Opinion
CV-20-00229-PHX-DLR (DMF)
09-09-2020
Veenaben Dhirubhai Patel, et al., Petitioners, v. William P. Barr, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Deborah M Fine United States Magistrate Judge
Pending before the Court is the First Amended Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (“First Amended Petition”) filed by Veenaben Dhirubhai Patel and Ajay Ramabhai Patel, husband and wife (“Petitioners”). (Doc. 25) Petitioners filed an initial petition for writ of habeas corpus on January 30, 2020, arguing Respondents arbitrarily and capriciously denied their applications for adjustment of status to the status of lawful permanent residents. (Doc. 1) Additionally, Petitioners sought injunctive and declaratory relief requiring Respondents to rule on their renewed applications for adjustment of status and to enjoin their removal pending consideration of such applications. (Doc. 2) On January 31, 2020, the Court granted Petitioners' Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 2) to the extent that Respondents were enjoined from removing Petitioners pending resolution of Petitioners' motion for preliminary injunction. (Doc. 6 at 2)
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Number CV-20-00229-PHX-DLR (DMF).
Petitioners filed the First Amended Petition on April 3, 2020, alleging nineteen grounds for relief. (Doc. 25) In an order filed on April 8, 2020, the Court permitted Petitioners to add respondents named in the First Amended Petition, denied without prejudice Petitioners' motion for preliminary injunction but ordered the stay of removal to continue pending further court order, and dismissed without prejudice Petitioners' Grounds Five through Eight, which the Court permitted Petitioners to present in a new petition filed in a separate action. (Doc. 28) Grounds Five through Eight alleged violations of Petitioners' constitutional rights related to their detention and issues presented by the COVID-19 pandemic, which Petitioners have filed and are now pending under case number CV-20-00709-PHX-DLR (DMF). Respondents filed their response in the instant action on May 22, 2020 (Doc. 42), and Petitioners filed a reply on June 8, 2020. (Doc. 44)
Petitioner Ajay Ramabhai Patel notified the Court he had been released from custody by Respondent Immigration and Customs Enforcement (“ICE”) on April 15, 2020, under an order of supervision. (Doc. 37) Subsequently, on July 5, 2020, Petitioner Veenaben Dhirubhai Patel notified the Court that ICE had also released her from custody under an order of supervision pursuant to the Court's June 30, 2020, order (Doc. 53 in CV-20-00709). (Doc. 48)
Respondents have filed a notice of appeal as to the Court's order to release Petitioner Veenaben Dhirubhai Patel. (Docs. 55, 56 in CV-20-00709).
As is discussed below, after briefing in this case was completed, Respondents filed a notice of supplemental authority (Doc. 49) to which the undersigned permitted a response (Doc. 51). Petitioners filed a response. (Doc. 52) Petitioners subsequently also filed a notice of supplemental authority. (Doc. 53)
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 28) For the reasons set forth below, the undersigned Magistrate Judge recommends that Petitioners' Counts One through Four of the Amended Petition be dismissed as moot; that Counts Nine through Eleven, Thirteen through Fifteen, and Seventeen be dismissed without prejudice for lack of jurisdiction; that Counts Twelve, Sixteen, and Eighteen be denied; and that the Court's existing January 31, 2020, stay of removal (Docs. 6, 28) remain in effect for 30 days following entry of judgment to permit Petitioners to file a petition for review if they so choose.
I. BACKGROUND
A. Petitioners and the United States
Petitioners are citizens of the United Kingdom who entered the United States under the Visa Waiver Program on February 22, 1994. (Doc. 25 at 31, ¶ 93) Petitioners remained in the United States after their authorized stay of 90 days had expired, and on March 3, 2009, they were referred for removal proceedings. (Id. at 31-32, ¶¶ 93, 97) On December 7, 2010, an Immigration Judge found Petitioners ineligible for relief from removal and administrative removal orders were entered against them. (Id. at 32, ¶ 97; Doc. 25-8 at 2-4) The same day, Petitioners were issued orders of supervision by ICE, which permitted Petitioners “to remain free from custody, continue residing in the United States, and obtain work authorization.” (Doc. 25 at 33, ¶ 99; Doc. 25-1 at 1; Doc. 25-2 at 2) On July 6, 2012, the Board of Immigration Appeals affirmed the Immigration Judge's decision. (Doc. 25-8 at 2-4)
In her declaration, one of Petitioners' immigration attorneys attests that based on erroneous advice of then-counsel, Petitioners approached ICE and requested cancellation of removal because they had two minor U.S. citizen children, which resulted in ICE issuing removal orders against them. (Doc. 44-2 at 2; Doc. 25-8)
Almost five years later, in March 2017, ICE issued warrants for Petitioners' removal. (Doc. 25 at 33, ¶ 101) Petitioners then filed petitions for review with the Ninth Circuit Court of Appeals, and their removal was temporarily stayed by that court. (Id., ¶ 102) On January 26, 2018, Petitioners also filed applications for adjustment of status with United States Citizenship and Immigration Services (“USCIS”). (Docs. 25-3; 25-4) On March 29, 2018, Petitioners' consolidated petitions for review of the removal order were dismissed by the Ninth Circuit after Petitioners failed to timely comply with the Ninth Circuit's order to show cause why the petition for review should not be dismissed for lack of jurisdiction because the petition for review was untimely filed. (Doc. 18-2 at 20-22)
On April 6, 2018, ICE issued bag and baggage letters directing Petitioners to surrender themselves for removal. (Doc. 25 at 35, ¶¶ 106, 107) In response, Petitioners submitted a request to withdraw their administrative removal orders. (Id., ¶ 108) ICE denied the request but Petitioners say that ICE advised Petitioners that they “would be permitted to pursue their adjustment of status applications in the United States and would not be taken into custody.” (Id. at 36, ¶ 109)
On September 25, 2019, USCIS denied Petitioners' applications for adjustment of status. (Id., ¶¶ 110, 111) “USCIS stated that it denied the applications based on [its] discretion because its policy dictates such a determination when ICE does not rescind or withdraw its administrative order of removal.” (Id., ¶ 111; Doc. 18-2 at 33-36) In January 2020, ICE again issued bag and baggage letters for Petitioners' removal. (Id. at 36-37, ¶¶ 112, 113) Petitioners filed new applications for adjustment of status along with Forms I-212 for waivers of removal on January 30, 2020. (Id. at 37, ¶ 114) They filed the initial Petition in this action the same day, and on January 31, 2020, Petitioners' removal was stayed by this Court. (Doc. 6)
On February 10, 2020, during a scheduled check-in appointment, Petitioners were taken into ICE custody; Mr. Patel was detained at the CoreCivic La Palma Correctional Center and Mrs. Patel was detained at the Eloy Detention Center, both located in Eloy, Arizona. (Doc. 25 at 37, ¶ 117; Docs. 37, 48) Mr. Patel and Mrs. Patel were subsequently released from custody under orders of supervision on April 15, 2020, and June 30, 2020, respectively. (Docs. 37, 48)
B. The Visa Waiver Program
The Visa Waiver Program (“VWP”), through which Petitioners legally entered the United States, provided for citizens of participating countries to enter as tourists without visas for up to 90 days. Momeni v. Chertoff, 521 F.3d 1094, 1095 (9th Cir. 2008). The VWP requires that before receiving a visa waiver, participants must agree to a no-contest clause under which they waive the right “to contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b)(2). The Ninth Circuit has characterized the waiver of the alien's right to contest a removal action as the “linchpin” of the VWP, which “assures that a person who comes here with a VWP visa will leave on time and will not raise a host of legal and factual claims to impede his removal if he overstays.” Handa v. Clark, 401 F.3d 1129, 1135 (9th Cir. 2005).
