United States District Court, S.D. New York
ANALISA TORRES, UNITED STATES DISTRICT JUDGE
14, 2018, Petitioner, Xiu Qing You, a Chinese national, filed
a petition for habeas corpus following his arrest and
detention pursuant to a final order of removal. See
First Am. Pet., ECF No. 5. By order to show cause
hand-delivered to the Court on June 16, 2018, Petitioner
sought a temporary stay of removal, and, subsequently. Pet.
Reply, ECF No. 16, release from custody. At a show cause
hearing on June 20, 2018, see Order to Show Cause,
ECF No. 11, the Court issued an oral order granting the
requested relief pending the resolution of the habeas
petition. Order of Release, ECF No. 17. The Court issues this
opinion to provide its reasons for granting Petitioner's
is a 39-year-old husband to a United States citizen, with
whom he has two young children. Petitioner first arrived in
the United States in January 2000 without valid entry
documents. First Am. Pet. ¶ 15; Syed Decl. ¶ 5, ECF
No. 15. He was paroled into the United States, detained, and
issued a notice to appear before an immigration judge. First
Am. Pet. ¶ 15; id., Ex. O; Syed Decl. ¶
On April 7, 2000, Petitioner was released from detention on a
$3, 000 bond. Syed Decl. ¶ 7. On December 13, 2000, an
immigration judge ordered him removed to China. First Am.
Pet. ¶ 16; Syed Decl. ¶ 8. Petitioner appealed,
but, on November 12, 2002, the Board of Immigration Appeals
(“BIA”) affirmed the immigration judge's
decision. First Am. Pet. ¶ 16; Syed Decl. ¶ 8.
Nevertheless, U.S. Immigration and Customs Enforcement
(“ICE”) did not execute the removal order.
2008, Petitioner filed a motion to reopen his removal
proceedings, which the BIA denied as untimely. Syed Decl.
¶ 9. In 2010, the BIA denied a second motion to reopen
as untimely and number-barred. Id. In 2016, the BIA
denied a third motion to reopen. Id.
his struggles with the immigration system were ongoing,
Petitioner began a family in the United States. In 2007,
Petitioner married Yumei Chen in a traditional Chinese
ceremony. First Am. Pet. ¶ 17. In 2012, the couple had
their first child, a daughter. Id. ¶ 18. In
2013, the couple legally registered their marriage in New
York City. Id. ¶ 17. At that time,
Petitioner's wife was a legal permanent resident.
Id. In 2014, the couple had a second child, a son.
Id. ¶ 18.
2015, Petitioner's wife became a U.S. citizen and filed
an I-130 petition to classify Petitioner as her immediate
relative. Id. ¶ 20. Petitioner filed an I-485
application for an adjustment of status to legal permanent
resident. Id. Petitioner received a notice
scheduling his I-485 interview-colloquially, a “green
card” interview-for May 23, 2018. First Am. Pet., Ex.
23, 2018, Petitioner and his wife appeared at the U.S.
Citizenship and Immigration Services (“USCIS”)
offices for the I-485 interview. First Am. Pet. ¶ 24. At
the interview, the couple was questioned about their
relationship. Id. ¶ 25. But, before being
questioned on his I-485 petition, ICE officers arrested
Petitioner pursuant to the 2002 order of removal.
Id. Petitioner remained in the custody of ICE,
which, prior to this Court's order releasing Petitioner,
intended to deport him no later than July 1, 2018. Syed Decl.
on the same day, USCIS granted the I-130 petition, First Am.
Pet., Ex. L, but denied Petitioner's I-485 application,
First Am. Pet., Ex. O. USCIS found that Petitioner was
eligible for an adjustment of status, but concluded that his
entry into the United States without documentation, failure
to depart the country, unlawful presence, and employment were
adverse factors that counseled against an exercise of
discretion in favor of adjustment of status. Id. at
has since filed a motion to reopen the adjustment of status
decision, filed for a stay of removal with the BIA, and filed
a fourth motion to reopen his removal proceedings with the
BIA. First Am. Pet. ¶¶ 33, 40. Additionally, on
June 14, 2018, Petitioner filed the instant habeas petition
arguing that his arrest and detention violated the
Immigration and Nationality Act (“INA”) and
related regulations, the Due Process Clause of the
Constitution, and the Administrative Procedure Act
(“APA”). See generally id.
Petitioner argues that, under the INA and the Constitution,
he should have been afforded notice, an opportunity to be
heard, and a determination that he was either dangerous or a
flight risk before being arrested and detained on May 23,
2018. Id. ¶¶ 44-5, 47- 48. He additionally
argues that his arrest and detention at his green card
interview violate both the INA's statutory scheme
permitting aliens like Petitioner to seek adjustment of
status and his due process right to seek relief via
adjustment of status. Id. ¶¶ 51-52, 54-55.
