Opinion
Civil Action 20 Civ. 5059 (VSB) (SLC)
01-27-2020
HAZAEA MOHAMMED SENAN ALOMAISI, Petitioner, v. THOMAS R. DECKER, New York Field Office Director, Department of Homeland Security, Immigrations and Customs Enforcement, et al., Respondents.
HONORABLE VERNON S. BRODERICK, United States District Judge.
REPORT AND RECOMMENDATION
SARAH L. CAVE, United States Magistrate Judge.
I. INTRODUCTION
Hazaea Mohammed Senan Alomaisi (“Alomaisi”), a citizen of Yemen, to which he was removed on January 28, 2020, filed a petition for a writ of habeas corpus and for mandamus (the “Petition”), asking this Court to order various federal government agencies and officials (the “Respondents”) to return him from Yemen to the United States pending adjudication of the motion to reopen his removal proceedings by the Board of Immigration Appeals (the “BIA”). (ECF No. 1 at 2). Respondents have moved to dismiss the Petition pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the Court lacks jurisdiction over Alomaisi's claims and that he has otherwise failed to state a plausible claim for relief (the “Motion”). (ECF Nos. 8-10).
The federal government agencies named as Respondents are the Department of Homeland Security (“DHS”), DHS Immigration and Customs Enforcement (“ICE”), and DHS U.S. Customs and Border Protection (“USCBP”). (See ECF No. 1). As reflected in the recently-updated caption of this case, the federal officials named as Respondents are: Thomas R. Decker, New York Field Office Director, DHS ICE; Tae Johnson, Senior Official Performing the Duties of Director of ICE; Troy A. Miller, Senior Official Performing the Duties of Commissioner of USCBP; Marty C. Raybon, Acting Director, New York Field Office, USCBP; Salvatore Ingrassia, Acting Port Director, JFK Port of Entry, USCBP; David Pekoske, Acting Director of DHS; and Monty Wilkinson, Acting Attorney General of the United States. (See ECF Nos. 18, 19).
For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED and the Petition be DISMISSED.
II. BACKGROUND
A. Factual Background
The Court draws the following summary of the facts underlying the Petition from the Petition (ECF No. 1), the Declaration of Supervisory Detention and Deportation Officer Christopher H. Smith (ECF No. 10), and Alomaisi's Statement in support of his opposition to the Motion (ECF No. 13-1), as well as the exhibits referenced in and attached to those filings. See Barros Anguisaca v. Decker, 393 F.Supp.3d 344, 346 n.2 (S.D.N.Y. 2019) (considering facts set forth in petition, government's opposition, and exhibits attached to supporting declarations); Yearwood v. Barr, 391 F.Supp.3d 255, 258 (S.D.N.Y. 2019) (summarizing facts taken from petition and parties' declarations). The facts are largely undisputed, except as noted.
1. Alomaisi
Alomaisi was born in Sanhan Village, Sanaa, Yemen, in 1978. (ECF Nos. 1 ¶ 19; 13-1 ¶ 1). On May 11, 1998, Alomaisi entered the United States based on a non-immigrant B-2 visitor visa that granted him permission to remain in the United States until August 10, 1998. (ECF No. 10 ¶ 5; see ECF No. 1 ¶ 20). After his visa expired, Alomaisi remained in the United States without permission. (ECF No. 10 ¶ 5).
From 2001 until 2008, Alomaisi was married to Diane Vogel, a United States citizen who petitioned for him to adjust his status to lawful permanent resident. (ECF No. 1 ¶ 21). The couple missed at least one appointment with United States Citizenship and Immigration Services (“USCIS”), which ultimately denied the application for adjustment of status. (Id.)
While in the United States, Alomaisi was employed as a driver and digital editor at PPR Inc. and as a freelance photojournalist. (ECF No. 1 ¶ 24). He “engaged in many demonstration activities against the Houthi rebels who control much of northern Yemen, as well as demonstrations and campaigns against those militias supported by the Kingdom of Saudi Arabia (KSA) and the United Arab Emirates (UAE).” (Id. ¶ 25). In the Petition, Alomaisi describes several demonstrations, some as recently as 2019, in which he participated by taking photographs and making signs. (Id. ¶¶ 26-32). In 2016, Alomaisi posted on YouTube a video he had made about Yemen, following which his family members in Yemen were told that if he continued such activities, “it would put the lives of his family in jeopardy.” (Id. ¶ 29). As a result of his association with well-known Yemeni political activists in the United States, he believes he is “in the spotlight throughout the world.” (Id. ¶ 32).
Since returning to Yemen, Alomaisi “live[s] in constant fear every single day” in an area, Aden, that is “very dangerous.” (ECF No. 13-1 ¶ 15). He alleges that people like him, who have criticized the Yemeni government, face harm from Saudi Arabian forces and UAE forces stationed in the southern part of the country, and from Houthi rebels located in the northern part of the country. (Id.; see ECF No. 1 ¶ 40). Out of fear of being recognized and exposed, he has stayed in his hotel room most of the time and does not use his real name. (ECF No. 13-1 ¶ 15). On August 2, 2020, while stopped at a checkpoint, his friends lied about his identity to keep him “from getting dragged out of the car and killed.” (Id.)