On November 14, 2013, the USCIS issued a policy memorandum addressing “Adjudication of Adjustment of Status Applications for Individuals Admitted to the United States Under the Visa Waiver Program.” (Doc. 18-2 at 38-42 (“PM-602-0093” or “the PM”)) PM-602-0093 instructs that INA § 245(c)(4), 8 U.S.C. § 1255(c)(4) generally renders VWP aliens “ineligible to adjust status to that of a person admitted for permanent residence[, ]” but recognizes an exception for immediate relatives of U.S. citizens. (Id. at 39) The PM observes that the:
Pursuant to 8 U.S.C. § 1151(b)(2)(A)(i), an immediate relative is defined as “the children, spouses, and parents of a citizen of the United States[.]”
U.S. Immigration and Customs Enforcement (ICE) has authority to order the removal of a VWP overstay, including an immediate relative, under INA section 217(b) and 8 CFR 217.4(b). Numerous courts of appeals agree that, generally, a VWP overstay may not contest a removal action on the basis that he or she has filed Form I-485. However, these cases concern only the individual's inability to contest removal. They do not address whether the Department of Homeland Security (DHS) can, as a matter of discretion, decline to seek the individual's removal and grant adjustment if the individual is eligible. Nor do these decisions preclude a VWP overstay who is not subject to a removal order from filing a Form I-485 with USCIS.
Whether to grant adjustment to an eligible applicant is a matter entrusted to DHS discretion. USCIS exercises this discretion on behalf of DHS.(Id.) The PM's guidance further provides that:
USCIS field offices shall adjudicate adjustment of status cases filed by immediate relatives of U.S. citizens who were last admitted to the United States under the VWP, in accordance with section 245 of the INA. This includes cases where Form I-485 was filed after the 90-day period of admission. Adjudication shall occur prior to referral to ICE unless: ICE has issued a removal order . . . .(Id.) Significantly, the PM addresses the effect of an existing removal order on an applicant for adjustment of status:
INA section 245 provides that applicants who were inspected and admitted or paroled into the United States may be adjusted by the Secretary of Homeland Security, in his or her discretion. If ICE has issued a removal order for violation of INA section 217, USCIS should interpret the entry of that order as the Secretary exercising his or her discretion not to adjust the status of that individual. Therefore, as long as the individual remains subject to a section 217 removal order, USCIS should deny the Form I-485 as a matter of discretion. If ICE withdraws or rescinds the removal order, USCIS can then approve the application as appropriate.(Id. at 40 (emphasis in original)) PM-602-0093 expressly states that it was “intended solely for the guidance of USCIS personnel in the performance of their official duties” and that it “was not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or matter.” (Id. at 44)
Form I-145 is an application for adjustment of status. Morales-Izquierdo v. Dep't of Homeland Sec., 600 F.3d 1076, 1079 (9th Cir. 2010). The PM cites to decisions of the Third, Fifth, Sixth, Seventh, Eighth, and Tenth Circuit Courts of Appeal as well as to the Ninth Circuit decisions in Momeni v. Chertoff, 521 F.3d 1094 (9th Cir. 2008) and Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006). (Doc. 18-2 at 39)
II. PETITIONERS' HABEAS CLAIMS
In Count One, Petitioners contend Respondents violated their liberty interest when Respondents revoked Petitioners' release without cause. (Doc. 25 at 63-64) In Count Two, Petitioners assert Respondents violated applicable regulations when Respondents failed to timely provide Petitioners with notice of reasons for revocation of release, or an initial interview or opportunity to respond to Respondents' reasons for revocation. (Id. at 64) Petitioners' Count Three claim is that Respondents violated 8 U.S.C. § 1231(a) of the Immigration and Naturalization Act (“INA”) and its applicable regulations by detaining them beyond the 90-day removal period without a determination of danger and flight risk by a neutral magistrate. (Id. at 64-65) Petitioners argue under Count Four that Respondents violated Petitioners' Fifth Amendment due process rights by detaining them. (Id.at 65-66)
In Count Nine, Petitioners contend that Respondents' denial of Petitioners' applications for adjustment of status and failure to allow Petitioners to file waivers of inadmissibility violates the INA and related regulations. (Id. at 74) In Count Ten, Petitioners assert that Respondents' denial of Petitioners' applications for adjustment of status violates their due process rights. (Id. at 74-75) Similarly, under Count Eleven Petitioners argue that Respondents' decisions to deny Petitioners' applications for adjustment of status are arbitrary, capricious, and represent an abuse of discretion under the Administrative Procedures Act (“APA”). (Id. at 75-76) Petitioners' Count Twelve claim is that Respondents' denial of Petitioners' applications for adjustment of status without any opportunity for meaningful judicial review violates the Suspension Clause of the United States Constitution. (Id. at 76)
Under Count Thirteen, Petitioners argue that Respondents' actions in detaining Petitioners and seeking their removal before adjudicating Petitioners' applications for adjustment of status and waivers violates the INA and associated regulations. (Id. at 76-77) Petitioners' Count Fourteen claim is that Respondents' threats to remove them without first waiting for decisions on Petitioners' applications for adjustment of status violates Petitioners' due process rights. (Id. at 77) In Count Fifteen, Petitioners argue that Respondents' actions to seek their removal while their applications for adjustment of status are pending is arbitrary, capricious, and an abuse of discretion within the meaning of the APA, conflicts with the notice and comment rulemaking requirements of 5 U.S.C. § 553, violates federal law including the Constitution, and is otherwise contrary to law. (Id. at 77) Petitioners assert in Count Sixteen that the failure to perform a meaningful judicial review of the Respondents' decisions to detain Petitioners and seek to have them removed while Petitioners' waivers and applications for adjustment of status remain pending would violate the Suspension Clause. (Id. at 78)
