M'Bagoyi v. Barr

423 F.Supp.3d 99

Cristian M'BAGOYI, Petitioner

v.William P. BARR, et al., Respondents

CIVIL ACTION NO. 19-1717

United States District Court, M.D. Pennsylvania.

Signed October 24, 2019

Paul B. Grotas, The Grotas Firm, PC, New York, NY, for Petitioner.

Joseph Terz, Joanne M. Sanderson, US Attorney's Office, Harrisburg, PA, for Respondents.

MEMORANDUM

MALACHY E. MANNION, United States District Judge

Petitioner is an undocumented immigrant, who entered into the United States over nineteen (19) years ago. He has no criminal history. He is a husband to a United States citizen, a father of four young children and a working taxpayer employed as a carpenter with the New York Convention Center Operating Corporation, Jacob K. Javits Convention Center, for over thirteen (13) years. As exhibited by the sixty-one pages of testimonials presented with this action, he is cherished in his community as a leader, friend and mentor. On September 27, 2019, the petitioner was taken into custody and detained by Immigration and Customs Enforcement ("ICE") officers for the purpose of executing his final order of removal. The petitioner has come to this court seeking a stay of his removal while he exhausts his right to apply for a waiver to legalize his immigration status and while he exhausts the process of a motion to reopen his immigration proceedings. In considering these requests, the court finds that the petitioner is entitled to relief as to his former request, but that the court lacks jurisdiction to consider the latter.

By way of relevant background, the petitioner, Cristian M'Bagoyi, is a native and citizen of Angola, who was admitted into the United States on April 8, 2000, as a B-2 Visitor for Pleasure with authorization to remain in the United States until October 7, 2000. Shortly after his arrival in the United States, on April 13, 2000, the Canada Border Service Agency admitted the petitioner into Canada to allow him to pursue an application for refugee status. That application was denied on April 23, 2001. On March 5, 2003, the petitioner was returned to the United States by Canadian immigration authorities pursuant to a reciprocal agreement between the countries.

On the day he was returned to the United States, the petitioner was served with a Notice to Appear by the Immigration and Naturalization Service ("INS"). Although the petitioner filed various applications for relief from removal, on September 22, 2003, an immigration judge ("IJ") denied those applications and ordered the petitioner removed from the United States. The petitioner appealed the decision of the IJ to the Board of Immigration Appeals ("BIA"), which dismissed his appeal on January 27, 2004. Based upon ICE's inability to secure a travel document for the petitioner's removal, on March 24, 2004, the petitioner was released from ICE custody on an order of supervision.

On August 29, 2008, a Petition for Alien Relative (Form I-130) was filed with United States Citizenship and Immigration Services ("USCIS") on the petitioner's behalf by his then wife. That petition was granted by USCIS on April 9, 2009. After approval of the Form I-130 petition, on July 9, 2009, the petitioner filed a motion to reopen his immigration proceedings with the BIA, which was denied on September 7, 2010.

On March 15, 2013, the petitioner filed a Petition for Amerasian, Widow(er), or Special Immigrant (Form I-360) with USCIS. On September 22, 2013, that petition was approved and the petitioner held an I-360 Visa between then and March 5, 2015, when USCIS revoked the petitioner's Visa. Shortly thereafter, on April 27, 2015, the petitioner was arrested by ICE agents who processed him and served him with a Warning for Failure to Depart (Form I-229(a)).

On May 6, 2015, the petitioner filed a second motion to reopen his immigration proceedings and for a stay of removal. The BIA denied the motion to stay that same day and subsequently denied the motion to reopen on June 9, 2015.

On September 9, 2015, the petitioner filed a petition for writ of habeas corpus in the United States District Court, District of New Jersey, challenging his continued detention pending removal. On October 23, 2015, rather than respond to the petition, ICE released the petitioner from detention under an order of supervision and the habeas petition was dismissed. Again, the basis for the petitioner's release was ICE's inability to secure a travel document that would allow the petitioner's removal. In the meantime, between May and September 2015, while the petitioner was apparently still detained in ICE custody, he was served with additional warnings for failure to depart.

