Rivera v. Wilcox, CASE NO. C19-385-RSM-BAT

JOHN SAMUEL FERRARI RIVERA, Petitioner, v. BRYAN S. WILCOX, et al., Respondents.

CASE NO. C19-385-RSM-BAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

September 24, 2019

REPORT AND RECOMMENDATION

INTRODUCTION

John Ferrari Rivera ("Mr. Ferrari") is the sole breadwinner for his wife and severely autistic U.S. citizen son. Mr. Ferrari, who is a citizen of Peru, also came to the United States unlawfully and has been subject to a final order of removal since 1996. Mr. Ferrari failed to depart the United States after he was ordered removed. In 2010, U.S. Immigration and Customs Enforcement ("ICE") arrested him but, after receiving documentation regarding his son's diagnosis and his family situation, released him on an Order of Supervision ("OSUP") in January 2011. Since that time, ICE has granted him two administrative stays of removal and a year-long deferred action. His two most recent requests for stays of removal, however, were denied.

On March 8, 2019, ICE arrested Mr. Ferrari to execute his removal to Peru. On March 15, 2019, he initiated this 28 U.S.C. § 2241 habeas action and sought an immediate stay of removal, which the Court granted pending resolution of this action. In his amended petition, Mr. Ferrari seeks an order enjoining ICE from removing him, arguing that the denial of his most recent application for a stay of removal is arbitrary and capricious under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706. He also argues that the revocation of his OSUP and subsequent detention were arbitrary, capricious, and an abuse of discretion under the APA. Finally, Mr. Ferrari challenges the immigration judge's ("IJ") determination that he did not have jurisdiction to release Mr. Ferrari on bond and asks the Court to order his release or a bond hearing.

The Government has moved to dismiss, arguing that the Court does not have jurisdiction to stay Mr. Ferrari's removal and that even if it does, Mr. Ferrari cannot show that his removal or continuing detention are contrary to law. Dkt. 13; see also Dkt. 19. Mr. Ferrari opposes dismissal. Dkt. 18. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that the Government's motion to dismiss be granted in part and denied in part, as explained below.

BACKGROUND¹

Mr. Ferrari unlawfully entered the United States in 1994 and has never left the country. Dkt. 11 at ¶ 20; Dkt. 11-1 at 8. In January 1995, he applied for asylum. Dkt. 11 at 20. In October 1996, an IJ denied his application and granted him voluntary departure on or before December 23, 1996, with an alternate order of removal to Peru. Id.; Dkt. 9-2. Mr. Ferrari did not timely depart or appeal the IJ's decision, and therefore the October 1996 decision became a final order of removal. Dkt. 11 at ¶ 20.

Mr. Ferrari remained at large until October 2010.² See id. at ¶ 25. On October 29, 2010, ICE arrested Mr. Ferrari and transferred him to the Northwest Detention Center. Id.; Dkt. 11-1 at 8; see also Dkt. 9-4. On January 5, 2011, Mr. Ferrari filed his first administrative application for a stay of removal. Dkt. 10 at ¶ 7. ICE granted a 90-day stay to allow Mr. Ferrari time to prepare for his departure from the United States or to have his immigration case reopened. Id. On January 7, 2011, ICE released Mr. Ferrari on an OSUP. Dkt. 11 at ¶ 26; Dkt. 11-2 at 11-12; Dkt. 11-11 at 8. On April 25, 2011, Mr. Ferrari filed a second administration application for a stay of removal. Dkt. 11 at ¶ 26; Dkt. 11-1 at 8; Dkt. 9-5. On September 16, 2011, ICE granted him a six-month stay. Dkt. 11 at ¶ 26; Dkt. 11-1 at 8; Dkt. 9-5. On March 1, 2012, Mr. Ferrari filed his third request for an administrative stay of removal. Dkt. 9-7. In February or March 2014, ICE denied the request for a stay but granted Mr. Ferrari one year of deferred action so that he could make all necessary arrangements to depart the United States by February 28, 2015.³ Dkts. 9-7, 9-8. On January 13, 2015, Mr. Ferrari filed his fourth application for an administrative stay of removal. Dkt. 11 at ¶ 26; Dkt. 9-9. On January 18, 2018, ICE denied the request. Dkt. 9-9; see also Dkt. 9-10 (February 6, 2018 letter from ICE explaining decision).⁴

On March 6, 2018, when Mr. Ferrari reported to ICE as required by his OSUP, ICE instructed him to return on June 12, 2018, with proof of his passport and Peruvian ID. Dkt. 11-2 at 12; see also Dkt. 11-1 at 9. Mr. Ferrari learned he had to renew his Peruvian ID before he could renew his passport. Dkt. 11-1 at 9. On June 12, 2018, he showed his Peruvian ID to the ICE officer, who told him that he needed to show by January 17, 2019, that he had applied to renew his passport. Dkt. 11-1 at 9; Dkt. 11-2 at 12. On January 17, 2019, Mr. Ferrari's counsel sent a copy of the passport renewal application to ICE, but she mistakenly sent the application to the wrong address. Dkt. 11-1 at 9; Dkt. 11-2 at 24-28. Mr. Ferrari then learned he needed to renew his passport in person in San Francisco. Dkt. 11-1 at 9.