In Count Seventeen, Petitioners state that provisions within 8 U.S.C. § 1182(a) permit “individuals, if otherwise eligible, to file waivers and seek adjustment of status in the United States, or leave the U.S. temporarily and return as lawful permanent residents, if they are granted waivers of applicable inadmissibility grounds[.]” (Id.) Petitioners contend that Respondents' detaining and threatening to remove them without permitting them to “follow these provisional waiver procedures” violates the INA and associated regulations, Petitioners' due process rights, and the APA. In Count Eighteen, Petitioners allege that their removal without opportunity for “meaningful judicial review” would violate the Suspension Clause. (Id. at 79-80)
Petitioners request that the Court issue relief including: assuming jurisdiction over the Amended Petition; ordering Petitioners' immediate release from custody, or alternatively, requiring Respondents to provide a prompt bond hearing; enjoining Respondents from removing Petitioners until after their adjustment of status “applications with consent to reapply for admission have been fully and finally adjudicated”; and “temporarily, preliminarily, and permanently enjoin[ing] the removal of Petitioners from the United States and from the jurisdiction of the Phoenix ICE-ERO Field Office while [Petitioners] are pursuing their applications for adjustment of status and/or provisional waiver processes[.]” (Doc. 25 at 80)
III. DISCUSSION
A. Review under 28 U.S.C. § 2241
A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241 where the petitioner is “in custody under or by color of the authority of the United States ... in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)(1), (3). “The writ of habeas corpus historically provides a remedy to non-citizens challenging executive detention.” Trinidad Y Garcia v. Thomas, 683 F.3d 952, 956 (9th Cir. 2012). See also Munaf v. Geren, 553 U.S. 674, 693 (2008); Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980). “[T]he extent of the Government's detention authority is not a matter of ‘discretionary judgment,' ‘action,' or ‘decision.'” Jennings v. Rodriguez, __U.S.__, 138 S.Ct. 830, 841 (2018). See also Prieto-Romero v. Clark, 534 F.3d 1053 (9thCir. 2008). Thus, “challenges to the statutory framework that permits the alien's detention without bail, ” Jennings, 138 S.Ct. at 841, “questions of law” raised in the application or interpretation of detention statutes, Leonardo v. Crawford, 646 F.3d 1157, 1160 (9th Cir. 2011), and “claims that the discretionary process itself was constitutionally flawed are ‘cognizable in federal court on habeas because they fit comfortably within the scope of § 2241.'” Singh v. Holder, 638 F.3d 1196, 1202 (9th Cir. 2011) (quoting Gutierrez-Chavez v. INS, 298 F.3d 824, 829 (9th Cir. 2002)).
B. Petitioners' Counts One through Four challenging detention are moot
“Federal courts are always ‘under an independent obligation to examine their own jurisdiction,' ... and a federal court may not entertain an action over which it has no jurisdiction.” Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)). Petitioners challenge their detention under Counts One through Four. (Doc. 25 at 63-66) Under Count One, Petitioners allege Respondents' revocation of their prior release on Forms I-220B was contrary to law, arbitrary, capricious and an abuse of discretion. (Id. at 63-64) Petitioners' Count Two claim is that Respondents violated C.F.R. § 241.13(i)(3) by failing to notify Petitioners of the reasons for their revocation of release and detention or to provide them with a post-detention interview in which Petitioners could respond to the purported reasons for revocation. (Id. at 64) Petitioners argue in Count Three that Respondents violated 8 U.S.C. § 1231(a) by detaining them after the initial 90-day removal period without an individualized determination of dangerousness and flight risk performed by a neutral magistrate. (Id. at 64-65) In Count Four, Petitioners allege their continued detention violated their due process rights because Respondents conducted no “meaningful determination of danger or flight risk” and because Petitioners in fact pose no danger or flight risk and were detained “while pursuing available avenues to legalize their immigration status through their U.S. citizen children[.]” (Id. at 65-66)
As is addressed below, under the REAL ID Act, the Court lacks jurisdiction over the Amended Petition to review an order of removal. Iasu v. Smith, 511 F.3d 881, 886 (9thCir. 2007). However, the REAL ID Act does not “deprive the district courts of habeas corpus jurisdiction over an alien's claim that his ongoing detention is unlawful.” Sebastiani v. Holder, No. CV 10-0898-PHX-DGC (ECV), 2010 WL 1688792 at *1 (D. Ariz. Apr. 26, 2010) (citing Casas-Castrillon v. Dep't of Homeland Sec., 535 F.3d 942, 946 (9th Cir. 2008)). At the time Petitioners filed the Amended Petition on April 3, 2020, they were detained by ICE. (Doc. 25 at 14, ¶¶ 33, 34) Accordingly, the Court has jurisdiction over Petitioners' claims of unlawful detention asserted in Counts One through Four of the Amended Petition.
However, because Petitioners have each been released from ICE detention under orders of supervision, the allegations of Counts One through Four of the Amended Petition are rendered moot. See Nsinano v. Barr, 808 Fed.Appx. 554, 555 (9th Cir. 2020) (“Nsinano's due process claim is moot because he has since been released from immigration custody on bond. See also Abdala v. INS, 488 F.3d 1061, 1064 (9th Cir. 2007) (‘[A] petitioner's release from detention under an order of supervision moot[s] his challenge to the legality of his extended detention.' internal quotation marks omitted)).”); Novas v. ICE, 303 Fed.Appx. 115, 118 (3rd Cir. 2008) (VWP-entrant challenged his pre-removal detention, which claim the Third Circuit determined became moot when ICE released him from detention); Adame-Rodriguez v. Sessions, No. CV-16-02951-PHX-DJH, 2017 WL 4699485, at *1 (D. Ariz. Oct. 19, 2017) (where petitioner had been released from immigration custody and placed on supervised release, his claim of unlawful detention was rendered moot); and Barillas-Gamero v. United States, No. 1:20-cv-00589-SKO (HC), 2020 WL 4018956, at *1 (E.D. Cal. June 2, 2020) (where petitioner challenged his indefinite detention, his release on order of supervision rendered moot his habeas petition).
Because Petitioners' claims asserted in Counts One through Four are moot, undersigned recommends these claims be dismissed with prejudice.
