Balogun v. Sessions

330 F.Supp.3d 1211

Victor Memido BALOGUN, [A205-719-427], Plaintiff-Petitioner,

v.Jefferson B. SESSIONS, III, Attorney General, et al., Defendants-Respondents.

Case No. 2:18-cv-03368-SK

United States District Court, C.D. California.

Signed August 31, 2018

Lori B Schoenberg, Law Offices of Lori B. Schoenberg, Los Angeles, CA, for Plaintiff-Petitioner.

Timothy Daniel Biche, Assistant 2241-194 US Attorney LA-CV, AUSA-Office of US Attorney, Los Angeles, CA, OIL-DCS Trial Attorney, Office of Immigration Litigation District Court Section, Washington, DC, for Defendants-Respondents.

ORDER DISMISSING ACTION FOR LACK OF JURISDICTION

HON. STEVE KIM, U.S. MAGISTRATE JUDGE

I.INTRODUCTION

Plaintiff is a national and citizen of Nigeria who is subject to a final order of removal and in the custody of Immigration and Customs Enforcement (ICE) pending his removal. He is also awaiting a final decision—which could still be years away—from U.S. Citizenship and Immigration Services (USCIS) on his application for U nonimmigrant status, also called a U-visa. A U-visa grants temporary legal status for victims of certain specified crimes who help law enforcement investigate or prosecute criminal activity. See 8 U.S.C. §§ 1101(a)(15)(U), 1184(p) ; 8 C.F.R. § 214.14(b). Claiming eligibility for that status, Plaintiff requested at least three times that ICE stay his removal until USCIS decided his application. But the agency granted only his first request. Even after USCIS notified ICE and Plaintiff that his application was prima facie eligible for relief, ICE refused another stay request. So Plaintiff filed this lawsuit under 28 U.S.C. § 2241 and the Administrative Procedure Act (APA), 5 U.S.C. § 706, seeking to prevent ICE from executing his removal while he awaits a final U-visa decision. (Complaint ("Compl."), ECF No. 1).

Plaintiff does not contest either the validity of his removal order or the legality of his detention. Nor does he dispute that, under the relevant immigration laws, ICE retains the discretionary authority—but not any legal obligation—to stay Plaintiff's removal pending a U-visa decision by USCIS. Plaintiff also does not dispute that USCIS can grant him a U-visa even after ICE removes him and while he is outside the United States. Instead, Plaintiff maintains that in deciding not to stay his removal, ICE failed to follow its own internal agency guidance that favors postponing removal for noncitizens with prima facie-eligible U-visa applications. The failure to follow that guidance was, according to Plaintiff, arbitrary and capricious and an abuse of the agency's discretion. (Compl. at 4–6).

Defendants counter that the Court cannot evaluate whether or how ICE followed its internal guidelines in refusing to stay Plaintiff's removal because section 1252(g) of the Immigration and Nationality Act (INA) eliminates federal court jurisdiction to review such discretionary decisions. This provision provides that "no court shall have jurisdiction to hear any cause or claim ... arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien[.]" 8 U.S.C. § 1252(g). While the Supreme Court has narrowly construed this jurisdiction-stripping statute to apply only to "a limited subset of deportation claims" arising directly from the "specified decisions and actions," Reno v. American-Arab Anti-Discrimination Committee , 525 U.S. 471, 483, 487, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (" AADC "), Plaintiff's action is one of those cases that falls categorically under section 1252(g), even as narrowly construed in AADC . Indeed, to state Plaintiff's argument is to refute it, for Plaintiff challenges the exercise of ICE's discretion to decide whether and when to carry out his removal order. If ICE had made the opposite choice and stayed Plaintiff's removal, he would have no "cause or claim" to pursue. No matter how Plaintiff describes his claim, then, it necessarily "aris[es] from" ICE's "decision" to "execute [his] removal order." 8 U.S.C. § 1252(g). Thus, the Court lacks jurisdiction and must dismiss the action.

II.BACKGROUND

Plaintiff entered the United States unlawfully in 1995. (Compl. at 22). In 2013, ICE began removal proceedings. (Id. ). That same year, an immigration judge (IJ) denied Plaintiff's requests for asylum and withholding of removal and ordered him removed. (Id. at 23). In 2014, the Board of Immigration Appeals (BIA) affirmed the IJ's removal order, and the Ninth Circuit denied Plaintiff's petition for review in 2016. (Id. at 23–24). Then, in February 2017, Plaintiff filed a U-visa application with USCIS, claiming that he was eligible for that visa as the victim of a 2007 felony assault in Los Angeles, California. (Id. at 24–25). Why Plaintiff did not apply for the U-visa sooner while his removal proceedings were underway is unexplained.¹

