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You v. Nielsen

United States District Court, S.D. New York

August 2, 2018

YOU, XTU QING, aka YU, XIAN CHIN, Petitioner,
KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; THOMAS DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; STEVE AHRENDT, in his capacity as Warden of New Jersey Bergen Comity Jail; and MICHAEL SALDINO, hi his capacity as Sherriff of Bergen County, NJ, Respondents.



         On June 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 requests.[1]


         Petitioner 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. ¶ 6.[2] 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.

         In 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.

         While 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.

         In 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. N.

         On May 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. ¶ 13.

         Later 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 2.

         Petitioner 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.

         Specifically, 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.

         On June 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.


         I. Jurisdiction

         As a threshold matter, Respondents[3] 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.[4] 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.

         A. § 1252(g)

         Under 8 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”).

         In 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 § 1252(g)).

         The 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. Specifically,

[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 discretion.

Id. at 484-85 (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03[2][a] (1998)). It was this reason, the AADC Court explained, that motivated Congress to limit judicial review of these particular, discrete acts.

         Under 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).

         Put 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”).

         Respondents 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.

         As the 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 jurisdiction.

         B. §§ 1252(a)(5) and (b)(9)

         Respondents' 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 order.”

         Respondents 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.[5] 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.

         The 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 omitted).

         The 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 review.

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 ยงยง 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 custody, ...

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