C. Petitioners have waived their right to assert their non-detention-related claims under the reciprocal waiver requirements of the VWP
Petitioners entered no-contest waivers under the VWP whereby they waived the right to challenge their removal other than by means of a claim for asylum, as is discussed above in Section I(B). Pursuant to Ninth Circuit precedent, Petitioners who enter the United States under the VWP and overstay their permitted visit period of 90 days may also challenge their removal based on a claim that they are not subject to the VWP regime. Bingham v. Holder, 637 F.3d 1040, 1043 (9th Cir. 2011). Petitioners do not claim the right to asylum and do not challenge their VWP waiver. As the Ninth Circuit explained in Handa, the waiver executed by entrants under the VWP was intended to ensure that such entrants would timely exit the United States and would not “raise a host of legal and factual claims to impede [their] removal if [they] overstay[].” Handa, 401 F.3d at 1135. As is explained below, Petitioners' claims that they must not be removed until they have obtained adjudication of their claims for adjustment of status and waiver of grounds of inadmissibility are the sorts of efforts to impede removal that the VWP waiver intended to foreclose.
In Momeni, the court distinguished the facts from those presented in the earlier case Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006), where the VWP-entrant had applied for adjustment of status within the 90-day period allowed under the VWP. Momeni, 521 F.3d at 1097. Agreeing with the Tenth Circuit decision in Schmitt v. Maurer, 451 F.3d 1092 (10th Cir. 2006), the Ninth Circuit concluded that to allow an adjustment of status application after the 90-day visitation period had expired would result in an “avoidable conflict” between the adjustment of status statute and the VWP no contest statute. Id. The Ninth Circuit stated that “[w]here an appellate court can construe two statutes so that they conflict, or so that they can be reconciled and both can be applied, it is obliged to reconcile them.” Id. The court emphasized that “[a]n alien who comes to the United States under the Visa Waiver Program generally cannot avoid his or her waiver of the right to contest removal (other than on the basis of asylum).” Id. In Schmitt, the Tenth Circuit had rejected the petitioner's argument that:
[b]ecause aliens admitted under the Visa Waiver Program cannot contest orders of removal on the basis of pending adjustment of status applications, but the statutes and regulations pertaining to adjustment of status specifically allow aliens admitted under the Visa Waiver Program to apply for adjustment of status, . . . there is a “conflict” between the two statutes.Schmitt, 451 F.3d at 1097. The Tenth Circuit concluded that “[a]ny conflict that exists between the two statutes” was of the petitioner's “own creation” because “[d]uring the first 90 days during which an alien is lawfully present in the United States under the Visa Waiver Program, the alien may apply for adjustment of status without any conflict arising between the two statutes. See 8 C.F.R. § 1245.1(b)(8).” Id.
In Ferry v. Gonzales, the Tenth Circuit rejected a VWP-entrant petitioner's argument that due process compelled a hearing before an immigration judge to consider his application for adjustment of status. Ferry v. Gonzales, 457 F.3d 1117, 1126-29 (10thCir. 2006). The court noted that “[t]he Fifth Amendment's guarantee of due process of law is applicable to aliens in removal proceedings.” Id. at 1128 (citing Reno v. Flores, 507 U.S. 292, 306 (1993)). Nevertheless, the court recognized that “an alien's due process rights are subject to waiver.” Id. at 1129 (citing Nose v. Attorney Gen., 993 F.2d 75, 78-79 (5th Cir. 1993)). The Tenth Circuit cited the Seventh Circuit's opinion in Wigglesworth v. INS, in which the court concluded that a VWP-entrant's due process rights were not violated based on “the fact that she was not afforded the opportunity to present, or receive a determination concerning, her application for discretionary relief.” Wigglesworth v. INS, 319 F.3d 951, 959-60 (7th Cir. 2003). In Wigglesworth, the Seventh Circuit stated that the VWP alien “not only waived her right to a deportation hearing, she also waived any rights that she had to apply for non-asylum forms of relief from deportation.” Id. at 960. The Tenth Circuit concluded that the petitioner in Ferry, by signing the VWP waiver, had “received all of the due process to which he was entitled” and had not established prejudice required to show a due process violation. Ferry, 457 F.3d at 1129.
In an unpublished decision in Crippa v. Holder, the Ninth Circuit on petition for review addressed the VWP-entrant's challenge to a final removal order. Crippa v. Holder, 585 Fed.Appx. 581, 582 (9th Cir. 2014). The Ninth Circuit determined that “the VWP's ‘no contest' clause prohibit[ed] Crippa from challenging removal other than through an asylum claim or a claim that he ‘[was] not at all subject to the VWP regime.'” Id., citing Bingham, 637 F.3d at 1043 and Momeni, 521 F.3d at 1096-97.
Subsequently, in Riera-Riera v. Lynch, the Ninth Circuit considered a circumstance in which the petitioner was a Peruvian citizen but entered the United States using a fraudulent Italian passport under the VWP. Riera-Riera v. Lynch, 841 F.3d 1077, 1079 (9thCir. 2016). The Ninth Circuit considered the question of whether “an ineligible alien who fraudulently enters under the VWP is bound by the VWP's limitations, including its waiver of any challenge to deportation other than asylum.” Id. at 1080. The court concluded that Congress would not have intended to “confer the benefits of the VWP on ineligible aliens while sparing them the costs of entering under the VWP.” Id. The Ninth Circuit also rejected the petitioner's argument that the Department of Homeland Security's refusal to consider his application for adjustment of status or to reopen removal proceedings to permit consideration of that application denied the petitioner's due process rights. Id. The court instructed that:
[e]ven assuming without deciding that due process attaches to VWP admittees, however, the restrictions of the VWP comport with whatever due process such admittees are entitled. We recognized this in Bingham v. Holder, 637 F.3d 1040, 1047 (9th Cir. 2011). In that case, we observed that the procedure required by the VWP is neither complex nor unfair. The alien signing the VWP forms gives up any right to challenge removal, except on asylum grounds, if he overstays the grant of time permitted by the VWP.Id. The Ninth Circuit declared that “[o]ther courts have come to a similar conclusion.” Id. (citing Bradley v. Attorney Gen. of the U.S., 603 F.3d 235, 240-43 (3rd Cir. 2010) and Bayo v. Napolitano, 593 F.3d 495, 505 (7th Cir. 2010) (en banc)).
In Bradley, the Third Circuit rejected the VWP-entrant petitioner's argument that despite having entered into the VWP waiver of his right to contest removal except on asylum grounds, he was “nevertheless entitled to pursue a marriage-based adjustment of status” using an immediate relative petition. Bradley, 603 F.3d at 241-42. The Third Circuit noted that the petitioner's position had been rejected by six other federal circuit courts, citing Bayo v. Napolitano, 593 F.3d at 507; McCarthy v. Mukasey, 555 F.3d 459, 462 (5th Cir. 2009); Momeni, 521 F.3d at 1097 (narrowing Freeman, 444 F.3d 1031); Zine v. Mukasey, 517 F.3d 535, 543 (8th Cir. 2008); Lacey v. Gonzales, 499 F.3d 514, 519 (6thCir. 2007); and Schmitt, 451 F.3d at 1097. Id. at 242 n.7. The Third Circuit quoted Bayo, 593 F.3d at 507, in which the Seventh Circuit concluded that a non-immigrant visitor could submit an adjustment of status application based on immediate relative status within the VWP 90-day visit window without a conflict between the adjustment of status statute and the VWP statute. Id. at 242. However, the Seventh Circuit determined that an application for adjustment of status filed after the 90-day window would prevent the visitor from objecting to removal except on asylum grounds, including any objection on the basis of adjustment of status. Id.
