Xiu Qing You v. Nielsen

321 F.Supp.3d 451

YOU, XIU QING, aka Yu, Xian Chin, Petitioner,

v.Kirstjen NIELSEN, in her official capacity as Secretary of Homeland Security; Thomas Decker, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Steve Ahrendt, in his capacity as Warden of New Jersey Bergen Comity Jail; and Michael Saldino, in his capacity as Sherriff of Bergen County, NJ, Respondents.

18 Civ. 5392

United States District Court, S.D. New York.

Signed August 2, 2018

Gregory Paul Copeland, The Legal Aid Society (Manhattan), Katherine Holt Buckel, Sarah Telo Gillman, The Legal Aid Society, Jane Chung, Sandeep S Dhaliwal, Debevoise & Plimpton, LLP, Yee Ling Poon, Yee Ling Poon, PLLC, New York, NY, for Petitioner.

Michael James Byars, U.S. Attorney's Office, New York, NY, for Respondents.

OPINION

ANALISA TORRES, District Judge:

On June 14, 2018, Petitioner, Xiu Qing You, a Chinese national, filed a petition for habeas corpus following his arrest and detention pursuant to a final order of removal. See Fust Am. Pet., ECF No. 5. By order to show cause hand-delivered to the Court on June 16, 2018, Petitioner sought a temporary stay of removal, and, subsequently. Pet. Reply, ECF No. 16, release from custody. At a show cause hearing on June 20, 2018, see Order to Show Cause, ECF No. 11, the Court issued an oral order granting the requested relief pending the resolution of the habeas petition. Order of Release, ECF No. 17. The Court issues this opinion to provide its reasons for granting Petitioner's requests.¹

BACKGROUND

Petitioner is a 39-year-old husband to a United States citizen, with whom he has two young children. Petitioner first arrived in the United States in January 2000 without valid entry documents. First Am. Pet. ¶ 15; Syed Decl. ¶ 5, ECF No. 15. He was paroled into the United States, detained, and issued a notice to appear before an immigration judge. First Am. Pet. ¶ 15; id. , Ex. O; Syed Decl. ¶ 6.² On April 7, 2000, Petitioner was released from detention on a $3,000 bond. Syed Decl. ¶ 7. On December 13, 2000, an immigration judge ordered him removed to China. First Am. Pet. ¶ 16; Syed Decl. ¶ 8. Petitioner appealed, but, on November 12, 2002, the Board of Immigration Appeals ("BIA") affirmed the immigration judge's decision. First Am. Pet. ¶ 16; Syed Decl. ¶ 8. Nevertheless, U.S. Immigration and Customs Enforcement ("ICE") did not execute the removal order.

In 2008, Petitioner filed a motion to reopen his removal proceedings, which the BIA denied as untimely. Syed Decl. ¶ 9. In 2010, the BIA denied a second motion to reopen as untimely and number-barred. Id. In 2016, the BIA denied a third motion to reopen. Id.

While his struggles with the immigration system were ongoing, Petitioner began a family in the United States. In 2007, Petitioner married Yumei Chen in a traditional Chinese ceremony. First Am. Pet. ¶ 17. In 2012, the couple had their first child, a daughter. Id. ¶ 18. In 2013, the couple legally registered their marriage in New York City. Id. ¶ 17. At that time, Petitioner's wife was a legal permanent resident. Id. In 2014, the couple had a second child, a son. Id. ¶ 18.

In 2015, Petitioner's wife became a U.S. citizen and filed an I-130 petition to classify Petitioner as her immediate relative. Id. ¶ 20. Petitioner filed an I-485 application for an adjustment of status to legal permanent resident. Id. Petitioner received a notice scheduling his I-485 interview—colloquially, a "green card" interview—for May 23, 2018. First Am. Pet., Ex. N.

On May 23, 2018, Petitioner and his wife appeared at the U.S. Citizenship and Immigration Services ("USCIS") offices for the I-485 interview. First Am. Pet. ¶ 24. At the interview, the couple was questioned about their relationship. Id. ¶ 25. But, before being questioned on his I-485 petition, ICE officers arrested Petitioner pursuant to the 2002 order of removal. Id. Petitioner remained in the custody of ICE, which, prior to this Court's order releasing Petitioner, intended to deport him no later than July 1, 2018. Syed Decl. ¶ 13.

Later on the same day, USCIS granted the I-130 petition, First Am. Pet., Ex. L, but denied Petitioner's I-485 application, First Am. Pet., Ex. O. USCIS found that Petitioner was eligible for an adjustment of status, but concluded that his entry into the United States without documentation, failure to depart the country, unlawful presence, and employment were adverse factors that counseled against an exercise of discretion in favor of adjustment of status. Id. at 2.

