(HC) Chaudhry v. Barr ( 2019 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMZAN ALI CHAUDHRY, No. 2:19-CV-0682-TLN-DMC-P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 WILLIAM P. BARR, et al., 15 Respondent. 16 17 Petitioner, Ramzan Ali Chaudhry, proceeding with retained counsel, brings this 18 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Pending before this Court is 19 Respondents’ motion to dismiss and response to order to show cause (ECF No. 7). 20 21 I. Background1 22 Petitioner is a 43-year old native and citizen of Pakistan who has lived in the 23 United States for almost 30 years. He is married to a U.S. Citizen, and together they have three 24 U.S.-born children. On August 7, 1998, what is now the Department of Homeland Security 25 issued a Notice to Appear—charging Petitioner with removal. Petitioner conceded removability 26 and applied for asylum, withholding of removal, and relief under the Convention Against Torture 27 1 The following facts are taken from Chaudhry’s Petition for a Writ of Habeas Corpus, ECF No. 28 1, unless otherwise noted. 1 (“CAT”). On January 5, 2012, following an evidentiary hearing, an Immigration Judge (“IJ”) 2 denied Petitioner’s application for asylum, withholding of removal, and CAT claim, and ordered 3 Petitioner removed. Petitioner appealed the IJ’s decision to the Board of Immigration Appeals 4 (“BIA”). The BIA dismissed the appeal on May 23, 2014. Petitioner appealed the BIA’s 5 decision and on August 25, 2017, the Ninth Circuit denied the Petition for review. ECF No. 14-1 6 at 1-9. 7 On February 19, 2019, Petitioner was arrested by Immigration and Customs 8 Enforcement (“ICE”) and transferred to Yuba County Detention Center. On February 19, 2019, 9 Petitioner filed a motion to reopen with the BIA based on changed country conditions. Petitioner 10 claims he fears being the victim of an honor killing if returned to Pakistan. Petitioner also filed 11 an emergency motion for stay of deportation with the BIA, which was denied on March 26, 2019. 12 Though the BIA denied Petitioner’s stay motion, the BIA has not yet ruled on his motion to 13 reopen. On March 26, 2019, Petitioner filed a Petition for review of the BIA’s denial of the 14 motion to stay in the U.S. Court of Appeals for the Ninth Circuit. See Case No. 19-70722 ECF 15 No. 1. On April 22, 2019, the Ninth Circuit dismissed the appeal because the denial of a stay is 16 not a final order of removal. See Id. at ECF No. 8. 17 On February 20, 2019, Petitioner filed a Petition for a Writ of Habeas Corpus in 18 this District, Case No. 19-cv-00327-JAM-GGH, seemingly challenging the merits of his final 19 removal. See Case No. 19-cv00327, ECF Nos 1 and 6. The magistrate judge assigned to the case 20 issued Findings and Recommendations on February 26, 2019, recommending that the petition be 21 dismissed for lack of jurisdiction. Id. at ECF No. 6. The Court adopted those findings on April 22 17, 2019, and the case was closed. Id. at ECF No 8-9. 23 Petitioner thereafter filed a second Petition for a Writ of Habeas Corpus with this 24 Court on April 22, 2019, and a motion for Preliminary Injunction on April 23, 2019. ECF Nos. 1 25 and 3. On May 7, 2019, this Court construed Petitioner’s motion for Preliminary injunction as a 26 motion for a temporary restraining order (“TRO”) and so construed, granted the motion, ordering 27 the government to show cause why Petitioner’s Preliminary Injunction should not be granted. 28 ECF No. 5. On May 20, 2019, Respondent filed a motion to dismiss for mootness; response to 1 order to show cause. ECF No. 7. In this motion Respondent informed the Court Petitioner was 2 removed to Pakistan on April 23, 2019. Id. Petitioner filed his opposition to the motion to 3 dismiss on May 27, 2019, and Respondent filed their reply on July 10, 2019. ECF Nos. 9 and 10. 4 On July 10, 2019, this Court ordered Petitioner to file a status report, which 5 Petitioner filed on July 11, 2019. ECF Nos. 10 and 11. The status report indicates Petitioner is 6 alive but in hiding in a hotel in Karachi, Pakistan, surviving on money sent from his family in the 7 U.S. ECF No. 11. Subsequently, this Court ordered additional briefing from the parties on 8 subject matter jurisdiction and whether Petitioner’s deportation rendered this case moot and held 9 a hearing on Respondent’s motion to dismiss on July 19, 2019. ECF No. 12 and 15. Respondent 10 raises two main arguments in their motion to dismiss— (1) this Court lacks subject matter 11 jurisdiction and (2) the petition for a writ of habeas corpus is moot. 12 13 II. Subject Matter Jurisdiction 14 This case presents a complex jurisdictional question related to the relationship 15 between habeas corpus and immigration law. The jurisdictional question here is also highly 16 specific, relating only to circumstances like the one present here where: (1) an individual has filed 17 a motion to reopen based on changed country conditions and a motion to stay removal in 18 immigration court, (2) and the immigration court either denies the motion to stay or fails to rule 19 on the motion to stay, but the motion to reopen remains pending, (3) and as a result, the individual 20 faces imminent deportation or is deported, and finally that (4) the individual files a petition for a 21 writ of habeas corpus in a district court attempting to remedy or prevent the due process violation 22 created by the imminent or actual deportation. 23 This Court recognized its jurisdictional authority in its May 7, 2019, order granting 24 Petitioner’s motion for a temporary restraining order (“TRO”). ECF No 5. Respondent, not 25 having the benefit of challenging jurisdiction at the TRO stage, now objects to this Court’s 26 jurisdiction in their motion to dismiss. Both parties have fully briefed the issue and their 27 arguments are summarized, in general, below. 28 /// 1 A. Summary of the Parties Arguments 2 1. Respondent’s Argument 3 Respondent argues this Court lacks subject matter jurisdiction over this habeas 4 claim because Congress has expressly divested federal district courts of jurisdiction to review 5 “any claim ‘arising from’ the Government’s execution of an alien’s final order of removal.” ECF 6 No. 7 at 4 (citing Section 1252(g)). Respondent argues, Section 1252(g) divests federal district 7 courts of subject matter jurisdiction—relying on the plain language of 1252(g) as support. 