Singh v. U.S. Department of Homeland Security

• Court: District Court, S.D. California
• Decided: May 5, 2020
• Docket: 3:20-cv-00165
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 NIRVAIR SINGH, Case No.: 20-CV-0165-GPC-AGS

10 Petitioner, ORDER DENYING PETITION FOR 11 v. WRIT OF HABEAS CORPUS 12 U.S. DEPARTMENT OF HOMELAND SECURITY; CUSTOMS AND BORDER 13 PROTECTION; CITIZENSHIP AND 14 IMMIGRATION SERVICES; IMMIGRATION AND CUSTOMS 15 ENFORCEMENT; DEPARTMENT OF 16 JUSTICE; WILLIAM P. BARR, ATTORNEY GENERAL OF THE 17 UNITED STATES; CHAD F. WOLF, 18 SECRETARY OF THE U.S. DHS; MARK A. MORGAN, ACTING 19 COMMISSIONER OF U.S. CBP; 20 KENNETH T. CUCCINELLI, DIRECTOR OF U.S. CIS; CARLA 21 PROVOST, CHIEF, U.S. CBP; DAVID 22 M. RADEL, DIRECTOR, LOS ANGELES ASYLUM OFFICE, U.S. CIS; 23 DONNA P. CAMPAGNOLO, DISTRICT 24 DIRECTOR, LOS ANGELES DISTRICT OFFICE, U.S. CIS; LORY C. TORRES, 25 FIELD OFFICE DIRECTOR, LOS 26 ANGELES FIELD OFFICE, U.S. CIS; GREGORY ARCHAMBEAULT, FIELD 27 OFFICE DIRECTOR, SAN DIEGO 28 FIELD OFFICE, U.S. CIS; KENNETH 1 SDMIRIETCHT, OARSS, IUS.TSA. INCTE ;F CIEHLRDIS O LFAFIRCOES E, 2 WARDEN, OTAY MESA DETENTION 3 CENTER, SAN DIEGO, CORECIVIC, 4 Respondents. 5 6 7 8 9 10 On January 24, 2020, Petitioner Nirvair Singh (“Petitioner”), a former detainee at 11 the Otay Mesa Detention Center under the custody of the U.S. Department of Homeland 12 Security (“DHS”) pursuant to an expedited order of removal, filed a habeas petition, 13 naming DHS, U.S. Citizenship and Immigration Services (”USCIS”), Immigration and 14 Customs Enforcement (“ICE”), and several individual agency officials as respondents 15 (“Respondents”). (ECF No. 1, Pet.) On February 21, 2020, Respondents filed a return in 16 opposition to the habeas petition. (ECF No. 4, Ret.) Petitioner did not file a reply. For the 17 following reasons, the Court DENIES the petition for writ of habeas corpus. 18 I. Background 19 A. The credible fear interview. 20 Petitioner is a native and citizen of India. (ECF No. 1, Pet. at ¶ 1.) On August 17, 21 2018, U.S. Border Patrol officers apprehended Petitioner and placed him in expedited 22 removal proceedings after he unlawfully “entered the United States at/near San Ysidro, 23 California[.]” (ECF No. 1-3, Scott Decl., Ex. F at 351.) While in custody, Petitioner 24 expressed fear of returning to India based on political persecution. (ECF No. 1, Pet. at ¶ 25 10.) He accordingly requested asylum. (Id.) 26 27

28 1 On September 20, 2018, an asylum officer (“AO”) interviewed Petitioner to 2 determine whether he had a credible fear of persecution. (Id. at ¶ 2.) When the interview 3 started, the AO asked Petitioner if he wished to have his interview postponed for two to 4 five days to find an attorney. (ECF No. 1-3, Scott Decl., Ex. A at 2.) Petitioner declined 5 and confirmed he felt comfortable proceeding. (Id. 2–3.) Shortly thereafter, the AO asked 6 Petitioner if he had any mental or medical conditions or concerns. (Id. at 3.) Petitioner 7 said he had none. (Id.) The AO also asked Petitioner if he was taking any medications. 8 (Id.) Petitioner told the AO that he takes blood pressure pills, but had not taken his 9 medication that day. (Id.) The AO followed up and asked Petitioner how he felt. (Id.) 10 Petitioner replied, “[F]ine thank you.” (Id.) The AO then continued the interview. (Id.) 11 Petitioner told the AO he was a member of the SAD-Mann party and claimed that 12 members of the BJP party had persecuted him. (Id. at 6, 8.) He explained that he joined 13 the SAD-Mann party because his brother had been a member of the same party for five 14 years. (Id. at 6–7.) In response to the AO’s questions on how he joined the party, 15 Petitioner said he met people at a SAD-Mann party camp and requested to work for the 16 party. (Id. at 7.) He was then told he was a “party member and . . . party worker now.” 17 (Id.) The AO pressed Petitioner for precise information on the process by which he joined 18 the party, but Petitioner was unable to provide further details. (Id.) When the AO 19 confronted Petitioner about his lack of detail, Petitioner responded, “[T]here are eye 20 checks camps and blood camps—I liked it and thought I should help them.” (Id.) 21 Petitioner reported he also received phone calls from SAD-Mann committee 22 members with assignments. (Id. at 6–7.) These assignments included announcing SAD- 23 Mann party camp events and encouraging people to attend. (Id.) He carried out these 24 assignments approximately four times a month, beginning in 2017. (Id. at 6.) The AO 25 asked Petitioner for the names of these SAD-Mann committee members, but Petitioner 26 was unable to provide any. (Id. at 7.) The AO also asked Petitioner for the names of local 27 party leaders. (Id.at 7–8.) Again, Petitioner could not provide any, stating “it is a very big 28 party and it is hard.” (Id. at 8.) 