Ragbir v. Homan

923 F.3d 53

Ravidath Lawrence RAGBIR, New Sanctuary Coalition of New York City, CASA De Maryland, Inc., Detention Watch Network, National Immigration Project of the National Lawyers Guild, New York Immigration Coalition, Plaintiffs-Appellants,

v.Thomas D. HOMAN, in his official capacity as Deputy Director and Senior Official Performing the duties of the Director of U.S. Immigration and Customs Enforcement, Thomas Decker, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, Scott Mechkowski, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement, United States Immigration and Customs Enforcement, Kevin K. McAleenan, in his official capacity as Acting Secretary of Homeland Security, United States Department of Homeland Security, William P. Barr, in his official capacity as Attorney General of the United States, United States Department of Justice, Defendants-Appellees.

No. 18-1597

August Term, 2018

United States Court of Appeals, Second Circuit.

Argued: October 29, 2018

Decided: April 25, 2019

Robert Stanton Jones, Arnold & Porter Kaye Scholer LLP, Washington, DC (William C. Perdue, Sally L. Pei, Andrew T. Tutt, Arnold & Porter Kaye Scholer LLP, Washington, DC; Emily Newhouse Dillingham, Arnold & Porter Kaye Scholer LLP, Chicago, IL; Ada Añon, Arnold & Porter Kaye Scholer LLP, New York, NY; Alina Das, Jessica Rofé, Washington Square Legal Services, Inc., New York, NY, on the brief) for Plaintiffs-Appellants.

Steven J. Kochevar, Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, for Defendants-Appellees.

Before: Walker, Leval, and Droney, Circuit Judges.

Judge Walker dissents in a separate opinion.

Droney, Circuit Judge:

The principal question presented in this appeal is whether Ravidath Ragbir, an alien subject to a valid final order of removal, has presented a legally recognizable claim to enjoin the Government from deporting him on the basis of his public speech that was critical of the Government’s immigration policies and practices. Related to that question is whether Congress has deprived courts of jurisdiction to hear Ragbir’s claim,¹ and if so, whether the Suspension Clause of the Constitution, U.S. Const. art. I, § 9, cl. 2, nonetheless requires that the writ of habeas corpus be available to Ragbir.

Ragbir, together with the New Sanctuary Coalition of New York City, CASA de Maryland, Inc., Detention Watch Network, National Immigration Project of the National Lawyers Guild, and New York Immigration Coalition (collectively, "Ragbir"),² appeals from an interlocutory order of the district court denying Plaintiffs-Appellants’ motion for a preliminary injunction and dismissing his claim to the extent that he seeks to "declare unlawful or to enjoin the execution of the final order of removal against him" on the basis of First Amendment retaliation. App’x 281–82. Ragbir claims that certain officials of the Department of Justice and of the Immigration and Customs Enforcement ("ICE") agency of the Department of Homeland Security (collectively, "the Government"), selectively enforced against Ragbir a final order of removal on the basis of his speech that these officials disfavor. The district court concluded that Ragbir failed to state a cognizable claim to the extent that he sought to enjoin his deportation and that 8 U.S.C. § 1252(g) deprives all courts of jurisdiction over that claim.

We conclude that Ragbir states a cognizable constitutional claim, and although Congress intended to strip all courts of jurisdiction over his claim, the Suspension Clause of the Constitution nonetheless requires that Ragbir may bring his challenge through the writ of habeas corpus. Accordingly, we vacate the district court’s order and remand the case.

FACTUAL AND PROCEDURAL BACKGROUND

Because the district court dismissed Ragbir’s claim (and accordingly denied his motion for a preliminary injunction) for lack of subject matter jurisdiction, we "must accept as true the [plausible] allegations contained in [his] complaint and affidavits for purposes of this appeal."³ Filartiga v. Pena-Irala , 630 F.2d 876, 878 (2d Cir. 1980) ; see J.S. ex rel. N.S. v. Attica Cent. Sch. , 386 F.3d 107, 110 (2d Cir. 2004) ("We may consider affidavits and other materials beyond the pleadings to resolve ... jurisdictional issue[s], but we may not rely on conclusory or hearsay statements contained in the affidavits."); see also F.T.C. v. Dean Foods Co ., 384 U.S. 597, 601, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966) ("Since the case comes to us from a dismissal on jurisdictional grounds we must take the allegations of the Commission's application for a preliminary injunction as true.").