8 Notably, in their motion to dismiss, Respondent does not argue sections 9 1252(a)(5), (b)(9), or (d)(1) expressly divest federal district courts of jurisdiction, but rather 10 section 1252(g) alone is the jurisdictional stripping provision.2 Respondent asserts that 11 sections1252(a)(4), (a)(5), (b)(9), and (d)(1) outline the administrative process for aliens 12 challenging the merits of their immigration cases, but do not, by themselves deprive federal 13 district courts of jurisdiction. Respondent argues the administrative and judicial review 14 procedures created by sections1252(a)(4), (a)(5), (b)(9), and (d)(1) are the exclusive forms of 15 relief available to an alien and because a petition for a writ of habeas corpus is outside this 16 administrative framework, such a petition is improper. Respondent argues that this would make 17 this Court’s exercise of jurisdiction over such a petition similarly improper. 18 2. Petitioner’s Argument 19 Petitioner argues this Court has jurisdiction to rule on the 28 U.S.C. § 2241 habeas 20 petition because Section 1252 (a)(5), (b)(9), and (g) do not deprive this Court of subject matter 21 jurisdiction. Petitioner cites Amarjeet Singh v. Gonzales, 499 F.3d 969 (9th Cir. 2007) for 22 support. Petitioner assets Amrjeet Singh explains that habeas corpus jurisdiction exists where the 23 grounds for petition arose after the entry of the removal order and the only relief sought by the 24 petition was to have a “day in court” at a subsequent proceeding. ECF 1 at 3. Petitioner contends 25 2 In Respondent’s supplemental briefing, however, they state “the Court lacks subject matter 26 jurisdiction pursuant to the Immigration and Nationality Act…which divests this Court and all 27 federal district court (sic.) of jurisdiction to review any action the Government takes to execute a final order of removal.” ECF No. 14 at 3-4 (citing §§ 1252(a)(5), (b)(9), and (g)). This creates 28 some ambiguity related to Respondent’s argument, but changes nothing in this Court’s analysis. 1 that here the alleged new grounds, in the form of the changed country conditions, arose after the 2 entry of his removal order and the only relief he currently seeks is a reasonable opportunity to 3 exercise his statutory right to file his motion to reopen. Id. 4 Further, Petitioner contends that if Section 1252 deprives this Court of habeas 5 jurisdiction in this case and those like it, such a deprivation violates the Suspension Clause of the 6 U.S. Constitution. Id. Petitioner states that under existing Supreme Court law, the Suspension 7 Clause is not violated if the legality of an individual’s detention can be challenged in an 8 alternative form which is both adequate and effective. ECF No. 1 at 4 (citing INS v. St. Cyr, 533 9 U.S. 289, 300(2001)). Here, Petitioner asserts he lacks an adequate and alternative forum to 10 challenge the legality of the Board’s denial of his stay request, since denial of the emergency 11 motion to stay is not reviewable by the Ninth Circuit, and without intervention from this Court, 12 Petitioner has no meaningful way to present his motion to reopen before the Board. Id. 13 B. Legal Framework 14 This unique jurisdictional issue requires the Court to look at the jurisdictional 15 sections in the INA, and the immigration statutes related to motions to reopen based on changed 16 country conditions and motions to stay removal pending resolution of a motion to reopen based 17 on changed country conditions. 18 1. Subject Matter Jurisdiction under the INA 19 The Immigration and Nationality Act (“INA”) as amended by the REAL ID Act of 20 2005, places jurisdictional limits on judicial review of immigration proceedings, including orders 21 of removal. 8 U.S.C. §1252. There are four relevant previsions limiting judicial review: 22 1. Section 1252(a)(5) states, “a petition for review filed with an appropriate court of appeals in accordance with this section shall be 23 the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter.” 24 2. Section 1252(b)(9) states, “Judicial review of all questions of law 25 and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or 26 proceeding brought to remove an alien from the United States…shall be available only in judicial review of a final order 27 under this section…no court shall have jurisdiction, by habeas corpus under section 2241…or by any other provision of law, to 28 review such an order or such questions of law or fact.” 1 3. Section 1252 (d)(1) states, “A court may review a final order of 2 removal only if— (1) the alien has exhausted all administrative remedies available to the alien as of right.” 3 4. Section 1252(g) states, “no court shall have jurisdiction to hear 4 any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence 5 proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” 6 7 Id. 8 2. Right to Reopen Based on Changed Country Conditions 9 “An alien ordered to leave the country has a statutory right to file a motion to 10 reopen his removal proceedings.” Mata v. Lynch, 135 S.Ct. 2150, 2153 (2015) (citing 8 U.S.C. § 11 1229a(c)(7)(A)). In Kucan v. Holder, 558 U.S. 233 (2010), the Supreme Court noted “[t]he 12 motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ 13 of immigration proceedings.” 558 U.S. at 243 (2010) (quoting Dada v. Mukasey, 554 U.S. 1, 18 14 (2008)). If an alien’s motion to reopen is granted, the original order of removal is vacated “as if it 15 never occurred.” Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016) (citing Nken v. Holder, 556 16 U.S. 418, 249 n.1 (2009)). As the Northern District of California properly noted in Sied v. 17 Nielsen—an “alien is not removable while his []reopened case is pending and has the opportunity 18 to be heard on the merits of his underlying asylum or withholding-of-removal claim.” Sied V. 19 Nielsen, No. 17-6785-LB, 2018 WL 1142202, at *7 (N.D. Cal. Mar. 2, 2018). An alien seeking 20 asylum or withholding of removal based on changed country conditions, as Petitioner is here, has 21 no time limit for filing their statutory motion to reopen. 8 U.S.C. § 1229a(c)(7)(C)(ii). 22 3. No Statutory Right to Stay Removal Pending Resolution of a Motion to Reopen 23 24 The INA does not provide an alien with a right to stay removal, while a motion to 25 reopen based on changed country conditions is pending in immigration court. Sied v. Nielsen, 26 No. 17-06785-LB, 2018 WL1142202, * 8-9 (N.D. Cal. Mar. 2, 2018) (noting if the IJ or BIA 27 deny a stay motion but don’t rule on the motion to reopen, the alien is in limbo “with no way to 28 prevent deportation no matter how meritorious his underlying motion to reopen.”) If the 1 immigration court denies a motion to reopen, the order denying the motion to reopen is not 2 reviewable by the court of appeals. Shaboyan v. Holder, 652 F.3d 988, 990-91 (9th Cir. 2011). 