1 Petitioner further testified that BJP party members threatened him. (Id. at 5.) He 2 initially said he had been threatened “2 or 3 times on the phone[.]” (Id.) Petitioner later 3 stated that in December 2017, he received at least ten threatening phone calls from self- 4 identifying BJP party members. (Id. at 10.) These calls instructed him to stop making 5 announcements and to join the BJP party. (Id.) When the AO confronted Petitioner on his 6 inconsistent reporting, Petitioner replied, “I gave you just an estimate of how many times 7 I was threatened.” (Id.) 8 Petitioner was also “attacked twice by members of the BJP party, and was told he 9 would be killed if he did not join.” (ECF No. 1, Pet. at ¶ 11.) On January 9, 2018, while 10 Petitioner announced upcoming SAD-Mann programs at an event, four BJP party 11 members approached Petitioner and “slapped . . . and punched” him. (ECF No. 1-3, Scott 12 Decl., Ex. A at 8.) The assailants told Petitioner to stop making SAD-Mann party 13 announcements and to join the BJP party. (Id.) On July 5, 2018, the same four assailants 14 beat Petitioner unconscious after again telling him to stop making SAD-Mann party 15 announcements and to join the BJP party. (Id. at 9.) 16 Petitioner and his father attempted to report these incidents to the police, but the 17 police refused to take a report. (Id. at 10.) Instead, the police “ridiculed Petitioner . . . by 18 calling him names and using bad words.” (ECF No. 1, Pet. at ¶ 20.) As a result, 19 “Petitioner paid a person . . . to help him get a visa so that he would not be killed if he 20 remained in India.” (Id. at ¶ 21.)2 Before the interview concluded, Petitioner affirmed that 21 he understood his interpreter and the questions the AO asked. (ECF No. 1-3, Scott Decl., 22 Ex. A at 14.) 23 The AO determined Petitioner was not credible because his testimony lacked detail 24 on two material aspects and had one material inconsistency. (Id., Ex. B at 16–17.) The 25 AO specifically cited Petitioner’s inability to provide details on how he joined the SAD- 26 27 28 2 At his credible fear interview, Petitioner told the AO he paid for his trip to the United States with 1 Mann party; Petitioner’s inability to provide the names of SAD-Mann committee 2 members and local leaders; and Petitioner’s inconsistency in reporting how many threats 3 he received. (Id.) The AO accordingly determined Petitioner did not have a credible fear 4 of persecution based on a finding of no credibility. (Id., Ex. E at 32.) 5 On September 23, 2018, a supervising officer approved the AO’s determination. 6 (Id., Ex. C at 23.) Petitioner subsequently requested de novo review by an immigration 7 judge (“IJ”). (Id., Ex. F at 36.) 8 B. The immigration judge hearing. 9 On October 15, 2018, an IJ reviewed the AO’s adverse credible fear determination. 10 (Id., Ex. I at 52.) At the IJ hearing, Petitioner’s consultant attempted to introduce new 11 evidence concerning the BJP party’s involvement in the deaths of Petitioner’s brother and 12 nephew. (DAR3 at 11:28–12:09.) Petitioner explained he did not initially report his 13 family members’ deaths to the AO because he felt unwell and was scared to tell the AO 14 that he felt unwell. (Id. at 1:44–4:22.) The IJ, however, did not credit Petitioner’s 15 explanation. (Id. at 13:03–13:25.) In agreement with the AO, the IJ concluded Petitioner 16 lacked credibility and found that Petitioner’s “inability to provide an explanation that was 17 satisfactory to the asylum officer” was not “indicative of confusion or a lack of 18 understanding due to a medical concern.” (Id. at 13:47–14:12.) The IJ told Petitioner he 19 could seek to submit information on his medical condition and his family members’ 20 deaths to the AO for reconsideration. (Id. at 14:13–14:29.) As for the AO’s findings of 21 insufficient detail on two material aspects and one material inconsistency, the IJ 22 determined Petitioner’s explanations did not demonstrate “a lack of understanding of 23 what was happening; they just show a lack of ability to explain because, quite frankly, the 24 information was inconsistent.” (Id. at 13:28–13:46.) The IJ accordingly affirmed the 25 AO’s adverse credible fear determination. (ECF No 1-3, Scott Decl., Ex. I at 52.) 26

27 3 On February 21, 2020, Respondents lodged a digital audio recording (“DAR”) in the form of one 28 compact disc. (ECF No. 5.) The compact disc includes audio recordings of Petitioner’s immigration 1 C. Petitioner’s federal court proceedings. 2 On November 6, 2018, Petitioner filed a Petition for Review in the Ninth Circuit. 3 (Id., Ex. L at 60–62.) The Ninth Circuit dismissed the Petition for lack of jurisdiction on 4 June 27, 2019. (Id., Ex. P at 76.) The Ninth Circuit advised Petitioner that his temporary 5 stay of removal would terminate upon issuance of the mandate. (Id.) On August 19, 2019, 6 the Ninth Circuit issued the mandate. (ECF No. 4-1, Prime Decl., Ex. B at 7.) 7 On January 24, 2020, while in custody, Petitioner filed a petition for writ of habeas 8 corpus in this Court. (ECF No. 1, Pet.) Four days later, on January 28, 2020, Petitioner 9 was removed from the United States. (ECF No. 4-1, Prime Decl., Ex. C at 9.) On 10 February 21, 2020, Respondents filed a return, arguing in part that Petitioner’s removal 11 rendered his habeas petition moot. (ECF No. 4, Ret.) The Court issued an order on March 12 31, 2020, directing Petitioner to file a reply and address Respondents’ mootness argument 13 by April 8, 2020. (ECF No. 6, Reply Order.) Petitioner did not file a reply. 14 Pending before this Court is Petitioner’s petition for writ of habeas corpus. 