2. Removal Proceedings
On June 25, 2002, the Immigration and Naturalization Service (“INS”) arrested Alomaisi and charged him in a Notice to Appear (“NTA”) as removable for having remained in the United States longer than permitted in violation of the Immigration and Naturalization Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). (ECF Nos. 10 ¶ 6, 10-1 at 4). The INS also served Alomaisi with a Notice of Custody Determination, which notified him that, pursuant to INA § 236(a), 8 U.S.C. § 1226(a), it had determined to detain him pending the outcome of his removal proceedings but that he could seek a bond hearing before an Immigration Judge (“IJ”). (ECF No. 10 ¶ 6). On July 3, 2002, the INS filed the NTA in the Immigration Court in Newark, New Jersey, with the effect of commencing removal proceedings against Alomaisi. (Id. ¶ 7). On July 9, 2002, after Alomaisi posted (through an obligor) a $3,000 bond set by an IJ at a bond hearing, the INS released him from detention. (Id. ¶ 8).
Pursuant to the Homeland Security Act of 2002, Pub. L. 107-296 § 441, 116 Stat. 2135 (2002), 6 U.S.C. § 202(3), on March 1, 2003, the INS ceased to exist as an independent agency within the Department of Justice and its functions were transferred to DHS. Within DHS ICE is responsible for enforcing federal immigration laws. See Duamutef v. I.N.S., 386 F.3d 172, 174 n.1 (2d Cir. 2004). The Court will refer to INS and ICE, depending on the time period.
Alomaisi was represented by counsel during his removal proceedings, during which he admitted the factual allegations in the NTA, conceded the charge of removability, filed an application for adjustment of status, and challenged the denial of his petition for a visa. (ECF No. 10 ¶ 9). On February 28, 2005, an IJ held a hearing and issued an oral decision, finding Alomaisi removable and denying his application for relief from removal. (Id. ¶ 10; ECF No. 10-2 at 4-10; ECF No. 1 ¶ 21). Alomaisi appealed to the BIA, which dismissed his appeal on May 31, 2006, such that as of that date he was subject to a Final Order of Removal. (ECF Nos. 1 ¶ 22; 10 ¶ 10; 10-2 at 3).
On August 28, 2006, ICE issued a notice requesting that the obligor on Alomaisi's bond surrender him to ICE at 26 Federal Plaza on October 24, 2006. (ECF No. 10 ¶ 11). Alomaisi claims not to have received ICE's notice. (ECF No. 13-1 ¶ 7). Alomaisi did not surrender on that date, in breach of his bond. (ECF No. 10 ¶ 11).
Four and one-half years later, on March 30, 2011, ICE arrested Alomaisi in Elmsford, New York, and transported him to 26 Federal Plaza for purposes of executing his Final Order of Removal. (ECF No. 10 ¶ 12). ICE undertook to secure a travel document to remove him to Yemen. (Id.) Despite his arrest, Alomaisi did not then, nor during the next nearly nine years, seek from ICE a stay of his removal or file a motion with the IJ or the BIA to reopen his Final Order of Removal. (Id.) On July 1, 2011, unable to secure a travel document to remove Alomaisi to Yemen, ICE released Alomaisi on an Order of Supervision (“OSUP”). (Id. ¶ 13). Between July 1, 2011 and January 21, 2020, Alomaisi remained subject to the OSUP and reported periodically, on 20 occasions, to ICE as directed. (Id. ¶ 14; ECF No. 13-1 ¶ 8).
On March 28, 2019, ICE resumed its efforts to secure a travel document to remove Alomaisi to Yemen. (ECF No. 10 ¶ 15). On October 1, 2019, when he reported to ICE pursuant to his OSUP, Alomaisi's Deportation Officer told him that ICE was “actively working” to obtain a travel document to remove him to Yemen, and that once ICE received the travel documents, it would remove him to Yemen. (Id. ¶ 16; ECF No. 13-1 ¶ 9). On October 8, 2019, ICE submitted a request through the electronic Travel Document System (“ETD”) for a travel document for Alomaisi. (ECF No. 10 ¶ 17). On December 6, 2019, ICE received from the Government of Yemen a travel document for Alomaisi that was valid from December 3, 2019 until March 3, 2020. (Id. ¶ 18). On December 10, 2019, when Alomaisi reported to ICE, Smith instructed him to report back to ICE on January 21, 2020, at which time he would be detained for removal to Yemen. (Id. ¶ 19). Alomaisi admits that he was told to report to ICE on January 21, 2020, but disputes that he was told he would be detained for removal to Yemen. (ECF No. 13-1 ¶ 10).
