Opinion
CIV 18-00827-PHX-JAT (MHB)
01-15-2019
Jose Alfredo Garcia-Felician, Petitioner, v. Matthew Whitaker, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE JAMES A. TEILBORG, UNITED STATES DISTRICT JUDGE:
BACKGROUND
On March 14, 2018, Petitioner Jose Alfredo Garcia-Felician filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. (Doc. 1.) Respondents filed a Response on May 29, 2018. (Doc. 10.) Petitioner has not filed a Reply. I. Administrative and Prior Judicial Proceedings.
Petitioner is a native and citizen of Mexico, who entered the United States illegally on or about January 20, 2007. (Exhs. A, B.) Petitioner asserts that he also entered the United States without inspection "sometime in June of 1995." (Doc. 1 at 5.) Petitioner was arrested on January 21, 2007 by agents with the United States Border Patrol, after having been found with six other illegal aliens near Lukeville, Arizona, and served with a Notice to Appear, Form I-862, and placed in removal proceedings. (Exhs. B, P at ¶ 7.) During removal proceedings, on March 7, 2007, Petitioner was released from custody on a $3,500.00 bond. (Exhs. C, P at ¶¶ 9, 10.) On December 2, 2008, an immigration judge denied Petitioner's Application for Cancellation of Removal. (Exh. D.) Petitioner filed an appeal with the Board of Immigration Appeals, which was dismissed on July 23, 2009. (Exh. F.) Petitioner filed a petition for review in the United States Court of Appeals, which was dismissed and denied in part on January 16, 2013. (Exh. H.) Petitioner was given the option pursuant to 8 C.F.R. § 1240.26(I) to voluntarily depart within thirty days to avoid being deemed to have departed under order of removal. (Id. at 3.) The Ninth Circuit issued its mandate on March 12, 2013. (Exh. I.)
All exhibits referenced are attachments to Respondents' Response, unless otherwise noted. Petitioner filed no exhibits.
On February 28, 2013, Petitioner filed a motion to reopen with the Board of Immigration Appeals, which was denied on April 29, 2013. (Exh. J.) On October 27, 2017, ICE issued a Notice to Obligor to Deliver Alien, directing Petitioner to report to its Phoenix Field Office on November 27, 2017. (Exh. K.) Petitioner reported as directed, and filed a Form I-246, requesting a six-month stay of removal so that he could "either sell or set up the rental of [his] home." (Exh. L.) On December 14, 2017, Petitioner's application was denied. (Id.) Petitioner was issued another notice to appear, directing that he report on March 14, 2018, to the Phoenix ICE field office for removal. (Exh. M.) On February 16, 2018, however, Petitioner filed a Form I-918, Application for U-Nonimmigrant Status ("U" visa), and Form I-192, Application for Advance Permission to Enter as a Nonimmigrant. (Exhs. N, P at ¶ 23.)
On March 14, 2018, Petitioner filed a second Application for Stay of Deportation or Removal, based upon his filing of an application for a "U Visa," which was granted for a period of six months on April 27, 2018. (Exh. O.) That period of time has expired and no application to extend has been filed. (Doc. 13.) Petitioner's Application for U-Nonimmigrant status is still pending, and the current processing time for such petitions is 50 months. (Id.) II. Habeas Proceedings.
On March 14, 2018, Petitioner filed a Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief. (Doc. 1.) Petitioner alleges that he is the "victim of a serious crime and has applied for U Nonimmigrant Status," and that the Court should order declaratory and injunctive relief "prevent[ing] Respondents from taking Petitioner into custody and removing him from the United States," as "removal is in violation of the letter and spirit of the law passed by Congress to ensure that victims of crimes are available to assist law enforcement in the prosecution of the offenders and to protect crime victims." (Id.) Petitioner alleges that ten years ago, on January 29, 2008, he "was a victim of a felonious assault in which an armed suspect forced him to give up his taxi." (Id.) Petitioner does elaborate any further on the facts of that incident, or indicate if any prosecution proceedings commenced as a result.
Petitioner states three grounds for relief: (1) that his substantive due process rights are violated because the "automatic stay violates his substantive due process right to liberty because the regulation permits unilateral government detention without justification that would outweigh his constitutionally protected interest in freedom from government restraint;" (2) that his procedural due process rights were are violated "because the automatic stay allows the Government to infringe upon his fundamental liberty interest in freedom from physical custody with a process that is not narrowly tailored to serve a state interest that is neither compelling nor substantially justified;" (3) that "the Government's pattern and practice of violating the rights of individuals similarly situated [] creates the probability of irreparable injury to those aliens who have prevailed on the merits in their removal proceedings and yet remain detained indefinitely." (Doc. 1.) As relief, Petitioner requests that the Court order his immediate release, declare that Petitioner's detention violates the Due Process Clause, enjoin Respondents from invoking the automatic stay provision of 8 C.F.R. § 1003.19(i)(2), and award reasonable costs and attorney's fees. (Id.)