3 This means even if the BIA rules on the motion to stay and denies it, there is no right to appeal 4 the stay denial until the BIA also rules on the motion to reopen. 5 4. There is a gap in the immigration statutory framework giving rise to a due process violation to those affected 6 7 Aliens who seek to exercise their statutory right to file a motion to reopen, but who 8 either do not receive a stay of removal (either because the immigration court neglects to rule on it 9 or the immigration court denies the motion to stay removal but not the motion to reopen), will 10 face imminent deportation. This is because there is no statutory right to a stay of removal, and a 11 denial of a stay of removal is not reviewable by a court of appeals. In some cases an alien may be 12 able to present their motion to reopen to an immigration court even if they are removed while 13 their motion is pending3, but in many cases,4 including the case at bar, an alien would be unable 14 to meaningfully present their motion.5 This creates a procedural “gap” in which an alien has a 15 right to file a motion to reopen, but concurrently can be denied the opportunity to meaningfully 16 pursue this statutory right, due to imminent or actual deportation. This gap in the statutory 17 scheme results in the denial of a statutory right without due process of law. See Devitri v. 18 Cronen, 290 F.Supp.3d 86, 92-93 (D. Mass. 2017) (“‘The fundamental requirement of due 19 process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’”) 20 (citing Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). 21 /// 22 /// 23 24 3 See e.g. Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010)(an alien removed to Mexico was able to continue to pursue his motion to reopen after deportation). 25 4 See e.g. Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1142202, at *21 (N.D. Cal. Mar. 2, 2018), appeal dismissed, No. 18-16128, 2018 WL 6624692 (9th Cir. Sept. 14, 2018) (involving 26 an alien facing removal to Eritrea, where it was uncontested he would not have the opportunity to 27 pursue his motion to dismiss if deported). 5 It is uncontested in this case that Petitioner is not able to meaningfully pursue his motion to 28 reopen due to his removal. 1 C. Jurisdictional Analysis 2 Respondent challenges the jurisdiction of the District Court here. Respondent’s 3 jurisdictional argument is twofold. First, Respondent focuses on 8 U.S.C. section 1252(g) which 4 Respondent contends divests federal district courts of jurisdiction to review “any claim ‘arising 5 from’ the Government’s execution of an alien’s final order of removal. ECF No. 7 at 4, 6 (emphasis added). Respondent argues Petitioner’s habeas petition constitutes a claim arising 7 from the Government’s execution of an alien’s final order of removal, and thus this Court has no 8 jurisdiction over the claim. Second, Respondent argues the only way Petitioner can obtain any 9 form of relief related to his immigration proceedings is through the administrative process 10 outlined in the INA, specifically sections 1252(a)(4), (a)(5), (b)(9), and (d)(1). Id. at 6. Because 11 a petition for a writ of habeas corpus is not within the statutory framework outlined in the INA, 12 Respondent contends that such a petition is improper. 13 However, both the Supreme Court and the Ninth Circuit have advised that the 14 courts should narrowly construe restrictions on jurisdiction. Montero-Martinez v. Ashcroft, 227 15 F.3d 1137, 1141 (9th Cir. 2002) (citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 16 471, 482-83 (1999). For the reasons discussed below, the Court finds that it has jurisdiction to 17 hear Mr. Chaudhry’s case and section 1252(g) does not divest it of jurisdiction. 18 1. Section 1252(g) does not deprive this Court of jurisdiction over Chaudhry’s habeas petition. 19 20 Section 1252(g) provides, “no court shall have jurisdiction to hear any cause or 21 claim by or on behalf of any alien arising from the decision or action by the Attorney General to 22 commence proceedings, adjudicate cases, or execute removal orders against any alien under this 23 chapter.” 8 U.S.C. §1252(g). Unlike sections 1252(a)(4), (a)(5), (b)(9), and (d)(1), which address 24 judicial review of an underlying removal order, section 1252(g) speaks only to “decision[s] or 25 action[s] by the Attorney General. Compare, 8 U.S.C. §§ 1252(a)(4), (a)(5), (b)(9), and (d)(1) 26 with § 1252(g). For this reason, section 1252(g) has been interpreted to only divest courts of 27 jurisdiction over certain discretionary decision by the Attorney General. Catholic Soc. Servs., 28 Inc. v. INS, 232 F.3d 1139, 1150 (9th Cir. 2000) (en banc) (“As interpreted by the Supreme Court 1 in Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482–83 (1999), 2 [Section 1252(g)] applies only to the three specific discretionary actions mentioned in its text, not 3 to all claims relating in any way to deportation proceedings.”) 4 The Supreme Court has held the purpose of 1252(g) is to limit judicial constraints 5 placed on prosecutorial discretion. See United States v. Hovsepian, 359 F.3d 114, 1155 (9th Cir. 6 2004) (en banc) (citing American-Arab Anti-Discrimination Committee, 525 U.S at 485 n. 9). 7 Further, the Ninth Circuit has consistently held section 1252(g) should be interpreted narrowly. 8 Id. (citing Barahona-Gomez v. Reno, 236 F.3d 1115, 1120-21 (9th Cir. 2001). As such, the 9 Ninth Circuit has held section 1252(g) does not divest courts of jurisdiction over cases that do not 10 address issues of prosecutorial discretion. See Barahona-Gomez, 236 F.3d at 1118 (stating 11 section 1252(g) does not prevent a district court from exercising jurisdiction over due process 12 claims that do not arise from a decision or action of the Attorney general to (1) commence 13 proceedings, (2) adjudicate cases, or (3) execute removal orders). The Northern District of 14 California, in Sied v. Nielsen, provided three examples where the Ninth Circuit has held district 15 courts have jurisdiction: 16 …[cases] alleg[ing] that the government violated due process by refusing to issue any decisions granting aliens a suspension of 17 deportation, see Barahona-Gomez, 236 F.3d at 1117–21, [cases] alleg[ing] that the government violated due process by refusing to 18 accept aliens' legalization applications, see Catholic Soc. Servs., 232 F.3d at 1144, 1150, [and] [cases] alleg[ing] that the 19 government violated due process by seizing aliens' green cards and failing to provide them notice that they had to surrender for 20 deportation, see Sulit v. Schiltgen, 213 F.3d 449, 452–53 & n.1 (9th Cir. 2000). 