Patel v. Barr

475 F.Supp.3d 422

Kalpeshkumar Arvindbhai PATEL; Jayshreebin Kalpeshkumar Patel; and Jinay Jayshreebin Patel, Plaintiffs,

v.William BARR; Chad Wolf, and Matthew Albence, Defendants

No. 5:20-cv-00922

United States District Court, E.D. Pennsylvania.

Filed July 27, 2020

Michael S. Henry, Salaman/Henry PC, Philadelphia, PA, for Plaintiffs.

Anthony D. Scicchitano, Anthony St. Joseph, Rebecca Santoro Melley, U.S. Attorney's Office, Philadelphia, PA, for Defendants.

OPINION

Defendants’ Motion to Dismiss, ECF No. 9 – Granted

Joseph F. Leeson, Jr., United States District Judge

I. INTRODUCTION

Plaintiffs, citizens of India, entered the United States at the southern border, without the required documents. They expressed fear of returning to India, but an asylum officer did not conduct a credible fear interview because 8 C.F.R. § 208.13(c)(4) ("the Rule") deems individuals that enter the United States through the southern border ineligible for asylum if they traveled through a third country en route to the United States. Thus, Plaintiffs were ordered removed. In the instant action, they seek to challenge the validity of the Rule. Defendants have filed a Motion to Dismiss arguing there is no subject matter jurisdiction because challenges to the Rule are only available in the United States District Court for the District of Columbia within sixty days of the implementation of the Rule. For these reasons, this Courts lacks jurisdiction. The Motion to Dismiss is granted, and the temporary restraining order and stay of removal is vacated.

II. BACKGROUND

Plaintiffs Kalpeshkumar Arvindbhai Patel and Jayshreebin Kalpeshkumar Patel are married, and Plaintiff Jinay Jayshreebin Patel is their one-and-a-half-year-old biological son. See Compl. ¶ 15, ECF No. 1. The Patels are natives and citizens of India. Id. On or about January 21, 2020, the Patels entered the United States together at or near Calexico, California, without inspection by an Immigration Officer and without possessing a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Immigration and Nationality Act ("INA"). Id. ¶ 22.

Following their crossing, on January 22, 2020, the United States Customs and Border Patrol arrested the Patels, and a Border Patrol Agent determined they were inadmissible to the United States under the INA § 212(a)(7)(A)(i)(II)¹ and ordered their removal under INA § 235(b)(1).² See Compl. ¶ 22. Even though inadmissible under INA § 212(a)(7)(A)(i)(II), because the Patels feared return to India, they pursued asylum. Id. ¶ 24. An asylum officer determined they were not eligible for asylum under the Rule, 8 C.F.R. § 208.13(c)(4),³ so he conducted a reasonable fear interview instead of a credible fear interview. Id. ¶¶ 24, 25. The asylum officer determined the Patels did not establish a reasonable fear of persecution or torture if they returned to India. Id. ¶ 25. The Patels sought review of the asylum officer's interview at the immigration court in York, Pennsylvania on February 5, 2020. Id. ¶ 26. An Immigration Judge reviewed and affirmed the asylum officer's decision. Id. The Patels are currently detained at the Berks County Residential Center in Leesport, Pennsylvania. Id. ¶ 15.

The Patels filed a Complaint in the above-captioned action on February 19, 2020.⁴ The Complaint alleges that the Rule rendering noncitizens who transit through another country prior to reaching the southern border of the United States ineligible for asylum is part of an "unlawful effort" to undermine the United States asylum system at the southern border. Id. ¶ 8. The Complaint asserts three counts: (1) violation of the INA and Administrative Procedure Act ("APA") for promulgating a rule contrary to law, (2) violation of the APA for publishing a regulation less than thirty days before its effective date without good cause, and (3) violation of the APA for establishing an arbitrary and capricious rule. Id. ¶¶ 65, 68, 69, 72. The Patels seek a declaration that the Rule is unlawful and invalid, a temporary restraining order, attorneys’ fees, and further relief the Court deems equitable, just, and proper. Id. ¶ 72. The day the Complaint was filed, the Court stayed removal and enjoined Defendants from deporting the Patels pending this litigation. See ECF No. 3. Defendants have filed a Motion to Dismiss the Complaint for lack of subject matter jurisdiction and vacate the temporary restraining order. See Defs.’ Mot. Dismiss 5, ECF No. 9.

