Ivan A. v. Anderson

IVAN A., Petitioner, v. WILLIAM ANDERSON, et al., Respondents.

Civ. No. 20-2796 (KM)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

March 8, 2021

OPINION

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

The petitioner, Ivan A.,¹ is an immigration detainee currently held at the Essex County Correctional Facility, in Newark, New Jersey. He previously filed, through counsel, a petition for a writ of habeas corpus under 28 U.S.C. § 2241. (DE 1.) The petition sought a stay of his removal pending a decision from the Board of Immigration Appeal ("BIA") on his motion to reopen his immigration proceedings. On April 13, 2020, I granted Petitioner's request for a stay pendente lite until the BIA rendered its decision, and for a period of ten days thereafter to permit an appeal and stay application, if appropriate, to the Court of Appeals. (DE 11.) Respondents appealed this Court's grant of a stay, and the matter remains pending before the Third Circuit. (DE 14; see Ivan R. v. Warden Essex Cnty. Corr., et al., No. 20-2197 (3d Cir. June 18, 2020)).

Now before this Court is Respondents' motion for an indicative ruling, pursuant to Federal Rule of Civil Procedure 62.1 ("Rule 62.1"), that the Court would vacate its April 13, 2020 Order. (DE 16.) In addition and in the alternative, Respondents ask the Court to reconsider its decisionunder Federal Rule of Civil Procedure 54(b) ("Rule 54(b)"). (Id.) The motion is based primarily on Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 207 L. Ed. 2d 427 (2020), a U.S. Supreme Court case decided after I entered my order.

The stay granted by this Court was dictated by practical concerns of judicial administration. The BIA still had not decided the petitioner's appeal, which implicated the permissibility of removal. The BIA had, however, denied a stay of removal, and an appeal to the Court of Appeals was not yet ripe. The stay that I ordered was a limited one, designed solely as a bridge to Court of Appeals review. Where jurisdiction is concerned, however, the Court is not free to select what it regards as the most practical course. As I read Thuraissigiam, a district court lacks the power to enter such a stay. For the reasons set forth below, Respondents' motion will be granted.

II. BACKGROUND

Petitioner is a native and citizen of Honduras. (DE 2-3 at 3.) He entered the United States without authorization in January 2005, at which time he was immediately apprehended by Immigrations and Customs Enforcement ("ICE") and placed into removal proceedings. (DE 2-3.) An immigration judge ("IJ") ordered Petitioner removed from the country in 2005, but he remained in the United States. (DE 2-4; DE 1 at 11-12.) In January 2020, Petitioner filed a motion with the immigration court to reopen his removal proceedings, together with a motion for a stay of removal. (DE 6-1 at 2.) Although the IJ initially granted Petitioner's request for a stay, the IJ ultimately denied Petitioner's motion to reopen, which had the effect of vacating the stay. (Id.) Petitioner appealed the IJ's denial to the BIA and filed a motion for a stay of removal pending the BIA appeal. (DE 2-10; DE 6-3.) The BIA denied the request for a stay, finding that "[a]fter consideration of all information, there is little likelihood that the appeal will be sustained." (DE 6-3 1.) The BIA has not yet adjudicated Petitioner's appeal of the IJ's denial of his motion to reopen.

In March 2020, Petitioner filed a petition for writ of habeas corpus before this Court, as well as a motion for a temporary restraining order ("TRO"). (DE 1; DE 4.) He moved the Court to "[e]njoin Respondents from removing [Petitioner] from the District of New Jersey and from the United States until the Board of Immigration Appeals has adjudicated his appeal of the denial of his motion to reopen." (DE 1 at 23)² Petitioner argued that the Suspension Clause provided the Court the jurisdiction to grant such relief. (DE 9 at 16.) Respondents opposed the petition and application for a TRO, arguing that I lacked jurisdiction to enter a stay. The Suspension Clause, Respondents argued, was not implicated where Petitioner sought only a stay of his removal. (DE 6.)

On April 13, 2020, I granted Petitioner's request and entered a stay of removal pendente lite. (DE 11.) In my brief Memorandum and Order, I reasoned as follows:

The very reason that the immigration authorities may act without court intervention—i.e., the reason that the court may permissibly be stripped of habeas jurisdiction—is the existence of an alternative remedy, namely a process of administrative review culminating in review by the Court of Appeals. Here, however, the immigration authorities have acted in such a manner (I do not say with the intention) that the effectiveness of Court of Appeals review is compromised. Under the peculiar circumstances of this case, the Suspension Clause of the U.S. Constitution requires that this Court retain a minimal level of residual habeas jurisdiction.