Respondents assert in their Response that Petitioner's habeas petition should be denied as (1) there is no present case or controversy; (2) the Court lacks jurisdiction over the Petition; and (3) Petitioner's application for a "U" visa does not prevent his removal. (Doc. 10.)
ANALYSIS
I. Case or Controversy.
Petitioner alleges that he is under threat of being taken into custody and removed from the United States and that this violates his due process rights. Petitioner requests that the Court enjoin Respondents from seeking a stay of his release order pursuant to 8 C.F.R. § 1003.19(i)(2). Respondents assert there is no present case or controversy as Petitioner is not detained.
Petitioner also argues inconsistently that he is currently "detained," as he is in constructive custody. (Doc. 1 at 2.) To the extent Petitioner is challenging the basis or length of his current "detention," that argument fails. See Abdala v. I.N.S., 488 F.3d 1061, 1064 (9th Cir. 2007) (a petitioner's "release from detention under an order of supervision" moots any challenge to the legality of extended detention) (internal quotations and citation omitted). --------
The case or controversy requirement, however, may be satisfied in the immigration context, even if a Petitioner is not longer in immigration custody, so long as Petitioner "continues to suffer actual collateral consequences of his removal." Zegarra-Gomez v. I.N.S., 314 F.3d 1124, 1127 (9th Cir. 2003) (petitioner's deportation did not moot petition). As the basis for Petitioner's claims is the need to remain in the United States and to remain released in order to prosecute his "U" visa application, the only collateral consequence to his removal would be the inability to continue in that process. Respondents assert that an alien "need not be in the United States in order to apply for a "U" visa." Petitioner did not dispute this assertion, despite having the opportunity to do so in a reply. (Doc. 5 at 4.)
This Court finds that Petitioner's case does not present a present a live case or controversy to warrant review. II. Jurisdiction.
"Section 106 of the REAL ID Act divests federal courts of jurisdiction over § 2241 petitions attacking removal orders, effective immediately and retroactively. Pub. L. No. 109-13, 119 Stat. 231; 310 [May 11, 2005]." Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735-36 (5th Cir. 2005). The REAL ID Act provides that:
[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 or title 28, United States Code, or any other habeas 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, except as provided in subsection (e).8 U.S.C. § 1252(a)(5).
The provisions of § 1252 make the circuit court petition for review "[t]he exclusive means to challenge an order of removal," and to "consolidate all 'questions of law and fact . . . arising from any action taken or proceedings brought to remove an alien' into a petition for review." Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012). Habeas jurisdiction in district courts in immigration cases is limited to "claims that are independent of challenges to removal orders." Id. (citation omitted). Determining whether a claim is a challenge to a removal order, or is independent of a challenge to a removal order "will turn on the substance of the relief that a plaintiff is seeking." Id. "When a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is 'inextricably linked' to the order of removal, it is prohibited by section 1252(a)(5)." Id. At 623. Challenges to denial of asylum, denial of relief pursuant to the Convention Against Torture, or denial of withholding of removal are the types of agency proceedings "inextricably linked" to a removal order that render the district court without jurisdiction to review. Id.
Although in Petitioner's habeas petition he claims a due process violation, it is in reality a challenge to his order of removal. Despite how Petitioner characterizes his claim, "it is simply another attempt to obtain judicial review of his removal order and the district court lack[s] jurisdiction." Martinez, 704 F.3d at 622. III. Petitioner's pending application for a "U" visa.
Petitioner asserts that his pending application for a "U" visa entitles him to injunctive relief from detention and removal, and that it would be a violation of his due process rights to remove him while it is pending. Petitioner provides no authority for this request, other than to refer to the justification for the enactment of the Battered Immigrant Women Protection Act of 2000 ("BIWPA"), an act which can provide the basis for the issuance of a "U" visa. An applicant for a "U" visa however, must demonstrate (1) that he or she has suffered substantial physical or mental abuse as a result of having been the victim of a qualifying crime; (2) that the crime occurred in the U.S. or violated a Federal extraterritorial jurisdiction statute; (3) that he or she has credible and reliable information about the crime; and, (4) that he or she has been, is being, or is likely to be helpful to law enforcement. 8 C.F.R. § 214.14(b).
