Vieira v. McAleenan

• Court: District Court, D. Arizona
• Decided: September 11, 2019
• Docket: 2:19-cv-05112
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

9 Mario Ney Vogado Vieira, No. CV-19-05112-PHX-DWL (JZB) 10 Petitioner, 11 v. ORDER 12 Kevin McAleenan, et al., 13 Respondents. 14

15 Petitioner Mario Ney Vogado Vieira has filed, through counsel, a “Petition for Writs 16 of Habeas Corpus; Writ of Mandamus, and Review of Final Agency Action” (Doc. 1) and 17 a Motion for Temporary Restraining Order (Doc. 2). For the reasons that follow, the 18 Petition will be dismissed and the Motion will be denied as moot. 19 I. Background 20 Petitioner is a native and citizen of Brazil. On May 28, 2019, he entered the United 21 States near Itak, Arizona, and was apprehended by the United States Department of 22 Homeland Security (“DHS”), Customs and Border Protection. Petitioner expressed a fear 23 of persecution or torture if returned to Brazil and was detained in the CoreCivic La Palma 24 Correctional Center in Eloy, Arizona for a credible fear determination. (Doc. 1 ¶ 1.) An 25 asylum officer determined that Petitioner did not have a credible fear of persecution or 26 torture, and on August 7, 2019, an Immigration Judge affirmed that determination. (Id. ¶¶ 27 3-4, 18.) Petitioner states “[t]he case is currently pending with USCIS [United States 28 Citizenship and Immigration Services] based on a motion to reconsider that he has filed 1 with the asylum office.” (Id. ¶ 18.) 2 On August 22, 2019, Petitioner’s spouse filed an Application for T Nonimmigrant 3 Status (Form I-914) along with an Application for a Family Member T-1 Recipient (Form 4 I-914, Supplement A) that lists Petitioner as the named beneficiary. (Doc. 1-3 at 1-4.)1 5 In anticipation of his spouse’s filing of those applications, Petitioner filed an 6 application to stay his removal with United States Immigration and Customs Enforcement 7 (“ICE”) stating that his “wife is in the process of obtaining a T-visa. After she receives her 8 visa, [Petitioner] will be eligible to gain status through his wife.” (Doc. 1-3 at 11.) On 9 August 22, 2019, Petitioner’s stay application was denied. (Doc. 1-3 at 12.) 10 II. Petition and Motion 11 On September 8, 2019, Petitioner filed the “Petition for Writs of Habeas Corpus; 12 Writ of Mandamus, and Review of Final Agency Action” and Motion for Temporary 13 Restraining Order. In the Petition, Petitioner names Acting DHS Secretary Kevin 14 McAleenan, Acting USCIS Director Kenneth Cuccinelli, United States Attorney General 15 William Barr, and Acting ICE Phoenix Field Office Director Albert Carter as Respondents. 16 He contends the Court has jurisdiction under 28 U.S.C. §§ 1331, 1361, 2201, and 2241 and 17 the Administrative Procedures Act (“APA”). (Doc. 1 ¶ 10.) 18 In Ground One, Petitioner contends that his “deportation . . . to Brazil would be a 19 violation of the Immigration and Nationality Act, the Due Process and Suspension Clauses 20 of the United States Constitution, and . . . fundamental human rights recognized under 21 international law.” (Doc. 1 ¶ 25.) 22 In Ground Two, Petitioner contends that “[p]rior to his removal to Brazil, [he] is 23 entitled to an opportunity to have his T nonimmigrant status application adjudicated. His 24 rights have been violated under the Immigration and Nationality Act, the United States 25 Constitution’s Due Process and Suspension Clauses, and . . . international law regarding 26

