Patel v. Barr, CIVIL ACTION NO. 20-3856

DEVANG PATEL v. ATTORNEY GENERAL WILLIAM P. BARR, ET AL.

CIVIL ACTION NO. 20-3856

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AUGUST 13, 2020

MEMORANDUM

SURRICK, J.

Plaintiff Devang Patel faces imminent deportation from the United States. Over two months ago, before he had been scheduled for deportation, Patel filed two motions with the Board of Immigration Appeals ("BIA"). Disposition of those motions may ultimately cancel his removal, or at least allow him to seek judicial review and a stay of removal from the Third Circuit. the BIA has not yet ruled on the motions. Patel has come to this Court seeking an order compelling the BIA to rule on the two motions.

Presently before the Court is Defendants' Motion to Dismiss for lack of subject matter jurisdiction. For the following reasons, the Motion will be denied and execution of Patel's order of removal will be stayed pending disposition of this matter.¹

I. BACKGROUND

Patel is a native of India. In 2008, he was admitted to the United States pursuant to an H-1B visa. On May 6, 2019, the Department of Homeland Security ("DHS") issued a Notice toAppear to Patel and placed him in removal proceedings for overstaying his visa. (Compl. ¶ 12, ECF No. 1.) Patel feared that upon his return to India, he would face a serious risk of persecution and harm from his uncle, a politically connected individual who has made death threats to Patel on numerous occasions, threatened Patel's family, and confiscated real property belonging to Patel. As a result, Patel hired private counsel to apply for cancellation of removal proceedings and protection under the Convention Against Torture ("CAT"). (Id. ¶ 13.)

Patel asserts that his attorney failed to adequately prepare himself and Patel for the merits hearing on his application for cancellation. (Id. ¶ 13.) On January 17, 2020, the Immigration Judge ("IJ") denied Patel's application and ordered him removed to India. In so doing, the IJ reasoned that Patel had been convicted of a crime involving moral turpitude, theft by unlawful taking, in violation of 18 Pa. C.S.A. § 3921(a). Patel appealed pro se to the BIA, which dismissed his appeal and entered a final order of removal on May 11, 2020. (Id. ¶ 14; see also ECF No. 3-1.)

On June 4, 2020, through new counsel, Patel filed a motion to reopen and a motion to reconsider with the BIA. (Compl. ¶ 15.) In the motion to reopen, Patel asserts ineffective assistance of prior counsel. (Id. ¶ 16.) In the motion to reconsider, Patel asserts that the IJ failed to apply binding Third Circuit precedent regarding Patel's CAT claim, and that the BIA erred by failing to consider the IJ's errors and by summarily dismissing Patel's pro se appeal. (Id. ¶ 17.) DHS never opposed the motions, which are still pending today. (Id. ¶¶ 19, 21.)

On July 30, 2020, Patel was informed that he would be deported on August 10, 2020. The following day, July 31, 2020, Patel filed for an emergency stay of removal with the BIA.The BIA denied his request that same day. (Id. ¶ 20.)

The circuit courts of appeal have exclusive jurisdiction to review removal orders and decisions on motions to reopen and reconsider. However, unless and until the BIA decides the two outstanding motions, Patel cannot seek judicial review of his case with the Third Circuit. (See id. ¶¶ 23-27 (citing 8 U.S.C. §§ 1252(a), (b).) Moreover, unless and until Patel can file a petition for review with the Third Circuit, he cannot seek a stay of removal from the Third Circuit. (See id.; see also Standing Order Regarding Immigration Cases, Third Circuit Court of Appeals (Aug. 5, 2015), available at https://www.ca3.uscourts.gov/sites/ca3/files/BIA%20Standing%20Order%20final.pdf.)

On Friday afternoon, August 7, 2020, three days before his scheduled deportation, Patel filed a Complaint in this Court seeking an order compelling the BIA to decide his pending motions. In support of his claim for relief, Patel invokes the Mandamus Act, 28 U.S.C. § 1361 (Count I), and the Administrative Procedures Act, 5 U.S.C. § 706(1) ("APA") (Count II). Simultaneously, Patel filed an Emergency Motion for Temporary Restraining Order in which he sought a stay of his deportation pending the Court's determination of his claims. (ECF No. 3.) On Saturday, August 8, 2020, Defendants filed a response to Patel's Emergency Motion, as well a Motion to Dismiss for lack of subject matter jurisdiction or, in the alternative, to transfer this matter to the United States District Court for the Middle District of Pennsylvania, or to the United States District Court for the Western District of Louisiana. (ECF No. 7.) A hearing was held in open court on Saturday afternoon (ECF No. 9), at the conclusion of which we issued an order temporarily staying removal proceedings pending a determination over whether we have jurisdiction to hear this matter. (ECF No. 10.) For the reasons that follow, we conclude that we do.

