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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 JASVIR SINGH, CASE NO. C19-1873JLR-MLP 11 Plaintiff, ORDER GRANTING MOTION v. TO DISMISS AND DENYING AS 12 MOOT SECOND MOTION FOR EMERGENCY STAY OF UNITED STATES CITIZENSHIP 13 REMOVAL AND IMMIGRATION SERVICES, et al., 14 15 Defendants.
16 I. INTRODUCTION 17 Before the court are (1) Defendants United States Citizenship and Immigration 18 Services, United States Department of Justice, and United States Department of 19 Homeland Security’s (together, “the Government”) motion to dismiss (see MTD (Dkt. 20 # 14)); and (2) Plaintiff Jasvir Singh’s second emergency motion for stay of removal (see 21 2d TRO (Dkt. # 19)). The court has reviewed the motions, the parties’ submissions in 22 support of and in opposition to the motions, the relevant portions of the record, and the 1 applicable law. Being fully advised, the court GRANTS the Government’s motion to 2 dismiss with prejudice and DENIES as moot Mr. Singh’s second motion for stay of
3 removal. 4 II. BACKGROUND 5 Mr. Singh, who is proceeding through counsel, filed this action under the 6 Administrative Procedures Act (“APA”) to obtain review of an asylum officer’s and 7 immigration judge’s negative credible fear determinations and expedited removal order. 8 (See Compl. (Dkt. # 1-2).) Mr. Singh alleges that he has a credible fear of being returned
9 to India based on animus he faced in India on the basis of his political beliefs. (See 2d 10 TRO at 2-4.) 11 Mr. Singh has been detained at the LaSalle Correction Center in Olla, Louisiana 12 since January 3, 2020. (Dumont Decl. (Dkt. # 15) ¶ 8.) He entered the United States 13 without inspection after crossing the border near San Ysidro, California, on May 22,
14 2019. (Compl. ¶ 8.1; Lambert Decl. (Dkt. # 16) ¶ 2, Ex. A.) The Government 15 commenced the credible fear process after Mr. Singh informed officers that he sought 16 asylum. (Comp. ¶ 8.1.) On June 5, 2019, United States Immigration and Customs 17 Enforcement (“ICE”) took Mr. Singh into custody and transferred him shortly thereafter 18 to Tallahatchie County Correctional Facility in Tutwiler, Mississippi. (Dumont Decl.
19 ¶ 3.) On July 10, 2019, an asylum officer interviewed Mr. Singh and made a negative 20 credible fear determination. (See Compl. ¶¶ 8.1-8.2.) Mr. Singh requested that an 21 immigration judge review the determination. (Id. ¶ 8.3.) On July 29, 2019, ICE 22 transferred Mr. Singh to Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. 1 (Dumont Decl. ¶ 5.) On August 12, 2019, the immigration judge affirmed the negative 2 credible fear determination and returned the case to ICE for Mr. Singh’s removal. (Id.
3 ¶ 6.) Four days later, Mr. Singh filed a habeas petition in the Fifth Circuit that was 4 dismissed on September 26, 2019. (Compl. ¶ 8.7; Dumont Decl., ¶ 7.) Mr. Singh is 5 currently detained at LaSalle Correction Center. (Dumont Decl. ¶ 8.) 6 On January 5, 2020, Mr. Singh filed an emergency motion seeking a stay of 7 removal in this case. (1st TRO (Dkt. # 9).) The court denied that motion on January 7, 8 2020. (1/7/20 Order (Dkt. # 10).) The court found that Mr. Singh had failed to “show a
9 likelihood of success, serious legal questions, or a substantial case on the merits” because 10 “the Immigration and Nationality Act expressly precludes judicial review of Plaintiff’s 11 challenge to his expedited removal order and negative credible fear finding.” (See id. at 2 12 (citing 8 U.S.C. § 1252(a)(2)(A)).) The court also noted that individuals may challenge 13 removal proceedings via habeas petitions, but that Mr. Singh could not rely on habeas
14 caselaw to support his claims because he did not file a habeas petition.1 (See id. at 2-3.) 15 III. ANALYSIS 16 The Government moved to dismiss Mr. Singh’s complaint for lack of jurisdiction 17 on February 24, 2020. (See MTD at 8.) The Government argues that (1) the Immigration 18 and Nationality Act (“INA”) precludes judicial review of Mr. Singh’s challenge to his
19 removal orders and negative credible fear determination, and (2) Mr. Singh cannot seek 20 habeas relief in this court. (See id. at 5-8.) Mr. Singh opposes the Government’s motion. 21
1 The court also noted that it would have been improper for Mr. Singh to file a habeas 22 petition in this district because he is currently detained in Louisiana. (See id. at 3-4.) 1 (See MTD Resp. (Dkt. # 17).) While the Government’s motion to dismiss was pending, 2 Mr. Singh filed a second emergency motion for a stay of removal. (See 2d TRO.) Mr.
