Opinion
No. CV-20-01168-PHX-DLR (DMF)
09-29-2020
Lisandra Quintero-Prieto, Petitioner, v. William Barr, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Pending before the Court is the Respondents' Motion to Dismiss (Doc. 18), in which they request the Court to dismiss the June 12, 2020, Petition for Writ of Habeas Corpus by a Person in Federal Custody ("Petition") under 28 U.S.C. § 2241 (Doc. 1) for lack of subject matter jurisdiction. In her Petition, asylum seeker Lisandra Quintero-Prieto ("Petitioner") asserts that this Court has jurisdiction over the Petition based on the Ninth Circuit decision in Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), a decision for which certiorari had been granted by the United States Supreme Court before the Petition was filed.
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Number CV-20-01168-PHX-DLR (DMF).
Respondents' motion to dismiss is based on the June 25, 2020, United States Supreme Court decision reversing the Ninth Circuit's decision in Thuraissigiam, and ruling that "the Ninth Circuit erred in holding that [8 U.S.C.] § 1252(e)(2) violates the Suspension Clause and the Due Process Clause." Department of Homeland Sec. v. Thuraissigiam, ___ U.S. ___, 140 S.Ct. 1959 (2020). (Doc. 18) A response and reply have been filed. (Docs. 19, 22) The motion to dismiss is ripe for decision.
This matter is on referral pursuant to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 7 at 6) For the reasons set forth below, the undersigned Magistrate Judge recommends that the Court dismiss the Petition without prejudice for lack of subject matter jurisdiction.
I. BACKGROUND
Petitioner is a native and citizen of Cuba. (Doc. 1 at 2; Doc. 1-2 at 6) On January 8, 2020, she entered the United States at the port of entry in San Luis, Arizona, where she was taken into custody. (Doc. 1-2 at 37-38; Notice and Order of Expedited Removal) Petitioner was determined to be inadmissible to the United States under section 212(a)(7)(A)(i)(II) of the Immigration and Nationality Act ("INA") and placed in expedited removal proceedings pursuant to section 235(b)(1) of the INA, 8 U.S.C. § 1225(b)(1). (Id.) She expressed a fear of persecution or torture if returned to Cuba and was referred for a credible fear determination. (Doc. 1-2 at 39-45; Record of Sworn Statement, Forms I-876A) Petitioner was then detained in the Eloy Detention Center in Eloy, Arizona. (Doc. 1-2 at 3)
On January 22, March 16, and April 9, 2020, Petitioner participated in credible fear interviews. (Doc. 1-2 at 6-36) As set forth in the Court's June 17, 2020, Order:
An asylum officer found Petitioner was credible but determined that she had not established a credible or reasonable fear of persecution or torture if removed to Cuba. (Doc. 1-2 at 5-10, 48-49.) The asylum officer reasoned in part that Petitioner (1) had not established a reasonable fear of persecution because she had "not indicated that [she] w[as] harmed in the past, or there is no reasonable possibly that the past harm or the harm [she] fear[s] in the future constitutes persecution"; and (2) had not established a reasonable fear of torture because she had not established that there is a reasonable possibility that "[t]he harm [she] fear[s] would be specifically intended to
inflict severe physical or mental pain or suffering." (Id. at 5.)(Doc. 7 at 2, footnote omitted)
The determination was approved by a supervisory asylum officer (id. at 10), and on April 21, 2020, Petitioner was ordered removed from the United States (id. at 3-5). Petitioner requested review of the credible fear determination by an immigration judge ("IJ") (id. at 5), and on June 4, 2020, the IJ affirmed the asylum officer's credible fear determination. (Doc. 1-2 at 52.)