Finally, Petitioner argues that USCIS committed legal error
by considering irrelevant factors when the agency denied his
adjustment of status application. Id. ¶ 51.
16, 2018, Petitioner moved by order to show cause for a
temporary stay of removal. The Court denied his motion, on
jurisdictional grounds. ECF No. 10. Petitioner filed a motion
for reconsideration, which the Court granted. ECF No. 11. The
Government filed its opposition to the stay on June 19, 2018,
Resps. Opp., ECF No. 14, and Petitioner filed his reply the
next day, June 20, 2018, and requested release from custody,
Pet. Reply. Following a show cause hearing, the Court granted
Petitioner's requests for a stay of removal and release
from custody pending the resolution of his habeas petition.
The discussion that follows details the Court's reasoning
for granting Petitioner's requests.
threshold matter, Respondents argue that the Court lacks
jurisdiction to grant Petitioner's requested relief.
First, Respondents argue that the Court lacks subject matter
jurisdiction because 8 U.S.C. § 1252(g) bars the Court
from adjudicating any legal challenge that “aris[es]
from the decision or action by the Attorney General to . . .
execute removal orders against”
Petitioner. 8 U.S.C. § 1252(g); see also
Resps. Opp. at 5-6. Second, Respondents argue that 8 U.S.C.
§§ 1252(a)(5) and (b)(9) channel judicial review to
the federal appellate courts via petitions for review. Resps.
Opp. at 6-7. Finally, Respondents argue that §
1252(a)(2)(B) precludes district courts from reviewing a
denial of adjustment of status. Id. at 10.
Respondents' arguments are unavailing.
U.S.C. § 1252(g), “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.” Respondents argue
that the Supreme Court's interpretation of this provision
“alone” bars judicial review, id. at 7,
but Respondents mischaracterize the Supreme Court's
decision in Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471 (1999) (hereinafter
AADC, the Supreme Court rejected the contention that
§ 1252(g) “is a sort of ‘zipper' clause
that says ‘no judicial review in deportation cases
unless this section provides judicial review.'”
AADC, 525 U.S. at 482. As the Supreme Court
explained, “[i]n fact, what § 1252(g) says is much
narrower. The provision applies only to three discrete
actions that the Attorney General may take: her
‘decision or action' to ‘commence
proceedings, adjudicate cases, or execute
removal orders.'” Id. (quoting §
AADC Court reasoned that it was appropriate to limit
judicial review to these “three discrete actions”
in light of legislative history. In the past, as now, the
Secretary enjoyed prosecutorial discretion to decline to
commence proceedings, adjudicate cases, or execute removal
orders. The Secretary's decision not to prosecute certain
cases had prompted litigation in other cases attempting to
compel the Secretary to use her discretion not to prosecute.
Essentially, “[s]ince no generous act goes unpunished,
. . . the . . . exercise of this discretion opened the door
to litigation in instances where the [Secretary] chose
not to exercise it.” Id. at 484.
[e]fforts to challenge the refusal to exercise such
discretion on behalf of specific aliens sometimes [were]
favorably considered by the courts, upon contentions that
there was selective prosecution in violation of equal
protection or due process, such as improper reliance on
political considerations, on racial, religious, or
nationality discriminations, on arbitrary or unconstitutional
criteria, or on other grounds constituting abuse of
Id. at 484-85 (quoting 6 C. Gordon, S. Mailman,
& S. Yale-Loehr, Immigration Law and
Procedure § 72.03[a] (1998)). It was this
reason, the AADC Court explained, that motivated
Congress to limit judicial review of these particular,
AADC, therefore, § 1252(g) prohibits judicial
review of challenges to the discretionary decision whether to
execute a removal order. But here, the habeas petition does
not challenge the discrete decision to remove Petitioner. The
question before the Court is not why the Secretary chose to
execute the removal order. Rather, the question is whether
the way Respondents acted accords with the Constitution and
the laws of this country. Whether Respondents' actions
were legal is not a question of discretion, and, therefore,
falls outside the ambit of § 1252(g).
another way: Respondents are empowered to remove Petitioner
at their discretion. But they cannot do so in any manner they
please. Respondents could not, for example, execute removal
by dropping Petitioner on a life raft in the middle of the
Atlantic Ocean. Nor, to use a less far-fetched example, could
they indefinitely detain Petitioner, even for the purposes of
executing a final order of removal. Zadvydas v.
Davis, 533 U.S. 678 (2001). That courts can review
“how” Respondents exercise their discretion is,
therefore, an uncontroversial proposition. See,
e.g., Pensamiento v. McDonald, No. 18 Civ.