On January 21, 2020, when Alomaisi reported to 26 Federal Plaza as directed, ICE revoked the OSUP and took him into custody to execute the Final Order of Removal. (ECF Nos. 1 ¶ 33; 10 ¶ 20; 13-1 ¶ 11). ICE gave Alomaisi an informal interview, during which he “begg[ed] and plead[ed]” not to return to Yemen out of fear that he would be killed. (ECF Nos. 10 ¶ 20; 13-1 ¶ 11). From January 21, 2020 until January 28, 2020, Alomaisi was detained at Hudson County Correctional Facility, where he had access to a telephone and the law library and was given a list of free legal service providers. (ECF Nos. 10 ¶ 21; 13-1 ¶ 12). Alomaisi hired counsel, who represents him in this action. (ECF No. 13-1 ¶ 12). Alomaisi alleges that ICE officers told him that “because he already had a final order of removal he could not see a judge, and there was nothing more he could do about it.” (ECF No. 1 ¶ 34).
On January 28, 2020, Alomaisi was taken to John F. Kennedy Airport (“JFK”), where he was boarded on a commercial flight to Yemen (via Rome and Egypt) pursuant to his Final Order of Removal. (ECF No. 10 ¶ 22; ECF No. 1 ¶ 37). Alomaisi claims that on January 28, 2020, he was transferred first to 26 Federal Plaza, where his counsel tried to see him but was told Alomaisi was “already gone, ” and then to JFK, where he was “forced” onto the plane in handcuffs while ICE officers ignored his pleas not to be sent back to Yemen. (ECF Nos. 1 ¶¶ 35-36; 13-1 ¶¶ 12-13).
According to ICE's records, between July 1, 2011, when he was released from ICE detention, and January 28, 2020, Alomaisi did not file any applications with ICE, the IJ, or the BIA challenging his Final Order of Removal. (ECF No. 10 ¶ 22).
B. Procedural Background
1. Motion to Reopen
On April 7, 2020, Alomaisi's counsel filed on his behalf before the BIA a Motion to Reopen (the “Motion to Reopen”), which ICE opposed. (ECF No. 10 ¶ 23; ECF No. 1 ¶ 42). On November 20, 2020, the BIA denied the Motion to Reopen as untimely, because Alomaisi had not filed it within 90 days of the Final Order of Removal as required by INA § 240(c)(7)(A), (C), 8 U.S.C. § 1229a(c)(7)(A), (C), and 8 C.F.R. § 1003.2(c), and had not shown that an exception to the deadline applied (the “BIA's Nov. 20 Decision”). (ECF No. 15-1 at 3). The BIA nevertheless considered the merits of Alomaisi's claim that reopening was warranted based on the changed country conditions in Yemen and his own political activism, which he alleged made future persecution likely, and denied the Motion to Reopen on the ground that he had “not carried his burden to establish that this new evidence would likely change the outcome of these proceedings.” (Id. at 4-5). On December 18, 2020, Alomaisi filed in the United States Court of Appeals for the Second Circuit a petition for review (“PFR”) of the BIA's Nov. 20 Decision denying the Motion to Reopen. (ECF Nos. 16, 16-1).
2. The Petition
On July 1, 2020, Alomaisi filed the Petition in this Court. (ECF No. 1). Alomaisi asserts that he “is in the constructive physical custody of Respondents” because they controlled his removal to Yemen and control his “future movement to the United States.” (Id. ¶ 1). He alleges that his removal to Yemen before the adjudication of his Motion to Reopen involved several violations of the Constitution and federal statutes: (1) his Fifth Amendment Due Process right to “meaningfully apply for” asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) (ECF No. 1 ¶¶ 44, 48, 51, 54, 57); (2) his Due Process right to certain forms and information under 8 C.F.R. § 208.5 (id. ¶ 59); (3) statutory and regulatory violations in the manner in which the Final Order of Removal was executed (id. ¶ 60); (4) his Due Process right to an “orderly departure” and “to put his affairs in order” (ECF No. 1 ¶ 62); and (5) violations of the Administrative Procedures Act [cite] (“APA”). (ECF No. 1 ¶¶ 66-67; see ECF No. 9 (summarizing Alomaisi's claims)). Alomaisi also asserts a “Mandamus Claim” under 28 U.S.C. § 1361, seeking to be “put back into the position he was in prior to his removal from the United States” and to “not be detained by ICE pending the final outcome” of his Motion to Reopen. (ECF No. 1 ¶¶ 70-71).
In his Prayer for Relief, Alomaisi asks the Court to exercise jurisdiction and: (1) declare that his arrest, revocation of OSUP, detention, removal, and denial of access to counsel and the courts violated the Fifth Amendment's Due Process Clause; (2) issue a writ of habeas corpus “remedying” his unlawful removal and “restoring [him] to his status prior to illegal [sic] revocation” of his [OSUP] and unlawful execution of his removal order by ordering his return to the United States and reinstatement of his [OSUP]”; (3) enjoin “Respondents from taking any further action to arrest, detain, deport, or otherwise take adverse action against” him pending adjudication of his Motion to Reopen (including any appeals); and (4) award him attorneys' fees and costs. (ECF No. 1 at 44-45).