II. THESE HABEAS PROCEEDINGS
On June 12, 2020, Petitioner filed her Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241, and Motion for Temporary Restraining Order and Preliminary Injunction pertaining to the expedited removal order against her. (Docs. 1, 2, 3; see Doc. 1 at 11, Doc. 3 at 9) On June 16, 2020, the Court denied Petitioner's Motion for Temporary Restraining Order as to her removal, but granted as to Petitioner's request for prior notice of removal. (Doc. 7 at 5-6)
The Court ordered that "[i]f Respondents intend to remove Petitioner Lisandra Quintero-Prieto (A# 213-360-807) from the United States prior to the Court's disposition of this matter, Respondents must file a 'Notice of Intent to Remove' with the Clerk of Court and serve a copy on Petitioner at least 10 days prior to the planned removal." (Doc. 7 at 6)
In her Petition, Petitioner names United States Attorney General William Barr, United States Immigration and Customs Enforcement Phoenix Field Office Director Albert Carter, Acting DHS Secretary Chad Wolf, and Acting United States Citizenship and Immigration Services Director Kenneth Cuccinelli as Respondents. (Doc. 1 at 2)
Petitioner brings three grounds for relief claiming that her credible fear proceedings denied her a fair and meaningful opportunity to apply for relief, and her removal without an opportunity for meaningful judicial review of that process violates the INA, the implementing regulations, the Administrative Procedure Act, the Suspension Clause, and the Due Process Clause of the Fifth Amendment. Petitioner alleges that the asylum officer failed to employ the required non-adversarial procedures when conducting her credible fear interview, failed to consider binding case law, and failed to apply the correct legal standard when evaluating her credible fear claim. She further alleges the IJ failed to provide a reasoned decision when affirming the asylum officer's determination. (Doc 1)
Relying on the Ninth Circuit's decision in Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), Petitioner asserts that jurisdiction is proper pursuant to the Suspension Clause, Art. I, § 9, cl. 2. (Id. at 3-4)
In the Petition, Petitioner asks the Court to (1) enjoin Respondents from removing her from the United States; (2) determine that her credible fear proceedings violated her statutory, regulatory, and constitutional rights; (3) order Respondents "to pursue a constitutionally adequate process to justify adverse immigration actions against Petitioner" and "follow the applicable rules, regulations, law, and the constitution related to asylum and the credible fear process"; (4) order Respondents to file a return within three days pursuant to 28 U.S.C. § 2243; (5) order Respondents to provide notice prior to removal; and (6) award reasonable costs and attorney's fees pursuant to the Equal Access to Justice Act. (Id. at 28)
On June 17, 2020, the Court required Respondents Barr, Carter, Wolf, and Cuccinelli to answer the Petition. (Doc. 7) On June 25, 2020, the United States Supreme Court reversed the Ninth Circuit decision in Thuraissigiam. Department of Homeland Sec. v. Thuraissigiam, ___U.S. ___, 140 S.Ct. 1959 (2020). Defendants moved for leave to file a motion to dismiss based on the Supreme Court's decision (Docs. 15, 16), which the Court granted (Doc. 17). Petitioner responded and requested oral argument. (Doc. 19) Respondents filed a reply in support of their motion to dismiss. (Doc. 22) After review of the briefing and the record, the Court finds that the motion is appropriately decided without oral argument.
III. DISCUSSION
In their motion to dismiss, Respondents assert that (A) "Petitioner's claims, which seek review of the credible fear proceedings and negative credible fear determination that resulted in her expedited removal order, are barred pursuant to the jurisdiction stripping provisions contained in sections 1252(a)(2)(A) and (e)(2) of the Illegal Immigration Reform and Immigrant Responsibility Act" (Doc. 18 at 4), (B) that the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, does not provide habeas jurisdiction to review Petitioner's claims pursuant to the Supreme Court's recent decision in Department of Homeland Security v. Thuraissigiam, ___U.S. ___, 140 S.Ct. 1959 (2020) (Id. at 5), and (C) that neither the APA nor the Due Process Clause supply subject matter jurisdiction for Petitioner's claims (Id. at 7-8).
The Court will address the arguments, in turn, below.