On February 20, 2019, when Mr. Ferrari reported to ICE, he was told to return the next day for a phone interview with a Peruvian consular officer, which he did. Dkt. 11-1 at 9; Dkt. 11-2 at 12. ICE also told Mr. Ferrari to purchase airline tickets to San Francisco and return with his renewed passport by March 21, 2019. Dkt. 11-1 at 9; Dkt. 11-2 at 12. On March 8, 2019, Mr. Ferrari reported to ICE to show his airline tickets, and he was arrested and informed that ICE had obtained a travel document to effect his removal to Peru. Dkt. 11-1 at 9; see also Dkt. 11-2 at 20. Mr. Ferrari was then transported to the Northwest Detention Center where he has remained. Dkt. 11 at ¶ 28.

On March 11, 2019, Mr. Ferrari filed another administrative request for a stay of removal, which ICE denied on April 12, 2019. Dkt. 11 at ¶ 29; Dkt. 10 at ¶ 29.

On March 15, 2019, Mr. Ferrari initiated the instant action and requested an immediate stay of removal, which the Court granted. Dkts. 1, 2, 5. ICE subsequently cancelled Mr. Ferrari's removal, which had been scheduled for March 22, 2019. Dkt. 10 at ¶¶ 25, 28. Mr. Ferrari's travel document expired on April 4, 2019, and ICE has been working on obtaininganother travel document. Id. at ¶ 30.

On April 18, 2019, an IJ denied Mr. Ferrari's request for bond because the immigration court did not have jurisdiction. Dkt. 11-1 at 2.

DISCUSSION

A. The Court does not have jurisdiction to review ICE's denial of his stay request

The Government argues that 8 U.S.C. § 1252(g) bars the Court from staying Mr. Ferrari's removal, and therefore his habeas petition must be dismissed for lack of subject matter jurisdiction. Dkt. 13 at 8-15. Section 1252(g) states:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any [noncitizen] arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any [noncitizen] under this chapter.

8 U.S.C. § 1252(g). Courts have interpreted § 1252(g) narrowly. Reno v. Am.-Arab Anti-Discrimination Committee, 525 U.S. 471, 485 n.9 (1999) ("AADC"); United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (en banc); see also Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018). Despite the potentially broad scope of the "arising from" language in the statute, the Supreme Court has construed the provision to apply only to the three discrete actions listed: the commencement of proceedings, adjudication of cases, and execution of removal orders. AADC, 525 U.S. at 482 (§ 1252(g) "was directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion"); Jennings, 138 S. Ct. at 841 ("[In AADC, we] did not interpret this language to sweep in any claim that can technically be said to 'arise from' the three listed actions of the Attorney General. Instead, we read the language to refer to just those three specific actions themselves.").

Courts that have considered the specific issue here—whether federal district courts have jurisdiction to review denials of requests for administrative stays of removal—have held that § 1252(g) strips district courts of jurisdiction. See, e.g., Balogun v. Sessions, 330 F. Supp. 3d 1211, 1215 (C.D. Cal. 2018) ("a challenge to ICE's refusal to stay removal is the paradigmatic claim arising from a decision to execute a removal order"); Albarran v. Wong, 157 F. Supp. 3d 779, 784-85 (N.D. Ill. 2016) (holding that § 1252(g) prohibits courts from considering challenge to denial of request for administrative stay of removal); Borodachev v. Rodriguez, No. 13-1999, 2013 WL 1949844, at *2 (D.N.J. May 8, 2013) ("the denial of a stay is an unreviewable discretionary decision 'to . . . execute removal orders'" (quoting § 1252(g)). And because § 1252(g) precludes habeas jurisdiction, the Court cannot consider Mr. Ferrari's claim under the APA, which incorporates other jurisdiction-stripping statutes as a limit on APA complaints. See 5 U.S.C. § 701(a)(1) ("This chapter applies, according to the provisions thereof, except to the extent that . . . statutes preclude judicial review . . . ."); Balogun, 330 F. Supp. 3d at 1214 (holding that if court lacks jurisdiction under § 1252(g), it also lacks jurisdiction under the APA); Albarran, 157 F. Supp. 3d at 786 ("Because [§ 1252(g)] precludes judicial review, the APA does not apply." (collecting cases)).

Mr. Ferrari fails to cite any analogous case reaching a different result. See Dkt. 18 at 5-7. Rather, the cases he cites are readily distinguishable. In Regents of the University of California v. U.S. Department of Homeland Security, 908 F.3d 476 (9th Cir. 2018), the Ninth Circuit held that § 1252(g) did...