On August 3, 2020, Respondents filed the Motion, asking the Court to dismiss Alomaisi's Petition on the grounds that: (1) the Court lacks jurisdiction because Alomaisi's claims “all pertain to the execution of his removal order, and thus they fall within the ambit of the INA's jurisdictionstripping provisions”; (2) Alomaisi's claims “are not cognizable in habeas corpus” and he fails to satisfy the “in-custody” requirement; (3) the Court lacks jurisdiction to order Alomaisi's return to the United States; and (4) certain of his claims are moot. (ECF No. 9 at 15). On August 17, 2020, Alomaisi filed his Opposition to the Motion, contesting certain of Respondents' factual assertions, arguing that he is not attacking the Final Order of Removal and therefore the Court does have subject matter jurisdiction over the Petition, and that he has stated claims for habeas corpus and mandamus relief. (ECF No. 13). On August 24, 2020, Respondents filed a Reply in further support of the Motion. (ECF No. 14). After briefing was completed, the parties notified the Court of the BIA's Nov. 20 Decision and Alomaisi's PFR. (ECF Nos. 15, 16).
III. DISCUSSION
A. Legal Standards
“‘Determining the existence of subject matter jurisdiction is a threshold inquiry.'” O'Diah v. TBTA-Triboroug[h] Bridge & Tunnel Auth., No. 19 Civ. 7586 (VSB), 2020 WL 5849395, at *1 (S.D.N.Y. Oct. 1, 2020) (quoting Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal citations omitted), aff'd, 561 U.S. 247 (2010)). “‘A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'” Anders v. Verizon Comms. Inc., No. 16 Civ. 5654 (VSB), 2018 WL 2727883, at *4 (S.D.N.Y. June 5, 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). When subject matter jurisdiction is challenged, the petitioner “is required to show that subject matter jurisdiction exists by a preponderance of the evidence.” Id. When analyzing a challenge to subject matter jurisdiction, “‘the district court must take all uncontroverted facts in the complaint . . . as true, and draw reasonable inferences in favor of the party asserting jurisdiction.'” Id. (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). Subject matter “‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'” Id. (quoting Morrison, 547 F.3d at 170) (internal citation omitted)). “[I]n resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ‘has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits.'” Id. (quoting Tandon, 752 F.3d at 243 (internal citation omitted)). The Court “must accept [petitioner's] ‘material factual allegations as true, '” but “‘argumentative inferences favorable to the party asserting jurisdiction should not be drawn.'” Asylum Seeker Advocacy Project v. Barr, 409 F.Supp.3d 221, 223-24 (S.D.N.Y. 2019) (quoting Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992)).
To state a claim that can survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Djangmah v. Magafara, No. 16 Civ. 6136 (VSB), 2018 WL 4080346, at *3 (S.D.N.Y. Aug. 26, 2018) (quoting Iqbal and Twombly). A claim has “‘facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'” Djangmah, 2018 WL 4080346, at *3 (quoting Iqbal, 556 U.S. at 678)). “‘Plausibility . . . depends on a host of considerations: the full factual picture presented by the complaint, the particular cause of action and its elements, and the existence of alternative explanations so obvious that they render plaintiff's inferences unreasonable.'” Id. (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 430 (2d Cir. 2011)).
On a Rule 12(b)(6) motion to dismiss, “a court must accept as true all well-pleaded facts alleged in the [Petition] and must draw all reasonable inferences in the [petitioner]'s favor.” Djangmah, 2018 WL 4080346, at *3 (citing Kassner v. 2nd Ave. Deli. Inc., 496 F.3d 229, 237 (2d Cir. 2007)). The Petition “need not make ‘detailed factual allegations,' but it must contain more than mere ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Id. (quoting Iqbal, 556 U.S. at 678 (internal citations omitted)). “[A]lthough allegations contained in the [Petition] are assumed to be true, this tenet is ‘inapplicable to legal conclusions.'” Id. (quoting Iqbal, 556 U.S. at 678). The Petition is “deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated into it by reference.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)).
B. Application
1. Subject Matter Jurisdiction
Whether the Court has subject matter jurisdiction over the claims in Alomaisi's Petition is a threshold question. See Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011) (“[F]ederal courts have an independent obligation to ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and decide jurisdictional questions that the parties either overlook or elect not to press.”); Barros Anguisaca, 393 F.Supp.3d at 348 (“At the threshold, the Court must determine whether it has jurisdiction over this action.”). Respondents argue that a provision of the REAL ID Act of 2005, 8 U.S.C. § 1252 (“Section 1252”) “eliminates district court jurisdiction over claims attacking decisions or actions to execute removal orders.” (ECF No. 9 at 16). Alomaisi argues that the Court should not interpret his claims as an attack on the Final Order of Removal, but rather a request for “redress” for the denial of the “opportunity to be heard” on his Motion to Reopen. (ECF No. 13 at 13). Alomaisi also argues that to interpret Section 1252 as a bar to jurisdiction would violate the Suspension Clause (id. at 20-21), and that factual issues preclude dismissal. (Id. at 24-25).
a. The REAL ID Act
The REAL ID Act of 2005, Pub. L. 109-13, 119 Stat. 302 (“REAL ID Act”), amended the INA to include, as is relevant here, the following two provisions to Section 1252:
(a)(5) Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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 entered or issued under any provision of this chapter ....