15 Petitioner claims Respondents “acted in violation of their duties and responsibilities by 16 detaining him without following proper procedures to allow him to file his claims and to 17 have them properly adjudicated.” (ECF No. 1, Pet. at ¶ 46.) He further alleges “the AO 18 and IJ turned [a] very limited credible fear interview into a full-blown asylum merits or 19 evidentiary hearing and refused common sense interpretations to basic facts of his claim.” 20 (Id. at ¶ 42.) Specifically, Petitioner contends the AO should have rescheduled the 21 interview when Petitioner advised the AO that he had not taken his blood pressure 22 medication. (Id. at ¶ 28.) “As a result of his continued interview,” Petitioner submits, 23 “[he] failed to give the officer key information about his fear of return to India, which 24 included the death of his brother . . . and of his nephew[.]” (Id.) 25 Petitioner also contests the AO’s reasons for making an adverse credibility 26 determination. Petitioner maintains there was “nothing vague or inconsistent” about his 27 testimony with respect to how he joined the SAD-Mann party, from whom he received 28 assignments, and the number of times BJP party members threatened him. (Id. at ¶¶ 29– 1 30.) In addition to release from custody and a stay of removal, Petitioner requests a 2 “correctly conducted Credible Fear Review Proceeding that will allow him to 3 subsequently apply for and have his claims for asylum[.]” (Id. at ¶ 45.) 4 II. Discussion 5 The instant petition presents three jurisdictional questions: (1) whether the petition 6 has been rendered moot by the removal of Petitioner: (2) whether the Court, otherwise, 7 has jurisdiction to entertain the petition; and (3) whether Petitioner has presented a 8 cognizable procedural violation. The Court addresses these questions in turn. 9 A. Jurisdiction to review Petitioner’s habeas claims. 10 Petitioner presents his petition for writ of habeas corpus and invokes this Court’s 11 jurisdiction under the Suspension Clause. (ECF No. 1, Pet. at ¶¶ 6–7.) Respondents argue 12 that the petition is moot and that the Suspension Clause has no application. (ECF No. 4, 13 Ret. at 4:11–27.)4 The Court finds the petition is not moot and that it has jurisdiction 14 under the Suspension Clause to review Petitioner’s habeas claims for procedural 15 violations. 16 a. Petitioner’s action is not moot. 17 “Mootness is a threshold jurisdictional issue.” S. Pac. Transp. Co. v. Pub. Util. 18 Comm’n of State of Or., 9 F.3d 807, 810 (9th Cir. 1993). The doctrine of mootness 19 ensures a federal court presides only over those actions that present “a case or 20 controversy under Article III, § 2 of the Constitution.” Spencer v. Kemna, 523 U.S. 1, 7 21 (1998). An action is moot when a litigant no longer has “a personal stake in the outcome 22 of the suit throughout ‘all stages of federal judicial proceedings.’” Abdala v. I.N.S., 488 23 F.3d 1061, 1063 (9th Cir. 2007) (quoting United States v. Verdin, 243 F.3d 1174, 1177 24 (9th Cir. 2001)). If an event occurs “that prevents the court from granting effective relief, 25 26 4 Respondents also assert 8 U.S.C. § 1252(e)(2) is the Court’s only basis for jurisdiction over habeas petitions challenging expedited removal orders. (ECF No. 4, Ret. at 6:22–24.) Petitioner has not invoked 27 § 1252(e)(2) as a basis for jurisdiction. It is true § 1252(e)(2) is the Court’s exclusive statutory basis for 28 jurisdiction over the instant habeas petition. However, the Suspension Clause provides the Court with a 1 the claim is moot and must be dismissed.” Am. Rivers v. Nat’l Marine Fisheries Serv., 2 126 F.3d 1118, 1123 (9th Cir. 1997). 3 In the immigration context, “[d]eportation from the United States after filing a 4 habeas petition does not necessarily moot a petitioner’s claim.” Abdala, 488 F.3d at 1063. 5 Indeed, a removed petitioner need only establish two elements to sustain a habeas 6 petition. First, the petitioner must file his habeas petition while in custody. See id. (“[T]he 7 ‘in custody’ provision of 28 U.S.C. § 2254 requires only that a petitioner be 8 incarcerated—or, as here, in INS custody—at the time a habeas petition is filed.”) 9 Second, the petitioner must show that a successful habeas petition could redress his 10 removal order or a “collateral consequence” of his removal. Blandino-Medina v. Holder, 11 712 F.3d 1338, 1342 (9th Cir. 2013). 12 i. Petitioner filed his habeas petition while in custody. 13 Petitioner filed a petition for writ of habeas corpus on January 24, 2020. (ECF 14 No.1, Pet.) Petitioner was in custody until his removal from the United States four days 15 later on January 28, 2020. (ECF No. 4-1, Prime Decl., Ex. C at 9.) Thus, Petitioner 16 properly filed his habeas petition while in custody. 17 ii. Petitioner’s habeas petition could redress his removal order 18 or a collateral consequence of his removal. 19 Respondents claim the habeas petition is moot because he only “seeks release from 20 DHS custody and a stay of removal.” (ECF No. 4, Ret. at 4:14–15.) Petitioner “is no 21 longer in DHS custody, and his removal has been executed.” (Id. at 4:16.) “Accordingly,” 22 Respondents argue, “the Petition should be dismissed as moot.” (Id. at 4:16–17.) 23 Petitioner asserts that additional remedies exist so that his petition is not moot. 24 Recently, the Ninth Circuit remanded a case to the district court to consider a petitioner’s 25 habeas “challenges to the procedures leading to his expedited removal order.” 