Dugdale v. U.S. Customs & Border Prot.

88 F.Supp.3d 1

Timothy Dugdale, Petitioner

v.U.S. Customs and Border Protection et al., Respondents.

Case No. 1:14–cv–01175 CRC

United States District Court, District of Columbia.

Signed March 31, 2015

Timothy Dugdale, pro se.

Aaron S. Goldsmith, Dillon Ariel Fishman, U.S. Department of Justice, Washington, DC, for Respondents.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

This is a challenge to an order of expedited removal issued against a Canadian citizen who attempted to enter the United States from Canada. Timothy Dugdale was ordered removed after Customs and Border Protection (“CBP”) officers determined he was conducting business activities in the United States that were prohibited by his immigration status, and that he had lied about the business to gain entry into the country. Dugdale has petitioned the Court in habeas, contending that he is in fact a U.S. citizen, or at least entitled to become a permanent lawful resident, because he was adopted as an infant by an American mother living in England. He also argues that the removal order was invalid because it was not signed by a CBP supervisor and that the expedited removal statute is unconstitutional. After review of all of the briefing, including some 37 separate pleadings filed by Mr. Dugdale, the Court concludes that it has subject matter jurisdiction over his citizenship and permanent residency claims under the limited judicial review provisions of the REAL ID Act of 2005, 8 U.S.C. § 1252(e)(2). It will nonetheless dismiss those claims because Dugdale has not alleged sufficient facts to state a claim for relief. The Court also will assert jurisdiction over Dugdale's claim that his removal order was procedurally defective and will order supplemental briefing to resolve lingering questions of fact and law regarding the potential defect in the order. Finally, the Court finds that it lacks subject matter jurisdiction over Dugdale's constitutional challenge to the expedited removal system because he did not file it within 60 days after the contested provisions were implemented, as required by 8 U.S.C. § 1252(e)(3). The Court, accordingly, will grant the government's motion to dismiss in part.

I. Background

The following facts are drawn from Mr. Dugdale's habeas petition and related filings. The Court accepts them as true for the purpose of resolving the petition. Dugdale was born in England in 1964 and adopted as an infant by an American mother and English father. The family moved to Ontario, Canada four years later. Dugdale appears to have spent most of his professional life living and working on both sides of the U.S. border. After studying in Detroit in the 1990s, Dugdale settled in the area and lectured at Detroit Mercy University for over a decade on a “TN” visa—a nonimmigrant classification created under the North American Free Trade Agreement to enable Mexican and Canadian citizens to work in the United States in certain professional occupations. He has a U.S.-citizen son in Michigan over whom he has joint legal custody with his ex-wife, who is also a U.S. citizen, and a wife and another U.S.-citizen son who live in Virginia. Dugdale's mother lives in London, Ontario, and he regularly travelled back and forth to Canada for family and work obligations. He also operated a graphic design business out of his home, which apparently was not authorized under his TN status.

On January 10, 2012, Dugdale tried to return to his home outside Detroit after visiting his mother in Ontario. When questioned by CBP officers at the Detroit Ambassador Bridge, he initially denied conducting any business in the U.S. other than his teaching job. On further questioning, however, Dugdale conceded in a sworn statement that he operated the graphic design business and that he had not disclosed it because he feared he would be denied admission. He also acknowledged having denied the existence of the business when questioned during a prior border crossing. Based on his statement, CBP determined that Dugdale had willfully misrepresented a material fact in order to gain admission into the United States and, accordingly, issued an order under the expedited removal statute, 8 U.S.C. § 1225(b)(1), barring him from entering the United States for five years. Habeas Petition at 17 (Determination of Inadmissibility).

