Vieira v. McAleenan

Mario Ney Vogado Vieira, Petitioner, v. Kevin McAleenan, et al., Respondents.

No. CV-19-05112-PHX-DWL (JZB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

September 11, 2019

ORDER

Petitioner Mario Ney Vogado Vieira has filed, through counsel, a "Petition for Writs of Habeas Corpus; Writ of Mandamus, and Review of Final Agency Action" (Doc. 1) and a Motion for Temporary Restraining Order (Doc. 2). For the reasons that follow, the Petition will be dismissed and the Motion will be denied as moot.

I. Background

Petitioner is a native and citizen of Brazil. On May 28, 2019, he entered the United States near Itak, Arizona, and was apprehended by the United States Department of Homeland Security ("DHS"), Customs and Border Protection. Petitioner expressed a fear of persecution or torture if returned to Brazil and was detained in the CoreCivic La Palma Correctional Center in Eloy, Arizona for a credible fear determination. (Doc. 1 ¶ 1.) An asylum officer determined that Petitioner did not have a credible fear of persecution or torture, and on August 7, 2019, an Immigration Judge affirmed that determination. (Id. ¶¶ 3-4, 18.) Petitioner states "[t]he case is currently pending with USCIS [United States Citizenship and Immigration Services] based on a motion to reconsider that he has filed with the asylum office." (Id. ¶ 18.)

On August 22, 2019, Petitioner's spouse filed an Application for T Nonimmigrant Status (Form I-914) along with an Application for a Family Member T-1 Recipient (Form I-914, Supplement A) that lists Petitioner as the named beneficiary. (Doc. 1-3 at 1-4.)¹

In anticipation of his spouse's filing of those applications, Petitioner filed an application to stay his removal with United States Immigration and Customs Enforcement ("ICE") stating that his "wife is in the process of obtaining a T-visa. After she receives her visa, [Petitioner] will be eligible to gain status through his wife." (Doc. 1-3 at 11.) On August 22, 2019, Petitioner's stay application was denied. (Doc. 1-3 at 12.)

II. Petition and Motion

On September 8, 2019, Petitioner filed the "Petition for Writs of Habeas Corpus; Writ of Mandamus, and Review of Final Agency Action" and Motion for Temporary Restraining Order. In the Petition, Petitioner names Acting DHS Secretary Kevin McAleenan, Acting USCIS Director Kenneth Cuccinelli, United States Attorney General William Barr, and Acting ICE Phoenix Field Office Director Albert Carter as Respondents. He contends the Court has jurisdiction under 28 U.S.C. §§ 1331, 1361, 2201, and 2241 and the Administrative Procedures Act ("APA"). (Doc. 1 ¶ 10.)

In Ground One, Petitioner contends that his "deportation . . . to Brazil would be a violation of the Immigration and Nationality Act, the Due Process and Suspension Clauses of the United States Constitution, and . . . fundamental human rights recognized under international law." (Doc. 1 ¶ 25.)

In Ground Two, Petitioner contends that "[p]rior to his removal to Brazil, [he] is entitled to an opportunity to have his T nonimmigrant status application adjudicated. His rights have been violated under the Immigration and Nationality Act, the United States Constitution's Due Process and Suspension Clauses, and . . . international law regardingimmigration law." (Doc. 1 ¶ 26.)

In Ground Three, Petitioner contends that his "continued detention . . . would violate due process and the [I]mmigration and [N]ationality [A]ct." (Doc. 1 ¶ 27.)

Petitioner asks the Court to: (1) declare that his removal from the United States would "violate[] the Immigration and Nationality Act and the United States Constitution and international law" (Doc. 1 at 6); (2) order "Respondents to release Petitioner from detention during the pendency of his T nonimmigrant status application" (id.); (3) issue a writ of mandamus requiring Respondents to provide him "an individualized determination whether Petitioner should be granted derivative T nonimmigrant status" prior to removing him from the United States (id.); and (4) enjoin Respondents "from removing [him] from the jurisdiction of this court during the pendency of these proceedings" (Doc. 2 at 1).