I. Ragbir’s Immigration Status

Ragbir, a native and citizen of Trinidad and Tobago, lives in Brooklyn, New York. He became a lawful permanent resident of the United States in 1994. His wife is an American citizen, as is their daughter. In 2001, Ragbir was convicted of wire fraud and conspiracy to commit wire fraud in the United States District Court for the District of New Jersey, and he was sentenced to 30 months’ imprisonment. See generally United States v. Ragbir , 38 F. App'x 788 (3d Cir. 2002). His convictions were affirmed by the United States Court of Appeals for the Third Circuit.⁴ Id .

After Ragbir served his sentence for his wire fraud convictions, ICE detained him in May 2006. In August 2006, an immigration judge entered an order of removal against him on the basis of those convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). The Board of Immigration Appeals ("BIA") denied Ragbir’s appeal of his removal order in March 2007. We denied Ragbir’s petition for review of the BIA decision in 2010.⁵ Ragbir v. Holder , 389 F. App'x 80 (2d Cir. 2010). In 2012, the BIA denied Ragbir’s motion to reconsider and reopen, and we denied Ragbir’s petition for review of that decision in 2016. Ragbir v. Lynch , 640 F. App'x 105 (2d Cir. 2016).

ICE released Ragbir from its detention in February 2008, having determined that he was not a flight risk. Ragbir has since continued to live in the United States under orders of supervision that authorized him to remain and work in the United States, provided that he complied with his supervision conditions. He also received four administrative stays of removal⁶ from ICE: in 2011, 2013, 2014, and 2016.⁷ The shortest of those stays was for approximately one year, while the two most recent stays were for approximately two years each. The most recent stay Ragbir received was scheduled to terminate in January 2018. Ahead of that date, Ragbir filed an application for a fourth renewal of his stay in November 2017.

II. Ragbir’s Speech

After his release from immigration detention in 2008, Ragbir became an outspoken activist on immigration issues, including publicly criticizing ICE. The New Sanctuary Coalition of New York City, which he founded, sends volunteers to accompany aliens to court dates and ICE check-in appointments. Ragbir maintained a "regular presence" outside ICE’s office and Department of Justice immigration courts in Manhattan, including leading weekly prayer vigils, called "Jericho Walks," with religious faith leaders. App’x 48. Ragbir has received a number of awards for his "zealous advocacy" for immigrants’ rights, including from the Episcopal Diocese of Long Island and the New York State Association of Black and Puerto Rican Legislators. App’x 49.

On March 9, 2017, Ragbir appeared for a scheduled check-in with ICE officials in New York City. He was accompanied by clergy and elected officials, including a New York State Senator, the New York City Council Speaker, and other New York City Council Members. At the check-in, ICE New York Field Office Director Thomas Decker confronted Ragbir and attempted to send away the individuals who had accompanied him. This confrontation garnered negative press coverage for ICE in prominent news outlets, in which Ragbir and several of the politicians who went with him to the check-in expressed criticism of ICE and U.S. immigration policy.⁸

III. The Government’s Alleged Retaliation

Ragbir claims that the events of the March 9, 2017 check-in, including his public statements and the media coverage they garnered, prompted ICE to retaliate against him. Less than one year after that check-in, on January 3, 2018, and days before Ragbir was scheduled to have his next scheduled administrative check-in, ICE arrested Jean Montrevil, one of the co-founders of Ragbir’s New Sanctuary organization, and deported him six days later.

On January 5, 2018, Micah Bucey, a minister in New York City, along with three other faith leaders, had a meeting with ICE’s New York Field Office Deputy Director Scott Mechkowski at ICE’s office in Manhattan, to discuss Montrevil’s case and the clergies’ concern that ICE had been surveilling individuals outside a church. According to Ragbir’s complaint and a sworn declaration submitted by Bucey, Mechkowski stated at the meeting, "Nobody gets beat up in the news more than we do, every single day. It’s all over the place, ... how we’re the Nazi squad, we have no compassion." Mechkowski then stated, "The other day Jean [Montrevil] made some very harsh statements. ... I’m like, ‘Jean, from me to you ... you don’t want to make matters worse by saying things ." App’x 55, 252 (emphasis added).

Unprompted, Mechkowski then brought up Ragbir, stating, "I read something that Ravi [Ragbir] wrote, [stating] ‘do you think it’s easy walking around with a target [on you]?’ " App’x 253. Mechkowski stated that it "bother[ed]" him that "there isn’t anybody in this entire building that doesn’t ... know about Ravi. Everybody knows this case. No matter where you go ...." App’x 253. Mechkowski...