On December 1, 2016, the petitioner's second wife filed an Form I-130 on his behalf. This petition was approved by USCIS on March 19, 2018. After this approval, the petitioner provides that he and his spouse "began gathering the requisite documents to apply for a waiver of his removal order." However, prior to the petitioner applying for a waiver, on September 19, 2019, the petitioner's order of supervision was revoked by ICE based on the issuance of a travel document, and on September 27, 2019, the petitioner was arrested and detained by ICE for the purpose of executing his final order of removal. That same day, the petitioner filed a third motion to reopen his immigration proceedings and a request for stay of removal. To date, there is no indication that the BIA has acted upon the petitioner's third motion to reopen or his motion to say removal. Additionally, the petitioner attempted to file an Application for Permission to Re-apply for Admission into the United States after Deportation or Removal (Form I-212) in both the Department of Homeland Security's ("DHS") New York field office and its Philadelphia field office. The petitioner contends, however, that neither office would accept the application for waiver.

On October 2, 2019, the petitioner filed the instant petition for writ of habeas corpus and complaint for declaratory and injunctive relief. (Doc. 1). That same day, the court enjoined and prohibited the respondents from removing or causing the removal from the United States of the petitioner and stayed any removal until further order of court. (Doc. 3). The respondents were further enjoined and prohibited from transferring or causing the transfer of the petitioner from the jurisdiction of this court while these proceedings are pending and until further order of court. Finally, the respondents were directed to show cause why the habeas petition should not be granted and the petitioner should not be released from custody. A determination as to whether a hearing on the petition would be scheduled was deferred pending briefing by the respondents. On October 7, 2019, the respondents filed their response to the show cause order. (Doc. 6). Upon review, the court finds that a decision on the pending petition can be made on the record before the court without a hearing.

The petitioner brings this petition pursuant to the provisions of 28 U.S.C. § 2241 ; the All Writs Act, 28 U.S.C. § 1651 ; the Immigration and Nationality Act ("INA"), the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 ; and Article I, Section 9, Clause 2 of the United States Constitution (the "Suspension Clause"). The petitioner asserts that his current detention constitutes a severe restraint on his individual liberty such that he is in custody in violation of the Constitution or laws of the United States. He further asserts that his arrest, detention and removal violate, and would violate, the INA, the APA and the Constitution's due process guarantees. As a result, the petitioner requests that this court stay his removal from the United States until he exhausts his right to seek a provisional unlawful presence waiver. He further requests that the court stay his removal from the United States until he fully exhausts the process of a motion to reopen his immigration proceedings. Finally, the petitioner seeks an order for his immediate release from custody.

The petitioner is not the first to bring a habeas action and request injunctive relief requesting the right to pursue the provisional waiver process. Other courts have recently had the opportunity to consider such matters. In one of the most recent cases, the background of the provisional waiver process and the process itself have been summarized,

An alien "who has been ordered removed" is inadmissible for re-entry to the United States for five, ten, or twenty years from the date of departure or removal, depending on whether the alien is removed upon arrival, is removed after arrival, has already been removed once before, or has been convicted of an aggravated felony. 18 U.S.C. § 1182(a)(9)(A)(i-ii); 8 C.F.R. § 212.2(a). An alien who remains "inadmissible" is ineligible to receive a visa to be admitted to the United States as a lawful permanent resident. 8 U.S.C. § 1182(a). This inadmissibility may be waived by the Secretary of Homeland Security's consent to reapply for admission, 8 U.S.C. § 1182(a)(9)(A)(iii), but the waiver application process can take well over a year, 78 Fed. Reg. 536-01, 536 (Jan. 3, 2013). Prior to 2013, an alien who wanted to seek lawful permanent resident status and apply for this waiver of admissibility was required to first depart from the United States. Id.

In 2013, recognizing that undocumented immediate family members of citizens who were living in the United States were choosing to forego applying for visas rather than be separated from their families for at least a year, and potentially longer, the Department of Homeland Security ("DHS") promulgated a rule "to allow certain immediate relatives of U.S. Citizens who are physically present in the United States to request provisional unlawful presence waivers prior to departing from the United States for consular processing of their immigrant visa applications." Id. ("[M]any immediate relatives who may qualify for an immigrant visa are reluctant to

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