Because Petitioners did not file their adjustment of status applications or their applications for provisional waivers during the 90-day visitation period permitted under the VWP, they may not contest their removal on the basis that their applications have not been fully adjudicated. Under these circumstances, the Court lacks subject matter jurisdiction to decide Petitioners' Counts Nine through Eleven, Thirteen through Fifteen, and Seventeen. See Lacey, 499 F.3d at 518 (noting that due to the VWP waiver, “federal courts lack jurisdiction over non-asylum-based, due process challenges to the removal of a VWP alien[]” and rejecting the petitioner's argument that his application for adjustment of status “invested him with due-process rights that he would not otherwise have possessed, thereby conferring upon [the court] subject matter jurisdiction over his petition.”)
PM-602-0093 provides Petitioners no relief from this conclusion. As noted, Petitioners were subject to a final order of removal when they filed applications of adjustment of status, and the PM prevents Petitioners from qualifying for discretionary adjustment of status filed after the 90-day visitation period. (Doc. 18-2 at 39-40) Moreover, the PM on its face is expressly “intended solely for the guidance of USCIS personnel in the performance of their official duties” and is “was not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law or by any individual or other party in removal proceedings, in litigation with the United States, or in any other form or matter.” (Id. at 44) See Beshir v. Holder, 10 F.Supp.3d 165, 180 (D.D.C. 2014) (holding that a 2009 USCIS Memorandum was a mere statement of internal policy for use by USCIS field offices and was not a binding rule or regulation, and that the court lacked jurisdiction to review a plaintiff's claim that DHS and USCIS officials failed to apply it).
Petitioners have failed to establish jurisdiction lies in the Court for VWP-entrants who have overstayed, did not file for adjustment of status as immediate relatives within the 90-day visitation period, and who are under an order of removal.
D. The Court also lacks jurisdiction over Petitioners' removal-based claims under § 1252(a)(5)
Petitioners request the Court to enjoin Respondents from removing them until their adjustment of status applications and/or applications for provisional waivers have been adjudicated. (Doc. 25 at 80) Respondents, however, argue the Court lacks jurisdiction to do so, asserting that the REAL ID Act eliminated federal district court jurisdiction over orders of removal and required that jurisdiction to review such orders was vested instead in federal courts of appeal on petition for review. (Doc. 42 at 8 (citing Iasu, 511 F.3d at 886-87 and Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006).) Respondents highlight that Petitioners have conceded they are “properly subject to administrative removal orders entered by ICE in 2010[, ]” and Respondents further assert that Petitioners' challenge is to Respondents' “decision to execute those removal orders now.” (Id.) Respondents also argue that despite how Petitioners have attempted to frame their argument, Petitioners' challenge is actually to the final order of removal, over which the Court has no jurisdiction pursuant to the REAL ID Act. (Id. at 8-9)
REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231 (2005).
As codified, the REAL ID Act encompasses Title 8 U.S.C. § 1252, which governs judicial review of orders of removal. 8 U.S.C. § 1252. As relevant to the Amended Petition, § 1252 provides that:
[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided for in subsection (e).8 U.S.C. § 1252(a)(5). Further the Act provides a “zipper clause, ” requiring that:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory) to review such order or such question of law or fact.8 U.S.C. § 1252(b)(9). The Act also includes the following “jurisdiction-stripping” clause:
[e]xcept as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.8 U.S.C. § 1252(g).
Petitioners argue that 8 U.S.C. § 1252 does not apply to deprive the Court of subject matter jurisdiction over the Amended Petition. (Doc. 44 at 28-32) They assert that § 1252 does not apply to them because they don't seek review of their removal order. (Id. at 28) etitioners characterize their claims as challenges asserting that Respondents acted “outside their lawful authority by depriving Petitioners of access” to procedures permitting application for adjustment of status and for waivers of grounds of inadmissibility and had thus violated Petitioners' due process rights and their rights under the INA, APA, and associated regulations. (Id. at 31)
Petitioners' argument that the district court has jurisdiction over their claims under § 1252 not only ignores their waiver under the VWP, but also is inconsistent with governing Ninth Circuit case law.
In Momeni, the Ninth Circuit considered the argument of a VWP-entrant that the no-contest-to-removal provision of the VWP program was not applicable to him because he had filed a pending application for adjustment of status based on his marriage to a U.S. citizen. Momeni, 521 F.3d at 1095. The petitioner had overstayed his 90-day VWP visitation period and subsequently married a United States citizen. Id. After the petitioner was taken into custody and was notified he would be removed, he applied to have his status adjusted. Id. The Ninth Circuit stated that “there are no administrative proceedings available for entrants under the Visa Waiver Program except on the basis of asylum[.]” Id. The court noted that the petitioner had filed a petition for writ of habeas corpus in the district court, which the district court had dismissed for lack of jurisdiction. Id. The Ninth Circuit held that the district court properly ruled it did not have jurisdiction over the habeas petition challenge to a removal order pursuant to 8 U.S.C. § 1252(a)(5). Id. at 1095-96. The Ninth Circuit explained that pursuant to § 1252(a)(5), a petition for review filed in the appropriate federal circuit court of appeals was the ‘“sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this' [Act].” Id. The court further observed that the petitioner had waived his right under the VWP to contest a removal action other than on the basis of asylum application and concluded these circumstances “basically” signaled “the end of the case” because the petitioner had married and applied for adjustment of status after the 90-day visitation period. Id. at 1096.
In Bingham, a VWP-entrant had overstayed his visitation period by more than a year when he was stopped by police and then subsequently released to the custody of immigration authorities. Bingham, 637 F.3d at 1043. The petitioner was ordered removed without holding a removal hearing after officials concluded he was “removable as an alien admitted under the VWP who had remained in the United States beyond the authorized period.” Id. The petitioner argued that “the enforcement of a written waiver of rights associated with his entry into the United States through the Visa Waiver Program and the summary issuance of an order of removal without a hearing violate[d] his due process rights.” Id. at 1042. The petitioner appropriately filed a petition for review of the removal order with the Ninth Circuit. The Ninth Circuit determined it had jurisdiction under § 1252(a) because the petitioner was contesting the validity of his VWP waiver. Id.