21 22 Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1142202, at *21 (N.D. Cal. Mar. 2, 23 2018), appeal dismissed, No. 18-16128, 2018 WL 6624692 (9th Cir. Sept. 14, 2018). 24 Respondent argues it is clear from the statutory text of section 1252(g) this Court 25 has no jurisdiction here. Respondent asserts “[i]f there was any doubt about section 1252’s 26 applicability to habeas claims, Congress clarified in 2005 that section 1252(g)’s reference to 27 ‘statutory or nonstatutory’ provisions of law ‘include[es] section 2241 of Title 28, or any other 28 habeas corpus provision.” ECF No. 7 at 5 (citing Pub. L. 109-13, Div. B, sect. 106(a)(3) (2005)). 1 However, Petitioner’s claim does not arise from a discretionary decision by the Attorney 2 General. The claim is not a challenge to the commencement of a proceeding, adjudication of a 3 case, or execution of removal orders. Rather, the claim here is a due process violation arising 4 from Petitioner’s inability to meaningfully pursue his motion to reopen. This is a quintessential 5 “general collateral challenge[]” to an alleged “unconstitutional practice and policy used by the 6 agency.” Barahona-Gomez, 236 F.3d at 1118 (quoting Walters v. Reno, 145 F.3d 1032, 1052 7 (9th Cir. 1998)). 8 Respondent simply ignores the due process violation that forms the basis of the 9 habeas petition, arguing instead the habeas petition is a “request for more time to challenge the 10 imminent execution of his removal order, a request which under any linguistic construction 11 “aris[es] from the decision…by the [Secretary] to…execute [Petitioner’s] removal order.” 12 Respondent’s linguistic construction argument is without merit. The habeas petition arose from a 13 due process violation created by Chaudhry’s detention and subsequent deportation. What 14 respondent attempts to characterize as a mere request for more time, is in fact a request to 15 vindicate Petitioner’s due process rights. By ignoring the glaring due process argument and 16 ongoing due process violation Respondent’s position falls in on itself. 17 Respondent cites two cases in support of their argument, however, both cases are 18 inapposite to the pending petition. Respondent cites Martinez v. Napolitano, hold “[w]hen a 19 claim by an alien, however it is framed, challenges the procedure and substance of an agency 20 determination that is “inextricably linked” to the order of removal, it is prohibited by section 21 1252(a)(5).” Martinez v. Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (finding a challenge to the 22 BIA’s decision that an alien was not eligible for asylum relief under the CAT to be an “indirect 23 attack on his order of removal”). Martinez is nothing like the case presently before the Court. 24 Petitioner, here, is not challenging the procedure or the substance of an agency determination and 25 he certainly is not challenging the BIA’s denial of CAT relief. Petitioner’s habeas petition is 26 based on the statutory gap in the immigration framework, depriving him of due process by 27 preventing him a meaningful opportunity to be heard on his motion to reopen. For this reason, 28 Martinez is wholly unpersuasive. 1 Respondent then cites Alvarez-Barajas v. Gonzalez which stated, “the language 2 and structure of the [REAL ID] Act…Evidences Congress’ clear intention to make circuit courts 3 the ‘sole and exclusive means of judicial review’ for challenges to removal”. Alvarez-Barajas v. 4 Gonzalez, 418 F.3d 1050 (9th Cir. 2005). Critical in the instant case is the fact that the current 5 petition is not challenging the ultimate removal order i.e. the merits of Petitioner’s immigration 6 case. The sole basis of the habeas petition is the due process violation created by the denial of his 7 motion to stay and subsequent deportation. Petitioner faced an imminent due process violation at 8 the time his habeas petition was filed and now faces an ongoing due process violation since his 9 removal to Pakistan. Petitioner seeks only to access the BIA to remedy this ongoing due process 10 violation, providing Petitioner such access does not touch the final order of removal or the merits 11 of Petitioner’s immigration case. Consequently, Alvarez-Barajas is also unpersuasive. 12 Respondent cites no Supreme Court or Ninth Circuit case holding Section 1252(g) 13 divests a district court of jurisdiction to hear a habeas petition seeking a stay of removal or 14 alleging a due process violation. This is because no such case exists. As such, this Court relies 15 on the legal framework outlined above to find it has jurisdiction to hear Chaudhry’s habeas 16 petition. The petition does not challenge a discretionary decision of the Attorney General or seek 17 to challenge his final order of removal. Rather the petition only seeks relief from a due process 18 violation created by a gap in the immigration statutes. Section 1254(g) does not deprive district 19 courts to hear such due process challenges. Thus, this Court is not deprived of subject matter 20 jurisdiction by section 1252(g). 21 2. Sections 1252(a)(4), (a)(5), (b)(9), and (d)(1) have no effect on this Court’s ability to address Chaudhry’s habeas Petition. 22 23 Respondent does not argue sections 1252(a)(4), (a)(5), (b)(9), and (d)(1) deprive 24 this Court of jurisdiction. Instead, Respondent argues these sections establish the only 25 administrative process and judicial review available to aliens seeking relief related to their 26 immigration cases. See ECF No. 7 at 6-7. This argument is not persuasive. Sections 1252(a)(4) 27 provides the U.S courts of appeals are the “exclusive means for judicial review of any cause or 28 claim under the United Nations Convention Against Torture.” 8 U.S.C. § 1252(g). Here, 1 Petitioner is not challenging his denial of CAT relief, thus section 1252(a)(4) does not apply. 