27 1 See 8 C.F.R. § 214.11(k)(1) (“[A]n alien who has applied for or has been granted T-1 nonimmigrant status (principal alien) may apply for the admission of an eligible family 28 member, who is otherwise admissible to the United States, in derivative T nonimmigrant status if accompanying or following to join the principal alien.”). 1 immigration law.” (Doc. 1 ¶ 26.) 2 In Ground Three, Petitioner contends that his “continued detention . . . would violate 3 due process and the [I]mmigration and [N]ationality [A]ct.” (Doc. 1 ¶ 27.) 4 Petitioner asks the Court to: (1) declare that his removal from the United States 5 would “violate[] the Immigration and Nationality Act and the United States Constitution 6 and international law” (Doc. 1 at 6); (2) order “Respondents to release Petitioner from 7 detention during the pendency of his T nonimmigrant status application” (id.); (3) issue a 8 writ of mandamus requiring Respondents to provide him “an individualized determination 9 whether Petitioner should be granted derivative T nonimmigrant status” prior to removing 10 him from the United States (id.); and (4) enjoin Respondents “from removing [him] from 11 the jurisdiction of this court during the pendency of these proceedings” (Doc. 2 at 1). 12 III. Discussion 13 A. Review Under 28 U.S.C. § 2241 14 A federal district court is authorized to grant a writ of habeas corpus under 15 28 U.S.C. § 2241 where a petitioner is “in custody under or by color of the authority of the 16 United States … in violation of the Constitution or laws or treaties of the United States.” 17 28 U.S.C. §§ 2241(c)(1), (3). “The writ of habeas corpus historically provides a remedy 18 to non-citizens challenging executive detention.” Trinidad y Garcia v. Thomas, 683 F.3d 19 952, 956 (9th Cir. 2012). See also Munaf v. Geren, 553 U.S. 674, 693 (2008); Allen v. 20 McCurry, 449 U.S. 90, 98 n.12 (1980). However, habeas corpus review is not available 21 for claims “arising from the decision or action by the Attorney General to commence 22 proceedings, adjudicate cases, or execute removal orders,” 8 U.S.C. § 1252(g), “arising 23 from any action taken or proceeding brought to remove an alien,” 8 U.S.C. § 1252(b)(9), 24 or “challeng[ing] a ‘discretionary judgment’ by the Attorney General or a ‘decision’ that 25 the Attorney General has made regarding [an alien’s] detention or release,” Demore v. Kim, 26 538 U.S. 510, 516 (2003) (discussing 8 U.S.C. § 1226(e)). But, “the extent of the 27 Government’s detention authority is not a matter of ‘discretionary judgment,’ ‘action,’ or 28 ‘decision.’” Jennings v. Rodriguez, ___ U.S. ___, 138 S. Ct. 830, 841 (2018). See also 1 Prieto-Romero v. Clark, 534 F.3d 1053 (9th Cir. 2008). Thus, “challenges to the statutory 2 framework that permits the alien’s detention without bail,” Jennings, 138 S. Ct. at 841, 3 “questions of law” raised in the application or interpretation of detention statutes, Leonardo 4 v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), and “claims that the discretionary 5 process itself was constitutionally flawed are ‘cognizable in federal court on habeas 6 because they fit comfortably within the scope of § 2241.’” Singh v. Holder, 638 F.3d 1196, 7 1202 (9th Cir. 2011) (quoting Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002)). 8 B. Grounds One and Two 9 In Grounds One and Two of the Petition, Petitioner argues that Respondents 10 shouldn’t be allowed to remove him before the adjudication of his spouse’s visa 11 application. 12 The Court lacks jurisdiction to entertain these claims for two reasons. First, the 13 Court lacks jurisdiction under 8 U.S.C. § 1252(a)(5), which was enacted in 2005 as part of 14 the REAL ID Act. Section 1252(a)(5) provides, in relevant part, that “a petition for review 15 filed with an appropriate court of appeals . . . shall be the sole and exclusive means for 16 judicial review of an order of removal entered or issued under any provision of this chapter 17 . . . . [T]he terms ‘judicial review’ and ‘jurisdiction to review’ include habeas corpus 18 review.” This provision encompasses “all questions of law and fact, including 19 interpretation and application of constitutional and statutory provisions, arising from any 20 action taken or proceeding brought to remove an alien from the United States.” See 8 21 U.S.C. § 1252(b)(9). In short, the REAL ID Act “makes the circuit courts the ‘sole’ judicial 22 body able to review challenges to final orders of deportation, exclusion, or removal.” 23 Alvarez-Barajas v. Gonzales, 418 F.3d 1050, 1052 (9th Cir. 2005). See also Mamigonian 24 v. Biggs, 710 F.3d 936, 941 (9th Cir. 2013) (“[T]he REAL ID Act precludes aliens . . . from 25 seeking habeas relief over final orders of removal in district courts.”). 26 Here, Petitioner argues that section 1252(a)(5) is inapplicable “because his T-Visa 27 application is not inextricably linked to the validity of his removal order.” (Doc. 2 at 3-4.) 28 This argument is unavailing. At bottom, the claims and theories asserted in Grounds One 1 and Two of the Petition “aris[e] from any action taken or proceeding brought to remove an 2 alien from the United States.” See 8 U.S.C. § 1252(b)(9). As a result, the Court lacks 3 jurisdiction to consider them. See, e.g., Ma v. Holder, 860 F. Supp. 2d 1048, 1050, 1060- 4 62 (N.D. Cal. 2012) (dismissing habeas petition, where petitioner sought “a stay of 5 deportation during the BIA’s adjudication of her motion to reopen,” and concluding that 6 “no matter how Petitioner frames the argument in this case, the petition is one that seeks to 7 halt a final order of removal. Such relief strips this Court of jurisdiction—barring it from 8 exercising judicial review of the habeas petition.”); Rosales v. Aitken, 2011 WL 4412654, 9 *3 (N.D. Cal. 2011) (“In this case, Petitioner seeks an order staying his removal and 10 directing Respondents to adjudicate the motion to reopen. It is clear, regardless of how 11 Petitioner frames this motion, that Petitioner seeks to ‘halt the execution of the final orders 12 of removal’ arising from a proceeding brought in connection with Petitioner’s removal, 13 and therefore this Court lacks jurisdiction over this case. While this Court recognizes that 14 it may have jurisdiction to hear petitions arising out of proceedings other than removal 15 proceedings, it finds that here, Plaintiff clearly seeks this Court to review a final order for 16 removal, which it may not do.”). See generally Em v. Whitaker, 2018 WL 6663437, *4-5 17 (D. Ariz. 2018). 