Romeo K. v. Barr

ROMEO S. K., Petitioner, v. WILLIAM P. BARR, et al., Respondents.

Civ. No. 20-18065 (KM)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

December 23, 2020

OPINION

KEVIN MCNULTY, U.S.D.J.

I. INTRODUCTION

Petitioner, Romeo S. K.,¹ is an immigration detainee currently held at the Bergen County Jail in Hackensack, New Jersey. He is proceeding through counsel with a Petition for a Writ of Habeas Corpus and Complaint for Declaratory, Injunctive, and Mandamus Relief, as well as a Motion for a Temporary Restraining Order. (DE 1; DE 8.) Respondents oppose the petition and motion. (DE 12.) Pursuant to Local Civil Rule 78.1, this matter is decided without oral argument. For the reasons set forth below, the petition is dismissed without prejudice for lack of jurisdiction, and accordingly, the motion for injunctive relief will be denied.

I. BACKGROUND

Petitioner is a native and citizen of Liberia. (DE 12-1 at 4.) He and his family are members of the Mandingo tribe. (DE 3-2 at 1.) They previously lived on and owned land in the Ganta region of Liberia. (Id.) In 1990, civil war broke out, and conflict arose between the Mandingo tribe andthe Gio tribe, who also occupied land in the Ganta region. (Id.) In the wake of escalating violence against the Mandingo people, Petitioner and his family were forced to flee, leaving behind their home and land. (Id.) The family eventually escaped to Guinea, where they resided in refugee camps. (Id. at 2.) Petitioner's family still asserts ownership of the property in Ganta, but members of the Gio tribe have claimed the land as their own. (Id.) When members of Petitioner's family have attempted to return to their land, even as recently as 2019, they have been met with violence. (Id. at 3.) Petitioner's uncle was murdered, Petitioner's father was threatened with a knife and with death, and Petitioner's aunt was beaten. (Id.)

In 2007, Petitioner entered the United States as a Lawful Permanent Resident. (DE 12-1 at 4.) Between 2017 and 2019, however, Petitioner was convicted of several crimes. In April 2017, he was convicted of second-degree criminal possession of a forged instrument, in violation of New York Penal Law 170.25, and sentenced to three years of probation. (DE 12-2 at 10.) In September 2017, Petitioner was convicted of aggravated assault of a law enforcement officer, in violation of N.J. Stat. Ann. § 2C: 12-19(5)(A), and credit card theft, in violation of N.J. Stat. Ann. § 2C:21-6H. (Id. at 1.) He was sentenced to two years of probation. (Id.) In August 2018, Petitioner was convicted of resisting arrest and was assessed a fine. (DE 3 at 3.) In February 2019, Petition was convicted of "access device fraud or conspiracy" and sentenced to two years of probation. (Id. at 4.)

On August 1, 2019, Petitioner was taken into custody by Immigrations and Customs Enforcement ("ICE") and served with a Notice to Appear ("NTA") which placed him into removal proceedings. (DE 12-1 at 1-2.) The NTA charged Petitioner with violating Section 237(a)(2)(A)(ii) of the Immigration and Nationality Act ("INA") for having been "convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct."(Id. at 2.) At Petitioner's first immigration hearing, the Immigration Judge ("IJ") asked Petitioner's former counsel whether Petitioner had a fear of returning to Liberia. (DE 3-9 at 5.) Petitioner's counsel responded that he did not "believe that's the pathway for relief for my client at this time." (Id.) Petitioner states that his former attorney never questioned him about a fear of deportation. (DE 3-5 at 1.) Instead, Petitioner's counsel sought relief in the form of cancellation of removal. (DE 3-9 at 5.) On October 21, 2019, the IJ ordered Petitioner removed from the United States. (DE 3-10 at 3.) The Board of Immigration Appeals ("BIA") subsequently affirmed the decision. (Id. at 5.) Thereafter, Petitioner filed a pro se petition for review with the United States Court of Appeals for the Third Circuit. See Konneh v. Attorney General United States, No. 20-1975, ECF No. 1 (3d Cir. May 7, 2020). Although the Third Circuit initially granted a temporary stay of removal, it vacated that order on October 6, 2020, stating that Petitioner had "failed to make a sufficiently strong showing of future merits success." (DE 12-6 at 1.) The petition for review remains pending in the Court of Appeals.