3 Singh’s second motion mirrors his first. He asks the court to “reconsider” its prior ruling 4 that temporary injunctive relief was not warranted because the INA precludes judicial 5 review of this case (see id. at 9-10) and otherwise recycles the same arguments presented 6 in his first emergency motion for a stay of removal (see id. at 10-19). 7 The court first addresses the Government’s motion to dismiss before turning to 8 Mr. Singh’s second emergency motion for a stay of removal.
9 A. Motion to Dismiss 10 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests the 11 court’s subject matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 12 1039 (9th Cir. 2004); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 13 2009) (“An objection that a federal court lacks subject matter jurisdiction may be raised
14 at any time.”). Federal courts are courts of limited jurisdiction, only possessing the 15 power authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of 16 Am., 511 U.S. 375, 377 (1994). As a starting point for this analysis, it is assumed that the 17 district court lacks subject matter jurisdiction, and the party asserting the claim bears the 18 burden of establishing that subject matter jurisdiction exists.” In re Dynamic Random
19 Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (citing Kokkonen, 511 20 U.S. at 377). “When a motion to dismiss attacks subject matter jurisdiction under Rule 21 12(b)(1) on the face of the complaint, the court assumes the factual allegations in the 22 1 complaint are true and draws all reasonable inferences in the plaintiff’s favor.” City of 2 L.A. v. JPMorgan Chase & Co., 22 F. Supp. 3d 1047, 1052 (C.D. Cal. 2014).
3 Mr. Singh fails to establish a basis for the court’s subject matter jurisdiction in this 4 case. Although Mr. Singh argues that the APA provides a basis for judicial review 5 (Compl. ¶ 1.1; MTD Resp. at 2 (“An action pursuant to [the] Administrative Procedure 6 Act is the proper means for seeking remedy when such a violation has occurred due to 7 malfeasance by an administrative agency.”)), APA review is not available here. The 8 APA provides a source of judicial review of agency actions except to the extent a statute
9 expressly precludes such review. 5 U.S.C. § 701(a); see Lincoln v. Vigil, 508 U.S. 182, 10 191 (1993).
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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 JASVIR SINGH, CASE NO. C19-1873JLR-MLP 11 Plaintiff, ORDER GRANTING MOTION v. TO DISMISS AND DENYING AS 12 MOOT SECOND MOTION FOR EMERGENCY STAY OF UNITED STATES CITIZENSHIP 13 REMOVAL AND IMMIGRATION SERVICES, et al., 14 15 Defendants.