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(g) Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 or Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, 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 under this chapter.8 U.S.C. § 1252(a)(5), (g) (emphasis added). “The Second Circuit has held that, in allocating challenges to removal orders uniquely to the federal courts of appeals, [Section] 1252(a)(5) ‘clearly preclude[s] [a] district court's entertaining of a direct challenge to a removal order.'” Barros Anguisaca, 393 F.Supp.3d at 349 (quoting Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011)). In Delgado, the Second Circuit explained that the prohibition in Section 1252(a)(5) “applies equally to preclude ... an indirect challenge.” Delgado, 643 F.3d at 55. As to Section 1252(g), the Supreme Court has “narrowly read” that provision “to apply only to three discrete actions that the Attorney General may take - i.e., his decision or action to commence proceedings, adjudicate cases, or execute removal orders.” Vidhja v. Whitaker, No. 19 Civ. 613 (PGG), 2019 WL 1090369, at *4 (S.D.N.Y. Mar. 6, 2019) (internal citations omitted).
As the Second Circuit explained in Delgado, whether a federal court has jurisdiction turns “on the substance of the relief that the plaintiff [or petitioner] is seeking.” 643 F.3d at 55. In Delgado, the plaintiff styled her complaint as an action for mandamus, alleging that the denial of her I-212 application for readmission violated the APA, Due Process Clause, and Equal Protection Clause. Id. at 54. The Second Circuit affirmed the district court's dismissal for lack of jurisdiction, holding that because the plaintiff sought “to force an adjudication on the merits of an I-212 application” that would automatically render her removal order invalid, she was “indirectly challenging her reinstated order of removal” to which “[S]ection 1252(a)(5)'s jurisdictional bar applie[d] equally.” Id. at 55.
INA Section 212, 8 U.S.C. § 1182(a)(9)(C)(i)(II), provides that an alien who has been ordered removed but re-enters the United States without being admitted is “inadmissible, ” but may be “admissible” if “more than 10 years after the date of the alien's last departure from the United States” and “prior to the alien's reembarkation at a place outside the United States or attempt to be readmitted from a foreign contiguous territory, the Secretary of [DHS] has consented to the alien's reapplying for admission.” INA § 212(a)(9)(C)(ii), 8 U.S.C. § 1182(a)(9)(C)(ii). To apply for adjustment of status, an alien who has previously been removed “must request permission to reapply for entry” on Form I-212. 8 C.F.R. § 212(e).
Following Delgado, other district courts in this District have held that they lack jurisdiction in cases where an alien moved to set aside a final order of removal pending the resolution of an “immigration adjudication[] that necessarily stood, if successful, effectively to vacate the underlying order of removal.” Barros Anguisaca, 393 F.Supp. at 349 (dismissing for lack of jurisdiction under Section 1252 habeas corpus petition that sought stay of removal while motion to reopen application for cancellation of removal was pending); see Yearwood, 391 F.Supp.3d at 262-63 (dismissing for lack of jurisdiction under Section 1252 habeas corpus petition seeking alien's return to the United States and release during pendency of immigration proceeding and appeals); Vidhja, 2019 WL 1090369, at *3-5 (dismissing for lack of jurisdiction under Section 1252 habeas corpus petition that sought stay of removal while motion to reopen was pending); Singh v. USCIS, No. 15 Civ. 1411 (JMF), 2016 WL 1267796, at *6 (S.D.N.Y. Mar. 30, 2016), aff'd, 878 F.3d 441 (2d Cir. 2018) (dismissing for lack of jurisdiction under Section 1252 complaint that sought to set aside final order of removal pending motion to reopen application for adjustment of status); Nieto-Ayala v. Holder, No. 08 Civ. 8347 (LMM), 2011 WL 3918156, at *2-3 (S.D.N.Y. Aug. 30, 2011) (granting motion to dismiss writ of mandamus seeking to compel continued release on bond pending adjudication of asylum application). In each case, the district courts concluded that the alien's pleading constituted an indirect challenge to the final order of removal, over which Section 1252 deprived the court of jurisdiction.
