Rajbir Singh Cheema v. Kevin Curran, et al.

• Court: District Court, D. Arizona
• Decided: April 11, 2018
• Docket: 2:17-cv-03692
• Status: Unknown

Opinion

1 2

6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Rajbir Singh Cheema, 8 Petitioner CV-17-3692-PHX-SPL (JFM) -vs- 9 Kevin Curran, et al., Report & Recommendation Respondents. on Petition for Writ of Habeas Corpus 10 11 I. MATTER UNDER CONSIDERATION 12 Petitioner, a now removed alien, filed a Petition for Writ of Habeas Corpus 13 pursuant to 28 U.S.C. § 2241 on October 11, 2017 (Doc. 1), challenging the denial of 14 asylum and resulting order of removal. On January 31, 2018, Respondents filed their 15 Response (Doc. 18). Petitioner has not replied. 16 The Petitioner's Petition is now ripe for consideration. Accordingly, the 17 undersigned makes the following proposed findings of fact, report, and recommendation 18 pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules 19 of Civil Procedure. 20 II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND 21 A. ADMINISTRATIVE AND JUDICIAL PROCEEDINGS 22 Removal and Asylum Application - Petitioner, a native and citizen of India, was 23 ordered removed on November 16, 2012 based on his having overstayed a D-2 Visa. 24 (Exhibit B, Form I-259.) (Exhibits to the Answer, Doc. 18, are referenced herein as 25 “Exhibit ___.” Exhibits to the Petition, Doc 1, are referenced herein as “Pet. Exhibit 26 ___.”) Petitioner filed through counsel Singh an Application for Asylum, seeking 27 1 U.S.C. § 1229a, and withholding under the Convention Against Torture. (Pet. Exhibit C, 2 Asylum Order, 6/3/13.) The applications were denied on June 3, 2013, and Petitioner 3 appealed through counsel Singh to the Board of Immigration Appeals. (Pet. Exhibit D, 4 Decision 10/11/13.) On October 1, 2013, the BIA sustained the judge’s decision and 5 dismissed the appeal. (Id.) 6 Ninth Circuit Appeals - On September 3, 2013 (before the BIA’s decision), 7 Petitioner filed with the Ninth Circuit in case 13-73070, a Petition for Review of the BIA 8 decision. On February 24, 2014, that petition was dismissed on the government’s 9 motion, based on lack of jurisdiction. 10 After the BIA’s decision, Petitioner again sought review by the Ninth Circuit, in 11 case 13-73920, on November 8, 2013. However, the appeal was dismissed on August 12 25, 2014 for failure to prosecute, based on the failure to file an opening brief. (Pet. 13 Exhibit E, 9th Cir. Docket 13-73920.) 14 Suspension of Counsel - Petitioner’s counsel was suspended by the BIA on 15 December 29, 2014 for various professional deficiencies, including having a paralegal 16 make telephonic appearances in his place. (Pet. Exhibit F, BIA Decision 12/29/14.) 17 Singh was suspended by the California State Bar on May 6, 2015, based on misconduct 18 in various immigration proceedings. (Pet. Exhibit G, Actual Suspension.) 19 Motion to Reopen – In October 2017, through new counsel David Gardner 20 (present habeas counsel), Petitioner filed with the BIA a Motion to Reopen and 21 Emergency Motion for a Stay of Removal, arguing that reopening was justified because 22 of counsel Singh’s ineffectiveness in presenting Petitioner’s case to the BIA and failing 23 to prosecute his appeals to the Ninth Circuit. (Pet. Exhibit J.) That motion was denied 24 on November 24, 2017. (Pet. Exhibit E, BIA Order 11/24/17.) 25 Petitioner then filed with the Ninth Circuit Court of Appeal a Petition for Review 26 of that proceeding. (Exhibit F, Docket 9th Cir. 17-73421.) Petitioner’s opening brief in 27 that case is due May 18, 2018. (Id. at Doc. 1, Order 12/22/17.) 1 administrative Application for Stay (Form I-246), which was denied on October 6, 2017. 