UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Saveth Veth, Plaintiff
v. Case No. 18-cv-1139-SM Opinion No. 2018 DNH 252 Matt Whitaker, Acting Attorney General; Kirstjen Nielsen, Secretary of the Dept. of Homeland Security; Christopher Brackett, Superintendent of Strafford Correctional Facility; Todd Thurlow, Assistant Field Office Director; and Ronald D. Vitiello, Acting Director of ICE for the Washington, D.C. Headquarters, Defendants
O R D E R
Saveth Veth brings this habeas corpus petition, seeking a
stay of his imminent deportation from the United States. See 28
U.S.C. § 2241. Because this court lacks jurisdiction to
entertain Veth’s petition, the petition, as well as his request
for emergency injunctive relief, must necessarily be denied.
Background
In 1983, Veth and his parents left a Cambodian refugee camp
located in Thailand and came to the United States as refugees.
At the time, Veth was eight years old. He is currently 43. In 2009, Veth was convicted in a Massachusetts state court
of an aggravated felony (indecent assault and battery on a child
under the age of 14). He pled guilty to the charge and was
convicted. The circumstances were apparently unusual and as a
result he received a light sentence of five years probation, and
he was ordered to undergo alcohol treatment and counseling. In
2011, based upon that felony conviction, ICE arrested Veth,
issued a Notice to Appear, and began removal proceedings in the
Boston Immigration Court. Veth appeared at his hearing, did not
seek any relief from removal, and did not express any fear of
returning to Cambodia. He accepted the order of removal and
waived his appellate rights. Approximately five months later,
however, ICE released Veth from custody, because Cambodia
refused to provide the necessary travel documents to effect his
removal.
Six and one-half years later (and three months before he
filed his habeas petition in this court), in September of 2018,
ICE again arrested Veth, after the Cambodian government agreed
to interview him and determine whether to issue travel
documents. Veth was originally detained in Massachusetts and
subsequently moved to New Hampshire, where he was being held
when he filed this petition on Monday, December 10, 2018. The
following day, Tuesday, December 11, 2018, the magistrate judge
2 entered an order directing service of Veth’s habeas petition
upon the United States Attorney for the District of New
Hampshire and the other named defendants. That order directed
defendants to file a responsive pleading within seven days and
provide the court “with at least 48 hours advance notice of any
scheduled removal or transfer of Veth out of this court’s
jurisdiction.” But, before receiving that order, the government
had already transferred Veth to Louisiana and then to Texas.
There is also some suggestion that Veth will be moved again -
this time to either California or Hawaii. His deportation is
imminent: yesterday, the government gave notice that it intends
to remove Veth from the United States in three days (i.e., on
Monday, December 17, 2018).
On the afternoon of Tuesday, December 11, 2018, the court
(Barbadoro, J.) conducted a telephonic hearing with counsel for
Veth and the government. During that hearing, the court
identified two potential jurisdictional issues. First, given
the fact that Veth is no longer in this district, the court
questioned whether the “primary custodian” rule divested it of
jurisdiction. Second, the court questioned whether it had
jurisdiction over Veth’s petition given the jurisdiction
stripping provisions of 8 U.S.C. § 1252. The court afforded
Veth’s counsel 24 hours within which to file a memorandum
3 addressing those issues. Counsel for the government was given
the opportunity to respond within 24 hours thereafter. Those
memoranda have now been filed.
Discussion
I. Veth’s Claims.
Veth does not (yet, anyway) challenge his final order of
removal. Indeed, he concedes that, based upon his state court
felony conviction, he is subject to deportation. What he seeks
from this court is a stay of his physical removal so he may have
the time necessary to challenge that underlying state court
conviction, arguing that his plea of guilty was plainly
improvident and subject to vacation. Specifically, he claims to
have received constitutionally deficient legal representation in
the state court proceeding because counsel neglected to fully
inform him of the immigration consequences of his guilty plea.
That, says Veth, amounted to a violation of his Sixth Amendment
rights, as well as his rights under the Massachusetts
Declaration of Rights, and likely renders his plea improvident
and invalid. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010);
Commonwealth v. Sylvain, 466 Mass. 422 (2013); Commonwealth v.
DeJesus, 468 Mass. 174 (2014).
4 At this juncture, federal habeas relief is unavailable -
Veth cannot challenge his state court conviction under 28 U.S.C.
§ 2254. His sole avenue of relief appears to lie with a
petition in the Massachusetts court of conviction seeking to
vacate his prior felony conviction. Then, if successful, he
might petition the Board of Immigration Appeals to reopen his
case. Because federal relief under section 2254 is unavailable
to him, Veth seeks habeas relief under section 2241, asserting
that this court has jurisdiction to enter an order - of
indefinite duration - to stay his removal while he attempts,
first, to vacate his state felony conviction and, second, to
reopen his immigration proceedings and obtain relief from his
order of removal.