26 Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir. 2019), cert. 27 granted sub nom. Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 427 (2019). 28 Although the Ninth Circuit did not opine on precisely “what rights or rights [the 1 petitioner] may vindicate via use of the writ[,]” id., the Ninth Circuit certainly 2 contemplated the petitioner could avail himself of some form of a remedy if the district 3 court concluded the government had violated the procedures underlying his expedited 4 removal order. For instance, the remedy may consist of the petitioner’s release from 5 custody or implicate, if not require, a properly conducted expedited removal proceedings. 6 See Boumediene v. Bush, 553 U.S. 723, 779 (2008) (“And the habeas court must have the 7 power to order the conditional release of an individual unlawfully detained—though 8 release need not be the exclusive remedy and is not the appropriate one in every case in 9 which the writ is granted.”); Thuraissigiam, 917 F.3d at 1118 (“Most important, habeas 10 review provides important oversight of whether DHS complied with the required credible 11 fear procedures.”); see, e.g., Singh v. Holder, 638 F.3d 1196, 1205–06 (9th Cir. 2011) 12 (“[W]e remand this case . . . with instructions to grant the writ and order Singh’s release 13 unless . . . the agency provides Singh with a new Casas hearing applying the proper 14 standard.”); Singh v. Barr, 400 F. Supp. 3d 1005, 1022 (S.D. Cal. 2019) (“Although Mr. 15 Singh has requested immediate [habeas] release, the Court believes the present situation 16 may be remediated by granting the alternate request for a ‘constitutionally adequate 17 hearing’ as to bond.”); Lopez Reyes v. Bonnar, 362 F. Supp. 3d 762, 778 (N.D. Cal. 18 2019) (granting habeas relief and ordering a timely bond hearing or custodial release). 19 The same is true here. In addition to release from custody and a stay of removal, 20 Petitioner requests “a correctly conducted Credible Fear Review Proceeding that will 21 allow him to subsequently apply for and have his claims for asylum . . . properly 22 adjudicated by a U.S. Asylum Officer and an Immigration Judge.” (ECF No. 1, Pet. at ¶ 23 45.) If the Court determines Respondents violated the procedures underlying Petitioner’s 24 expedited removal order, the Court could grant habeas relief consisting of a properly 25 conducted credible fear review proceeding that could redress his removal order. Thus, 26 Petitioner’s “direct challenge to the removal order” on the grounds of a procedurally 27 defective credible fear review proceeding, “satisf[ies] the case-or-controversy 28 requirement.” Blandino-Medina, 712 F.3d at 1342; see Singh v. Waters, 87 F.3d 346, 349 1 (9th Cir. 1996) (granting habeas relief where petitioner was unlawfully removed despite a 2 valid stay of deportation); Thorsteinsson v. I.N.S., 724 F.2d 1365, 1367 (9th Cir. 1984) 3 (recognizing petitioner may request judicial review of his deportation if procedures 4 violated due process); Estrada-Rosales v. I.N.S., 645 F.2d 819, 820 (9th Cir. 1981) (“This 5 Court has held, however, than a [noncitizen] may properly petition for review of his 6 deportation when he seeks to challenge the regularity of the deportation proceeding.”); 7 Mendez v. I.N.S., 563 F.2d 956, 958 (9th Cir. 1977) (establishing petitioner may request 8 judicial review of his deportation if procedures violated due process); Mann v. Holder, 9 No. 12-CV-1926-AWI, 2013 WL 2664260, at *2 (E.D. Cal. June 12, 2013) (affirming 10 direct challenge to removal satisfies the case-or-controversy requirement). 11 Moreover, as a result of his removal, Petitioner is prohibited from entering, 12 attempting to enter, or being in the United States for a period of five years. (ECF No. 4-1, 13 Prime Decl., Ex. C at 9.) This mandatory five-year ban is “a consequence of [Petitioner] 14 having been found inadmissible as an arriving [noncitizen.]” (Id.) Petitioner’s inability to 15 reenter the United States for five years constitutes a sufficient collateral consequence to 16 sustain his habeas petition. See Handa v. Clark, 401 F.3d 1129, 1132 (9th Cir. 2005) 17 (asserting jurisdiction over habeas petition because petitioner’s inadmissibility into the 18 United States for ten years is a collateral consequence of his removal); Zegarra-Gomez v. 19 I.N.S., 314 F.3d 1124, 1127 (9th Cir. 2003) (finding petitioner’s inability to seek return to 20 the United States for twenty years is a sufficient collateral consequence). As with 21 Petitioner’s direct challenge to the removal order, habeas relief in the form of a correctly 22 conducted credible fear review proceeding could redress the collateral consequence of a 23 mandatory five-year ban. “Accordingly, because ‘collateral consequences’ remain, the 24 Court can properly retain habeas jurisdiction over the petition.” Sandoval-Vela v. 25 Napolitano, No. 10-CV-0059-IEG, 2010 WL 364221, at *5 (S.D. Cal. Jan. 26, 2010). 26 Respondents insist the habeas petition is moot because Petitioner “stated no 27 constitutional or other legal error by the IJ.” (ECF No. 4, Ret. at 4:21–22.) The doctrine 28 of mootness, however, does not ask if Petitioner has stated a constitutional or legal error. 