2 (Pet. Exhibit L.) 3 On October 10, 2017, the BIA denied the application for a stay of removal 4 included in Petitioner’s Motion to Reopen. (Pet. Exhibit K.) 5 On October 11, 2017, Petitioner filed the instant habeas petition, and a Motion for 6 Temporary Restraining Order (Doc. 2), seeking to stay his removal. The Court was 7 informed that Petitioner had been removed on October 11, 2017, and denied the motion 8 for TRO. (Order 10/13/17, Doc. 5.) 9 B. PRESENT FEDERAL HABEAS PROCEEDINGS 10 Petition - Petitioner commenced the current case by filing his Petition for Writ of 11 Habeas Corpus pursuant to 28 U.S.C. § 2241 on October 11, 2017 (Doc. 1). Petitioner’s 12 Petition asserts a single ground for relief: “that his asylum proceedings were 13 fundamentally unfair, in violation of the due process clause, because counsel’s 14 performance was so ineffective as to be nonexistent.” (Order 1/5/18, Doc. 12 at 1.) 15 In particular, Petitioner argues that counsel: (1) in the original asylum proceeding 16 failed to include a supporting declaration, records supportive of Petitioner’s claims, and 17 relevant facts, and he included inaccurate information; (2) failed to timely move to 18 reopen with the BIA; and (3) failed to file an opening brief with the Ninth Circuit, 19 resulting in the dismissal of the appeal. 20 On October 13, 2017, the Court issued an Order to Show Cause (Doc. 5), 21 directing Petitioner to show cause why the case should not be dismissed for lack of 22 jurisdiction on the basis that at the time he filed his Petition he had already been 23 removed. Petitioner eventually responded (Docs. 9, 10, and 11), arguing continuing 24 “custody” as a result of the removal order, and that Petitioner may have still been in 25 custody on his flight to India at the time the Petition was filed. 26 In the Service Order (Doc. 12), the Court ruled that “Petitioner raises a prima 27 1 facie case that he was still in custody at the time this Petition was filed,” concluded that 2 “the proper respondents to this action are the United States Attorney General Jeff 3 Sessions and the Secretary of Homeland Security Elaine Duke,” and directed that they 4 answer. (Id. at 1, 3.) 5 Response - On January 31, 2018, Respondents filed their Response (“Answer”) 6 (Doc. 18). Respondents argue under 8 U.S.C. § 1252(a)(5) and 1252(b)(9), Petitioner’s 7 sole judicial remedy for claims relating to his immigration proceedings is an appeal to 8 the circuit court of appeals, and thus this Court lacks jurisdiction to review the claim. 9 Respondents also argue that Petitioner’s claim of ineffective assistance before the Ninth 10 Circuit is barred by the prudential exhaustion rule, because he failed to file a motion to 11 recall the Ninth Circuit’s mandate and reinstate the Petition for Review before that court. 12 Respondents argue in a footnote that “[i]f Petitioner filed his habeas petition after he was 13 no longer detained, this Court should deny his petition as moot.” (Doc. 18 at 6, n. 1.) 14 Reply – On January 31, 2018, the Court issued an Order (Doc. 19) setting a 15 deadline of March 7, 2018 for Petitioner to reply in support of his petition. To date, 16 Petitioner has not filed a reply. 17 18 III. APPLICATION OF LAW TO FACTS A. MOOTNESS 19 Respondents argue in a footnote that “[i]f Petitioner filed his habeas petition after 20 he was no longer detained, this Court should deny his petition as moot.” (Doc. 18 at 6, 21 n. 1.) Respondents argue “[t]he record is unclear as to whether he was still detained at 22 the time of filing.” (Id.) 23 Defenses relegated to a footnote are not fairly raised. “Arguments raised in 24 footnotes are not preserved.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 25 1312, 1320 (Fed. Cir. 2006). 26