Dugdale challenged his expedited removal order in two ways. First, he filed a “petition for review” with the Sixth Circuit. See Dugdale v. Holder, No. 13–3453 (6th Cir. June 13, 2013). The Sixth Circuit held that it did not have jurisdiction to review the order of expedited removal under the narrow judicial review provisions of 8 U.S.C. § 1252(a)(2)(A). Id. Dugdale then filed a petition for a writ of habeas corpus in the U.S. District Court for the Eastern District of Michigan. The district court sua sponte dismissed that petition without prejudice. Dugdale v. Woods, No. 13–12300, 2013 WL 3272458 (E.D. Mich. June 27, 2013). Dugdale appealed the dismissal to the Sixth Circuit and the government sought remand, arguing that Dugdale had raised a colorable argument that he was a U.S. citizen, and the district court therefore had jurisdiction over that narrow question pursuant to Section 1252(e)(2)(A). Brief for Government, Dugdale v. Customs & Border Patrol, No. 13–1976 (6th Cir. Jan. 30, 2014). The Sixth Circuit disagreed, finding that the district court lacked jurisdiction because Dugdale had not squarely raised a citizenship claim in his habeas petition. Dugdale v. Customs & Border Patrol, No. 13–1976 (6th Cir. Apr. 7, 2014).

One avenue remained: Dugdale requested discretionary permission to enter the country, see 8 U.S.C. § 1182(d)(3)(A), which CBP granted. On July 11, 2014, while on this “advance parole,” Dugdale personally filed his habeas petition in this court. He later voluntarily left the United States within the time limits prescribed by his advance parole but was again granted permission to return to care for his infant son while his wife was being treated for cancer. Pet.'s Reply to Mot. for Emergency Stay of Removal. This second discretionary parole expired on January 17, 2015. Resp'ts' Opp'n to Emergency Stay of Removal at 1.

II. Analysis

Dugdale's habeas petition, supplemented by a series of colorful pro se filings, presents four principal grounds for relief.¹ First, he claims his removal was improper because he is a U.S. citizen (or at least is entitled to citizenship) by virtue of his adoption in England by an American mother. Second, he argues in the alternative that the immigration officials at the border should have permitted him to adjust status to that of a lawful permanent resident, rather than removing him, because he was the beneficiary of two approved “I–130” petitions made by his American mother. Third, he claims the removal order is invalid because it lacks the signature of a CBP supervisor. And finally, he asserts that the expedited removal system as a whole is unconstitutional.

Dugdale filed his habeas petition under the general habeas corpus statute, 28 U.S.C. § 2241. Habeas Petition at 1. Congress, however, created exclusive procedures for challenging orders of expedited removal. See 8 U.S.C. § 1252(e)(1) (“Without regard to the nature of the action or claim ..., no court may (A) enter declaratory, injunctive, or other equitable relief in any action pertaining to [an order of expedited removal] except as specifically authorized in a subsequent paragraph of this subsection.”). The vehicle for seeking review of expedited removal orders is a petition for habeas corpus in federal district court. Id. § 1252(e)(2) (“Judicial review of any determination made under [the expedited removal provision] is available in habeas corpus proceedings.”). This is not full-blown habeas review, however. The district court's review of an expedited removal order is limited to three narrow questions:

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under such section, and

(C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title....

Id. The statute also authorizes challenges to the constitutionality of the expedited removal statute and its associated regulations. Id. § 1252(e)(3). But any such action must be filed within 60 days after the challenged provision or regulation was first implemented. Id. § 1252(e)(3)(B).

The central task before the Court, then, is to determine whether review of any of Dugdale's claims pertaining to his expedited removal order is permitted by the narrow confines of Section 1252(e). If review is not permitted, the Court lacks jurisdiction over the claim. If it is, the Court then must decide whether Dugdale has stated a claim for relief. Since the government has brought a motion to dismiss for lack of subject matter jurisdiction, Dugdale has the burden of demonstrating by a preponderance of the evidence why this Court has jurisdiction. Boland v. Fortis Const. Co., 796 F.Supp.2d 80, 86 (D.D.C.2011). The Court will address each claim in turn.

A. Citizenship

The Court has subject matter jurisdiction over Dugdale's claim to U.S. citizenship because that question relates to “whether [he] is an alien.” 8 U.S.C. § 1252(e)(2)(A). The substance of his claim—whether he derived citizenship from his U.S. citizen mother—is determined under the law in effect at the time “the critical events giving rise to eligibility occurred.” Minasyan v. Gonzales, 401 F.3d 1069, 1075 (9th Cir.2005). When Dugdale was born, the law provided that a person “born outside” the United States “of parents one of whom is an alien, and the other is a citizen of the United States” acquired citizenship at birth. 8 U.S.C. § 1401(a)(7) (1964) (also noting certain residency requirements of the U.S. citizen parent not at issue here...