1 The doctrine only “requires that an actual, ongoing controversy exist at all stages of 2 federal court proceedings.” Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086 (9th Cir. 3 2011). “If something happens during litigation that makes relief impossible, the case is 4 moot.” Planned Parenthood of Greater Washington & N. Idaho v. U.S. Dep’t of Health 5 & Human Servs., 946 F.3d 1100, 1109 (9th Cir. 2020). Respondents contend this 6 “something” is Petitioner’s removal. 7 But, notwithstanding Petitioner’s removal, relief is possible. As previously 8 discussed, the Court could afford Petitioner a properly conducted credible fear review 9 proceeding to redress his removal or mandatory five-year ban from reentering the United 10 States. “[P]etitioner’s removal did not moot his petition because a favorable ruling would 11 have made it possible—at least hypothetically—for him to obtain a waiver of the ban on 12 reentry.” Del Cid Marroquin v. Lynch, 823 F.3d 933, 936 (9th Cir. 2016); cf. Abdala, 488 13 F.3d at 1064 (“By contrast, where the grounds for habeas relief will not redress collateral 14 consequences, a habeas petition does not continue to present a live controversy once the 15 petitioner is released from custody.”) 16 For these reasons, the petition for writ of habeas corpus is not moot. 17 b. The Court has jurisdiction under the Suspension Clause. 18 Judicial review of expedited removal orders is strictly limited to those grounds 19 enumerated in 8 U.S.C. § 1252(e)(2). 8 U.S.C. §§ 1252(a)(2)(A), 1252(a)(5). Under § 20 1252(e)(2), an individual in expedited removal proceedings may file a habeas petition in 21 a federal district court to challenge only three DHS determinations: (1) whether the 22 individual is a noncitizen, (2) whether the individual was ordered removed via expedited 23 removal, and (3) whether the individual is a lawful permanent resident or has another 24 status warranting exemption from expedited removal. 8 U.S.C. §§ 1252(e)(2)(A)-(C). 25 Judicial review of whether a petitioner was ordered removed is “limited to whether such 26 an order in fact was issued and whether it relates to the petitioner.” 8 U.S.C. § 1252(e)(5). 27 “There shall be no review of whether the [noncitizen] is actually inadmissible or entitled 28 to any relief from removal.” Id. 1 In certain circumstances, however, a petitioner may also challenge his expedited 2 removal order by filing a habeas petition in a federal district court pursuant to the 3 Suspension Clause. Thuraissigiam, 917 F.3d at 1119 (9th Cir. 2019). The Ninth Circuit 4 outlined a two-step process to determine whether a federal district court has jurisdiction 5 under the Suspension Clause over habeas petitions challenging expedited removal 6 proceedings. Thuraissigiam, 917 F.3d at 1107. First, a court must ask whether the 7 Suspension Clause applies to the petitioner. Id. Second, if the Suspension Clause applies, 8 a court must consider whether § 1252(e)(2) provides review that satisfies the Suspension 9 Clause. Id. “At a minimum, the Suspension Clause entitles the [petitioner] to a 10 meaningful opportunity to demonstrate that he is being held pursuant to the erroneous 11 application or interpretation of relevant law.” Id. at 1116 (quoting Boumediene, 553 U.S. 12 at 779 (2008)) (internal quotation marks omitted). 13 i. The Suspension Clause applies to Petitioner. 14 The Suspension Clause applies to noncitizens apprehended within the United 15 States. Thuraissigiam, 917 F.3d at 1115. Here, Petitioner unlawfully “entered the United 16 States at/near San Ysidro, California” and was subsequently apprehended. (ECF No. 1-3, 17 Scott Decl., Ex. F at 35.) The Suspension Clause, therefore, applies to Petitioner. 18 ii. Section 1252(e)(2) unlawfully suspends the writ of habeas 19 corpus as applied to Petitioner. 20 Section 1252(e)(2) unlawfully suspends the writ of habeas corpus when an 21 individual in expedited removal proceedings seeks to challenge the government’s “failure 22 to follow the required procedures and apply the correct legal standards[.]” Thuraissigiam, 23 917 F.3d. at 1116. “[B]ecause § 1252(e)(2) prevents a court from reviewing claims of 24 procedural error relating to a negative credible fear determination, it precludes review of 25 the agency’s application of relevant law and thus raises serious Suspension Clause 26 questions.” Id. at 1119. For this reason, notwithstanding § 1252(e)(2)’s explicit limitation 27 of judicial review to three factual determinations, an individual in expedited removal 28 proceedings may file a habeas petition in a federal district court to challenge the 1 government’s failure “to follow the required procedures and apply the correct legal 2 standards when evaluating his credible fear claim.” Id. at 1116. 3 Like the petitioner in Thuraissigiam, Petitioner in this case requests judicial review 4 of an expedited removal order. (ECF No. 1, Pet. at ¶ 1.) Petitioner challenges “the 5 procedures that led to the issuance of an expedited removal order against him, and his 6 continued detention.” (Id.) Petitioner alleges “he is being held, and was ordered removed, 7 without having had a meaningful opportunity to demonstrate that he is being held 8 pursuant to the erroneous application or interpretation of relevant law.” (Id. at ¶ 3.) He 9 claims “Respondents have acted in violation of their duties and responsibilities by 10 detaining him without following proper procedures to allow him to file his claims and to 11 have them properly adjudicated.” (Id. at ¶ 46.) Based on Petitioner’s claims of procedural 12 violations and the Ninth Circuit’s decision in Thuraissigiam, the Court finds § 1252(e)(2) 13 unlawfully suspends the habeas writ as applied to Petitioner. 