16 I. INTRODUCTION 17 Before the court are (1) Defendants United States Citizenship and Immigration 18 Services, United States Department of Justice, and United States Department of 19 Homeland Security’s (together, “the Government”) motion to dismiss (see MTD (Dkt. 20 # 14)); and (2) Plaintiff Jasvir Singh’s second emergency motion for stay of removal (see 21 2d TRO (Dkt. # 19)). The court has reviewed the motions, the parties’ submissions in 22 support of and in opposition to the motions, the relevant portions of the record, and the 1 applicable law. Being fully advised, the court GRANTS the Government’s motion to 2 dismiss with prejudice and DENIES as moot Mr. Singh’s second motion for stay of
3 removal. 4 II. BACKGROUND 5 Mr. Singh, who is proceeding through counsel, filed this action under the 6 Administrative Procedures Act (“APA”) to obtain review of an asylum officer’s and 7 immigration judge’s negative credible fear determinations and expedited removal order. 8 (See Compl. (Dkt. # 1-2).) Mr. Singh alleges that he has a credible fear of being returned
9 to India based on animus he faced in India on the basis of his political beliefs. (See 2d 10 TRO at 2-4.) 11 Mr. Singh has been detained at the LaSalle Correction Center in Olla, Louisiana 12 since January 3, 2020. (Dumont Decl. (Dkt. # 15) ¶ 8.) He entered the United States 13 without inspection after crossing the border near San Ysidro, California, on May 22,
14 2019. (Compl. ¶ 8.1; Lambert Decl. (Dkt. # 16) ¶ 2, Ex. A.) The Government 15 commenced the credible fear process after Mr. Singh informed officers that he sought 16 asylum. (Comp. ¶ 8.1.) On June 5, 2019, United States Immigration and Customs 17 Enforcement (“ICE”) took Mr. Singh into custody and transferred him shortly thereafter 18 to Tallahatchie County Correctional Facility in Tutwiler, Mississippi. (Dumont Decl.
19 ¶ 3.) On July 10, 2019, an asylum officer interviewed Mr. Singh and made a negative 20 credible fear determination. (See Compl. ¶¶ 8.1-8.2.) Mr. Singh requested that an 21 immigration judge review the determination. (Id. ¶ 8.3.) On July 29, 2019, ICE 22 transferred Mr. Singh to Pine Prairie ICE Processing Center in Pine Prairie, Louisiana. 1 (Dumont Decl. ¶ 5.) On August 12, 2019, the immigration judge affirmed the negative 2 credible fear determination and returned the case to ICE for Mr. Singh’s removal. (Id.
3 ¶ 6.) Four days later, Mr. Singh filed a habeas petition in the Fifth Circuit that was 4 dismissed on September 26, 2019. (Compl. ¶ 8.7; Dumont Decl., ¶ 7.) Mr. Singh is 5 currently detained at LaSalle Correction Center. (Dumont Decl. ¶ 8.) 6 On January 5, 2020, Mr. Singh filed an emergency motion seeking a stay of 7 removal in this case. (1st TRO (Dkt. # 9).) The court denied that motion on January 7, 8 2020. (1/7/20 Order (Dkt. # 10).) The court found that Mr. Singh had failed to “show a
9 likelihood of success, serious legal questions, or a substantial case on the merits” because 10 “the Immigration and Nationality Act expressly precludes judicial review of Plaintiff’s 11 challenge to his expedited removal order and negative credible fear finding.” (See id. at 2 12 (citing 8 U.S.C. § 1252(a)(2)(A)).) The court also noted that individuals may challenge 13 removal proceedings via habeas petitions, but that Mr. Singh could not rely on habeas
14 caselaw to support his claims because he did not file a habeas petition.1 (See id. at 2-3.) 15 III. ANALYSIS 16 The Government moved to dismiss Mr. Singh’s complaint for lack of jurisdiction 17 on February 24, 2020. (See MTD at 8.) The Government argues that (1) the Immigration 18 and Nationality Act (“INA”) precludes judicial review of Mr. Singh’s challenge to his
19 removal orders and negative credible fear determination, and (2) Mr. Singh cannot seek 20 habeas relief in this court. (See id. at 5-8.) Mr. Singh opposes the Government’s motion. 21
1 The court also noted that it would have been improper for Mr. Singh to file a habeas 22 petition in this district because he is currently detained in Louisiana. (See id. at 3-4.) 1 (See MTD Resp. (Dkt. # 17).) While the Government’s motion to dismiss was pending, 2 Mr. Singh filed a second emergency motion for a stay of removal. (See 2d TRO.) Mr.
3 Singh’s second motion mirrors his first. He asks the court to “reconsider” its prior ruling 4 that temporary injunctive relief was not warranted because the INA precludes judicial 5 review of this case (see id. at 9-10) and otherwise recycles the same arguments presented 6 in his first emergency motion for a stay of removal (see id. at 10-19). 7 The court first addresses the Government’s motion to dismiss before turning to 8 Mr. Singh’s second emergency motion for a stay of removal.