III. LEGAL STANDARDS

A. Motion to Dismiss – Federal Rule of Civil Procedure 12(b)(1)

"[T]here are two types of Rule 12(b)(1) motions: those that attack the complaint on its face and those that attack subject matter jurisdiction as a matter of fact." Petruska v. Gannon Univ. , 462 F.3d 294, 302 n.3 (3d Cir. 2006) (citing Mortensen v. First Fed. Sav. & Loan , 549 F.2d 884, 891 (3d Cir. 1977) ). "[A] court must first determine whether the movant presents a facial or factual attack" because the distinction determines the standard of review. In re Schering Plough Corp. Intron/Temodar Consumer Class Action , 678 F.3d 235, 243 (3d Cir. 2012). A facial attack "challenges subject matter jurisdiction without disputing the facts alleged in the complaint, and it requires the court to ‘consider the allegations of the complaint as true.’ " Davis v. Wells Fargo , 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska , 462 F.3d at 302 n.3 ). A factual attack challenges "subject matter jurisdiction because the facts of the case ... do not support the asserted jurisdiction." Constitution Party of Pa. v. Aichele , 757 F.3d 347, 358 (3d Cir. 2014). A factual attack "cannot occur until plaintiff's allegations have been controverted[,]" Mortensen , 549 F.2d at 892 n.17, which occurs when the movant files an answer or "otherwise presents competing facts." Aichele , 757 F.3d at 358. "When a factual challenge is made, ‘the plaintiff will have the burden of proof that jurisdiction does in fact exist,’ and the court ‘is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.’ " Davis , 824 F.3d at 346 (quoting Mortensen , 549 F.2d at 891 ). "[N]o presumptive truthfulness attaches to [the] plaintiff's allegations...." Id. (quoting Mortensen , 549 F.2d at 891 ) (alterations in original).

B. Asylum Eligibility pursuant to C.F.R. § 208.13(c)(4)

Aliens who travel through a third country prior to arriving in the United States face limited eligibility for asylum. This restriction provides:

Additional limitation on eligibility for asylum. Notwithstanding the provisions of § 208.15, any alien who enters, attempts to enter, or arrives in the United States across the southern land border on or after July 16, 2019, after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual for residence en route to the United States, shall be found ineligible for asylum.

8 C.F.R. § 208.13(c)(4). The Rule has three exceptions: (1) an alien applied for protection in at least one country while traveling to the United States, (2) the alien was a "victim of a severe form of trafficking," or (3) the only countries traveled through were not parties to the 1951 United Nations Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees, or the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Id. § 208.13(c)(4)(i-iii).

C. Challenges to Expedited Removal Orders

Congress dictated protocol for inspecting applicants for admission to the United States in 8 U.S.C. § 1225(b)(1). The application inspection requires immigration officials to order aliens to be removed from the United States, unless the alien intends to apply for asylum. See 8 U.S.C. § 1225(b)(1)(A)(i). Asylum applications require asylum interviews, in which asylum officers conduct an interview to determine if an alien has a credible fear of persecution in their home country. Id. § 1225(b)(1)(B)(i). If there is credible fear, the alien is detained for further consideration of the asylum application. Id. If there is not a credible fear, the officer orders the alien to be removed from the United States without further hearing or review. Id. § 1225(b)(1)(B)(iii)(I). The asylum officer's removal order can be reviewed by an immigration judge in immigration court. Id. § 1225(b)(1)(B)(iii)(III).

If the removed alien seeks further review, 8 U.S.C. § 1252 provides the limited⁵ grounds and the limited courts in which review may be sought. Section 1252(e) permits challenges in two forms. First, judicial review is available in habeas corpus proceedings. See 8 U.S.C. § 1252(e)(2). Habeas corpus proceedings are limited, however, to determinations of:

(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 207 [ 8 USCS § 1157 ], or has been granted asylum under section 208 [ 8 USCS § 1158 ], such status not having been terminated, and is entitled to such further inquiry as prescribed by the Attorney General pursuant to section 235(b)(1)(C) [ 8 USCS § 1225(b)(1)(C) ].

Id. Second, challenges may be made to the validity of the system, including claims about the constitutionality or consistency of a regulation with existing law. Id. § 1252(e)(3). Claims about the validity of the law behind a removal order can only be heard by the United States District Court for the District of Columbia. Id. § 1252(e)(3)(A). Further, such actions must be brought no later than sixty days after the challenged regulation is first implemented. Id. § 1252(e)(3)(B).

IV. ANALYSIS

A. This Court lacks subject matter jurisdiction over the instant claims.

The parties agree that the Patels were ordered removed by expedited...