14 Since the Suspension Clause applies to Petitioner and § 1252(e)(2) unlawfully 15 suspends the habeas writ as applied to Petitioner, the Court has jurisdiction to review 16 Petitioner’s habeas claims for procedural violations. 17 B. Petitioner’s habeas claims have no merit. 18 Citing Thuraissigiam, Petitioner asserts this Court “has jurisdiction to review 19 Credible Fear Review determinations made by an Immigration Judge under the 20 Suspension Clause[.]” (ECF No. 1, Pet. at ¶ 7.) Respondents, on the other hand, maintain 21 that this Court’s jurisdiction is not plenary under Thuraissigiam. According to 22 Respondents, the Court has “no habeas jurisdiction to review the sufficiency of adverse 23 credibility findings or other factual findings[.]” (ECF No. 4, Ret. at 9:8–10.) The Court 24 agrees with Respondents. The Suspension Clause gives the Court jurisdiction to review 25 the instant habeas petition only for procedural violations. Since Petitioner’s allegations do 26 establish a cognizable procedural violation, his habeas claims have no merit. 27 a. Petitioner fails to allege a cognizable procedural violation. 28 1 Under the expedited removal statute, an AO first determines whether an individual 2 has a credible fear of persecution. 8 U.S.C. § 1225(b)(1)(A)(ii). In assessing whether a 3 credible fear of persecution exists, the AO may consider “the credibility of the statements 4 made by the [individual] in support of the [individual’s] claim and such other facts as are 5 known to the officer, that the [individual] could establish eligibility for asylum[.]” 8 6 U.S.C. § 1225(b)(1)(B)(v). Similarly, when the petitioner requests de novo review with 7 an IJ, the IJ determines “whether there is a significant possibility, taking into account the 8 credibility of the statements made by the [individual] in support of the [individual’s] 9 claim and such other facts as are known to the immigration judge, that the [individual] 10 could establish eligibility for asylum[.]” 8 C.F.R. § 1003.42(d)(1). 11 An individual in expedited removal proceedings may file a habeas petition in 12 federal district court to ensure the AO and IJ “complied with the required credible fear 13 procedures.” Thuraissigiam, 917 F.3d at 1118. However, in reviewing a habeas petition 14 for procedural violations, a court cannot reweigh the AO’s or IJ’s discretionary 15 determinations. See id. at 1116 n. 20 (“We therefore do not consider here whether the 16 Suspension Clause requires judicial review of DHS’ credible fear determination on the 17 merits.”); Mnatsakanyan v. U.S. Dep’t of Homeland Sec., No. 19-CV-1987-GPC, 2020 18 WL 1245371, at *8 (S.D. Cal. Mar. 16, 2020) (“Moreover, the Court has no jurisdiction 19 to consider the IJ’s discretionary credibility determination.”); Patel v. U.S. Dep't of 20 Homeland Sec., No. C19-1690-MJP-MLP, 2020 WL 1067833, at *7 (W.D. Wash. Feb. 21 13, 2020), report and recommendation adopted, No. C19-1690-MJP, 2020 WL 1062943 22 (W.D. Wash. Mar. 5, 2020) (“But as the Government contends, Thuraissigiam did not 23 establish that the Suspension Clause requires judicial review of the merits of a credible 24 fear for determination.”); Singh v. U.S. Dep’t of Homeland Sec., No. C19-1224-JLR- 25 MAT, 2020 WL 420589, at *9 (W.D. Wash. Jan. 3, 2020), report and recommendation 26 adopted, No. C19-1224-JLR, 2020 WL 419755 (W.D. Wash. Jan. 24, 2020) 27 (“Thuraissigiam did not establish that the Suspension Clause requires judicial review of 28 the merits of a credible fear determination. . . . the Court does not have jurisdiction over 1 petitioner’s challenge to the merits of AO's finding that he was not credible and the IJ’s 2 affirmance of this decision.”); Funes Suazo v. McAleenan, No. 19-CV-1882-LAB, 2019 3 WL 4849188, at *1 (S.D. Cal. Oct. 1, 2019) (“[Thuraissigiam] does not appear to provide 4 for judicial review of an immigration judge’s discretionary determinations.”); Lopez- 5 Mendoza v. Barr, No. 19-CV-1448-DSF-AS, 2019 WL 6710861, at *5 (C.D. Cal. Sept. 6 11, 2019), report and recommendation adopted, 2019 WL 6709540 (C.D. Cal. Oct. 23, 7 2019) (“The Court lacks jurisdiction over these claims. . . . Petitioner is challenging the 8 immigration judge’s factual determinations and calling upon this Court to reweigh the 9 evidence.”). 10 i. The asylum officer’s discretionary determinations.5 11 Petitioner challenges the AO’s reasons for making an adverse credibility 12 determination. He insists there was “nothing vague or inconsistent” about his testimony 13 with respect to how he joined the SAD-Mann party, who gave him assignments, and the 14 number of times BJP party members threatened him. (ECF No.1, Pet. at ¶¶ 29–30.) 15 Petitioner told the AO that he was a SAD-Mann party member and BJP party 16 members had persecuted him. (ECF No. 1-3, Scott Decl., Ex. A at 6, 8.) He explained 17 that he joined the SAD-Mann party because his brother had been a member of the same 18 party for five years. (Id. at 6–7.) The AO asked “a total of 4 different questions for further 19 details on how he joined the party and was unable to provide more information.” (Id., Ex. 20 B at 16.) During this exchange, Petitioner said he met people at a SAD-Mann party camp 21 and requested to work for the party. (Id., Ex. A at 7.) He was then told he was a “party 22 member and . . . party worker now.” (Id.) Seeking specific information on the process by 23