9 A. Motion to Dismiss 10 A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) tests the 11 court’s subject matter jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 12 1039 (9th Cir. 2004); see also Oregon v. Legal Servs. Corp., 552 F.3d 965, 969 (9th Cir. 13 2009) (“An objection that a federal court lacks subject matter jurisdiction may be raised
14 at any time.”). Federal courts are courts of limited jurisdiction, only possessing the 15 power authorized by the Constitution and statutes. Kokkonen v. Guardian Life Ins. Co. of 16 Am., 511 U.S. 375, 377 (1994). As a starting point for this analysis, it is assumed that the 17 district court lacks subject matter jurisdiction, and the party asserting the claim bears the 18 burden of establishing that subject matter jurisdiction exists.” In re Dynamic Random
19 Access Memory Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (citing Kokkonen, 511 20 U.S. at 377). “When a motion to dismiss attacks subject matter jurisdiction under Rule 21 12(b)(1) on the face of the complaint, the court assumes the factual allegations in the 22 1 complaint are true and draws all reasonable inferences in the plaintiff’s favor.” City of 2 L.A. v. JPMorgan Chase & Co., 22 F. Supp. 3d 1047, 1052 (C.D. Cal. 2014).
3 Mr. Singh fails to establish a basis for the court’s subject matter jurisdiction in this 4 case. Although Mr. Singh argues that the APA provides a basis for judicial review 5 (Compl. ¶ 1.1; MTD Resp. at 2 (“An action pursuant to [the] Administrative Procedure 6 Act is the proper means for seeking remedy when such a violation has occurred due to 7 malfeasance by an administrative agency.”)), APA review is not available here. The 8 APA provides a source of judicial review of agency actions except to the extent a statute
9 expressly precludes such review. 5 U.S.C. § 701(a); see Lincoln v. Vigil, 508 U.S. 182, 10 191 (1993). As the court has already ruled, the INA prohibits judicial review of 11 expedited removal orders and the credible fear process. See 8 U.S.C. § 1252(a)(2)(A) 12 (stating that “no court shall have jurisdiction to review . . . except as provided in 13 subsection (e), any individual determination or to entertain any other cause or claim
14 arising from or relating to the implementation or operation of an order of removal 15 pursuant to § 1225(b)(1) of this title”); (see also 1/7/20 Order at 2 (“Here, the 16 Immigration and Nationality Act expressly precludes judicial review of Plaintiff’s 17 challenge to his expedited removal order and negative credible fear finding.”).) The 18 limited carveouts in § 1252(e) are also inapplicable to this case. (See 1/7/20 Order at
19 2-3.) Although Mr. Singh attempts to argue that § 1252 does not preclude judicial review 20 (see MTD Resp. at 4-6), he does not provide any authority interpreting § 1252 that would 21 allow the court to ignore the express prohibition of judicial review included in that 22 statute. 1 Although the court also agrees with the Government that Mr. Singh cannot attempt 2 to recast his claim as one for habeas relief to avoid dismissal (see MTD at 7-8; 1/7/20
3 Order at 3-4), Mr. Singh has not made that argument in response to the motion to dismiss 4 (see generally MTD Resp.). Accordingly, the court need not address that issue further. 5 In sum, because the court has no jurisdiction to review Mr. Singh’s complaint 6 pursuant to the INA, the court GRANTS the Government’s motion to dismiss for lack of 7 jurisdiction with prejudice. Because the court dismisses this case and concludes that it 8 lacks jurisdiction over Mr. Singh’s claims, the court also DENIES as moot Mr. Singh’s
9 second emergency motion for a stay of removal. 10 IV. CONCLUSION 11 For the reasons set forth above, the court GRANTS the Government’s motion to 12 dismiss (Dkt. # 14) with prejudice and DENIES Mr. Singh’s second emergency motion 13 for a stay of removal (Dkt. # 19).
14 Dated this 12th day of June, 2020. 15 A 16 17 JAMES L. ROBART United States District Judge 18 19 20 21 22