As VWP-entrants, Petitioners have waived the right to postpone removal while they pursue adjustment of status as claimed in Counts Nine, Ten, Eleven, Thirteen, Fourteen, Fifteen, and Seventeen, and the Court lacks jurisdiction under § 1252(a)(5) to decide such claims. Undersigned finds it is not necessary to address the remaining sections of § 1252 which Respondents urge stripped this Court of jurisdiction.
Finally, Petitioners cite a recent decision from the District of Oregon, Las Americas Immigrant Advocacy Ctr. v. Trump, No. 3:19-cv-02051-IM, 2020 WL 4431682 (D. Ore. July 31, 2020), in support of their argument that “[n]one of the jurisdiction-stripping provisions cited by Respondents preclude the Court's jurisdiction to review [Petitioners'] claims for relief.” (Doc. 53 at 2) But Las Americas is not helpful to Petitioners' argument, particularly in light of the fact that the plaintiffs in the action were “nonprofit organizations which serve individuals in the immigration court system, including refugees and asylum seekers” and that the claims at issue neither involved the VWP nor involved petitioners who had expressly waived the right to contest a removal order in exchange for the ability to enter the country for a set, limited period without first obtaining a visa. . . . . . .
E. Petitioners' claims under the APA and for due process are inextricably linked to the removal order
Petitioners contend they do not contest the order of removal, but rather argue they are being deprived of their due process rights to pursue adjustment of status prior to being removed. In 2016 in Riera-Riera, the Ninth Circuit rejected this argument by instructing that the VWP-entrant petitioner's due process rights to pursue an application for adjustment of status had been accommodated by the restrictions of the VWP waiver when the petitioner gave up “any right to challenge removal, except on asylum grounds, if he overstays the grant of time permitted by the VWP.” 841 F.3d at 1080. Similarly, in Ferry, the Tenth Circuit rejected a VWP-entrant petitioner's contention that he did not “seek to ‘contest' the DHS' . . . removal order” but rather stated he wished “to ‘cure' the order of removal through his statutory right to an adjustment of status.” 457 F.3d at 1126. The Tenth Circuit concluded the petitioner's argument was “merely semantic, and . . . without support under the applicable statutes and regulations[.]” Id.
In cases not involving the VWP, the Ninth Circuit and the District of Arizona have rebuffed attempts of other petitioners to assert district court jurisdiction when such petitioners have characterized claims as not directly challenging orders of removal when the claims, by their nature, actually challenged removal orders. In Martinez v. Napolitano, the Ninth Circuit addressed a claim that the Board of Immigration Appeals' (“BIA's”) decision denying the plaintiff-appellant's application for asylum, withholding of removal, and relief under the Convention Against Torture was arbitrary and capricious and violated the APA. Martinez v. Napolitano, 704 F.3d 620, 621-23 (9th Cir. 2012). The petitioner had filed a complaint in the district court, which the district court dismissed for lack of jurisdiction. Id. at 621. Affirming, the Ninth Circuit cited § 1252(a)(5) for the requirement that the only means to challenge an order of removal is the petition for review process. Id. at 622. While the Ninth Circuit recognized that a court may “review claims that are ‘independent of challenges to removal orders[, ]'” it concluded that the plaintiff-appellant's attempts to frame his complaint as “asserting ‘independent' claims, ” was “simply another attempt to obtain judicial review of his removal order” and found that the district court had lacked jurisdiction to review the claims. Id. The Ninth Circuit said it joined in the Second Circuit's holding in Delgado v. Quarantillo, 643 F.3d 52, 55 (2nd Cir. 2011) prohibiting “Administrative Procedure Act claims that indirectly challenge a removal order.” Id. at 622.
In Quarantillo, the plaintiff-appellant brought a mandamus action seeking to compel USCIS to adjudicate her Form I-212 application to reapply for admission after deportation or removal and alleged that USCIS denial of her application violated the APA, the Due Process Clause, and the Equal Protection Clause. Quarantillo, 643 F.3d at 54. The Second Circuit affirmed the district court's dismissal for lack of jurisdiction under 8 U.S.C. § 1252(a)(5), holding that the plaintiff-appellant's action, which sought to force an adjudication on the merits of the I-212 application, was an indirect challenge to the order of removal. Id. at 55. The court rejected the argument that the I-212 application for waiver of admissibility was a necessary prerequisite to the plaintiff-appellant's “ultimate goal of adjustment of status[, ]” which in turn would render the removal order “invalid.” Id.
The Ninth Circuit in Martinez reasoned that “[w]hen a claim by an alien, however it is framed, challenges the procedure and substance of an agency determination that is ‘inextricably linked' to the order of removal, it is prohibited by section 1252(a)(5).” Martinez, 704 F.3d at 623. The court cited in support of this conclusion Morales-Izquierdo v. DHS, 600 F.3d 1076, 1082-83 (9th Cir. 2010) (“challenge to an adjustment of status was barred by section 1252(a)(5) because the order of removal was contingent on the status determination”) and Estrada v. Holder, 604 F.3d 402, 408 (7th Cir. 2010) (“district court lacked jurisdiction because if the alien obtained the relief he sought the ‘order of removal entered by the IJ and affirmed by the BIA ... would necessarily be flawed'”). Id. The Ninth Circuit determined that the plaintiff-appellant's arguments did not “survive as independent claims not inextricably linked to his order of removal” and that because the relief he requested, such as withholding of removal, “would negate his order of removal, ” the district court was correct in finding it lacked jurisdiction. Id.
In Em v. Whitaker, District Judge Lanza concluded the Court lacked jurisdiction over the petitioner's claims that his removal prior to the adjudication of his motion to reopen would violate his statutory rights under the INA and deprive petitioner of his Fifth Amendment procedural due process rights. Em v. Whitaker, No. CV-18-04279-PHX-DWL (JZB), 2018 WL 6663437, at *3 (D. Ariz. Dec. 19, 2018). Judge Lanza concluded that “although Petitioner argues the REAL ID Act is inapplicable because he isn't ‘directly challeng[ing]' his order of removal, and instead is merely ‘assert[ing] a due process right [to] challenge the order in an appropriate court,' multiple courts have concluded that habeas petitioners shouldn't be permitted to sidestep the REAL ID Act through such artful repackaging of their claims.” Id. at *4. The Court noted that the petitioner's claims arose “from any action taken or proceeding brought to remove an alien from the United States[.]” Id. Judge Lanza further found that the petitioner's claims “fundamentally arise from Respondents' decision to execute Petitioner's removal order.” Id. at *5.