27 1 The Court did not explain that determination. However, the Ninth Circuit has held that 1 Nonetheless, because the Court finds the contention without merit, and because 2 mootness relates to the jurisdiction of the Court, the undersigned nonetheless addresses 3 it. See Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (“Mootness is 4 jurisdictional.”). 5 Respondents cite Zegarra-Gomez v. I.N.S., 314 F.3d 1124 (9th Cir. 2003) in 6 support of their contention. In that case, the Ninth Circuit held “that the case or 7 controversy requirement is satisfied where the petitioner is deported, so long as he was in 8 custody when the habeas petition was filed and continues to suffer actual collateral 9 consequences of his removal.” Id. at 1127. But see Abdala v. I.N.S., 488 F.3d 1061, 10 1064 (9th Cir. 2007) (finding petition challenging detention moot because “where the 11 grounds for habeas relief will not redress collateral consequences, a habeas petition does 12 not continue to present a live controversy once the petitioner is released from custody”). 13 In Custody – In suggesting the case is moot, Respondents focus on the lack of 14 clarity on whether Petitioner was in custody at the time his habeas petition was filed. 15 The requirement for being “in custody” applied in Zegarra-Gomez was not 16 explained. Rather, it appears that this was a reference to the general “in custody” 17 requirement for jurisdiction under 28 U.S.C. § 2241(c)(1). It is true that the Ninth 18 Circuit has long held that an alien subject to a final order of removal is “in custody for 19 purposes of § 2241 even if they are not detained, if they are “subject to a final order of 20 deportation.” Nakaranurack v. United States, 68 F.3d 290, 293 (9th Cir.1995). However, 21 that only establishes custody where the removal has not yet been executed. An alien 22 removed before filing his petition “cannot avail himself of habeas corpus jurisdiction 23 because he has already been removed and therefore is no longer ‘in custody.’” Miranda 24 v. Reno, 238 F.3d 1156, 1158 (9th Cir. 2001). While there are exceptions for “extreme 25 circumstances,” e.g. when the INS removed an immigrant “in violation of the 26 immigration judge's order and after interference with his right to counsel”, Singh v. 27 Waters, 87 F.3d 346, 349 (9th Cir.1996), Petitioner posits no such extreme 1 In any event, this Court has already concluded that Petitioner “raises a prima facie 2 case that he was still in custody at the time this Petition was filed.” (Order 1/5/18, Doc. 3 12 at 1.) Respondents proffer nothing upon which the undersigned could reach a 4 contrary finding. 5 The executed Warrant of Removal (Exhibit D) reflects Petitioner’s removal from 6 Mesa, Arizona, on October 11, 2017. Petitioner presented counsel’s declaration that 7 Petitioner asserted he had departed on the plane between 8:00 and 9:00 a.m., and made 8 stops in Honolulu, Guam, and Bangladesh, before arriving in New Delhi. (Supp. Resp. 9 Doc. 10, Declaration.) Petitioner argued in response to the Order to Show Cause, that 10 he was still en route at the time his Petition was filed, and thus he was within the 11 physical custody of the government (or at least its agent, the airlines), at the time his 12 Petition was filed. (Response, Doc. 9.) 13 In Umanzor v. Lambert, 782 F.2d 1299 (5th Cir. 1986), the Fifth Circuit 14 determined that an alien remained “in custody” for purposes of habeas jurisdiction when 15 his flight out of the country became airborne minutes before his habeas petition was 16 filed. “Umanzor was under actual physical restraint by the government's agent—the 17 airline—at the moment the habeas petition was filed. Umanzor was imprisoned inside of 18 the aircraft, against his will, until the aircraft completed the flight and he was released.” 19 Id. at 1302. 20 Respondents proffer nothing to counter the factual contentions that Petitioner 21 remained en route at the time his Petition was filed, or to suggest that being confined 22 within the plane did not establish custody for purposes of habeas jurisdiction. 23 Collateral Consequences – Respondents also propose no basis to conclude that 24 Petitioner does not continue to suffer actual collateral consequences of his removal. In 25 Zegarra-Gomez, the court observed that because the alien’s “inability to return is a 26 concrete disadvantage imposed as a matter of law, the fact of his deportation did not 27 render the pending habeas petition moot.” 314 F.3d at 1127. Respondents proffer 1 to this country, nor that a grant of relief would not redress those collateral consequences. 2 Indeed, the relief requested by Petitioner is an order requiring the BIA to reopen his 3 asylum proceedings. If that relief were granted, and a different result were obtained on 4 asylum, Petitioner could return and potentially remain in this country indefinitely. 5 Summary – Based on the foregoing, the undersigned concludes that the Petition 6 was not rendered moot by Petitioner’s removal. 7 B. JURISDICTION TO REVIEW ASYLUM DECISION 8 Respondents argue that this Court lacks jurisdiction because of 8 U.S.C. § 9 1252(a)(5) and (b)(9). 10 Petitioner argued in his Petition that under 8 U.S.C. § 1252(a)(2)(B)(ii) this Court 11 retains jurisdiction to review claims of constitutional or legal error. (Petition, at 12 Memorandum, ¶ 4, physical page 15.) Petitioner does not, however, address the 13 application of §§ 1252(a)(5) and (b)(9). 14 Section 1252 provides, in pertinent part: 15