18 Second, the Court also lacks jurisdiction under 8 U.S.C. § 1252(g), which was 19 enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility 20 Act. Section 1252(g) provides, in relevant part, that “[e]xcept as provided in this section . 21 . . , no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien 22 arising from the decision or action by the Attorney General to commence proceedings, 23 adjudicate cases, or execute removal orders against any alien.” Although Petitioner seeks 24 to evade this provision by stating that “[h]is claim is a ‘collateral legal and constitutional 25 challenge[]’ to ICE’s legal authority” (Doc. 2 at 6), the questions presented in Grounds 26 One and Two of the Petition fundamentally arise from Respondents’ decision to pursue 27 Petitioner’s removal. As a result, these claims are barred by 8 U.S.C. § 1252(g). See, e.g., 28 Ma, 860 F. Supp. 2d at 1056-60 (“[R]equesting a stay of the execution of the BIA’s removal 1 order . . . falls within the ambit of section 1252(g) . . . [because it] is connected ‘directly 2 and immediately’ to a ‘decision or action’ by the Attorney General to execute a removal 3 order. . . . Section 1252(g) provides a vice-like grip on the outcome of this case.”). See 4 also Arce v. United States, 899 F.3d 796, 800 (9th Cir. 2018) (suggesting that an alien’s 5 “claim that the Attorney General should have exercised discretion to delay his removal” 6 would be barred by § 1252(g)); Garcia-Herrera v. Asher, 585 Fed. Appx. 439, 440 (9th 7 Cir. 2014) (“Garcia-Herrera argues that . . . he is not challenging the merits of the 8 underlying removal order. Rather, he challenges ICE’s decision not to delay his removal 9 pending the adjudication of his application for relief under DACA. However, by his own 10 formulation, this constitutes a challenge to ICE’s decision to execute a removal order. 11 Therefore, the district court properly dismissed his habeas petition for lack of jurisdiction 12 under 8 U.S.C. § 1252(g).”). These claims are not independent of, or collateral to, 13 Respondents’ decision to pursue removal. Cf. United States v. Hovsepian, 359 F.3d 1144, 14 1155 (9th Cir. 2004) (§ 1252(g) does not bar consideration of “a purely legal question that 15 does not challenge the Attorney General’s discretionary authority, even if the answer to 16 that legal question . . . forms the backdrop against which the Attorney General will later 17 exercise discretionary authority”). 18 Finally, even if the Court had jurisdiction, Petitioner’s removal-related claims 19 would fail on the merits. To be clear, Petitioner hasn’t filed a T-Visa application. The 20 only such application was filed by Petitioner’s spouse. Thus, the principal case on which 21 Petitioner relies, Fatty v. Nielsen, 2018 WL 3491278 (W.D. Wash. 2018), is 22 distinguishable. There, the T-Visa application had been filed by the habeas petitioner, and 23 the Fatty court concluded the petitioner therefore had a due process-based right to stay his 24 removal pending the adjudication of his application, because “physical presence in the 25 United States is a condition of eligibility, [so] his T visa cannot be granted once he is 26 removed.” Id. at *3. Here, in contrast, Petitioner’s spouse is not facing imminent removal 27 (or, at least, the Petition does not allege she is facing imminent removal), so it’s possible 28 1 his spouse’s T-Visa application will succeed (and Petitioner will be granted status as a 2 beneficiary of the applicant) even after he is removed.2 3 C. Ground Three 4 Petitioner’s challenge to his continued detention in Ground Three fails to present a 5 colorable claim. Petitioner merely alleges that his continued detention violates “due 6 process and the [I]mmigration and [N]ationality [A]ct.” He does not articulate any 7 reasoning or provide any factual support for this claim.3 Accordingly, Petitioner fails to 8 state a cognizable or colorable claim for habeas corpus review under § 2241. 9 D. Relief Under 28 U.S.C. § 1361 10 The Mandamus Act, 28 U.S.C. § 1361, grants district courts “original jurisdiction 11 of any action in the nature of mandamus to compel an officer or employee of the United 12 States or any agency to perform a duty owed to the plaintiff.” “Mandamus is an 13 extraordinary remedy granted in the court’s sound discretion.” Johnson v. Reilly, 349 F.3d 14 1149, 1154 (9th Cir. 2003) (citation omitted). To obtain mandamus relief, a petitioner must 15 show: (1) the petitioner has a clear and certain claim; (2) the respondent has a non- 16 discretionary, ministerial duty, which is so plain as to be free from doubt; and (3) the 17 petitioner does not have an adequate available remedy. Id. at 1153. 18 Petitioner requests a writ of mandamus compelling Respondents to make an 19 individualized determination as to whether he should be granted a derivative T-visa prior 20 to his removal. Petitioner, however, has not alleged any facts to support that USCIS has a 21 “clear nondiscretionary duty” to adjudicate a T-visa application before an applicant is 22 removed, Heckler v. Ringer, 466 U.S. 602, 616 (1984), or that USCIS owes such a duty 23