Alomaisi seeks to avoid this precedent by arguing that “he is not attacking the final order of removal, either directly or even collaterally, ” but “instead seeks redress of the denied opportunity to be heard on his applications for relief.” (ECF No. 13 at 13). The relief that Alomaisi seeks - “an order returning him to the United States and preventing the [R]espondents from detaining him or removing him during the pendency” of his Motion to Reopen and any appeals - “is a direct challenge to the order of removal, regardless of the fact that [he] frames his claim as a challenge to the process through which he was removed.” Yearwood, 391 F.Supp.3d at 263. As in Yearwood, where the petitioner, who had been removed to his native country pursuant to a final order of removal but sought to be returned to the United States, “the equitable relief that [Alomaisi] seeks is barred by [Section 1252] because, if granted, that relief would undo his removal order.” Id. Because, “by its plain terms, [Section] 1252(g) strips district courts of jurisdiction over claims attacking the Government's decisions or actions to execute removal orders, ” the Court lacks jurisdiction over the Petition in this case as well. Id.
Alomaisi's effort to invoke the APA does not succeed in vesting the Court with subject matter jurisdiction. (ECF No. 13 at 23). As the Second Circuit explained in Delgado, “[t]he APA explicitly does not apply ‘to the extent that . . . statutes preclude judicial review, '” which Section 1252 does here. 643 F.3d at 55 (quoting 5 U.S.C. § 701(a)(1)); see Yearwood, 391 F.Supp.3d at 263 (“The petitioner's claims that the respondents violated their own regulations and procedural manual, thereby violating the APA, are barred by [Section] 1252(g) for the reasons discussed above - the nature of the relief that the petitioner seeks shows that the petitioner is challenging his order of removal.”).
Alomaisi's attempt to frame his request for relief as a petition for mandamus (ECF No. 13 at 23) also fails to establish jurisdiction. The Second Circuit in Delgado rejected an identical effort “to evade the restrictions of Section 1252(a)(5) by styling [the] challenge as a mandamus action in order to claim jurisdiction under 28 U.S.C. § 1361.” 643 F.3d at 56 (citing Lang v. Napolitano, 596 F.3d 426, 429 (8th Cir. 2010) (holding that there was an “obvious lack of district court jurisdiction” over claim for “injunctive and mandamus relief that would prohibit the agency from ‘executing' [the] removal order”)). Furthermore, “jurisdiction under the mandamus statute is limited to actions seeking to compel the performance of a nondiscretionary duty, ” but the Attorney General's duty to execute a final order of removal is purely discretionary, such that jurisdiction under the mandamus statute is also lacking. Duamutef, 386 F.3d at 181 (collecting cases explaining that discretionary acts are not reviewable under Section 1361); Nieto-Ayala, 2011 WL 3918156, at *4 (granting motion to dismiss mandamus petition because there was “no authority that suggests that ICE has a nondiscretionary duty to refrain from executing the removal order against [the petitioner] until [his] asylum application or that USCIS must adjudicate his asylum application before ICE executes the removal order”).
Finally, Alomaisi's suggestion that factual disputes preclude dismissal for lack of jurisdiction is also without merit. (ECF No. 13 at 24-25). The two issues to which he points - whether he was informed that his removal was imminent or scheduled for a certain date (id. at 25) - are not material to the question whether his Petition constitutes a challenge to his Final Order of Removal over which this Court lacks jurisdiction. In other words, even if Alomaisi did not have notice of his exact removal date, he offers no precedent that such notice was required, let alone how the lack of such notice would alter the conclusion that his Petition is barred by Section 1252(g). See Nieto-Ayala, 2011 WL 3918156, at *4 (explaining that ICE is not required to await ruling on asylum application to execute removal order); Hanif v. Gantner, 369 F.Supp.2d 502, 505 (S.D.N.Y. 2005) (dismissing for lack of jurisdiction mandamus petition that sought stay pending adjudication of adjustment of status application because plaintiff pointed to no authority “for the proposition that ICE has a nondiscretionary duty not to remove [plaintiff] until [USCIS] has [heard his application], or, conversely, that [USCIS] must fulfill that duty prior to ICE's execution of the removal order”).
Accordingly, under Section 1252(a)(5) and (g), the Court lacks jurisdiction over Alomaisi's Petition.
Respondents argue (ECF Nos. 9 at 34-35, 14 at 14), and Alomaisi does not dispute (ECF No. 13), that any claims based on the revocation of his OSUP became moot once he was removed from the United States, and therefore, the Court lacks jurisdiction to consider any such claim. See Lewis v. Cont'l Bank Corp. 494 U.S. 472, 477 (1990) (“To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.”); Spencer v. Kemna, 523 U.S. 1, 18 (1998) (“[M]ootness . . . simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so.”). Having been removed from the United States, Alomaisi's “petition no longer presents a live controversy and is moot, ” warranting dismissal for lack of subject matter jurisdiction. Diop v. Sessions, No. 18 Civ. 8245 (ALC), 2019 WL 1894387, at *2 (S.D.N.Y. Mar. 20, 2019) (collecting cases dismissing habeas corpus petitions challenging detention after petitioners were removed from United States).