10475, 2018 WL 2305667, at *2 (D. Mass. May 21, 2018)
(concluding that §§ 1252(a)(5), (b)(9), and (g) do
not bar district courts from “review[ing] habeas
challenges to unlawful immigration detention”); Nak
Kim Chhoeun v. Marin, No. 17 Civ. 1898, 2018 WL 1941756,
at *4 (C.D. Cal. Mar. 26, 2018) (concluding that §§
1252(a)(5), (b)(9), and (g) “restrict district court
review over claims contesting the merits or validity of a
removal order, ” but not “the manner in which
[petitioners] were re-detained” after being released);
Michalski v. Decker, 279 F.Supp.3d 487, 495
(S.D.N.Y. 2018) (concluding that § 1252(g) did not bar
petitioner's challenge to his detention because detention
“is independent from the decision or action to commence
a removal proceeding”).
attempt to forestall this conclusion by emphasizing that
§ 1252(g) prohibits judicial review of any claims
“arising from” the decision to execute an order
of removal. Resps. Opp. at 7. But as recently as this year,
the Supreme Court has reiterated that, “when confronted
with capacious phrases like ‘arising from,' we . .
. eschew ‘uncritical literalism' leading to
results that ‘no sensible person could have
intended.'” Jennings v. Rodriguez, 138
S.Ct. 830, 840 (2018) (quoting Gobeille v. Liberty Mut.
Ins. Co., 136 S.Ct. 936, 943 (2016)). Referencing §
1252(g) as an example, the Supreme Court explained that it
“did not interpret [§ 1252(g)] to sweep in any
claim that can technically be said to ‘arise from'
the three listed actions of the Attorney General. Instead, we
read the language to refer to just those three specific
actions themselves.” Id. at 841.
Supreme Court originally reasoned in AADC, this
narrow reading is appropriate given that § 1252(g)
“was directed against a particular evil: attempts to
impose judicial constraints upon prosecutorial
discretion.” AADC, 525 U.S. at 485 n.9. The
majority in AADC was unperturbed by the
dissent's protest that its narrow reading parsed the
statute “too finely.” Id. Even “if
it did, ” the majority concluded, “we would think
that modest fault preferable to the exercise of such a novel
power of nullification.” Id. Applied to the
instant case, therefore, § 1252(g) is no bar to
§§ 1252(a)(5) and (b)(9)
arguments that §§ 1252(a)(5) and (b)(9) strip
jurisdiction also fail. Under 8 U.S.C. § 1252(a)(5),
“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 of an order of
removal.” 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
. . . shall be available only in judicial review of a final
argue that, taken together, these provisions strip district
courts of jurisdiction over any claims “arising
from” orders of removal, including jurisdiction over
stays of removal. Resps. Opp. at 8-10. Respondents urge that
only the courts of appeals may review such claims.
Id. However, the cases that Respondents rely upon to
support their argument fail to address the Supreme
Court's more recent plurality opinion in
Jennings. In Jennings, as discussed above,
the Supreme Court disavowed judicial overreliance on
“capacious phrases like ‘arising
from.'” Jennings, 138 S.Ct. at 840. More
importantly, the Supreme Court held that this
“capacious” language in § 1252(b)(9) does
not deprive courts, including the Supreme Court, of
jurisdiction to hear every possible question of law that
arise from an order of removal. Id.
Jennings Court considered several hypothetical
claims a petitioner could make, such as “inhumane
conditions of confinement” under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
“state-law claim[s] for assault against a guard or
fellow detainee, ” or tort claims against a truck
driver who crashes into an ICE transport bus. Id.
The Court reasoned that such claims would “arise from
actions taken to remove the aliens, ” but concluded
that “cramming judicial review of [such claims] into
the review of final removal orders would be absurd.”
Id. (internal alterations and quotation marks
Supreme Court was especially concerned with the risk that
[i]nterpreting “arising from” in this extreme way
would also make claims of prolonged detention effectively
unreviewable. By the time a final order of removal was
eventually entered, the allegedly excessive detention would
have already taken place. And of course, it is possible that
no such order would ever be entered in a particular case,
depriving that detainee of any meaningful chance for judicial
Id. Similarly, here, interpreting §§
1252(a)(5) and (b)(9) to bar Petitioner's claims
challenging his arrest and detention unless those claims were
“cramm[ed]” into a petition for review of a
removal order would render such claims “effectively
unreviewable.” Id. Petitioner's right to
file a petition for review of his 2002 order of removal has
long since expired. Respondents' reading of §§
1252(a)(5) and (b)(9) would therefore permit ICE to arrest,
detain, and remove Petitioner without any statutory or
constitutional constraints. Indeed, Petitioner would not only
be barred from bringing claims against ICE. While in ICE