A. The Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), 110 Stat. 3009-546
Here, Petitioner is subject to an expedited removal order issued pursuant to 8 U.S.C. § 1225(b)(1). Based on a plain reading of 8 U.S.C. § 1252(a)(2)(A)(i), except as provided under 8 U.S.C. § 1252(e), courts lack jurisdiction to review "any individual determination or. . . claim arising from or relating to the implementation or operation of an order of [expedited] removal." Under § 1252(e), "review of expedited removal orders in a habeas corpus petition...[is] limited to an inquiry over whether: (A) the petitioner is an alien, (B) whether the petitioner was ordered removed under § 1225(b)(1), and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, or is a refugee or has been granted non-terminated asylum." Galindo- Romero v. Holder, 640 F.3d 873, 875 n.1 (9th Cir. 2011) (internal brackets and quotations omitted). In determining whether a petitioner was ordered removed under § 1225(b)(1), review is "limited to whether such an order in fact was issued and whether it relates to the petitioner." 8 U.S.C. § 1252(e)(5). The court may not review a credible fear determination underlying an expedited removal order, § 1252(a)(2)(A)(iii), or review whether the petitioner "is actually inadmissible or entitled to any relief from removal," § 1252(e)(5).
In these proceedings, Petitioner seeks review of her credible fear proceedings and the negative determination that resulted in her order of removal. Petitioner's claims do not fall within any of the three limited jurisdictional grounds for challenging an expedited removal order. Petitioner does not argue otherwise in her Petition (Doc. 1) or her response to the motion to dismiss (Doc. 19).
B. The Suspension Clause Does Not Provide Jurisdiction
Relying on the Ninth Circuit's decision in Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), Petitioner asserts that jurisdiction is proper pursuant to the Suspension Clause, Art. I, § 9, cl. 2. (Doc. 1 at 3-4; Doc. 19) But the Ninth Circuit's decision in Thuraissigiam was reversed by the United States Supreme Court after the filing of the Petition.
In Department of Homeland Security v. Thuraissigiam, ___U.S. ___, 140 S.Ct. 1959 (2020), the United States Supreme Court upheld the expedited removal process, concluding that aliens subject to expedited removal procedures may not challenge the limited judicial review available to them under section 1252(e) under either the Suspension Clause or the Due Process Clause. Department of Homeland Sec. v. Thuraissigiam, ___ U.S. ___, 140 S.Ct. at 1964 ("neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent's claims, and IIRIRA's limitations on habeas review are constitutional as applied").
In the case below, the Ninth Circuit reviewed the petitioner's claim that he was denied fair procedure in his expedited removal proceedings and that the government failed to comply with statutory requirements and applied the wrong legal standards. Thuraissigiam v. Dep't of Homeland Sec., 917 F.3d 1097, 1101-02 (9th Cir. 2019). The district court had dismissed the petitioner's habeas action for lack of subject matter jurisdiction under 8 U.S.C. § 1252(e). Id. at 1102. In accordance with its precedents, the Ninth Circuit concluded that § 1252(e) did not provide jurisdiction for review of the petitioner's habeas action. Id. at 1104. However, the Ninth Circuit held that the Suspension Clause provided jurisdiction permitting the petitioner to assert his "legal challenges to the procedures leading to his expedited removal order." Id. at 1119. The Ninth Circuit recognized that it and other courts "have consistently interpreted § 1252(e)(2) to foreclose review of claims like Thuraissigiam's." Id. Despite that history, the Ninth Circuit ultimately concluded that where "§ 1252(a)(2)(A)(i) precludes review of 'any other cause or claim arising from or relating to the implementation of or operation of' an expedited removal order, which clearly bars claims relating to procedural error[,]" it did not "think the statute can bear a reading that avoids the constitutional problems it creates." Id. The Ninth Circuit held that § 1252(e) violated the Suspension Clause "as applied to Thuraissigiam," but declined to identify the "right or rights Thuraissigiam may vindicate via use of the writ." Id. The Ninth Circuit indicated that the district court had jurisdiction and ordered the district court on remand "to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order." Id.