Here, Petitioners' applications for adjustment of status were denied by USCIS based on discretion pursuant to the PM because Petitioners were subject to an order of removal. (Doc. 25 at 36, ¶ 111; Doc. 18-2 at 34) Accordingly, Petitioners “challenge[] the procedure and substance of an agency determination” and that determination is “‘inextricably linked' to [an] order of removal.” Martinez, 704 F.3d at 623. The Court therefore lacks jurisdiction under § 1252(a)(5) over Petitioners' claims based on their applications for adjustment of status and waivers because those claims are inextricably linked to an order of removal. Id.
F. Petitioners' claims under the APA do not establish jurisdiction
Petitioners' claims based on Respondents' denial of Petitioner's rights under the APA fail to establish jurisdiction in the Court. Petitioners contend that the Respondents' decisions to deny Petitioners' applications for adjustment of status were arbitrary, capricious, and represent an abuse of discretion under the APA. (Doc. 25 at 75-76) As noted by the Western District of Washington:
[a] district court has subject matter jurisdiction over any sufficiently stated claims for relief under the APA. Norton v. S. Utah Wilderness Alliance, 542
U.S. 55, 63-65 (2004). Indeed, the Ninth Circuit has recognized that “Sections 701-06 of the APA supply a ‘default rule ... that agency actions are reviewable under federal question jurisdiction ... even if no statute specifically authorizes judicial review.'” Allen v. Milas, 896 F.3d 1094, 1103 (9th Cir. 2018) (quoting ANA Int'l, Inc. v. Way, 393 F.3d 886, 890 (9th Cir. 2004)). Nevertheless, the APA anticipates that Congress might abrogate this presumption of judicial review, such as when the statute precludes judicial review. Id.; see also 5 U.S.C. § 701(a)(1).Zhang v. United States, No. C19-1211-RSM, 2020 WL 2114500, at *3 (W.D. Wash. May 4, 2020). In Zhang, the district court concluded that because the plaintiff was an overstay participant in the VWP who had not applied for asylum and did not challenge the validity of his no-contest waiver, and because the VWP statute expressly precluded judicial review of the decision to revoke the plaintiff's VWP status, the court lacked subject matter jurisdiction under the APA to review the plaintiff's determination of inadmissibility. Id. The same conclusion applies here to Petitioners' claims under the APA, because Petitioners do not assert the right to asylum or challenge the validity of their no-contest waiver, and they have waived the right to “contest, other than on the basis of an application for asylum, any action for removal of the alien.” 8 U.S.C. § 1187(b).
G. The Suspension Clause does not provide the relief Petitioners seek
Petitioners contend that any provision of 8 U.S.C. § 1252 that is applied to strip the Court's jurisdiction “is unconstitutional as applied.” (Doc. 44 at 34) Petitioners base this conclusion on the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Further, Petitioners cite the United States Supreme Court's decision in INS v. St. Cyr, in which the Supreme Court observed that “because of that Clause, some ‘judicial intervention in deportation cases' is unquestionably ‘required by the Constitution.'” INS v. St. Cyr, 533 U.S. 289, 300 (2001) (quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953)).
No federal circuit court of appeals has directly considered the application of the Suspension Clause to the removal of a VWP-entrant petitioner. In Ferry, the Tenth Circuit determined that by signing the VWP waiver, the petitioner had “received all of the due process to which he was entitled.” 457 F.3d at 1129. Similarly, in Riera-Riera, the Ninth Circuit found that “the restrictions of the VWP comport with whatever due process such admittees are entitled.” 841 F.3d at 1080. These decisions may suggest that even if a VWP entrant is unable to bring their claim on removability in federal court, the Suspension Clause is not violated because the VWP-entrant willingly and knowingly waived the right to pursue an action to contest removal. In rejecting a VWP-entrant petitioner's claim that he could not be removed before receiving a determination on his application for a U-Visa which would cancel removal proceedings, the Eastern District of Michigan stated that “with respect to the Suspension Clause issue, [the petitioner], by entering this country via the Visa Waiver Program, has waived any right he has to a proceeding to contest his removal, including a habeas corpus proceeding.” Mingrone v. Adducci, No. 2:17-cv-11685, 2017 WL 4909591 at *6 (E.D. Mich. July 5, 2017).
After briefing was completed in this action, Respondents filed a notice of supplemental authority regarding the recent United States Supreme Court decision in Dep't of Homeland Sec. v. Thuraissigiam, __U.S.____, 140 S.Ct. 1959 (2020). (Doc. 49) In Thuraissigiam, the Supreme Court held that 8 U.S.C.A. § 1225(e)(2) as applied did not violate the Suspension Clause or the Due Process Clause of the United States Constitution. Id. at 1963-64. Thuraissigiam involved a foreign national who was stopped just 25 yards after crossing the southern border without inspection or an entry document and whose asylum request and subsequent federal habeas petition had been denied. Id. at 1967-68. The district court dismissed the petition for lack of jurisdiction. Thuraissigiam v. Dep't of Homeland Sec., 917 F.3d 1097, 1100 (9th Cir. 2019). The Ninth Circuit reversed, stating that 8 U.S.C.A. § 1252(e)(2) violated the Suspension Clause because it did not provide the petitioner a meaningful opportunity to establish that § 1252(e) violated the Clause as applied to him. Id. The United States Supreme Court granted certiorari on the specific question of whether, as applied to the respondent, 8 U.S.C. § 1225(e)(2) is unconstitutional under the Suspension Clause. Thuraissigiam, __U.S.__, 140 S.Ct. at 1963. Respondents state that this decision is relevant to Petitioners' Emergency Motion for Preliminary Injunction and/or Temporary Restraining Order (Doc. 2).
Title 8 U.S.C. § 1252(e)(2) provides that judicial review of expedited removal orders under 8 U.S.C. § 1225(b)(1) pertaining to inspection of aliens arriving in the United States is available in habeas corpus proceedings on the limited issues of whether the petitioner is an alien, whether the petitioner was ordered removed under § 1225(b)(1), or whether the petitioner can show he was admitted for permanent residence, as a refugee, or has been granted asylum.
The Thuraissigiam majority opinion noted that the alien did not seek release from custody, but instead pursued an additional opportunity to obtain asylum, and held that the alien's claim fell outside the scope of the writ as it existed when the Constitution was adopted in 1787. Id. The Supreme Court found, following its decision in INS v. St. Cyr, that at a minimum, the Suspension Clause protected the writ as it existed in 1789, and rejected the alien's argument that existing caselaw provided support for his argument that the Suspension Clause guaranteed a more expansive habeas right than release from illegal custody, such as the alien's request for vacatur of his removal order and an order requiring DHS to provide him with a new . . . opportunity to apply for asylum and other relief from removal.” Id. at 1970 (citation and internal quotation marks omitted). The Court also determined that 8 U.S.C.A. § 1252(e)(2) did not violate the Due Process Clause, declaring that aliens in the respondent's position have only those rights Congress has provided by statute, and respondent had been provided the right to a determination whether he had a significant possibility of establishing eligibility for asylum. Id. at 1981-83. The Supreme Court observed that “we have no evidence that the writ as it was known in 1789 could be used to require that aliens be permitted to remain in a country other than their own, or as a means to seek that permission.” Id. at 1974.