Petitioner states that in December 2019, after the IJ ordered him removed from the United States, he became the target of numerous death threats. (DE 3-2 at 4-5.) The threats, which came from individuals who currently occupy the land owned by Petitioner's family in Ganta, stated that the Gio tribe would kill or make Petitioner "disappear" if he returned to Liberia. (Id.) Based upon these threats, and the alleged ineffective assistance of counsel he received at his previous immigration proceedings, Petitioner filed a timely motion to reopen with the BIA on July 2, 2020. (DE 3-1.) On August 8, 2020, Petitioner also filed a motion for an emergency stay of removal. (DE 3-8 at 1.) Petitioner's emergency stay motion was denied on December 4, 2020. (DE 6-1.) The BIA concluded that "a stay of removal is not warranted." (Id. at 2.) Petitioner's motion to reopen, however, remains pending.

On December 4, 2020, Petitioner filed this Petition for a Writ of Habeas Corpus and Complaint for Declaratory, Injunctive, and Mandamus Relief. (DE 1.) The petition raises four causes of action stemming from the BIA's failure to adjudicate his motion to reopen. Petitioner seeks mandamus relief under 28 U.S.C. § 1361, asserting violations of the Administrative Procedures Act ("APA"), the INA, and the Due Process Clause of the Fifth Amendment. (DE 1 at 20-24.) The gravamen of Petitioner's claims is that, until the BIA adjudicates his motion to reopen, he cannot file petition for review or request a stay with the Third Circuit. Petitioner seeks relief in the form of an order directing Respondents to instruct the BIA to render a decision on Petitioner's motion to reopen and to enjoin Respondents from removing Petitioner from the District of New Jersey and the United States until the BIA renders a decision. (Id. 24-25.)

Petitioner also separately filed a Motion for a Temporary Restraining Order ("TRO") on December 5, 2020. (DE 8.) The TRO application stated that Petitioner was scheduled to be transferred to a staging facility in Alexandria, Louisiana on December 8, 2020, and that his removal was imminent. (DE 8-1 at 13.) The TRO sought to prohibit Respondents from transferring Petitioner out of the District of New Jersey and removing him from the United States. On December 7, 2020, the Court temporarily granted the TRO in order to hear from both parties and to make, at a minimum, a determination as to the court's jurisdiction to hear the matter. (DE 10.) Respondents have since filed their opposition to the petition and motion, and Petitioner has also filed a reply. (DE 12; DE 13.) The matter is now ripe for disposition.

II. DISCUSSION

As a threshold matter, Respondents challenge the jurisdictional authority of this Court to enter a stay of removal. (DE 12 at 19.) Respondents contend that 8 U.S.C. § 1252 strips the Court over claims concerning the execution of a final order of removal. (Id.) Respondents specificallycite to § 1252(g) and § 1252(b)(9). (Id.) Petitioner contends, however, that the jurisdiction stripping provisions of § 1252 are unconstitutional as applied under the Suspension and Due Process Clauses because the administrative remedies available to Petitioner are an inadequate and ineffective substitute for habeas relief. (DE 13 at 6.)

A. Section 1252 of Title 8

Generally, a district court may exercise jurisdiction over a habeas petition, under 28 U.S.C. § 2241, when the petitioner is in custody and alleges that this custody violates the constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). However, in 2005 Congress enacted the Real ID Act, which modified provisions of § 1252 to specifically remove jurisdiction under 28 U.S.C. § 2241, as well as any other sort of habeas jurisdiction. See Real ID Act, Pub. L. No. 109-13, § 106, 119 Stat. 231, 310-11 (2005). As amended, § 1252(g) now reads as follows:

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 alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g) (emphasis added). And, as amended, § 1252(b)(9) now states:

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 title 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, United States Code, or any other habeas corpus provision, by sections 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)(9) (emphasis added).

As a result, the REAL ID Act, in effect, forecloses "most claims that even relate to removal" as causes of action in habeas proceedings. Tazu v. Attorney General United States, 975 F.3d 292, 296 (3d Cir. 2020) (quoting E.O.H.C. v. Sec'y United States Dep't of Homeland Sec., 950 F.3d 177, 180, 184 (3d Cir. 2020)); Joshua M. v. Barr, 439 F. Supp. 3d 632, 668 (E.D. Va. 2020) (citing Jahed v. Acri, 468 F.3d...