2. Habeas Corpus
a. In Custody Requirement
Respondents argue that the Court also lacks jurisdiction over Alomaisi's Petition because he is not “in custody” within the meaning of 28 U.S.C. § 2241. (ECF No. 9 at 27). Alomaisi responds that he is “in custody” because he remains “subject to all of the constraints of the” Final Order of Removal, and because his failure to file the Petition sooner is the result of Respondents' expeditiously removing him to Yemen. (ECF No. 13 at 21-22; see ECF No. 1 ¶ 1 (alleging that DHS “remains in control of [his] future movement to the United States”)).
Federal district courts have the “authority to hear applications for habeas corpus by any person who claims to be held ‘in custody in violation of the Constitution or laws or treaties of the United States.'” Rasul v. Bush, 542 U.S. 466, 473 (2004) (quoting 28 U.S.C. § 2241(a), (c)(3)). “A petitioner must be ‘in custody' in order to invoke habeas jurisdiction over the federal courts.” Ogunwomoju v. United States, 512 F.3d 69, 73 (2d Cir. 2008); see Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (explaining that the “in custody” requirement under 28 U.S.C. § 2241 is jurisdictional). Whether a petitioner is “in custody” depends on whether he “has suffered substantial restraints not shared by the public generally.” Lehman v. Lycoming Cty. Children's Servs. Agency, 458 U.S. 502, 510 (1982). As with each of the elements of his claims, Alomaisi bears the burden of establishing by a preponderance of the evidence the “in custody” requirement. See Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011).
Alomaisi provides no precedent for his novel assertion of the “in custody” requirement, and does not dispute that Respondents are not currently detaining him. While he alleges that his movements in Yemen are limited (ECF Nos. 1 ¶¶ 39-40, 13-1 ¶ 15), he does not allege that Respondents are currently imposing any physical restraints on or otherwise detaining him. Indeed, he recognizes that he filed the Petition after he was no longer in Respondents' custody. (ECF No. 13 at 21). In these circumstances, as many other courts have found, Alomaisi cannot satisfy the “in custody” requirement for habeas corpus. See Rivas-Melendrez v. Napolitano, 689 F.3d 732, 738-39 (7th Cir. 2012) (holding that petitioner who had been removed before he filed habeas corpus petition was not “in custody”); Merlan v. Holder, 667 F.3d 538, 539 (5th Cir. 2011) (same); Kumarasamy v. Att'y Gen., 453 F.3d 169, 172-73 (3d Cir. 2006) (same); Patel v. U.S. Att'y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003) (same); Miranda v. Reno, 238 F.3d 1156, 1158-59 (9th Cir. 2001) (same). In the case of a petitioner “who has been removed from the country, ” he is “‘not subject to restraints not shared by the public generally that significantly confine and restrain his freedom. [He] is subject to no greater restraint than any other non-citizen living outside American borders.'” Kumarasamy, 453 F.3d at 173 (quoting Miranda, 238 F.3d at 1159).
The cases on which Alomaisi relies do not establish this Court's jurisdiction to hear his Petition. In Rosales v. ICE, 426 F.3d 733 (5th Cir. 2005) (ECF No. 13 at 22), the petitioner remained in the United States following his final order of removal, and due to the passage of the REAL ID Act, the court explained that habeas corpus was “no longer the appropriate avenue for [his] challenge” and “converted” his habeas petition to a petition for review over which the Court of Appeals had “exclusive” jurisdiction. Id. at 735-36. His reliance on Park v. California, 202 F.3d 1146 (9th Cir. 2000) (ECF No. 13 at 22), is similarly misplaced, as that petitioner was a criminal defendant who, notwithstanding his release from prison, remained in the United States and subject to “actual consequences from his conviction.” Id. at 1148.
Finally, even if Alomaisi could satisfy the “in custody” requirement, he “has not shown that a petition for a writ of habeas corpus is the appropriate vehicle to litigate his claims.” Yearwood, 391 F.Supp.3d at 260. Like the petitioner in Yearwood, who had been removed from the United States and alleged due process violations causing harm that “sound[ed] in tort, ” “he has not shown that returning to the United States would redress any injuries that flow from” the Due Process violations he alleges arose from the manner of his removal. Id. at 261. Nor has he “cited any cases that present similar circumstances to support such relief.” Id. Contrary to his assertion (ECF No. 13 at 19-20), Fong v. Ashcroft, No. 03 Civ. 7261, 2004 WL 1348994 (S.D.N.Y. June 15, 2004), is not analogous, because in that pre-REAL ID Act case, the court ordered the petitioner to be returned to the United States because the government had removed her in violation of a court order staying her removal; the court explained that, at the time the stay order was issued, the petitioner was still in the government's custody in the United States. Id. at *1, *3. As noted above, despite months, indeed years, to do so, Alomaisi never sought a stay or a writ of habeas corpus before he was removed from the United States. Similarly, in Gutierrez v. Gonzales, 125 Fed.Appx. 406 (3d Cir. 2005) (ECF No. 13 at 20), another pre-REAL ID Act decision, the court made clear that “[o]ur holding here is limited to the facts of this case, ” in which a divided panel affirmed the grant of habeas corpus to a petitioner who had already been removed from the United States, given the “extreme circumstances” of a misrepresentation by petitioner's counsel that he had filed a habeas corpus petition while he was still in custody in the United States, but in fact had not done so. Id. at 416.