24 5 Respondents argue “only the IJ’s actions are material because any alleged irregularities are to be 25 resolved before the IJ.” (ECF No. 4, Ret. at 9:2–3.) In Thuraissigiam, the petitioner alleged that both the AO and IJ had violated regulations governing his expedited removal proceedings. 917 F.3d at 1102. The 26 Ninth Circuit made no distinction between the AO’s and IJ’s actions for purposes of habeas review. In fact, the Ninth Circuit stressed that “habeas review provides important oversight of whether DHS 27 complied with the required credible fear procedures.” Id. at 1118. As Respondents acknowledge, AOs 28 are employees of USCIS. (ECF No. 4, Ret. at 5:21.) And USCIS is a component of DHS. 8 C.F.R. §§ 1 which Petitioner joined the party, the AO confronted Petitioner on his lack of details. (Id., 2 Ex. B at 16.) Petitioner responded, “[T]here are eye checks camps and blood camps—I 3 like it and thought I should help them.” (Id., Ex. A at 7.) The AO found Petitioner’s 4 response “unreasonable as it [did] not address the core of the nonconsistency [sic].” (Id., 5 Ex. B at 16.) The AO further explained, “It is reasonable to expect an applicant that 6 volunteered with a political party for approximately 4 times a month since 2017 to 7 provide details on how he joined the party and became a party worker.” (Id.) 8 Petitioner reported SAD-Mann committee members called him with assignments. 9 (Id., Ex. A at 6–7.) These assignments included announcing SAD-Mann party events and 10 encouraging people to attend. (Id.) He carried out this work approximately four times a 11 month since 2017. (Id. at 6.) The AO asked Petitioner for the names of the committee 12 members who gave him assignments. (Id. at 7.) Petitioner was unable to provide any. 13 (Id.) The AO also asked Petitioner for the names of local party leaders. (Id. at 7–8.) 14 Again, Petitioner could not provide any, stating “it is a very big party and it is hard.” (Id. 15 at 8.) The AO found Petitioner’s explanation unreasonable given his work with the SAD- 16 Mann party for approximately four times a month since 2017. (Id., Ex. B at 17.) 17 Petitioner also testified that BJP party members threatened him. (Id., Ex. A at 5.) 18 At first, he claimed BJP party members threatened him “2 or 3 times on the phone[.]” 19 (Id.) Later in the interview, Petitioner said that in December 2017, he received at least ten 20 threatening phone calls from self-identifying BJP party members. (Id. at 10.) These 21 threatening phone calls instructed him to stop making announcements and to join the BJP 22 party. (Id.) When confronted about this inconsistency, Petitioner replied, “I gave you just 23 an estimate of how many times I was threatened.” (Id.) The AO found “that such a large 24 discrepancy [was] not consistent or reasonable” because Petitioner “has a 10th grade 25 level of education, was able to understand his Punjabi interpreter, and testified that he 26 understood all questions asked by the officer.” (Id., Ex. B at 16.) 27 The AO found Petitioner not credible because he could neither describe precisely 28 how he joined the SAD-Mann party nor provide the names of committee members or 1 local party leaders. In addition to these insufficient details, the AO considered 2 Petitioner’s inconsistency in reporting the number of threats too dramatic to be 3 reasonable. The AO’s reasons in support of her adverse credibility determination do not 4 implicate a procedural error. Rather, Petitioner’s allegations ask this Court to do precisely 5 what it cannot: reweigh the evidence. Even if this Court may have reached a different 6 conclusion, “the Court is barred from reweighing the evidence in a credible fear 7 determination.” Paz-Zamora v. Archambeault, No. 18-CV-2187-GPC, 2018 WL 8 5785287, at *3 (S.D. Cal. Nov. 5, 2018). 9 Petitioner also claims the AO should have rescheduled the interview when 10 Petitioner advised the AO that he had not taken his blood pressure medicine. (ECF No. 1, 11 Pet. at ¶ 28.) “As a result of his continued interview,” Petitioner argues, “[he] failed to 12 give the officer key information about his fear of return to India, which included the 13 death of his brother . . . and of his nephew[.]” (Id.) 14 At the beginning of the interview, the AO asked Petitioner if he wished to have his 15 interview postponed for two to five days, so he could find an attorney. (ECF No. 1-3, 16 Scott Decl., Ex. A at 2.) Petitioner declined and said he felt comfortable proceeding. (Id. 17 2–3.) Shortly after, the AO asked Petitioner if he had any mental or medical conditions or 18 concerns. (Id. at 3.) Petitioner said he did not. (Id.) The AO also asked Petitioner if he 19 was currently taking any medications. (Id.) Petitioner reported that he was taking blood 20 pressure pills, but had not taken his medicine that day. (Id.) The AO followed up and 21 asked Petitioner how he felt. (Id.) Petitioner replied, “[F]ine thank you.” (Id.) Only then 22 did the AO proceed with the interview. When the interview concluded, Petitioner 23 affirmed he understood his interpreter and the questions asked. (Id. at 14.) 