On certiorari review, the Supreme Court rejected the Ninth Circuit's reasoning. First, the Court noted that the Suspension Clause provides that "'[t]he 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." Department of Homeland Sec. v. Thuraissigiam, 140 S.Ct. at 1968-69. The Supreme Court observed that in INS v. St. Cyr, 533 U.S. 289, 301 (2001), it wrote that the Suspension Clause at a minimum protects the writ of habeas corpus as the writ existed when the Constitution was adopted in 1789. Id. at 1969. Proceeding with that understanding, the Supreme Court concluded that neither Thuraissigiam nor the amici had established "that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a petitioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release." Id.
The Supreme Court also rejected Thuraissigiam's claim that section 1252 "violates his right to due process by precluding judicial review of his allegedly flawed credible-fear proceeding." Id. at 1981. The Court stated that "aliens who have established connections in this country have due process rights in deportation proceedings[.]" Id. at 1964. In contrast, the Court reiterated the "important rule" that regarding "'foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admitted into the country pursuant to law,' 'the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.'" Id. at 1982 (quoting Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892)). The Court rejected Thuraissigiam's suggestion that the fact that he had gained access into U.S. territory before he was apprehended changed this rule: "[A]n alien who tries to enter the country illegally is treated as an 'applicant for admission,' § 1225(a)(1), and an alien who is detained shortly after unlawful entry cannot be said to have 'effected an entry[.]'" Id. (quoting Zadvydas v. Davis, 533 U.S. 678, 693 (2001)). The Court instructed that such an alien has "only those rights regarding admission that Congress has provided by statute." Id. at 1982-83.
The Supreme Court concluded that in Thuraissigiam's case:
Congress provided the right to a "determin[ation]" whether he had "a significant possibility" of "establish[ing] eligibility for asylum," and he was given that right. §§ 1225(b)(1)(B)(ii), (v). Because the Due Process Clause provides nothing more, it does not require review of that determination or how it was made. As applied here, therefore, § 1252(e)(2) does not violate due process.Id. at 1983. The Supreme Court held that the Ninth Circuit had "erred in holding that § 1252(e)(2) violates the Suspension Clause and the Due Process Clause," reversed the judgment, and remanded the case "with directions that the application for habeas corpus be dismissed." Id.
Petitioner's sole argument in opposition to Respondents' motion to dismiss is that the United States Supreme Court decision in Thuraissigiam "cannot be retroactively applied to Petitioner's case." (Doc. 19 at 6):
Petitioner still holds the position that this Court has jurisdiction, under the Ninth Circuit decision in Thuraissigiam. Petitioner is aware of the Supreme Court's decision in Department of Homeland Security v. Thuraissigiam, ___ S. Ct. ___, 2020 WL 3454809 (U.S. June 25, 2020), however, Petitioner argues that the Supreme Court decision does not apply to Petitioner's case, as this would require retroactively applying the Supreme Court's decision of June 25, 2020 to Petitioner's case.(Doc. 19 at 4) Petitioner argues that, although the Supreme Court reversed the Ninth Circuit, that reversal is not binding on her because the reversal was after the critical events in her case, including her entry into the United States and her first credible fear interview. (Id.) Petitioner asserts that she should be entitled to rely on the state of the law when she entered the United States because that is when she evaluated "the benefits entering illegally and [pursuing] relief under appropriate procedures." (Id. at 5)
Petitioner cites only two cases, INS v. St. Cyr, 533 U.S. 289 (2001), and Vartelas v. Holder, 566 U.S. 257 (2012), in support of her argument that the United States Supreme Court ruling in Thuraissigiam does not divest this Court of subject matter jurisdiction over the Petition.