Petitioner has since filed a motion to reopen the adjustment of status decision, filed for a stay of removal with the BIA, and filed a fourth motion to reopen his removal proceedings with the BIA. First Am. Pet. ¶¶ 33, 40. Additionally, on June 14, 2018, Petitioner filed the instant habeas petition arguing that his arrest and detention violated the Immigration and Nationality Act ("INA") and related regulations, the Due Process Clause of the Constitution, and the Administrative Procedure Act ("APA"). See generally id.

Specifically, Petitioner argues that, under the INA and the Constitution, he should have been afforded notice, an opportunity to be heard, and a determination that he was either dangerous or a flight risk before being arrested and detained on May 23, 2018. Id. ¶¶ 44–5, 47–48. He additionally argues that his arrest and detention at his green card interview violate both the INA's statutory scheme permitting aliens like Petitioner to seek adjustment of status and his due process right to seek relief via adjustment of status. Id. ¶¶ 51–52, 54–55. Finally, Petitioner argues that USCIS committed legal error by considering irrelevant factors when the agency denied his adjustment of status application. Id. ¶ 51.

On June 16, 2018, Petitioner moved by order to show cause for a temporary stay of removal. The Court denied his motion, on jurisdictional grounds. ECF No. 10. Petitioner filed a motion for reconsideration, which the Court granted. ECF No. 11. The Government filed its opposition to the stay on June 19, 2018, Resps. Opp., ECF No. 14, and Petitioner filed his reply the next day, June 20, 2018, and requested release from custody, Pet. Reply. Following a show cause hearing, the Court granted Petitioner's requests for a stay of removal and release from custody pending the resolution of his habeas petition. The discussion that follows details the Court's reasoning for granting Petitioner's requests.

DISCUSSION

I. Jurisdiction

As a threshold matter, Respondents³ argue that the Court lacks jurisdiction to grant Petitioner's requested relief. First, Respondents argue that the Court lacks subject matter jurisdiction because 8 U.S.C. § 1252(g) bars the Court from adjudicating any legal challenge that "aris[es] from the decision or action by the Attorney General to ... execute removal orders against" Petitioner.⁴ 8 U.S.C. § 1252(g) ; see also Resps. Opp. at 5–6. Second, Respondents argue that 8 U.S.C. §§ 1252(a)(5) and (b)(9) channel judicial review to the federal appellate courts via petitions for review. Resps. Opp. at 6–7. Finally, Respondents argue that § 1252(a)(2)(B) precludes district courts from reviewing a denial of adjustment of status. Id. at 10. Respondents' arguments are unavailing.

A. § 1252(g)

Under 8 U.S.C. § 1252(g), "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." Respondents argue that the Supreme Court's interpretation of this provision "alone" bars judicial review, id. at 7, but Respondents mischaracterize the Supreme Court's decision in Reno v. Am.-Arab Anti-Discrimination Comm. , 525 U.S. 471, 119 S.Ct. 936, 142 L.Ed.2d 940 (1999) (hereinafter " AADC ").

In AADC , the Supreme Court rejected the contention that § 1252(g)"is a sort of ‘zipper’ clause that says ‘no judicial review in deportation cases unless this section provides judicial review.’ " AADC , 525 U.S. at 482, 119 S.Ct. 936. As the Supreme Court explained, "[i]n fact, what § 1252(g) says is much narrower. The provision applies only to three discrete actions that the Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’ " Id. (quoting § 1252(g) ).

The AADC Court reasoned that it was appropriate to limit judicial review to these "three discrete actions" in light of legislative history. In the past, as now, the Secretary enjoyed prosecutorial discretion to decline to commence proceedings, adjudicate cases, or execute removal orders. The Secretary's decision not to prosecute certain cases had prompted litigation in other cases attempting to compel the Secretary to use her discretion not to prosecute. Essentially, "[s]ince no generous act goes unpunished, ... the ... exercise of this discretion opened the door to litigation in instances where the [Secretary] chose not to exercise it." Id. at 484, 119 S.Ct. 936. Specifically,

[e]fforts to challenge the refusal to exercise such discretion on behalf of specific aliens sometimes [were] favorably considered by the courts, upon contentions that there was selective prosecution in violation of equal protection or due process, such as improper reliance on political considerations, on racial, religious, or nationality discriminations, on arbitrary or unconstitutional criteria, or on other grounds constituting abuse of discretion.

Id. at 484–85, 119 S.Ct. 936 (quoting 6 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure § 72.03[2][a] (1998) ). It was this reason, the AADC Court explained, that motivated Congress to limit judicial review of these particular, discrete acts.

Under AADC , therefore, § 1252(g) prohibits judicial review of challenges to the discretionary decision whether to execute a removal order. But here, the habeas petition does not challenge the...