Petitioners here seek to postpone their removal by means of additional procedure they hope will result in withdrawal of their removal orders and request the Court to stay removal until that process is completed. The Supreme Court's statement about the ability of an alien to use a writ of habeas petition to assert the right to remain in this country while seeking relief from removal superficially appears to support the Respondents' position in this matter. Nevertheless, differences between the circumstances applicable to the respondent in Thuraissigiam and those presented here suggest that the Supreme Court's holdings in Thuraissigiam are not directly applicable here. As Petitioners emphasize, the statute at issue in Thuraissigiam was 8 U.S.C. § 1252(e) , which is not at issue in the Amended Petition here, and Thuraissigiam involved an asylum seeker who had not made an entry into the United States, as contrasted with Petitioners, who entered legally pursuant to the VWP but then illegally remained. (Doc. 52 at 1, 140 S.Ct. at 1967.) Petitioners do not argue rights associated with asylum applications but instead claim entitlement to the “protection of procedural and substantive rights afforded them by statute and regulation.” (Doc. 52 at 5)
The Supreme Court noted that § 1252(e) “limits the review that an alien in expedited removal may obtain via a petition for a writ of habeas corpus.” Thuraissigiam, 140 S.Ct. at 1966.
Despite that Thuraissigiam is not directly applicable here, Petitioners' arguments do not avoid denial of their Suspension Clause claims. Petitioners have not established that a petition for review filed in the Ninth Circuit Court of Appeals would not provide an adequate opportunity for review of their challenge to removal. See Swain v. Pressley, 430 U.S. 372, 381 (1977) (substitution of collateral remedy that is neither inadequate nor ineffective to test the legality of person's detention does not constitute a suspension of the writ). As previously noted, § 1252(a)(5) provides that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter[.]” In Momeni, the Ninth Circuit stated that while it concluded the scope of its jurisdiction to hear the VWP-entrant petitioner's claim that he was allowed to remain in the United States to pursue adjustment of his status was “arguable, ” it assumed for the purposes of the case that it had jurisdiction “in order to avoid the constitutional argument raised by [the petitioner] that the REAL ID act could not deprive the courts of habeas jurisdiction without violating the Suspension Clause[.]” Momeni, 521 F.3d at 1096.
Undersigned recommends the Court hold that it lacks jurisdiction to review Petitioners' removal-based claims pursuant to § 1252(a)(5). Further, pursuant to Momeni, a petition for review filed with the Ninth Circuit provides Petitioners with any adequate and appropriate judicial review of their claims to which Petitioners may be entitled. Accordingly, it is recommended that Counts Twelve, Sixteen, and Eighteen, which allege Respondents' denial of Petitioners' applications for adjustment of status and removal of Petitioners without any opportunity for meaningful judicial review violates the Suspension Clause, should be denied.
H. Petitioners have not established a right to relief under the Mandamus Act
Petitioners seek relief requesting the Court to “order Respondents to adjudicate Petitioners' applications in an unbiased, fair manner.” (Doc. 25 at 80) Such relief would fall under the provisions of the Mandamus Act, which grants district courts “original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “Mandamus is an extraordinary remedy granted in the court's sound discretion.” Johnson v. Reilly, 349 F.3d 1149, 1154 (9th Cir. 2003) (citation omitted). To obtain mandamus relief, a petitioner must demonstrate: (1) the petitioner has a clear and certain claim; (2) the respondent has a non-discretionary, ministerial duty, which is so plain as to be free from doubt; and (3) the petitioner does not have an adequate available remedy. Id. at 1153.
Under the VWP statute, Petitioners may only contest their removal based on an application for asylum, 8 U.S.C. § 1187(b)(2). Under PM-602-0093, Petitioners may pursue a waiver of grounds of inadmissibility before applying to adjust status, even if they have overstayed the allowed 90-day period, if they are not subject to a removal order. Neither of these circumstances apply to Petitioners. Accordingly, Petitioners have failed to establish they have a clear and certain claim for relief, and they are not entitled to the extraordinary remedy of mandamus.
IV.CONCLUSION
A district court may summarily dismiss a habeas corpus petition “[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Rule 4, foll. 28 U.S.C. § 2254. As discussed above, Petitioners' Counts One through Four challenging their detention are moot, as both Petitioners have been released from detention on orders of supervision. Further, the Court lacks jurisdiction to review the remaining removal-based counts of the Amended Petition pursuant to 8 U.S.C. § 1252(a)(5) and Petitioners' waiver of rights under the VWP. Petitioners' arguments that this court has jurisdiction to review claims that they are entitled to pursue adjustment of status, waivers of inadmissibility, and/or provisional stateside waivers prior to final removal either conflict with, or lack support by, the VWP no-contest waiver, PM-602-0093, and Ninth Circuit caselaw. Essentially, Petitioners invite the Court to recognize rights that have not been established for VWP-entrants in Petitioners' circumstances. Additionally, Petitioners are not entitled to relief pursuant to the Suspension Clause, to the remedy of mandamus, or to the injunctive relief they seek. For these reasons, undersigned recommends that: Petitioners' Counts One through Four of the Amended Petition be dismissed as moot; that Counts Nine through Eleven, Thirteen through Fifteen, and Seventeen be dismissed without prejudice for lack of jurisdiction; that Counts Twelve, Sixteen, and Eighteen be denied; and that the Court's existing January 31, 2020, stay of removal (Docs. 6, 28) remain in effect for 30 days following entry of judgment to permit Petitioners to file a petition for review if they so choose.
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.
Accordingly, IT IS THEREFORE RECOMMENDED that Petitioners' Counts One through Four of the Amended Petition be dismissed as moot; that Counts Nine through Eleven, Thirteen through Fifteen, and Seventeen be dismissed without prejudice for lack of jurisdiction; and that Counts Twelve, Sixteen, and Eighteen be denied. (Doc. 25)
IT IS FURTHER RECOMMENDED that the Court's January 31, 2020, stay of removal (Docs. 6, 28) remain in effect for 30 days following entry of judgment to permit Petitioners, if they so choose, to file a petition for review in the Ninth Circuit Court of Appeals.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72. 29