Respondents' reply persuasively distinguishes the cases cited by Petitioner:
Both Vartelas and St. Cyr rely on the principle against retroactive legislation. Vartelas, 566 U.S. at 266-67; St. Cyr, 533 U.S. at 315-16. Both Vartelas and St. Cyr examined the retroactive application of provisions of IIRAIRA the petitioners. Further, in those cases, the Supreme Court noted that the "essential inquiry... is 'whether the new provision attaches new legal consequences to events completed before its enactment.'" Vartelas, 566 U.S. at 273 (quoting Landgraf v. USI Film Products, 511 U.S. 244, 269-270) (emphasis added); see also St. Cyr, 533 U.S. at 321. Here, however, the Supreme Court's reversal of the Ninth Circuit's decision in Thuraissigiam is not a new provision or new legislation. Rather, the Court analyzed the same statute that was in question when the matter was before the Ninth Circuit. As such, the principle against retroactive legislation is inapplicable. Petitioner fails to offer any other authority that would support her argument for finding jurisdiction in light of the Supreme Court's decision.(Doc. 22 at 3-4)
Since Petitioner's entry into the United States and credible fear interviews, there has been no change to 8 U.S.C §§ 1252(a)(2) and (e)(2), which unequivocally bar judicial review of credible fear proceedings that result in an arriving alien's expedited removal order. The Supreme Court's clear directive in Thuraissigiam precludes the Court from exercising habeas corpus jurisdiction over Petitioner's claims pursuant to the Suspension Clause.
C. Neither The APA Nor the Due Process Clause Supply Subject Matter Jurisdiction
As possible alternative bases for jurisdiction, the Petition cites the Administrative Procedure Act ("APA") and the Due Process Clause (Doc. 1 at 1-2, 4). In her response to the motion to dismiss, Petitioner does not argue that the APA or the Due Process clause confers jurisdiction in this matter. (Doc. 19)
Regardless, the APA does not apply "to the extent that . . . statutes preclude judicial review." 5 U.S.C. § 701(a)(1). Because 8 U.S.C. § 1252(a)(2)(A) precludes judicial review of claims relating to expedited removal orders except as provided in § 1252(e)(2), the APA does not provide an alternative basis for subject-matter jurisdiction. See Rodrigues v. McAleenan, 435 F.Supp.3d 731, 736-37 (N.D. Tex. 2020) ("And as to the APA specifically, the APA grants private rights of action, except when other 'statutes preclude judicial review.' 5 U.S.C. § 701(a)(1). Thus, 8 U.S.C. § 1252(e)(2) 'preclude[s] judicial review' of Mr. Rodrigues's APA claims."); Mohit v. U.S. Dep't of Homeland Sec., No. 20-cv-00823-PAB, 2020 WL 3971642, at *4 (D. Colo. July 14, 2020) (holding that the APA does not confer jurisdiction over habeas claims challenging expedited removal order). Likewise, Petitioner's claim under the Due Process Clause fails because 8 U.S.C. §§ 1252(a)(2)(A) and (e)(2) also preclude federal question jurisdiction under 28 U.S.C. § 1331. See Patchak v. Zinke, 138 S.Ct. 897, 905 (2018) (holding jurisdiction-stripping provision that "applie[d] '[n]otwithstanding any other provision of law' include[s] the general grant of federal-question jurisdiction. 28 U.S.C. § 1331"); see also sections III(A) & (B), supra.
IV. CONCLUSION
For the reasons discussed above, Petitioner cannot establish subject matter jurisdiction for the Petition, and oral argument would not be helpful to the Court. Therefore, the undersigned recommends the Court grant Respondents' motion to dismiss (Doc. 18) without oral argument, hold that the Court lacks jurisdiction over Petitioner's claims, and dismiss this action. See Rule 4, foll. 28 U.S.C. § 2254 (a district court may summarily dismiss a habeas corpus petition "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court"); Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action"); Clayton v. Biter, 868 F.3d 840, 845 (9th Cir. 2017) ("District courts adjudicating habeas petitions ... are instructed to summarily dismiss claims that are clearly not cognizable.").
Accordingly,
IT IS RECOMMENDED that the Court grant Respondents' motion to dismiss (Doc. 18) without oral argument and order that Petitioner Lisandra Quintero-Prieto's Petition for Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1) and this action be dismissed without prejudice for lack of jurisdiction.
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) of the 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); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely 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 to file timely objections to any factual determination of the Magistrate Judge may 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 Fed. R. Civ. P. 72.
Dated this 29th day of September, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge