Raghav v. Wolf ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Raghav Raghav, No. CV-20-00551-PHX-DJH 10 Petitioner, ORDER 11 v. 12 Chad Wolf, et al., 13 Respondents. 14 15 This matter is before the Court on Respondents’ Motion to Dismiss pursuant to Fed. 16 R. Civ. P. 12(b)(3), or alternatively to transfer the matter to the United States District Court 17 for the Southern District of Mississippi, (Doc. 18) and the Report and Recommendation 18 (“R&R”) issued by United States Magistrate Judge Camille D. Bibles on September 29, 19 2020 recommending that this matter be dismissed (Doc. 30). 20 Petitioner seeks judicial review of an order of expedited removal from the United 21 States. (Doc. 1). Petitioner asserts that this Court has jurisdiction pursuant to Department 22 of Homeland Security v. Thuraissigiam, 917 F.3d 1097 (9th Cir. 2019) (“Thuraissigiam 23 I”). Subsequent to the briefing on the Motion to Dismiss, the Supreme Court reversed the 24 Ninth Circuit’s decision in Thuraissigiam I, and divested federal courts of subject matter 25 jurisdiction over actions requesting judicial review of expedited removal orders. Dep’t of 26 Homeland Sec. v. Thuraissigiam, ___ U.S. ___, 140 S.Ct. 1959 (2020) (“Thuraissigiam 27 II”). Following a sound analysis, Magistrate Judge Bibles recommends the Petition be 28 1 dismissed for lack of subject matter jurisdiction. Petitioner filed an Objection (Doc. 31)1, 2 to which Respondents filed a Response (Doc. 32). 3 I. Background 4 Raghav Raghav (“Petitioner”) is a native and citizen of India, who entered the 5 United States without inspection on or about June 30, 2019, near Calexico, California. 6 (Doc. 1-2 at 4, 11, 23, 25-26). Petitioner was apprehended, determined to be inadmissible, 7 and placed in expedited removal proceedings under § 235(b)(1) of the Immigration and 8 Nationality Act (“INA”), codified at 8 U.S.C. § 1225(b)(1). (Doc. 1-2 at 2, 23-27). 9 Petitioner expressed a fear of persecution or torture if returned to India, and he was referred 10 for a credible fear determination and transferred to the La Palma Correctional Center in 11 Eloy, Arizona. (Doc. 1-2 at 5, 26-27). 12 On August 20, 2019, Petitioner appeared before an asylum officer (“AO”) for a 13 credible fear interview. (Doc. 1-2 at 5). The AO found Petitioner failed to establish a 14 credible fear of persecution or torture if removed to India. (Id. at 4, 8). Petitioner requested 15 review by an Immigration Judge pursuant to 8 U.S.C. § 1255(b)(1)(b)(iii)(III). The 16 Immigration Judge affirmed the AO’s negative credible fear determination and, on August 17 21, 2019, Petitioner was ordered removed from the United States pursuant to § 235(b)(1) 18 of the INA. (Doc. 1 at 5-6, 9; Doc. 18 at 2). On September 29, 2019, Raghav was 19 transferred from the Eloy detention facility to the Adams County Detention Center in 20 Natchez, Mississippi. (Doc. 18-1 at 2). 21 Petitioner’s Count One asserts that the Asylum Office and Immigration Court 22 violated his due process rights by ignoring evidence of his conditions in India and 23 erroneously applying the law. (Doc. 1 at 11-17). In Count Two, Petitioner alleges that he 24 is entitled to final agency review of the Asylum Office’s negative credible fear 25 determination pursuant to 5 U.S.C. § 704 of the Administrative Procedures Act. (Id. at 17- 26 1 Petitioner’s Objection to the R&R spans 18 pages, in violation of LRCiv 7.2(e)(3), which 27 provides that “unless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.” There are 28 grounds to strike the non-compliant Objection. Nonetheless, the Court has considered the arguments made in the Objection but cautions counsel against such actions in the future. 1 19). 2 Petitioner asks the Court to assume jurisdiction over this matter, issue a writ of 3 habeas corpus, conduct a hearing, declare that he is being detained in violation of law 4 because the removal order violated his statutory, regulatory, and constitutional rights, 5 vacate the expedited removal order, order that he be provided an additional meaningful 6 opportunity to apply for asylum and other relief from removal, and award him reasonable 7 costs and attorney’s fees. (Doc. 1). 8 Respondents filed a motion to dismiss or alternatively to transfer the matter. (Doc. 9 18). On June 26, 2020, Respondents filed a notice of supplemental authority advising the 10 Court of the United States Supreme Court’s June 25, 2020, decision in Thuraissigiam II. 11 (Doc. 21). Respondents argue that in reversing the Ninth Circuit, the Supreme Court 12 confirmed the constitutionality of jurisdiction stripping provisions of relevant federal 13 statutes related to expedited removal procedures, therefore divesting courts of jurisdiction 14 over these types of cases. (Id.) 15 II. The R&R 16 Magistrate Judge Bibles determined that this Court does not have subject matter 17 jurisdiction over Petitioner’s claims, and they are therefore barred. (Doc. 30). The R&R 18 recommends that the Petition be denied and the case dismissed.2 (Id.) 19 A. Standard of Review 20 “A district judge may reconsider a magistrate’s order in a pretrial matter if that order 21 is ‘clearly erroneous or contrary to law.’” Osband v. Woodford, 290 F.3d 1036, 1041 (9th 22 Cir. 2002) (quoting 28 U.S.C. § 636(b)(1)(A)); See also Grimes v. City & County of S.F., 23 951 F.2d 236, 240 (9th Cir. 1991) (“The district court shall defer to the magistrate’s orders 24 unless they are clearly erroneous or contrary to law.”) (citing Fed. R.Civ. P. 72(b)). “‘The 25 clearly erroneous standard applies to the magistrate judge’s factual findings while the 26 contrary to law standard applies to the magistrate judge’s legal conclusions, which are 27 2 The R&R discussed other grounds by which to grant the relief requested by Respondents, 28 including transferring venue. Because the Court finds that it does not have subject matter jurisdiction, it will not discuss these alternative grounds. 1 reviewed de novo.’” Lovell v. United Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2 2010) (quoting Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007)). 3 Under the “clearly erroneous” standard, “‘a reviewing court must ask whether, ‘on the 4 entire evidence,’ it is ‘left with the definite and firm conviction that a mistake has been 5 committed.’” In re Optical Disk Drive Antitrust Litigation, 801 F.3d 1072, 1076 (9th Cir. 6 2015) (internal quotes omitted); accord. Easley v. Cromartie, 532 U.S. 234, 242 (2001). 7 “A decision is contrary to law if it applies an incorrect legal standard or fails to consider 8 an element of the applicable standard.” Lovell, 728 F. Supp. at 1101 (internal quotations 9 omitted). 10 Moreover, in every case, it is presumed that a case is outside the jurisdiction of the 11 federal courts unless it is proven otherwise. Kokkonen v. Guardian Life Ins. Co. of 12 America, 511 U.S. 375, 377 (1994). The Court is obligated to determine sua sponte 13 whether it has subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 514 14 (2006); see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks 15 subject-matter jurisdiction, the court must dismiss the action.”). 16 B. Expedited Removal 17 Congress authorized the Department of Homeland Security to summarily remove 18 inadmissible aliens who arrived at or illegally crossed the border. This practice has come 19 to be known as “expedited removal.” 8 U.S.C. § 1225(b)(1). Under this removal 20 mechanism, certain aliens who lack valid entry documentation or make material 21 misrepresentations are “order[ed] . . . removed from the United States without further 22 hearing or review unless the alien indicates either an intention to apply for asylum under 23 [8 U.S.C. § 1158] or a fear of persecution.” 8 U.S.C. § 1225(b)(1)(A)(i); see id. § 24 1182(a)(6)(C), (a)(7). 25 When an arriving alien indicates a desire to apply for asylum, the inspecting officer 26 must “refer the alien for” an interview. Id. At the interview, an asylum officer assesses 27 the degree of credible fear, “taking into account the credibility of the statements made by 28 the alien in support of the alien’s claim.” Id. § 1225(b)(1)(B)(v). If an asylum officer 1 concludes that an alien has a credible fear, the officer refers the alien to full removal 2 proceedings under 8 U.S.C. § 1229(a). If the asylum officer determines that the alien lacks 3 a credible fear, the alien may seek review before an immigration judge. Id. § 4 1225(b)(1)(B)(iii)(I), (III). When an immigration judge disagrees with the asylum officer 5 and concludes the alien has established a credible fear, the asylum officer’s decision is 6 vacated. 8 C.F.R. § 1003.42(f). Where an immigration judge finds the alien lacks a 7 credible fear, the alien is “removed from the United States without further hearing or 8 review.” 8 U.S.C. § 1225(b)(1)(B)(iii)(I). Crucially, the INA precludes federal court 9 review of credible-fear determinations. 8 U.S.C. §§ 1225(b)(1)(C); 1252(a)(2)(A)(iii); 10 1252(e)(2). 11 C. Federal Court Review 12 In general, courts are authorized to grant a writ of habeas corpus under 28 U.S.C. 13 § 2241 where a petitioner is “in custody under or by color of the authority of the United 14 States . . . in violation of the Constitution or laws or treaties of the United States.” 28 15 U.S.C. §§ 2241(c)(1), (3). However, except as provided under 8 U.S.C. § 1252(e), courts 16 lack jurisdiction to review “any individual determination or . . . claim arising from or 17 relating to the implementation or operation of an order of [expedited] removal.” 8 U.S.C. 18 § 1252(a)(2)(A)(i). Under § 1252(e), “review of expedited removal orders in a habeas 19 corpus petition . . . [is] limited to an inquiry over whether: (A) the petitioner is an alien, 20 (B) whether the petitioner was ordered removed under § 1225(b)(1), and (C) whether the 21 petitioner can prove by a preponderance of the evidence that the petitioner is an alien 22 lawfully admitted for permanent residence, or is a refugee or has been granted non- 23 terminated asylum.” Galindo- Romero v. Holder, 640 F.3d 873, 875 n.1 (9th Cir. 2011). 24 A court may not review a credible fear determination underlying an expedited removal 25 order, § 1252(a)(2)(A)(iii), or review whether the petitioner “is actually inadmissible or 26 entitled to any relief from removal,” § 1252(e)(5). 27 D. Analysis 28 Petitioner seeks review of the credible fear proceedings and negative credible fear 1 determination that resulted in the order for his expedited removal. (Doc. 1). The R&R 2 recommends dismissing the Petition on the basis that the review sought is barred pursuant 3 to the jurisdiction stripping provisions in 8 U.S.C. §§ 1252(a)(2)(A) and (e)(2), and based 4 on the Supreme Court decision in Thuraissigiam. (Doc. 30). 5 Petitioner argues that “the expedited removal process as applied to Petitioner was 6 violative of the procedural due process Congress has given him by statute and was arbitrary 7 and capricious.” (Doc. 31 at 6). Thus, he contends that Thuraissigiam II does not apply 8 because the asylum officer and Immigration Judge did not properly apply federal 9 regulations, resulting in his unlawful detention.3 (Id.) What Petitioner fails to provide is 10 any legal basis to explain how the jurisdiction stripping provisions contained in Sections 11 1252(a)(2)(A)(iii) and 1252(e)(2) provide this Court jurisdiction over his claims. 12 In order to resolve this dispute, the Court must analyze the Supreme Court’s recent 13 decision in Thuraissigiam II, which was decided during the pendency of this matter. There, 14 the Supreme Court ruled that the limited review afforded by 8 U.S.C. § 1252(e)(2) does 15 not violate the Suspension Clause or Due Process Clause as applied to an alien, like 16 Petitioner, who was apprehended after crossing the border illegally and placed in expedited 17 removal proceedings. Thuraissigiam, 140 S. Ct. at 1983. In Thuraissigiam I, the Ninth 18 Circuit acknowledged that Section 1252(e) did not provide jurisdiction to review the 19 petitioner’s claim but nonetheless found that the Suspension Clause provided a petitioner 20 the right to assert “legal challenges to the procedures leading to his expedited removal.”4 21 3 In his Objection to the R&R, Petitioner asserts for the first time that he is seeking 22 immediate release from custody. On the one hand, Petitioner argues in the Objection that “put simply: it’s not a petition for a writ of habeas if it requests anything other than the 23 detainee’s release,” while on the same page arguing that “the fact that Petitioner seeks relief beyond immediate release does not deprive the court of subject matter jurisdiction.” (Doc. 24 31 at 4). Notably absent from his Petition, however, is any request for a simple release that he now claims to seek. The Petition itself establishes that, like the petitioner in 25 Thuraissigiam, Petitioner “does not want a ‘simple release’ but, ultimately, the opportunity to remain lawfully in the United States.” Thuraissigiam, 140 S. Ct. at 1971. As Petitioner 26 does not request this relief, the Court will not consider whether it would have had jurisdiction to consider the issue had it been requested in the Petition. 27 4 The Ninth Circuit also discussed that it and other circuit courts throughout the country 28 consistently denied review to these claims under Section 1252(e). Nonetheless, the Ninth Circuit concluded that Section 1252(e) violated the Suspension Clause. Thuraissigiam v. 1 Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), rev’d and 2 remanded. sub nom. In reversing the Ninth Circuit, the Supreme Court held that neither 3 the Suspension Clause nor the Due Process Clause provides a petitioner the remedy of 4 judicial review of a credible fear proceeding. Thuraissigiam, 140 S. Ct. at 1983. The 5 Supreme Court clarified that an alien subject to an expedited removal order “has only those 6 rights regarding admission that Congress has provided by statute,” those being the three 7 areas enumerated in 8 U.S.C. § 1252(e). Id. The court further noted that Section 8 1252(a)(2)(A)(i) provides that “no court shall have jurisdiction to review” a “claim arising 9 from or relating to the implementation or operation of an order of [expedited] removal,” 10 which extends to the determination that “an alien lacks a credible fear of persecution.” Id. 11 at 1966. 12 Here, Petitioner relies on the Ninth Circuit’s now vacated holding in asserting 13 jurisdiction before this Court, stating that “importantly, Petitioner filed this habeas petition 14 on the basis of the Ninth Circuit’s decision in Thuraissigiam v. USDHS, published earlier 15 this year.” (Doc. 19 at 12). Clearly, this vacated decision no longer provides subject matter 16 jurisdiction over Petitioner’s claims. Petitioner seeks review of his credible fear 17 proceedings and the negative determination that resulted in his order of removal. 18 Petitioner’s claims do not fall within one of the three limited jurisdictional grounds for 19 challenging an expedited removal order under Section 1252(e); he does not contest that he 20 is an alien, or that he was ordered removed, or that he had not already been granted entry 21 as a lawful permanent resident, refugee, or asylee.5 Therefore, the Court lacks jurisdiction 22 to review “any individual determination or to entertain any other cause or claim arising 23 from or relating to the implementation or operation of an order of removal . . . .” 8 U.S.C. 24 § 1252(a)(2)(A)(i). 25 Accordingly, as Magistrate Judge Bibles concluded in the R&R, the prohibitions on 26 U.S. Dep’t of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019). 27 5 Petitioner admits as much when stating in his Objection that Thuraissigiam II held “individuals like Thuraissigiam and Petitioner here, who have barely crossed into the U.S. 28 and have done so without permission, are afforded rights to the procedural due process created by Congress only.” (Doc. 31 at 5). judicial review contained in §§ 1252(a)(2) and (e)(2), and further cemented in 2|| Thuraissigiam I, strip this Court of jurisdiction to review Petitioner’s claims. As the Court □□ lacks subject matter jurisdiction to review the Petition, the Court will adopt the R&R and 4|| dismiss this matter with prejudice. 5 Accordingly, 6 IT IS HEREBY ORDERED that the Report and Recommendation (Doc. 30) is 7|| ACCEPTED and ADOPTED as the Order of this Court. 8 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 10 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action 11 || and enter judgment accordingly. 12 Dated this 26th day of February, 2021. 13 14 fe — □□ 15 norable'Diang/4. Hunfetewa 16 United States District Fudge 17 18 19 20 21 22 23 24 25 26 27 28 -8-