas state law.[3]

On July 28, 2014, Kabenga returned to the United States and sought admission at John F. Kennedy Airport (" JFK" ), believing -- mistakenly -- that he was permitted to return to the United States one year after his removal order.[4] Upon arrival at JFK, Kabenga was placed into " expedited removal" proceedings, and his case was referred to immigration court, where Kabenga sought to challenge the validity of his 2012 removal order.[5] On November 10, 2014, the immigration court held that it lacked jurisdiction to consider the validity of the 2012 removal order; it was only authorized to examine whether the order had, in fact, issued.[6] Finding that it had, the immigration judge affirmed the July 2014 expedited removal order.[7]

Kabenga has filed a petition for Writ of Habeas Corpus before this Court, advancing the same argument as he advanced before the immigration judge. Kabenga believes that his 2012 removal order was legally deficient. In essence, he argues that under governing Fifth Circuit law, his 2002 offense was not a " crime of violence," as the immigration court and Board of Immigration Appeals (" BIA" ) held at the

Page 482

time.[8] If so, Kabenga maintains that the order " is invalid and must be deemed a legal nullity," [9] which would mean that his LPR status was never properly revoked, and that he remains an LPR to this day -- making removal, expedited or not, improper.

At this juncture, the question before this Court is whether Kabenga's expedited removal should be stayed pending the resolution of his petition for a Writ of Habeas Corpus. That question turns primarily on a threshold jurisdictional issue: may this Court, pursuant to its federal habeas jurisdiction, examine the legal sufficiency of Kabenga's 2012 removal in order to determine whether he is still an LPR? Because I conclude that the answer is yes, and because the rest of the stay factors tilt in Kabenga's favor, his motion is GRANTED.

II. APPLICABLE LAW

A. Stays of Removal

Stays of removal are governed by a four-factor test. Courts must consider: (1) whether the applicant has shown a likelihood of success on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public ...


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