2 Section 1254(a)(5) and (b)(9) apply only to direct challenges to an order of 3 removal. In Singh v. Gonzales, the Ninth Circuit held section 1254(a)(5) “is prominently directed 4 to judicial review of an order of removal” and section 1254(b)(9) only covers an “action taken or 5 proceeding brought to remove an alien…[and] applies ‘only with respect to review of an order of 6 removal under 8 U.S.C. § 1252(a)(1).’” Singh v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) 7 (emphasis in original, internal brackets omitted) (quoting INS v. St. Cyr, 533 U.S. 289, 313 8 (2001)). As the Sied court properly recognized, the Ninth Circuit has directed that “[b]ased on 9 the statutory language, legislative history, and applicable precedent…Sections 1252(a)(5)’s and 10 (b)(9)’s ‘jurisdiction-stripping provisions do[ ] not apply if the claim is not a direct challenge to 11 an order of removal.’” Sied, at *11 (N.D. Cal. Mar. 2, 2018) (citing Singh v. Gonzales, 499 F.3d 12 969, 978 (9th Cir. 2007) (emphasis in original, internal brackets and ellipsis omitted) 13 (quoting Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006) and citing other cases and 14 legislative history)). Here, Petitioner is not raising a direct challenge to an order of removal. If 15 granted, Mr. Chaudhry’s removal order would not be vacated, rather, he will be given an 16 opportunity to have his motion to reopen heard before the BIA. For this reason, because 17 Chaudhry’s petition does not challenge his removal order, but instead seeks only to give 18 Chaudhry his “day in court”, sections 1252(a)(5) and (b)(9) do not apply. 19 Section 1252(d)(1) provides, “[a] court may review a final order of removal only 20 if—the alien has exhausted all administrative remedies available to the alien as of right.” 8 U.S.C. 21 § 1252(d)(1). The language of section 1252(d)(1) makes clear that it is limited to review of a 22 “final order of removal”. Id. As discussed above, Mr. Chaudhry is not requesting a review of his 23 underlying removal order. Accordingly, section 1254(d)(1) does not apply. 24 The administrative process and judicial review limitations established by sections 25 1252(a)(4), (a)(5), (b)(9), and (d)(1) are not applicable to this case. These sections apply only to 26 challenges to the merits of an immigration claim—direct challenges to the denial of CAT relief 27 and final orders of removal—not to collateral due process claims. Therefore, sections 1252(a)(4), 28 (a)(5), (b)(9), and (d)(1) are inapplicable to this case at this time and have no effect on this 1 Court’s pending exercise of subject matter jurisdiction.6 2 D. Suspension Clause 3 If this Court were to interpret sections 1252(a)(4), (a)(5), (b)(9), (d)(1), and (g) as 4 Respondent argues it should—divesting this Court of jurisdiction—such application would 5 violate the Suspension Clause of the United States Constitution. 6 The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas 7 Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety 8 may require it.” U.S. Const. art. I, § 9, cl. 2. “The Supreme Court has held that ‘because of that 9 Clause, some judicial intervention in deportation cases is unquestionably required by the 10 Constitution.’” Singh v. Mukasey, 533 F.3d 1103, 1106 (9th Cir. 2008) (internal brackets 11 omitted) (quoting INS v. St. Cyr, 533 U.S. 289, 300 (2001)). Congress may eliminate the writ of 12 habeas corpus without violating the Suspension Clause if it provides a “collateral remedy which 13 is neither inadequate nor ineffective to test the legality of a person’s detention”. Singh v. 14 Mukasey, 533 F.3d at 1106 (internal quotations omitted). 15 Respondent first argues the Suspension Clause does not apply to Petitioner 16 because he has failed to bring a cognizable habeas claim, as he does not seek “the 17 traditional…release from custody.” ECF No. 7. This argument is unpersuasive. As the District 18 of Massachusetts recognized in Devitri v. Cronen, “the Supreme Court itself has pointed out that 19 the writ was historically used in a wide variety of circumstances, ranging from requests for 20 freedom from the restraints of apprenticeship to challenging the refusal to let an immigrant leave 21 a ship and land on shore. Devitri v. Cronen, 289 F. Supp. 3d 287, n.9 (D. Mass. 2018) (Citing 22 I.N.S. v. St. Cyr, 533 U.S. 289, 301–03, 305–06, (2001) and Saint Fort v. Ashcroft, 329 F.3d 191, 23 197 (1st Cir. 2003) (“The writ of habeas corpus has been employed by non-citizens for centuries 24 6 If Respondent had argued sections 1252(a)(4), (a)(5), (b)(9), and (d)(1) divested this Court of 25 jurisdiction, the result and analysis would be the same. These sections apply to direct challenges related to CAT relief and final orders of removal. Thus, they only deprive a district court of 26 jurisdiction in the case of a direct challenge to the denial of CAT relief or a direct challenge to an 27 order of removal i.e. a direct challenge to a denial of asylum, withholding of removal, etc. See Sied v. Nielsen, No. 17-CV-06785-LB, 2018 WL 1142202, at *11-22 (N.D. Cal. Mar. 2, 28 2018), appeal dismissed, No. 18-16128, 2018 WL 6624692 (9th Cir. Sept. 14, 2018). 1 in both the United States and Britain.”). Because habeas relief can take more forms than the 2 traditional “release from custody”, this Court finds the Suspension Clause applicable here. 3 Respondent then argues even if the Suspension Clause applies, which this Court 4 finds it does, there are adequate and effective collateral remedies. Respondent contends the 5 motion to reopen, petition for review process outlined in Section 1252 “provide Petitioner with an 6 adequate procedural avenue to raise his ostensible habeas claims because both the immigration 7 courts and the Ninth Circuit have the ‘means to correct errors’ that may have occurred or have 8 since developed in Petitioner’s case and ‘authority to assess the sufficiency of the Government’s 9 evidence.’” ECF No. 7 at 12-13 (quoting Boumediene v. Bush, 553 U.S. 723, 786 (2008)). 