b. The Suspension Clause
Alomaisi argues that “the Suspension [C]lause continues to thrive in habeas to afford the relief that [he] seeks.” (ECF No. 13 at 21). Respondents counter that “[t]he Suspension Clause protects core applications of the writ of habeas corpus but cannot salvage non-cognizable habeas claims” like Alomaisi's. (ECF No. 9 at 25).
The Suspension Clause in Article I of the Constitution provides: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” U.S. Const. art. I, § 9, cl. 2. The Second Circuit has explained that the protections of the Suspension Clause “extend fully to aliens subject to an order of removal.” Ragbir v. Homan, 923 F.3d 53, 73 (2d Cir. 2019) vacated and remanded on other grounds, Ragbir v. Barr, No. 18-1595, 2019 WL 6826008 (2d Cir. July 30, 2019). “It is, however, settled that Congress may, ‘without raising any constitutional questions [under the Suspension Clause], provide an adequate substitute [through] the courts of appeal.'” Barros Anguisaca, 393 F.Supp.2d at 351 (quoting I.N.S. v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)). Thus, the Supreme Court has held that “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus.” Swain v. Pressley, 430 U.S. 372, 381 (1977).
The Suspension Clause does not provide an avenue to the Court's exercise of jurisdiction over the Petition for two reasons. First, as Respondents correctly argue (ECF No. 9 at 25), the Suspension Clause is not triggered because the relief Alomaisi seeks - return to the United States and avoidance of re-detention - is not “traditionally cognizable in habeas” corpus. Hamama v. Adducci, 912 F.3d 869, 875 (9th Cir. 2018). “At its historical core, ” a writ of habeas corpus “served as a means of reviewing the legality of Executive detention.” I.N.S. v. St. Cyr, 533 U.S. at 301. The “traditional remedy provided by habeas” corpus, then, is “‘removing the injury of unjust and illegal confinement.'” Hamama, 912 F.3d at 875 (quoting 3 Wm. Blackstone, Commentaries on the Laws of England 137 (1768)); see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“[T]he traditional function of the writ is to secure release from illegal custody.”).
Alomaisi's claims do “not challenge any detention and [do] not seek any release from custody.” Hamama, 912 F.3d at 875. Instead, “the nature of the relief sought by [Alomaisi] suggests that habeas is not appropriate in [this case] because “the last thing [he] wants is simple release” but instead a “court order requiring the United States to shelter [him].” Munaf v. Geren, 553 U.S. 674, 693-94 (2001). Because a writ of habeas corpus, at common-law, could not have granted the relief that Alomaisi seeks, “the Suspension Clause is not triggered here.” Hamama, 912 F.3d at 875-76; see Dep't of Homeland Sec. v. Thuraissigiam, 140 S.Ct. 1959, 1970-71 (2020) (holding that alien's request, not to be released, but that his removal order be vacated and he be granted a new opportunity to apply fell “outside the scope of the writ as it was understood when the Constitution was adopted” and therefore was not cognizable in habeas corpus).
Second, to the extent that Alomaisi's Suspension Clause argument is a challenge to the adequacy of “the administrative avenues open to him to challenge his removal” as compared to habeas corpus, that argument fails. Barros Anguisaca, 391 F.Supp.3d at 351. Alomaisi concedes that procedural mechanisms exist through which he could challenge his removal: he filed the Motion to Reopen before the BIA, the denial of which he has appealed to the Second Circuit. (ECF Nos. 15-1, 16-1). He also acknowledges that he had the ability to file the Motion to Reopen “sooner” than he did. (ECF Nos. 13 at 10; 13-1 ¶ 15). While he attributes the failure to do so to the lack of notice that his removal was imminent (ECF No. 13 at 10), he points to no constitutional or statutory basis for such a notice requirement, and admits that an ICE official told him in 2019 that ICE was “actively working” to obtain his travel documents. (ECF No. 13-1 ¶ 9). Further, he does not dispute that he had the right to seek review of the Final Order of Removal in 2006 via a petition for review to the Second Circuit but did not do so. See Hamama, 912 F.3d at 876 (rejecting argument that petition-for-review process was constitutionally inadequate as applied because “[p]etitioners had years to file their motions to reopen; they cannot now argue that the system gave them too little time”).
Accordingly, the Suspension Clause does not preclude dismissal of Alomaisi's claims.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Respondents' Motion be GRANTED and the Petition be DISMISSED for lack of jurisdiction.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).