(Id. at 3 (internal quotation marks omitted) (quoting Sean B. v. McAleenan, 412 F. Supp. 3d 472, 475 (D.N.J. 2019).) That minimal, residual habeas jurisdiction, I held, permitted me to enter a temporary stay bridging the transition, if necessary, to the Court of Appeals.

Respondents appealed my order granting a stay to the U.S. Court of Appeals for the Third Circuit. (DE 14.) That appeal effectively transferred jurisdiction over the matter to the Court of Appeals. On August 7, 2020, however, Respondents filed this motion for an indicative ruling vacating the April 13, 2020 Order under Rule 62.1, or for reconsideration of the stay under Rule 54(b). (DE 16.) That application is based on intervening authority: After I entered the stay order, the United States Supreme Court issued its decision in Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 207 L. Ed. 2d 427 (2020), which held that the Suspension Clause is not implicated in cases where the relief sought is something other than release from custody. (DE 16-1 at 5.) Petitioner opposes the motion. (DE 19.)

III. ANALYSIS

Respondents' motion asserts that the Supreme Court's recent decision in Thuraissigiam "clearly rejects" Petitioner's prior argument that, under the Suspension Claus, this Court retained jurisdiction to grant him a stay. They seek an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the stay if the matter were remanded by the Third Circuit for that purpose.

A. Jurisdiction

First, I address the question of my power to consider Respondents' motion, given that the case is on appeal. Petitioner argues that after a preliminary injunction has been appealed, a district court retains some jurisdiction to modify the injunction, but only to preserve the status quo or "preserve the integrity" of the pending appeal. (DE 19 at 14-15 (quoting Ortho Pharm. Corp. v. Amgen, Inc., 887 F.2d 460, 464 (3d Cir. 1989)).

That is true as far as it goes. Generally, "a notice of appeal divests the District Court of jurisdiction 'over those aspects of the case involved in the appeal,'" and the current appeal is fromthe stay itself. Kull v. Kutztown Univ. of Pennsylvania, 543 F. App'x 244, 248 (3d Cir. 2013) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). As Respondents point out, however, Federal Rule of Civil Procedure 62.1 ("Rule 62.1") provides a practical workaround. Rule 62.1 authorizes the district court to render an "indicative ruling" where a substantive ruling would be barred by a pending appeal.

Rule 62.1 provides as follows:

If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may:

(1) defer considering the motion;

(2) deny the motion; or

(3) state either that it would grant the motion if the court of appeals remands for that purpose or that the motion raises a substantial issue.

Fed. R. Civ. P. 62.1(a).

The Rule 62.1 procedure, and particularly that of Rule 62.1(a)(3), "is helpful whenever relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal." Fed. R. Civ. P. 62.1 cmt.; see also Mandalapu v. Temple Univ. Hosp., Inc., 796 F. App'x 152, 153 n.2 (3d Cir. 2020) ("Rule 62.1 is a procedural device that permits the District Court to issue an 'indicative' decision on a motion for relief, notwithstanding a pending appeal."). If the district court does make such an indicative ruling that it would grant the movant's motion, the "movant must promptly notify the circuit clerk under Fed. R. App. P. 12.1." Fed. R. Civ. P. 62.1(b). "[I]f the court of appeals remands for that purpose," then jurisdiction is returned to the district court, which may then decide the motion. Fed. R. Civ. P. 62.1(c).

Here, the precise issue on appeal to the Third Circuit is this Court's order granting Petitioner a stay of removal. Respondents do not impermissibly request an immediate vacatur ormodification of this order, as Petitioner suggests. Rather, they invoke Rule 62.1(a)(3) and seek an indicative ruling that this Court would vacate the order if the Third Circuit remanded the matter. Under Rule 62.1, I possess the power to issue such an indicative ruling.

B. Supreme Court's Decision in Thuraissigiam

I turn to the merits of the motion.

Matters of removal are to be considered in the first instance at the administrative level, and that removal decisions are to be appealed directly to the Courts of Appeals. In general, the district courts have been stripped of jurisdiction to consider removal issues. See, e.g., 8 U.S.C. § 1252(g) & (b)(9). As a matter of constitutional law, however, district courts retain their habeas jurisdiction. The Suspension Clause of the U.S. Constitution entails that the habeas jurisdiction cannot be removed unless an alternative remedy is in place. In general, Court of Appeals review has been held to be such an alternative remedy. See Tazu v. Attorney Gen. United...