II. Jurisdiction over Veth’s Habeas Petition.
Neither party thinks that, standing alone, ICE’s transfer
of Veth out of this jurisdiction divests this court of
jurisdiction under the “immediate custodian” rule. The court is
inclined to agree. See Rumsfeld v. Padilla, 542 U.S. 426, 440-
41 (2004) (citing Ex Parte Endo, 323 U.S. 283, 306 (1944)).
But, even assuming the court has not been divested of
jurisdiction solely by virtue of Veth’s removal to another
state, it is plain that Congress has stripped this court of
jurisdiction to entertain Veth’s petition for habeas relief
5 under 28 U.S.C. § 2241. See 8 U.S.C. §§ 1252(b)(9) and 1252(g).
See also Aguilar v. U.S. Immigration & Customs Enf’t Div. of
Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007).
But, says Veth, his rights under the Suspension Clause will
be violated if the court denies his requested habeas relief.
See generally Hussein v. Brackett, No. 18-cv-273-JL, 2018 WL
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Saveth Veth, Plaintiff
v. Case No. 18-cv-1139-SM Opinion No. 2018 DNH 252 Matt Whitaker, Acting Attorney General; Kirstjen Nielsen, Secretary of the Dept. of Homeland Security; Christopher Brackett, Superintendent of Strafford Correctional Facility; Todd Thurlow, Assistant Field Office Director; and Ronald D. Vitiello, Acting Director of ICE for the Washington, D.C. Headquarters, Defendants
O R D E R
Saveth Veth brings this habeas corpus petition, seeking a
stay of his imminent deportation from the United States. See 28
U.S.C. § 2241. Because this court lacks jurisdiction to
entertain Veth’s petition, the petition, as well as his request
for emergency injunctive relief, must necessarily be denied.
Background
In 1983, Veth and his parents left a Cambodian refugee camp
located in Thailand and came to the United States as refugees.
At the time, Veth was eight years old. He is currently 43. In 2009, Veth was convicted in a Massachusetts state court
of an aggravated felony (indecent assault and battery on a child
under the age of 14). He pled guilty to the charge and was
convicted. The circumstances were apparently unusual and as a
result he received a light sentence of five years probation, and
he was ordered to undergo alcohol treatment and counseling. In
2011, based upon that felony conviction, ICE arrested Veth,
issued a Notice to Appear, and began removal proceedings in the
Boston Immigration Court. Veth appeared at his hearing, did not
seek any relief from removal, and did not express any fear of
returning to Cambodia. He accepted the order of removal and
waived his appellate rights. Approximately five months later,
however, ICE released Veth from custody, because Cambodia
refused to provide the necessary travel documents to effect his
removal.
Six and one-half years later (and three months before he
filed his habeas petition in this court), in September of 2018,
ICE again arrested Veth, after the Cambodian government agreed
to interview him and determine whether to issue travel
documents. Veth was originally detained in Massachusetts and
subsequently moved to New Hampshire, where he was being held
when he filed this petition on Monday, December 10, 2018. The
following day, Tuesday, December 11, 2018, the magistrate judge
2 entered an order directing service of Veth’s habeas petition
upon the United States Attorney for the District of New
Hampshire and the other named defendants. That order directed
defendants to file a responsive pleading within seven days and
provide the court “with at least 48 hours advance notice of any
scheduled removal or transfer of Veth out of this court’s
jurisdiction.” But, before receiving that order, the government
had already transferred Veth to Louisiana and then to Texas.
There is also some suggestion that Veth will be moved again -
this time to either California or Hawaii. His deportation is
imminent: yesterday, the government gave notice that it intends
to remove Veth from the United States in three days (i.e., on
Monday, December 17, 2018).
On the afternoon of Tuesday, December 11, 2018, the court
(Barbadoro, J.) conducted a telephonic hearing with counsel for
Veth and the government. During that hearing, the court
identified two potential jurisdictional issues. First, given
the fact that Veth is no longer in this district, the court
questioned whether the “primary custodian” rule divested it of
jurisdiction. Second, the court questioned whether it had
jurisdiction over Veth’s petition given the jurisdiction
stripping provisions of 8 U.S.C. § 1252. The court afforded
Veth’s counsel 24 hours within which to file a memorandum
3 addressing those issues. Counsel for the government was given
the opportunity to respond within 24 hours thereafter. Those
memoranda have now been filed.
Discussion
I. Veth’s Claims.
Veth does not (yet, anyway) challenge his final order of
removal. Indeed, he concedes that, based upon his state court
felony conviction, he is subject to deportation. What he seeks
from this court is a stay of his physical removal so he may have
the time necessary to challenge that underlying state court
conviction, arguing that his plea of guilty was plainly
improvident and subject to vacation. Specifically, he claims to
have received constitutionally deficient legal representation in
the state court proceeding because counsel neglected to fully
inform him of the immigration consequences of his guilty plea.
That, says Veth, amounted to a violation of his Sixth Amendment
rights, as well as his rights under the Massachusetts
Declaration of Rights, and likely renders his plea improvident
and invalid. See Padilla v. Kentucky, 130 S. Ct. 1473 (2010);
Commonwealth v. Sylvain, 466 Mass. 422 (2013); Commonwealth v.