10 This too is unpersuasive. Here, it cannot be said Petitioner has an adequate or 11 effective way to raise his collateral claim. When the BIA denied Mr. Chaudhry’s motion to stay 12 removal without ruling on his motion to reopen, the BIA placed Mr. Chaudhry in a due process 13 limbo, leading ultimately to an ongoing due process violation. Mr. Chaudhry cannot appeal the 14 denial of his motion to stay removal. Mr. Chaudhry is currently in hiding at a hotel in Karachi, 15 Pakistan, surviving on money sent from is family in the United States. He is unable to 16 meaningfully pursue his motion to reopen. ECF No. 11. Petitioner is currently suffering an 17 ongoing unconstitutional deprivation of his statutory right to move to reopen without due process 18 of law. So, the question becomes: what is the adequate and effective remedy provided for by 19 section 1252 to combat this due process violation? This Court can find none and Respondent can 20 point to none. Respondent is unable to identify a single provision in section 1254 or anywhere 21 else that can adequately remedy this due process violation. Mr. Chaudhry has fallen into a 22 statutory hole and section 1252 provides no adequate or effective remedy to pull him out. 23 Further, without the ability to file a petition for a writ of habeas corpus, the 24 government could deprive a petitioner meaningful opportunity to file a motion to reopen by 25 simply deporting them before their motion to reopen is heard. This possibility of manipulation 26 unquestionably renders the motion to reopen process inadequate. See Luna v. Holder, 637 F.3d 27 85, 98-99 (2d Cir. 2011). For the reasons discussed above, if this Court was deprived of 28 jurisdiction by section 1252 (g) or any other section, such a deprivation would violate the 1 Suspension Clause of the U.S. Constitution. 2 3 II. Mootness 4 Respondent argues Petitioner’s April 23, 2019, removal mooted the habeas 5 petition because Petitioner is no longer “in custody”. Petitioner argues the habeas petition is not 6 moot because Petitioner is suffering from collateral consequences as a result of his deportation. 7 The parties’ positions are summarized, in general, below. 8 A. Summary of the Parties Arguments 9 1. Respondent’s Argument 10 Respondent argues the petition for a writ of habeas corpus under 28 U.S.C. § 2241 11 became moot once Petitioner was released from immigration custody. ECF No. 7 at 3. Because 12 Petitioner has been removed, Respondent asserts he is no longer in immigration detention, such 13 that he cannot satisfy the “in custody” requirement for habeas relief. Further, Respondent argues 14 the collateral consequences doctrine does not apply when the relief sought in the petition cannot 15 cure the alleged collateral consequences. 16 Respondent relies primarily on Abdala v. INS, 488 F3d 1061 (9th Cir. 2007) to 17 support this position. Respondent asserts under Abdala where the “grounds for habeas relief will 18 not redress collateral consequences, a habeas petition does not continue to present a live 19 controversy once the petitioner is released from custody.” Id. In Abdala the Court stated where a 20 petitioner only requested a stay of deportation, his habeas petition was rendered moot upon his 21 deportation. Id. at 1064. Respondent further relies on Hose v. I.N.S., 180 F.3d 992 (9th Cir. 22 1999) for the proposition that a habeas petition seeking a stay of removal becomes moot upon 23 petitioner’s deportation. 24 2. Petitioner’s Argument 25 Contrary to Respondent, Petitioner contends the case or controversy requirement 26 remains satisfied despite Petitioner’s deportation. Petitioner cites Zegarra-Gomez v. I.N.S., 314 27 F.3d 1124, 1127 (9th Cir. 2003) which held the case or controversy requirement remains satisfied 28 where the petitioner is deported, so long as he was in custody when the habeas petition was filed 1 and continues to suffer actual collateral consequences from his removal. Specifically, in Zegarra- 2 Gomez the court found “[s]ince the administrative determination that petitioner was an 3 aggravated felon renders him ineligible to seek cancellation of removal for twenty years, see 8 4 U.S.C. § 1182(a)(9)(A)(ii), the record before the district court was sufficient to demonstrate that 5 collateral consequences arising from Zegarra–Gomez's deportation could sustain the continuation 6 of his habeas petition.” Petitioner also cites Ferreira v. Ashcroft, 382 F.3d 1045, 1049 (9th Cir. 7 2004) (holding a petitioner’s challenge to the characterization of his conviction as an aggravated 8 felony was not mooted by his deportation because Petitioner faced a lifetime bar to admission) in 9 support of their position. 10 Petitioner asserts the following related collateral consequence: his inability to 11 reasonably pursue his motion to reopen with the Board and a statutory bar preventing him from 12 reentering the United States for a period of ten years. Petitioner contends the collateral 13 consequences are a direct result of deportation. Petitioner further argues, these collateral 14 consequences continue to burden his liberty as he is unable to properly pursue his motion to 15 reopen and faces the possibility the motion to reopen will be denied based solely on his 16 deportation. Therefore, Petitioner argues there are sufficient collateral consequences to sustain a 17 live case or controversy. 18 Further, Petitioner challenges Respondent’s application of Abdala. Petitioner 19 asserts a favorable decision from this Court would, in fact, redress the collateral consequences. 20 Petitioner argues the relief sought in his habeas petition—a reasonable opportunity to be heard on 21 his motion to reopen—would remedy both collateral consequences. Specifically, Petitioner 22 contends resolution of the petition in his favor would provide him the opportunity to pursue his 23 motion to reopen with the board. Petitioner states if he were to prevail on the merits of his habeas 24 petition the Court could order ICE to parole him to the United States under 8 U.S.C. § 212(d)(5) 25 or order the United States to “take whatever steps are necessary to enable Petitioner to re-enter 26 the United States for the limited purpose of reacquiring that status, with respect to his motion to 27 reopen with the Board, that he enjoyed when he was removed from the United States.” ECF No. 28 13 at 8. 1 B. Legal Framework 2 1. “In Custody” Requirement 3 It is well established the “in custody” requirement of a habeas petition is 4 determined at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7 5 (1998); Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968). This rule applies to petitioners who 6 have been deported after the filing of their habeas petition. Zegarra-Gomez v. I.N.S., 314 F.3d 7 1124 (9th Cir. 2003); Abdala v. I.N.S., 488 F.3d 1061, 1063-64 (9th Cir.2007). In other words, a 8 petitioner’s deportation does not automatically render their petition moot so long as the petition 9 was filed prior to deportation. Id. This rule has been adopted not only by the Ninth Circuit, Id., 10 but also by the Fourth Circuit, Morales v. Sessions, 736 Fed. Appx. 383, n. 1 (4th Cir. 2018), 11 Sixth Circuit, Zundel v. Berrong, 106 Fed. Appx. 331, 334-336 (6th Cir. 2004), Fifth Circuit, 12 Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir. 2004), Second Circuit, Swaby v. Ashcroft, 13 357 F.3d 156, 159-61 (2d Cir. 2004), Tenth Circuit, Mendoza v. Jeffers, 62 Fed. Appx. 866, 867- 14 68 (10th Cir. 2003), First Circuit, Leitao v. Reno, 311 F.3d 453, 455-56 (1st Cir. 2002), and Third 15 Circuit, Chong v. District Director, I.N.S., 264 F.3d 378, 385 (3d Cir. 2001). 