2 Petitioner’s argument that § 1252(g) violates the Suspension Clause as applied to 24 him because it “would deprive him of his habeas claim and leave him without a forum to challenge the Executive’s legal authority to remove him before the adjudication of his 25 applications for a T-Visa, which was designed to protect victims of human trafficking from deportation,” is similarly without merit. Petitioner does not claim he is a victim of human 26 trafficking and he has not filed an application for a T-visa that would be denied if he were removed from the United States. 27 3 Nor is it clear that Petitioner is, in fact, currently detained. See ICE Online Detainee 28 Locator System, https://locator.ice.gov (last accessed Sept. 9, 2019). 1 with respect to Petitioner. Petitioner therefore fails to state a colorable claim for relief 2 under § 1361. 3 E. Review Under 5 U.S.C. § 702 4 The APA authorizes “[a] person suffering legal wrong because of agency decision, 5 or adversely affected or aggrieved by agency action” to seek judicial review of the agency 6 action. 5 U.S.C. § 702. “[A]gency action” is defined to include “the whole or a part of an 7 agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to 8 act.” 5 U.S.C. § 551(13). Where an agency has failed to act within the meaning of the 9 APA, a court may compel the “agency action unlawfully withheld or unreasonably 10 delayed.” 5 U.S.C. § 706(1). 11 Petitioner has not identified the specific agency action that he seeks to challenge 12 under the APA. He does not point to any final determination by USCIS that is subject to 13 review under 5 U.S.C. § 704, nor does he claim that USCIS has unlawfully denied or 14 unreasonably delayed an “individualized determination” on an application under § 706. 15 See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (“a claim under 16 § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete 17 agency action that it is required to take”); Mamigonian v. Biggs, 710 F.3d 936, 941-42 (9th 18 Cir. 2013). To the extent Petitioner may seek review of ICE’s decision to remove him or 19 deny his application to stay his removal, those claims are barred from review for the reasons 20 discussed above. See 5 U.S.C. § 701(a)(1) (incorporating other jurisdiction-stripping 21 statutes as a limit on APA claims). As such, Petitioner fails to state a cognizable claim 22 under the APA. 23 F. Conclusion 24 A district court may summarily dismiss a habeas corpus petition “[i]f it plainly 25 appears from the face of the petition and any attached exhibits that the petitioner is not 26 entitled to relief in the district court.” Rule 4, foll. 28 U.S.C. § 2254.4 See also Clayton v. 27

28 4 The Rules Governing Section 2254 Cases in the United States District Courts apply to habeas proceedings under § 2241. See Rule 1(b), foll. 28 U.S.C. § 2254. 1| Biter, 868 F.3d 840, 845 (9th Cir. 2017) (“District courts adjudicating habeas petitions ... are instructed to summarily dismiss claims that are clearly not cognizable.”); McFarland 3| v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily 4 any habeas petition that appears legally insufficient on its face.”); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated’’). 7 Here, Petitioner has failed to present cognizable or colorable grounds for relief. 8 | Thus, the Court will dismiss the Petition and deny, as moot, the Motion for Temporary Restraining Order. 10 OK KK ITIS ORDERED: 12 (1) Petitioner’s Petition for Writs of Habeas Corpus; Writ of Mandamus, and 13 | Review of Final Agency Action (Doc. 1) is denied and this action is dismissed. 14 (2) Petitioner’s Motion for Temporary Restraining Order (Doc. 2) is denied as 15 | moot. 16 (3) The Clerk of Court shall enter judgment accordingly and terminate this case. 17 Dated this 11th day of September, 2019. 18 19 La

2] United States District Judge 22 23 24 25 26 27 28

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