The burden is on the Petitioner to demonstrate eligibility. 8 C.F.R. 214.14(c)(4). Physical presence in the United States is not an eligibility requirement for a petition for a "U" visa to be approved. 8 C.F.R. § 214.14(c)(5)(i)(B). If the application of an overseas petitioner is granted, the visa can be used to travel to the United States for admission as a U nonimmigrant. 72 Fed. Reg. 53018-01, at 53028. An applicant may be placed on a waiting list, if the statutory cap on the number of "U" visas approved (10,000 per fiscal year) has been reached, and the applicant has demonstrated eligibility. 8 U.S.C. § 1184(p)(2); 8 C.F.R. §214.14(d)(2). At present, the United States Customs and Immigration Service estimates that the processing time for "U" visa is 42 to 54.5 months.
The filing of a petitioner for a "U" visa "has no effect on ICE's authority to execute a final order, although the alien may file a request for a stay of removal pursuant to 8 C.F.R 241.6(a) and 8 C.F.R 1241.6(a). See, 8 C.F.R. § 214.14(c)(1)(ii). Petitioner has not been placed on a waiting list or obtained deferred action from removal, and his six-month stay has expired.
Petitioner claims that "[f]or aliens in removal proceedings, USCIS directed that ICE terminate removal proceedings after USCIS determined that an applicant had demonstrated prima facie eligibility for a U visa," citing as authority the "Yates Memorandum." (Doc. 1, at 8.) That Memorandum was superceded, however by 8 .C.F.R § 241.14, and thus is not valid authority for Petitioner's claim. Velarde-Flores v. Sessions, No. 2:18-cv-00031-DJH-BSB (D. Ariz. January 23, 2018), 2018 U.S. Dist. LEXIS 12303, at *8 n. 2 (also finding no language in the BIWPA to support claim that "U" Visa applicants may not be removed while their applications are pending).
Thus, this Court lacks jurisdiction under the REAL ID Act to consider Petitioner's claim, and grant the relief requested. As a court in this District has held:
[B]ecause placement on the § 12.214(d)(2) waiting list is discretionary, it does not bind Respondents' authority to remove Petitioners during the pendency of their U Visa applications. See 8 C.F.R. § 12.214(c)(1)(ii) ("[t]he filing of a petition for U-1 nonimmigrant status has no effect on ICE's authority to execute a final order."). As such, enjoining Respondents from executing Petitioners' removal orders would appear to be precisely the sort of "judicial constraint" the REAL ID Act prohibits. [] Accordingly, pursuant to 8 U.S.C. § 1252(g), this Court is without jurisdiction to consider Petitioners claims, and they have thus failed to demonstrate that they are likely to succeed on the merits of their claims and, as such, are not entitled to a Preliminary Injunction.Velarde-Flores, No. 2:18-cv-00031-PHX-DJH-BSB (D. Ariz. Jan. 17, 2018). See also Ogamien v. I.C.E., No. CIV09-1970 (JRT/FLN), 2009 WL 2366550, at *2-3 (D. Minn. July 30, 2009); Zhiquiang Wu v. Duffy, No. 11cv750 DMS (CAB), 2011 U.S.Dist. LEXIS 44064, at *4-5 (S.D. Cal. Apr. 25, 2011). IV. Injunctive relief.
To the extent a case or controversy is presented, and assuming this Court may assert jurisdiction, Petitioner does not establish a basis for any form of injunctive relief.
A party seeking injunctive relief in the form of a stay of removal must demonstrate "'either (1) a probability of success on the merits and the possibility of irreparable injury, or (2) that serious legal questions are raised and the balance of hardship tips sharply in [its] favor.'"Adreiu v. Ashcroft, 253 F.3d 477, 483 (9th Cir. 2001) (citing Abbassi v. I.N.S., 143 F.3d 513, 514 (9th Cir. 1998).
Petitioner has not even addressed the merits of his application for a "U" visa pursuant to the BIWPA. He simply alleges that he was a victim of a crime 10 years ago, and because of that he is entitled to a stay of removal while his application is pending. He also fails to raise a "serious legal question," as he cites no persuasive authority that mandates the relief he requests.
Petitioner's request for injunctive relief should be denied.
CONCLUSION
Petitioner fails to raise a live case or controversy, and this Court is without jurisdiction to consider Petitioner's claim. Petitioner also fails to demonstrate a violation of due process in immigration proceedings, or any basis for injunctive relief. For these reasons, this Court will recommend that Petitioner's habeas petition be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (Doc. 1) be DENIED;
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.
DATED this 15th day of January, 2019.
/s/_________
Michelle H. Burns
United States Magistrate Judge