16 For a deported petitioner to satisfy the “in custody” requirement, the petitioner 17 must not only establish they were in custody at the time the habeas petition was filed, as outlined 18 above, but also that they continue to suffer actual collateral consequences of their removal. 19 Zegarra-Gomez, 314 F.3d at 1127. In Zegarra-Gomez the Ninth Circuit held “the administrative 20 determination that petitioner was an aggravated felon render[ing] him ineligible to seek 21 cancellation of removal for twenty years...[is] sufficient to demonstrate that collateral 22 consequences arising from Zegarra-Gomez’s deportation [exist to] sustain the continuation of his 23 habeas petition.” Id. Zegarra-Gomez establishes that a statutory bar to reentry for a term of years, 24 resulting from a petitioner’s deportation, is a per se collateral consequence sufficient to sustain a 25 habeas petition. This holding, however, is in tension with a subsequent Ninth Circuit case— 26 Abdala v. I.N.S. 27 In Abdala v. I.N.S. the Ninth Circuit seems to attempt to narrow the holding of 28 Zegarra-Gomez, stating “[f]or a habeas petition to continue to present a live controversy after the 1 petitioner’s release or deportation…there must be some remaining ‘collateral consequence’ that 2 may be redressed by success on the petition.” Abdala, 488 F.3d at 1063-64. Abdala, thus, ties 3 the collateral consequence to the relief sought in the petition—requiring the grounds for habeas 4 relief to redress the collateral consequences. This requirement is completely absent from the 5 court’s reasoning in Zegarra-Gomez, which focused exclusively on the “obvious consequence 6 arising from [petitioner]’s deportation, i.e., the inability to seek to return to the United States for 7 twenty years.” Zegarra-Gomez, 314 F.3d at 1127.7 8 /// 9 10 7 The two cases cited in Zegarra-Gomez, Chong v. I.N.S., 264 F.3d 378 (3d Cir. 2001) and 11 Smith v. Ashcroft, 295 F.3d 425 (4th Cir. 2002) are illustrative. 12 In Chong v. I.N.S. the Third Circuit held “the Board’s order of removal creates sufficient collateral consequences to render Chong’s petition a live case or controversy by preventing her 13 from entering the United States for ten years.” Chong, 264 F.3d at 385. In Chong, the habeas petition challenged the denial of withholding of removal on due process grounds without 14 challenging her aggravated felony finding. A favorable ruling on the relief sought in the 15 petition—withholding of removal—would not remedy the collateral consequence because the unchallenged aggravated felony would still prevent Chong from reentering the country. The 16 court further noted even if she had challenged the aggravated felony finding it would be too late to withhold removal since Chong was already deported. Id. at 385-86. Despite these facts, 17 the court still found a live case or controversy. Thus, the Court found the petition still presented a live case or controversy even though success on the habeas petition would not 18 necessarily cure the collateral consequences. 19 In Smith v. Ashcroft the Fourth Circuit determined Smith was in custody at the time the petition was filed and “though Smith is no longer in the United States, he is unmistakably 20 affected by the legal implications of our decision.” Smith, 295 F.3d at 428. The court goes on to note if Smith prevails “there is a possibility he can beneficially unravel his untoward 21 immigration status.” Id. (emphasis added). The court relied solely on the existence of collateral consequences and only notes the possibility that success on the petition could lead to 22 a “beneficial unraveling” of petitioner’s immigration status. Thus, the court found a live case 23 or controversy even though success on the habeas petition would not necessarily cure the collateral consequences. 24 In Zagara-Gomez itself, the relief sought in the petition did not remedy the collateral consequences identified by the Ninth Circuit—the 20-year bar to reentry. When the petition 25 was eventually granted, the action was remanded to the Executive Office of Immigration Review to allow petitioner to apply for discretionary relief under section 212(c) of the INA. 26 Juan Pablo Zegarra-Gomez v. John Ashcroft, et al., No. 00-7845-LGB-JWJ, Order adopting 27 report and recommendation at 1 (C.D. Cal. Nov. 24, 2004). There is no indication this remand, which only allowed petitioner to apply for discretionary relief, redressed the 20-year bar to 28 reentry. 1 This Court makes no determination whether Zegarra-Gomez or Abdala is the 2 appropriate standard to apply. Further, this Court does not seek to add to the growing number of 3 cases attempting to harmonize the two cases. 8 Instead, this Court applies the standard announced 4 in Adbala because the Abdala rule subsumes that of Zegarra-Gomez. This means if Petitioner is 5 successful under Abdala he is necessarily successful under Zegarra-Gomez. 6 2. Abdala Standard: Relief Sought Must Redress Collateral Consequences 7 8 In Abdala the Ninth Circuit reaffirmed that deportation from the United States 9 after filing a habeas petition does not necessarily moot the petition. Abdala v. I.N.S., 488 F.3d 10 1061, 1063-64 (9th Cir.2007). The court further reaffirmed “[f]or a habeas petition to continue to 11 present a live controversy after the petitioner’s release or deportation…there must be some 12 remaining ‘collateral consequence’…” Id. The court then, added a requirement that the collateral 13 consequences “be redressed by success on the petition”, essentially modifying the standard 14 outlined in Zegarra-Gomez. Id. The court held, “where the grounds for habeas relief will not 15 redress collateral consequences, a habeas petition does not continue to present a live controversy 16 once the petitioner is released from custody.” Id. at 1064. The court provided several examples: 17 … a petitioner subject to the collateral consequences of a ten-year bar to reentry did not present a cognizable claim where the 18 petitioner was also permanently barred from reentry on a wholly separate ground. See Perez v. Greiner, 296 F.3d 123, 125–26 (2d 19 Cir.2002). In addition, where a petitioner only requested a stay of deportation, his habeas petition was rendered moot upon his 20 deportation. See, e.g., Hose v. INS, 180 F.3d 992, 995 (9th Cir.1999) (en banc); Jean v. Gonzales, 452 F.3d 392, 395 (5th 21 Cir.2006); Al Najjar v. Ashcroft, 273 F.3d 1330, 1338 (11th Cir.2001) (per curiam). Likewise, a petitioner's release from 22 detention under an order of supervision “moot[ed] his challenge to the legality of his extended detention.” Riley v. INS, 310 F.3d 1253, 23 1256–57 (10th Cir.2002); see also *1065 Sayyah v. 24 8 In an attempt to harmonize the two cases, some district courts have distinguished Abdala from 25 Zegarra-Gomez by limiting Abdala’s application to habeas petitions challenging only the length of detention. See Hoang Trinh v. Homan, 333 F.Supp.3d 984, 990-91 (C.D. Cal 2018). Other 26 district courts have adopted the general, more expansive view of Abdala, requiring the grounds 27 for habeas relief redress the collateral consequences in cases other than those challenging the length of detention. See Paz v. California, 16-0003-GW-SS, 16-0112-GW-SS, 2019 WL 28 1581418, at *3 (N.D. Cal. 2019). 