(a) Applicable Provisions 16 * * * (5) Exclusive means of review 17 Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other 18 habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in 19 accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under 20 any provision of this chapter, except as provided in subsection (e). For purposes of this chapter, in every provision that limits or 21 eliminates judicial review or jurisdiction to review, the terms “judicial review” and “jurisdiction to review” include habeas corpus 22 review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review 23 pursuant to any other provision of law (statutory or nonstatutory). * * * 24 (b) Requirements for review of orders of removal * * * 25 (9) Consolidation of questions for judicial review Judicial review of all questions of law and fact, including 26 interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to 27 remove an alien from the United States under this subchapter shall 1 hoar vaen yju roitshdeirc thioanb,e absy choarbpeuass pcroorvpiussio unn, dbeyr sseeccttiioonn 12326411 oorf T16it5le1 2o8f 2 such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or 3 fact. 4 These provisions create a scheme intended to make the circuit court petition for review 5 “the exclusive means to challenge an order of removal,” and to consolidate “all 6 ‘questions of law and fact ... arising from any action taken or proceeding brought to 7 remove an alien’ into a petition for review.” Martinez v. Napolitano, 704 F.3d 620, 622 8 (9th Cir. 2012). 9 After the enactment of these provisions, the habeas jurisdiction of the district 10 court in immigration cases is limited to “claims that are ‘independent of challenges to 11 removal orders.’” Id. at 622 (quoting Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 12 2007)). The provisions prohibit “claims that indirectly challenge a removal order,” and 13 “the distinction between an independent claim and indirect challenge ‘will turn on the 14 substance of the relief that a plaintiff is seeking.’” Id. at 622. “When a claim by an 15 alien, however it is framed, challenges the procedure and substance of an agency 16 determination that is ‘inextricably linked’ to the order of removal, it is prohibited by 17 section 1252(a)(5).” Id. at 623. This includes not only the initial removal decision, but 18 also “the BIA's determination that he was ineligible for asylum, withholding of removal, 19 and relief under the CAT…[which] was the basis of its removal order.” Id. at 623. 20 In contrast, a claim of ineffective assistance of counsel in failing to timely petition 21 for review by the circuit court does not challenge the procedure and substance of the 22 agency determination, because the only remedy to be provided by the district court was 23 the restarting of the time for a petition for review. That is so “notwithstanding his 24 ultimate goal or desire to overturn that final order of removal.” Singh v. Gonzales, 499 25 F.3d 969, 979 (9th Cir. 2007). 26 Here, parts 1 (deficiencies in asylum application) and 2 (untimely motion to 27 reopen) of Petitioner’s claim concerns the effectiveness of counsel in the administrative 1 inextricably linked to the order of removal, and thus this Court lacks jurisdiction over the 2 claim. 3 Petitioner’s reliance on § 1252(a)(2)(B)(ii) does not avoid the bar. (See Petition, 4 Doc. 1, Memorandum at ¶ 4, physical page 15.) That section simply bars habeas 5 jurisdiction over decisions to be made in the “discretion of the Attorney General.” 6 Moreover, although §1252(a)(2)(D) makes clear that “[n]othing in subparagraph 7 (B) or (C), or in any other provision of this chapter (other than this section) which limits 8 or eliminates judicial review, shall be construed as precluding review of constitutional 9 claims or questions of law,” it also limits such review to issues “raised upon a petition 10 for review filed with an appropriate court of appeals in accordance with this section.” 11 “The plain language of the REAL ID Act grants jurisdiction to appellate courts to review 12 questions of law presented in petitions for review of final orders of removal, even those 13 pertaining to otherwise discretionary determinations.” Afridi v. Gonzales, 442 F.3d 14 1212, 1218 (9th Cir. 2006), overruled on other grounds by Estrada-Espinoza v. 15 Mukasey, 546 F.3d 1147 (9th Cir. 2008) (emphasis added). 16 Therefore, under 8 U.S.C. § 1252(a)(5), this Court lacks jurisdiction to entertain a 17 habeas petition founded upon claims that Petitioner was denied due process as a result of 18 ineffective assistance of counsel in his asylum proceedings. 19 Thus parts 1 and 2 of Petitioner’s claim must be dismissed. Because this court 20 lacks jurisdiction to resolve the claims, that dismissal should be without prejudice to 21 Petitioner’s presentation of the claims in another forum, i.e. the circuit court of appeals.