II. DISCUSSION

A. Standard of review

In order to adjudicate a case, a federal court must have subject matter jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541-42 (1986). The Government challenges this Court's subject matter jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1). "In evaluating a Rule 12(b)(1) motion, a court must first determine whether the movant presents a facial or factual attack." In re Schering Plough Corp., 678 F.3d 235, 23 (3d Cir. 2012). "In reviewing a facial challenge, which contests the sufficiency of the pleadings, 'the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff.'" Id. (quoting Gould Elec. Inc. v. United States, 220 F.3d 169, 176 (3d Cir.2000)). "A factual attack, on the other hand, is an argument that there is no subject matter jurisdiction because the facts of the case ... do not support the asserted jurisdiction." Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 358 (3d Cir. 2014). On a factual attack, the "court may weigh and 'consider evidence outside the pleadings.'" Id. (quoting Gould Elecs. Inc., 220 F.3d at 176).

The Government has appended to its Motion various documents related to the underlying removal proceedings. (See ECF Nos. 7-3, 7-4, 7-5.) The Government thus contends that it presents a factual attack to jurisdiction. We disagree. Our resolution of the jurisdictional issue does not depend on a consideration of the Government's exhibits, and the parties do not appear to dispute the facts of this case. Rather, the Government asserts that pursuant to the relevant statutes, Patel's claim on its face is insufficient to invoke the subject matter jurisdiction of the court. That is a facial attack. See Red Hawk Fire & Security, LLC v. Siemens Indus. Inc., --- F. Supp. 3d ---, No. 19-13310, 2020 WL 1502932, at *2 (D.N.J. Mar. 30, 2020) (citing Davis v.Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016); Aichele, 757 F.3d at 358). Moreover, the Government "filed the attack before it filed any answer to the Complaint or otherwise presented competing facts. Its motion [is] therefore, by definition, a facial attack." Aichele, 757 F.3d at 358; see also Askew v. Trustees of General Assembly of Church of the Lord Jesus Christ of the Apostolic Faith Inc., 684 F.3d 413, 417 (3d Cir. 2012) ("As the defendants had not answered and the parties had not engaged in discovery, the first motion to dismiss was facial."); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 892 n.17 (3d Cir. 1977) ("A factual jurisdictional proceeding cannot occur until [the] plaintiff's allegations have been controverted.").

B. 8 U.S.C. § 1252 does not divest the District Court of jurisdiction

The Government asserts that this Court lacks jurisdiction under 8 U.S.C. §§ 1252(a)(5), (b)(9), & (g). Section 1252 is entitled "Judicial review of orders of removal." Subsection 1252(a)(5), entitled "Exclusive means of review," states in relevant part that "a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal." Clearly § 1252 delegates to the courts of appeal exclusive jurisdiction to engage in judicial review of removal orders. However, Patel is not asking us to review his removal order. He is not asking this Court to review any decision by the IJ or BIA in this matter. Rather, Patel is asking the Court to compel the BIA to decide his pending motions and to stay the removal order until the BIA does so. Accordingly, § 1252(a)(5) does not apply. See Las Americas Immigrant Advocacy Ctr. v. Trump, No. 19-2051, 2020 WL 4431682, at *6 (D. Or. July 31, 2020) (finding § 1252(a)(5) inapplicable where the court "is not being asked to review any decision by an immigration court, nor would a ruling in Plaintiffs' favor have the effect of reversing any order of removal"); Compere v. Nielsen, 358F. Supp. 3d 170, 177 n.8 (D.N.H. 2019), appeal dismissed, No. 19-1303, 2019 WL 4598236 (1st Cir. May 30, 2019).

The same goes for § 1252(b)(9), which states:

(b) Requirements for review of orders of removal

With respect to review of an order of removal under subsection (a)(1), the following requirements apply:

...

(9) Consolidation of questions for judicial review

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

8 U.S.C. § 1252(b...