24 The Court concludes that the AO’s decision to continue the interview was within 25 her discretion. The record reflects that Petitioner understood his proceedings and that the 26 AO conducted an adequate interview. The AO followed up repeatedly on those issues she 27 considered material to Petitioner’s credible fear application. When the AO did not obtain 28 1 sufficiently detailed answers or an inconsistent response, she provided Petitioner with 2 opportunities to supplement his answers and to explain his response. 3 Moreover, the AO invited Petitioner to postpone the interview if he wished to 4 secure an attorney, yet Petitioner never asked the AO to terminate the interview for any 5 reason. See, e.g., Lizhi-Oiu v. Barr, 944 F.3d 837, 840 (9th Cir. 2019) (describing 6 termination of asylum interview when petitioner said she felt unwell and declined to 7 interview). There is also no indication the AO coerced Petitioner, caused Petitioner 8 duress, or engaged in some improper behavior to find that Petitioner’s statements were 9 involuntary made. See, e.g., Hernandez-Segovia v. Barr, 763 F. App’x 613, 615 (9th Cir. 10 2019) (finding statements at credible fear interview were voluntarily made because the 11 record does not suggest duress or coercion). Petitioner merely disagrees with the AO’s 12 discretionary determinations and has failed to allege a cognizable procedural violation. 13 See Mehla v. U.S. Dep’t of Homeland Sec., No. 19-CV-2245-WQH, 2019 WL 6611508, 14 at *6 (S.D. Cal. Dec. 5, 2019) (“Petitioner simply disagrees with the officer’s 15 discretionary conclusion. This is not a claim that the Ninth Circuit has found the Court 16 has jurisdiction to review.”). 17 ii. The immigration judge’s discretionary determinations. 18 Petitioner also alleges the “IJ turned [a] very limited credible fear interview into a 19 full-blown asylum merits or evidentiary hearing and refused common sense 20 interpretations to basic facts of his claim.” (ECF No. 1, Pet. at ¶ 42.) 21 At the IJ hearing, Petitioner said he did not report the death of his family members 22 at the hands of BJP party members to the AO because he felt unwell and was scared to 23 tell the AO that he felt unwell. (DAR at 1:44–4:22.)6 The IJ, however, did not credit 24 Petitioner’s explanation. (Id. at 13:03–13:25.) The IJ concluded Petitioner lacked 25

26 6 The Court notes that Petitioner’s consultant attempted to introduce evidence of the family members’ 27 deaths at the IJ hearing. (DAR at 6:56–7:30.) The IJ declined to consider the evidence, as it was not in 28 the record before the asylum officer. (Id. at 6:56–7:30.) Petitioner does not challenge the IJ’s refusal to 1 || credibility and found that Petitioner’s “inability to provide an explanation that was 2 satisfactory to the asylum officer” was not “indicative of confusion or a lack of 3 || understanding due to a medical concern.” (/d. at 13:47—14:12.) The IJ also found that 4 || Petitioner’s explanations did not demonstrate “a lack of understanding of what was 5 || happening; they just show a lack of ability to explain because, quite frankly, the 6 information was inconsistent.” (/d. at 13:28—13:46.) For these reasons, the IJ affirmed the 7 || AO’s adverse credible fear determination. 8 Petitioner’s broad allegation that the IJ turned his credible fear interview into an 9 || asylum or evidentiary hearing establishes no cognizable procedural violation. Neither the 10 ||record nor Petitioner’s allegations suggest the IJ violated any procedures in affirming the 11 || AO’s adverse credible fear determination.’ Petitioner “cannot create jurisdiction by 12 || alleging ‘nothing more than a challenge to the [IJ’s] discretionary and fact-finding 13 || exercises cloaked as a question of law.’” See Rais v. Holder, 768 F.3d 453, 462 n. 17 (6th 14 || Cir. 2014) (quoting Abdul v. Holder, 326 F. App’x 344, 347 (6th Cir. 2009)). 15 In sum, Petitioner fails to establish that either the AO or IJ committed a procedural 16 || error. Petitioner’s allegations only ask this Court to reweigh discretionary determinations. 17 || The law does not permit this. As a result, Petitioner’s habeas claims have no merit. 18 Conclusion 19 Accordingly, the Court DENIES the petition for writ of habeas corpus. The Clerk 20 || of Court shall close the case. 21 IT IS SO ORDERED. 22 Dated: May 5, 2020 (3 salto OA ) 23 Hon. Gonzalo P. Curiel 24 United States District Judge || —_____ 26 On the contrary, the IJ informed Petitioner that he could seek to submit information on his medical condition and the deaths of his family members to the AO for reconsideration. (DAR 14:13—14:29.) 27 || DHS “may reconsider a negative credible fear finding that has been concurred upon by an immigration 3g || judge after providing notice of its reconsideration to the immigration judge.” 8 CFR. § 1208.30(g)(2)Gv)(A). Petitioner did not pursue this recourse. (ECF No. 4, Ret. at 3:27—28.)