When he filed his U-visa application with USCIS, Plaintiff had to file a separate application for a stay of removal with ICE. (Id. at 24–25). While USCIS has sole authority to grant U-visas, see 8 C.F.R. § 214.14(c)(1), "the filing of a [U-visa application] has no effect on ICE's authority to execute a final order." Id. § 214.14(c)(1)(ii). That is why noncitizens with pending U-visa applications who are subject to a final order of removal must separately ask ICE to issue a stay of removal, which the agency has the discretion to grant or deny.² See 8 U.S.C. § 1227(d)(1) ; 8 C.F.R. § 241.6(a). In September 2009, ICE issued internal guidance detailing "factors to consider" in deciding such stay requests. See Memo. from David J. Venturella, Acting Director, U.S. Immigration & Customs Enforcement, Guidance: Adjudicating Stay Requests Filed by U Nonimmigrant Status (U-visa) Applicants , at 1 (Sept. 24, 2009) (the "Venturella Memo"). This guidance—which remains in effect according to Defendants—states that ICE "should favorably view" stay requests by applicants found to be prima facie eligible for a U-visa, unless "serious adverse factors" are present. Id. at 2–3. Such factors include national security or public safety concerns, significant criminal history, and evidence of human rights violations or immigration fraud. See id.

ICE at first granted Plaintiff a three-month stay of removal in March 2017. (Compl. at 25–26). But it later denied two more stay requests and arrested Plaintiff in January 2018 to carry out his removal. (Id. ). Meanwhile, in February 2018, USCIS notified ICE and Plaintiff that his U-visa application met the prima facie eligibility requirements under 8 C.F.R. § 214.14(b). That prima facie determination, while important, is not too difficult to obtain. (Grismore Decl. at 4–5). Still, this news prompted Plaintiff to ask about another potential stay, but ICE indicated it would deny that too, apparently citing "the absence of evidence that [Plaintiff]'s presence in the country was necessary for the investigation or the prosecution of qualifying criminal activity underlying his [U-visa] petition." (Compl. at 26–27). In fact, a U-visa applicant does not have to be in the United States to obtain the visa, although the procedures are different for U-visa grantees living abroad. See 8 C.F.R. § 214.14(c)(5)(i)(B).

In denying Plaintiff's stay requests, ICE never shared its reasons or disclosed what considerations influenced its decision.³ But as a matter of procedure, if an ICE field office wants to remove a noncitizen whom USCIS has found is prima facie eligible for a U-visa, the field office must obtain approval from ICE's Enforcement and Removal Operations (ERO) headquarters in Washington, DC. (Venturella Memo. at 2–3). The Los Angeles ICE field office did that here, and ERO Headquarters approved Plaintiff's removal in March 2018 despite his pending U-visa application. (ECF No. 39 at 12). Facing imminent removal, Plaintiff filed this lawsuit in April 2018 and obtained a temporary restraining order against his removal until the Court decided his preliminary injunction motion. (ECF No. 9).

III.DISCUSSION

If Defendants are right, the Court has no jurisdiction over this case, much less the power to issue a preliminary injunction. And that would be true for both Plaintiff's federal habeas petition and his APA complaint. See 8 U.S.C. § 1252(g) (jurisdictional bar applies "notwithstanding any other provision of law," including 28 U.S.C. § 2241 ); 5 U.S.C. § 701(a)(1) (incorporating other jurisdiction-stripping statutes as a limit on APA complaints).⁴ Thus, the Court must first answer the overriding jurisdictional question whether section 1252(g) applies to Plaintiff's claim. See Fed. R. Civ. P. 12(h)(3) ; Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

As previewed above, section 1252(g) eliminates federal court jurisdiction (unless provided elsewhere in section 1252 itself) over any "cause or claim" that "aris[es] from" a "decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders." 8 U.S.C. § 1252(g).⁵ Despite the apparent breadth of that text, the Supreme Court explained in AADC that section 1252(g) does not "cover[ ] the universe of deportation claims" but "is much narrower." 525 U.S. at 482, 119 S.Ct. 936. The "mention of three discrete events along the road to deportation," the Court clarified, was not "a shorthand way of referring to all claims arising from deportation proceedings." Id. It has thus cautioned against "interpret[ing] this language to sweep in any claim that can technically be said to ‘arise from’ the three listed actions of the Attorney General." Jennings v. Rodriguez , ––– U.S. ––––, 138 S.Ct. 830, 841, 200 L.Ed.2d 122 (2018).

But at the same time, the Supreme Court has emphasized that the "discrete acts of ‘commenc[ing] proceedings, adjudicat[ing] cases, [and] execut[ing] removal orders," AADC , 525 U.S. at 483, 119 S.Ct. 936, occupy "a special province of the Executive—its prosecutorial...