Vetcher v. Sessions

316 F. Supp. 3d 70
CourtCourt of Appeals for the D.C. Circuit
DecidedJune 11, 2018
DocketCivil Action No. 17–1743 (JEB)
StatusPublished
Cited by14 cases

This text of 316 F. Supp. 3d 70 (Vetcher v. Sessions) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vetcher v. Sessions, 316 F. Supp. 3d 70 (D.C. Cir. 2018).

Opinion

JAMES E. BOASBERG, United States District Judge

Pro se Plaintiff Ivan Vetcher has been detained for over three years while he challenges removal proceedings brought against him by the Department of Homeland Security. After coming up empty in a congeries of cases filed before the Board of Immigration Appeals, the Northern District of Texas, the Eastern District of Texas, the Western District of Louisiana, and the Fifth Circuit, Vetcher brought an action in this Court alleging that Defendants-the United States Attorney General and the Secretary of DHS-oversaw actions and policies that are unconstitutional and in violation of the Administrative Procedure Act. The Government now moves to dismiss, contending that this Court lacks jurisdiction and that Plaintiff *73has failed to state a claim upon which any relief can be granted. Agreeing as to both, the Court will dismiss some of the claims and order that the remainder be transferred to the Northern District of Texas, where Vetcher is currently detained.

I. Background

As it must at this stage, the Court treats all of the facts in the Amended Complaint as true. See Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). The Court will also consider the facts set forth in Plaintiff's Opposition to the Motion to Dismiss and his other cases incorporated by reference thereto. See Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015).

Plaintiff, a native and citizen of Belarus, entered the United States in 2001 as a refugee. See Vetcher v. Lynch, 2015 WL 10551735, at *1 (W.D. La. June 15, 2015). In 2014, he was convicted under Texas Health and Safety Code § 481.113(d), which makes it a first-degree felony to knowingly manufacture, deliver, or possess with intent to deliver between 4 and 400 grams of any controlled substance. See Compl., Exh. G (BIA Decisions) at 4. Shortly after his conviction, DHS initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii), which requires the Attorney General to order "[a]ny alien who is convicted of an aggravated felony at any time after admission ... deportable." By statute, any alien "found ... deportable" under 8 U.S.C. § 1227(a)(2) is subject to mandatory detention during the removal period. Id. § 1231(a)(2). On July 2, 2014, accordingly, Vetcher was taken into ICE custody. See Compl., ¶ 1. On August 6, the Immigration Judge sustained the aggravated-felony charge, found Vetcher ineligible for asylum or withholding of removal, and denied his request for deferral of removal under the Convention Against Torture. See BIA Decisions at 4. He successfully filed a motion to reopen proceedings on March 25, 2015, however, and the BIA then remanded the matter because "the Immigration Judge had not given [him] a meaningful chance to contest the aggravated felony charge during his [pro se ] initial proceedings." Id. at 2, 5.

After Vetcher's case was remanded, DHS withdrew the aggravated-felony basis for removal and instead charged him as "deportable" as an "alien who ... has been convicted of a violation of ... any law ... relating to a controlled substance." 8 U.S.C. § 1227(a)(2)(B)(i). On September 2, 2015, the IJ held a hearing where Plaintiff was denied release on bond and ordered detained pending completion of removal proceedings. In a subsequent remand hearing on the merits the next month, the Government argued that under a recent Supreme Court decision, Mellouli v. Lynch, --- U.S. ----, 135 S.Ct. 1980, 192 L.Ed.2d 60 (2015), the IJ could determine that Vetcher's Texas conviction qualified as a controlled-substance offense under § 1227(a)(2)(B)(i). See Compl., Exh. A at 10. Vetcher protested that he did not have access to Mellouli and asked for time to review the case. Id. at 13. The IJ refused and withdrew the § 1227(a)(2)(A)(iii) aggravated-felony charge while sustaining the § 1227(a)(2)(B)(i) drug-possession charge. Id. at 12. The IJ also denied Plaintiff cancellation of removal.

Vetcher again appealed to the BIA, arguing that he had been "denied access to court and due process." Compl., ¶ 4. The BIA nonetheless affirmed the IJ's decision to sustain the removability charge but remanded for further factual findings as to the IJ's denial of his application for cancellation of removal. See BIA Decisions at 5. On February 21, 2017, the BIA further denied Plaintiff's request for appointed counsel to assist him in accessing legal *74information because "there is no Sixth Amendment right to counsel in immigration proceedings." Id. at 11; see also Compl., ¶ 5. Following remand, the IJ again denied Plaintiff cancellation of removal and ordered him removed. The BIA affirmed this decision on May 11, 2018, entering a final order of removal. See ECF No. 17. Vetcher has not yet, to this Court's knowledge, filed a petition for review.

In addition to agency proceedings, Vetcher has also brought several actions in various federal courts. He attempted to challenge the "denial of counsel" from the IJ and BIA through an interlocutory appeal to the Fifth Circuit, which was dismissed for lack of jurisdiction. See Opp. at 3. He also filed a habeas action in the Western District of Louisiana, which was ultimately dismissed. See Vetcher v. Lynch, 2016 WL 1230560 (W.D. La. Mar. 23, 2016) (denying habeas petition and dismissing with prejudice). Plaintiff next attempted to challenge his underlying state conviction and, after he was transferred to a Texas facility, he filed an additional habeas petition. See Vetcher v. Lynch, No. 16-4, ECF No. 17 (N.D. Tex. Feb.

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316 F. Supp. 3d 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vetcher-v-sessions-cadc-2018.