Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Michalski v. Decker

United States District Court, S.D. New York

January 4, 2018

THOMAS DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; KIRSTJEN NIELSEN, in her official capacity as Secretary of the U.S. Department of Homeland Security; JAMES MCHENRY, in his official capacity as Acting Director of the Executive Office for Immigration Review; JEFFERSON BEAUREGARD SESSIONS III, in his official capacity as the Attorney General of the United States; and U.S. DEPARTMENT OF HOMELAND SECURITY, Respondents.

          OPINION & ORDER

          WILLIAM H. PAULEY III, District Judge

         Petitioner Mikolaj Michalski, brings this writ of habeas corpus, alleging that his continued detention without a probable cause determination by a neutral and detached magistrate violates his constitutional rights. Michalski names the U.S. Department of Homeland Security and various government officials as Respondents, including Thomas Decker, New York Field Office Director for U.S. Immigration and Customs Enforcement (“ICE”); Kirstjen Nielsen, U.S. Secretary of Homeland Security; James McHenry, Acting Director of the Executive Office for Immigration Review; and Jefferson Beauregard Sessions III, U.S. Attorney General. Respondents seek to dismiss the petition for lack of subject matter jurisdiction and alternatively, for failure to exhaust administrative remedies. Threshold matters aside, Respondents also argue that Michalski has no viable constitutional claim. For the reasons that follow, the writ of habeas corpus is denied without prejudice.


         The facts described below are drawn from Michalski's petition, affidavits and documents appended thereto, affidavits and documents submitted in support of the Government's return, and the barrage of letters filed by both sides since then. ICE agents arrested Michalski on October 31, 2017. They believed that Michalski-purportedly a citizen of Poland-was removable from the United States because he overstayed a student visa. (Petition for Writ of Habeas Corpus, ECF No. 1 (“Pet.”) ¶ 1; Return to Habeas Petition, ECF No. 12 (“Gov't's Return”), Ex. 1 (“Notice to Appear”), Ex. 2 (“I-213 Form”); see also Declaration of Deportation Officer Jeffrey Berndt, ECF No. 18 (“Berndt Decl.”) ¶¶ 5-7.) In a sworn statement on October 31, Michalski indicated his fear that he would face harm if he were to return to Poland and requested an Immigration Court hearing to determine whether he could remain in the United States. (Gov't's Return, Ex. 3 (“Michalski Aff.”), at 8.) Michalski's Notice of Custody Determination reveals that since October 31, he has been detained by ICE pursuant to 8 U.S.C. § 1226(a) at the Bergen County Jail in New Jersey. (Pet. ¶¶ 2, 13, 33; Gov't's Return, Ex. 4 (“Notice of Custody Determination”); see also Berndt Decl. ¶ 3.) Michalski also requested review of ICE's initial custody determination by an immigration judge. (See Notice of Custody Determination, at 2, 4.) Respondents never produced Michalski's student visa, nor did they produce any arrest warrant.

         On December 7, 2017, Michalski appeared before an immigration judge in New York for a Master Calendar Hearing. (Pet. ¶ 3, 35; Berndt Decl. ¶ 10.) At that hearing, the Assistant Chief Counsel declined to present any evidence in support of ICE's removal charges. That refusal purportedly represented a change in ICE's policy of presenting such evidence to immigration judges and serving it on the accused at the outset of removal proceedings.[1] (Pet. ¶¶ 4-6, 27, 29-32, 38; Oshiro Decl. ¶ 19.) Michalski's counsel denied the allegations and the removability charge. (Pet. ¶ 39; Berndt Decl. ¶ 10.) Although Michalski's counsel also moved for an immediate hearing to assess whether the government had probable cause to arrest and detain him, the immigration judge instead scheduled a contested removability hearing and bond hearing for January 5, 2018.[2] (Pet. ¶ 6, 41-42; Berndt Decl. ¶ 10.)

         Michalski filed this writ on December 7, 2017, seeking his immediate release or an immediate probable cause hearing on the same day that ICE brought him before an immigration judge in New York. He argues that his continued detention without a prompt, impartial assessment of whether his arrest and detention is justified violates the Fourth and Fifth Amendments to the U.S. Constitution. (Pet. ¶¶ 10-12.) This Court directed Respondents to show cause as to why the petition should not be granted. On December 14, 2017, this Court conducted a hearing and directed the parties to brief the threshold issues of jurisdiction and exhaustion of administrative remedies.


         The parties raise three dispositive issues: (1) whether this Court has subject matter jurisdiction to entertain this action; (2) whether exhaustion of administrative remedies poses a bar to adjudication; and (3) whether Michalski's continued detention violates the Fourth Amendment or Fifth Amendment as a matter of law.

         I. Subject Matter Jurisdiction

         Respondents seek dismissal on the basis that any issue arising out of or relating to removal proceedings may only be appealed to the Second Circuit pursuant to 8 U.S.C. § 1252(b)(9). In the alternative, Respondents argue that this action is barred by 8 U.S.C. § 1252(g). However, neither provision deprives this Court of jurisdiction to adjudicate this proceeding.[3]

         A. Section 1252(b)(9)

         Under § 1252(b)(9), “[j]udicial 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 under this subchapter shall be available only in judicial review of a final order [of removal].” 8 U.S.C. § 1252(b)(9). Section 1252(a)(5) in turn provides that “[n]otwithstanding any other provision of law . . . including [§ 2241], or any other habeas corpus provision, . . . a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review.” 8 U.S.C. § 1252(a)(5); see 8 U.S.C. § 1252(b)(2) (requiring the petition for review to be filed with the “court of appeals for the judicial circuit in which the immigration judge completed the proceedings”).

         The Supreme Court has characterized § 1252(b)(9)'s broad language as an “unmistakable zipper clause” that “channels judicial review of all immigration-related decisions and actions to the court of appeals.” Calcano-Martinez v. INS, 232 F.3d 328, 339 (2d Cir. 2000) (citing Reno v. American-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 482-83 (1999)). In other words, this provision, introduced by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), is simply meant to “consolidat[e] all claims that may be brought in removal proceedings into one final petition for review of a final order in the court of appeals.”[4] Calcano-Martinez, 232 F.3d at 340. But importantly, the Second Circuit explained that because § 1252(b)(9) “concerns judicial review in a civil action brought under 28 U.S.C § 1331 rather than review under habeas corpus, ” it left habeas review under 28 U.S.C. § 2241 intact. Calcano-Martinez, 232 F.3d at 340.

         Following the Supreme Court's expansion of judicial review of habeas petitions for criminal aliens in INS v. St. Cyr, 533 U.S. 289 (2001), Congress passed the REAL ID Act of 2005 (the “REAL ID Act”). The REAL ID Act amended § 1252(b)(9) to add that “no court shall have jurisdiction, by habeas corpus under [§ 2241] or any other habeas corpus provision . . . to review such an order [of removal] or such questions of law or fact” except as otherwise provided in § 1252.” See 8 U.S.C. § 1252(b)(9). In doing so, the REAL ID Act eliminated § 2241 habeas relief “as a means to review orders of removal” in order to “‘limit all aliens to one bite at the apple . . . [and thereby] streamline what the Congress saw as uncertain and piecemeal review of orders of removal, divided between the district ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.