III. Discussion

A. Review Under 28 U.S.C. § 2241

A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241 where a petitioner is "in custody under or by color of the authority of the United States ... in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(1), (3). "The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention." Trinidad y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012). See also Munaf v. Geren, 553 U.S. 674, 693 (2008); Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980). However, habeas corpus review is not available for claims "arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders," 8 U.S.C. § 1252(g), "arising from any action taken or proceeding brought to remove an alien," 8 U.S.C. § 1252(b)(9), or "challeng[ing] a 'discretionary judgment' by the Attorney General or a 'decision' that the Attorney General has made regarding [an alien's] detention or release," Demore v. Kim, 538 U.S. 510, 516 (2003) (discussing 8 U.S.C. § 1226(e)). But, "the extent of the Government's detention authority is not a matter of 'discretionary judgment,' 'action,' or 'decision.'" Jennings v. Rodriguez, ___ U.S. ___, 138 S. Ct. 830, 841 (2018). See alsoPrieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008). Thus, "challenges to the statutory framework that permits the alien's detention without bail," Jennings, 138 S. Ct. at 841, "questions of law" raised in the application or interpretation of detention statutes, Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), and "claims that the discretionary process itself was constitutionally flawed are 'cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.'" Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (quoting Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002)).

B. Grounds One and Two

In Grounds One and Two of the Petition, Petitioner argues that Respondents shouldn't be allowed to remove him before the adjudication of his spouse's visa application.

The Court lacks jurisdiction to entertain these claims for two reasons. First, the Court lacks jurisdiction under 8 U.S.C. § 1252(a)(5), which was enacted in 2005 as part of the REAL ID Act. Section 1252(a)(5) provides, in relevant part, that "a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter . . . . [T]he terms 'judicial review' and 'jurisdiction to review' include habeas corpus review." This provision encompasses "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." See 8 U.S.C. § 1252(b)(9). In short, the REAL ID Act "makes the circuit courts the 'sole' judicial body able to review challenges to final orders of deportation, exclusion, or removal." Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). See also Mamigonian v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) ("[T]he REAL ID Act precludes aliens . . . from seeking habeas relief over final orders of removal in district courts.").

Here, Petitioner argues that section 1252(a)(5) is inapplicable "because his T-Visa application is not inextricably linked to the validity of his removal order." (Doc. 2 at 3-4.) This argument is unavailing. At bottom, the claims and theories asserted in Grounds Oneand Two of the Petition "aris[e] from any action taken or proceeding brought to remove an alien from the United States." See 8 U.S.C. § 1252(b)(9). As a result, the Court lacks jurisdiction to consider them. See, e.g., Ma v. Holder, 860 F. Supp. 2d 1048, 1050, 1060-62 (N.D. Cal. 2012) (dismissing habeas petition, where petitioner sought "a stay of deportation during the BIA's adjudication of her motion to reopen," and concluding that "no matter how Petitioner frames the argument in this case, the petition is one that seeks to halt a final order of removal. Such relief strips this Court of jurisdiction—barring it from exercising judicial review of the habeas petition."); Rosales v. Aitken, 2011 WL 4412654, *3 (N.D. Cal. 2011) ("In this case, Petitioner seeks an order staying his removal and directing Respondents to adjudicate the motion to reopen. It is clear, regardless of how Petitioner frames this motion, that Petitioner seeks to 'halt the execution of the final orders of removal' arising from a proceeding brought in connection with Petitioner's removal, and therefore this Court lacks jurisdiction over this case. While this Court recognizes that it may have jurisdiction to hear petitions arising out of proceedings other than removal proceedings, it finds that here, Plaintiff clearly seeks this Court to review a final order for removal, which it may not do."). See generally Em v. Whitaker, 2018 WL 6663437, *4-5 (D. Ariz. 2018).

Second, the Court also lacks jurisdiction under 8 U.S.C. § 1252(g), which was enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act. Section 1252(g) provides, in relevant part, that "[e]xcept as provided in this section . . . , 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." Although Petitioner seeks to evade this provision by stating that "[h]is claim is a 'collateral legal and constitutional challenge[]' to ICE's legal authority" (Doc. 2 at 6), the questions presented in Grounds One and...