22 C. PRUDENTIAL EXHAUSTION 23 In part 3 of his claim, Petitioner argues that his attorney’s ineffectiveness 24 extended outside the administrative removal process, and into his petition for review by 25 the Ninth Circuit. 26 Respondents argue that this Court should deny review of this issue on the basis of 27 a prudential exhaustion requirement. Respondents argue that Petitioner’s proper judicial 1 remedy is a motion to recall the mandate in the Ninth Circuit. 2 Petitioner has not addressed this issue. 3 Section 2241 “does not specifically require petitioners to exhaust direct appeals 4 before filing petitions for habeas corpus.” Castro-Cortez v. INS, 239 F.3d 1037, 1047 5 (9th Cir.2001), abrogated on other grounds by Fernandez-Vargas v. Gonzales, 548 U.S. 6 30, 36 n.5 (2006). Nonetheless, “we require, as a prudential matter, that habeas 7 petitioners exhaust available judicial ... remedies before seeking relief under § 2241.” Id. 8 Respondents argue that a motion to recall the mandate is an available judicial 9 remedy.2 Indeed, the circuit courts permit motions to recall the mandate to reopen 10 petitions for review in exceptional circumstances.

11 The authority of a Court of Appeals to recall its mandate is clear. While the authority is not conferred by statute, it exists as part 12 of the court's power to protect the integrity of its own processes. The authority may be exercised for “good cause” or to “prevent 13 injustice.” This power, however, should be exercised only in exceptional circumstances. Whether the power is exercised at all 14 falls within the discretion of the court, but such discretion should be employed to recall a mandate only when good cause or unusual 15 circumstances exist sufficient to justify modification or recall of a prior judgment. 16 Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988). One flavor of exceptional 17 circumstances potentially justifying the recall of an appellate court’s mandate is the 18 ineffective assistance of counsel before the appellate court. See Watson v. United States, 19 536 A.2d 1056, 1060 (D.C. 1987). 20 Accordingly, Petitioner has available to him a judicial remedy other than the 21 instant habeas proceeding to seek to reopen his removal proceedings. Accordingly, this 22 habeas proceeding should be dismissed without prejudice for failure to exhaust available 23 judicial remedies. 24

25 2 Petitioner has pending with the Ninth Circuit his Petition for Review from the BIA’s rejection of his motion to reopen administrative proceedings. Presumably, that 26 proceeding would not resolve counsel’s alleged ineffectiveness before the Ninth Circuit. Because the undersigned has concluded that this Court lacks jurisdiction over the 27 administrative proceeding (because of § 1252(a)(5)), the undersigned does not consider 1 Petitioner’s Petition is not moot. However, his challenges to the administrative 2 proceedings are precluded by 8 U.S.C. § 1252(a)(5) from the habeas jurisdiction of this 3 court. His challenges to the proceedings in the Ninth Circuit Court of Appeals have 4 other judicial remedies available, i.e. a motion to recall the mandate, and thus must be 5 dismissed. 6 Respondents request that the Petition be “denied.” While the terms “dismiss” and 7 “deny” are often interchanged, an action which is terminated “without further hearing, 8 esp. before the trial of the issues involved” has been dismissed. See DISMISS, Black's 9 Law Dictionary (10th ed. 2014). Because the merits of Petitioner’s claims are not 10 reached, the undersigned will recommend a dismissal. 11

12 IV. CERTIFICATE OF APPEALABILITY 13 Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the 14 “district court must issue or deny a certificate of appealability when it enters a final order 15 adverse to the applicant.” Such certificates are required in cases concerning detention 16 arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 17 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1). 18 Here, the Petition is brought pursuant to 28 U.S.C. § 2241. Moreover, to the 19 extent that the Rules Governing Section 2254 Cases might be found to apply to this 20 proceeding, the Petition does not challenge detention pursuant to a State court judgment. 21 Accordingly, a decision on a certificate of appealability is not required. 22

23 V. RECOMMENDATION 24 IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ 25 of Habeas Corpus, filed October 11, 2017 (Doc. 1) be DISMISSED. 26 / / 27 VI. EFFECT OF RECOMMENDATION 3 This recommendation is not an order that is immediately appealable to the Ninth 3 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 4 of Appellate Procedure, should not be filed until entry of the district court's judgment. 5 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties 6 shall have fourteen (14) days from the date of service of a copy of this recommendation 7 within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days 9 within which to file a response to the objections. Failure to timely file objections to any 10 findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 2 328 F.3d 1114, 1121 (9" Cir. 2003)(en banc), and will constitute a waiver of a party's B right to appellate review of the findings of fact in an order or judgment entered pursuant 14 to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146- 15 47 (9th Cir. 2007). 16 In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that 7 “TuJnless otherwise permitted by the Court, an objection to a Report and 18 Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” 19 20|| Dated: April 11, 2018 _ LL ada 17-8682" RR 18 04 D4 on HC docs United States Magistrate Judge 22 23 24 25 26 27 28