DeJesus, 468 Mass. 174 (2014).
4 At this juncture, federal habeas relief is unavailable -
Veth cannot challenge his state court conviction under 28 U.S.C.
§ 2254. His sole avenue of relief appears to lie with a
petition in the Massachusetts court of conviction seeking to
vacate his prior felony conviction. Then, if successful, he
might petition the Board of Immigration Appeals to reopen his
case. Because federal relief under section 2254 is unavailable
to him, Veth seeks habeas relief under section 2241, asserting
that this court has jurisdiction to enter an order - of
indefinite duration - to stay his removal while he attempts,
first, to vacate his state felony conviction and, second, to
reopen his immigration proceedings and obtain relief from his
order of removal.
II. Jurisdiction over Veth’s Habeas Petition.
Neither party thinks that, standing alone, ICE’s transfer
of Veth out of this jurisdiction divests this court of
jurisdiction under the “immediate custodian” rule. The court is
inclined to agree. See Rumsfeld v. Padilla, 542 U.S. 426, 440-
41 (2004) (citing Ex Parte Endo, 323 U.S. 283, 306 (1944)).
But, even assuming the court has not been divested of
jurisdiction solely by virtue of Veth’s removal to another
state, it is plain that Congress has stripped this court of
jurisdiction to entertain Veth’s petition for habeas relief
5 under 28 U.S.C. § 2241. See 8 U.S.C. §§ 1252(b)(9) and 1252(g).
See also Aguilar v. U.S. Immigration & Customs Enf’t Div. of
Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007).
But, says Veth, his rights under the Suspension Clause will
be violated if the court denies his requested habeas relief.
See generally Hussein v. Brackett, No. 18-cv-273-JL, 2018 WL
2248513, 2018 DNH 101 (D.N.H. May 5, 2018). And, citing Devitri
v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018), he asserts that
the remedies available to him under the BIA’s process for
adjudicating motions to reopen and motions to stay are not
adequate administrative alternatives to habeas relief. The
circumstances giving rise to this case are, however, materially
distinct from those in Devitri. In Devitri, petitioners made a
colorable, non-frivolous claim that they would be subjected to
torture and/or persecution if returned to their country of
origin (Indonesia) because of their Christian faith. Veth makes
no such claim.
Moreover, the petitioners in Devitri plausibly alleged that
they were subject to removal before they had sufficient time to
file a motion to reopen their immigration proceedings. Thus,
they argued that habeas relief was the only adequate and
effective means by which to challenge their imminent
6 deportation. Veth, on the other hand, has been subject to a
removal order since 2011. And, he has had more than seven years
to challenge the underlying basis for that removal order - his
state felony conviction - through direct appeal or other avenues
of collateral attack. He did not do so. That Veth has not
timely availed himself of available alternatives to habeas
relief does not compel the conclusion that those alternatives
are inadequate or ineffective. Indeed, while there is no
indication that he has yet done so, it appears that Veth could
still file a motion to reopen with the immigration court,
setting forth the arguments he advances here, along with an
emergency motion to stay his imminent deportation while he
endeavors to vacate his state felony conviction.
And, finally, there is no suggestion in the record that
Veth will be precluded from pursuing his efforts to vacate his
state felony conviction and then availing himself of the BIA’s
motion to reopen process if he is removed. Consequently, the
court cannot conclude, under applicable law, that the motion to
reopen process will provide Veth with an inadequate substitute
for habeas corpus relief. See generally Higgins v. Strafford
County Dept. of Corrs., No. 18-cv-147-PB, 2018 WL 1278302 at *2,
2018 DNH 50 (D.N.H. Mar. 3, 2018) (“The fatal flaw in
[petitioner’s] argument is that he bases it on the incorrect
7 assumption that he will lose his right to file a motion to
reopen if he is removed before he can file his motion.”). See
also Luna v. Holder, 637 F.3d 85, 101-02 (2d Cir. 2011) (holding
that the BIA’s regulation purporting to preclude removed persons
from filing a motion to reopen - known as the “post-departure
bar” - cannot be applied categorically to prevent the filing of
such motions after removal).
Conclusion
For the foregoing reasons, as well as those set forth in
the government’s memorandum (document no. 6), this court lacks
jurisdiction to consider Veth’s petition for habeas corpus
relief under 28 U.S.C. § 2241. And, as applied to the facts of
this case, the jurisdiction stripping provisions of 8 U.S.C. §
1252 do not violate Veth’s rights under the Suspension Clause.
Veth has had, and he retains, adequate administrative means by
which to present his claims to the BIA through a motion to
reopen (provided, of course, that he is first able to vacate his
underlying state court felony conviction).
Veth’s Petition for Habeas Corpus Relief Pursuant to 28
U.S.C. § 2241 (document no. 1) is dismissed for lack of
jurisdiction and his Motion for Temporary Restraining Order
(document no. 2), is necessarily denied. The Clerk of Court
8 shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
December 14, 2018
cc: Louis S. Haskell, Esq. Michael T. McCormack, AUSA