1 Farquharson, 382 F.3d 20, 22 n. 1 (1st Cir.2004) (holding that a “claim[of] indefinite detention ... was mooted by [a petitioner's] 2 subsequent release”). 3 Abdala, 488 F.3d at 1064–65. 4 The Abdala court reasoned, in these situations the claims raised in the habeas petitions were 5 “fully resolved by release from custody” and thus successful resolution of the petition could not 6 provide the requested relief. Id. at 1065. 7 In applying this legal framework to Mr. Abdala, the court concluded because 8 Abdala’s petition challenged only the length of his detention, not the order of removal itself, his 9 petition was moot.9 The Ninth Circuit concluded, there were no collateral consequences that 10 success on the petition could redress, because the relief sought—namely release from custody— 11 was achieved through deportation. Abdala, 488 F.3d at 1065. 12 C. Analysis 13 As discussed at length above, in order for a deported alien’s habeas petition to 14 present a live case or controversy, the alien must (1) have filed the habeas petition when they 15 were in custody and (2) suffer continuing collateral consequences as a result of the deportation (3) 16 that are redressable by the relief sought in the habeas petition. Abdala v. I.N.S., 488 F.3d 1061, 17 1063-64 (9th Cir. 2007). 18 1. Chaudhry was in custody at the time he filed his habeas petition. 19 20 There is no dispute Petitioner was in custody at the time he filed his petition for a 21 writ of habeas corpus. See ECF No. 1 at 7 (“[o]n February 14, 2019, Petitioner was arrested by 22 ICE. He was transferred to Yuba County Detention Center where he awaits imminent removal to 23 Pakistan.”); ECF No. 3 at 3 (“[o]n February 14, 2019, Petitioner was arrested by ICE. He was 24 9 Abdala’s petition asserted he had been held beyond the statutorily prescribed period. The only 25 relief sought by Abdala was: (1) “release…from custody under the conditions of supervision set out in 8 U.S.C. § 1231(a)(3), consistent with the United States Court of Appeals’ holding in Ma 26 v. Reno…” and (2) “the Court hold that his detention violates his rights to substantive and 27 procedural due process, and…the double jeopardy ex post facto clauses of the United States Constitution.” Abdala v. I.N.S., No. 3:00 cv 01828-WQH-NLS (S.D. Cal) Petitioner’s habeas 28 petition. 1 transferred to Yuba County Detention Center where he awaits imminent removal to Pakistan.”); 2 ECF No. 14 at 3 (recognizing “Chaudhry was detained for the purpose of executing his final order 3 of removal.”). Because it is undisputed Petitioner was in custody at the time he filed his habeas 4 petition, this Court finds this requirement is satisfied and turns to the analysis related to collateral 5 consequences. 6 2. Chaudhry is suffering collateral consequences from his deportation and a favorable ruling on his habeas petition would 7 redress the collateral consequences 8 a. Continuing Collateral Consequences 9 Petitioner identifies the following collateral consequences resulting from his 10 deportation: his inability to reasonably pursue his motion to reopen with the BIA, and a statutory 11 bar preventing him from reentering the United States for a period of ten years. ECF No. 13 at 7. 12 Petitioner asserts these collateral consequences restrain his due process rights resulting in an 13 ongoing due process violation. Respondent notably does not contest the existence of these 14 collateral consequences and outside of their jurisdictional argument Respondent does not contest 15 the resulting due process implications. Respondent instead, argues the relief sought by Petitioner 16 in unable to remedy the collateral consequences due to Petitioner’s deportation. As such, the 17 Court accepts the collateral consequences offered by Petitioner and agrees that such collateral 18 consequences exist as a result of Petitioner’s deportation. The Court must now determine 19 whether the relief sought in the petition is capable of redressing these collateral consequences. 20 b. The relief sought in the petition redresses the collateral consequences 21 22 The Court must first identify the relief sought in the petition. Respondent argues 23 the court in Abdala distinguishes between two types of cases “those in which a live controversy 24 remains even after the petitioner is released from custody; and those in which the release from 25 custody addresses all of the claim in the habeas petition.” ECF No. 9 at 2. Respondent asserts 26 Petitioner’s case falls into the latter category because the relief sought—a stay of removal and 27 release from detention—were somehow “resolved when [Petitioner] was removed to Pakistan.” 28 Id. Citing Abdala, Respondent argues, “where a petitioner only requests a stay of deportation, his 1 habeas petition [is] rendered moot upon his deportation” (citing Hose v. I.N.S., 180 F.3d 992, 995 2 (9th Cir. 1999))10 and “a petitioner’s release from detention” moots a challenge to the legality of 3 any extended detention. Id. Having reviewed the cases cited by Respondent, this Court finds 4 these arguments unpersuasive. 5 Respondent’s analysis of Petitioner’s requested relief adopts an unduly restrictive 6 view of the “relief sought”, looking only to the procedural mechanism—a preliminary injunction 7 granting a temporary stay of removal. On this basis, Respondent argues because Petitioner has 8 been deported, and a court cannot enjoin actions that have already occurred, the relief sought was 9 resolved upon deportation. Respondent’s focus, however, is misplaced. By looking only at the 10 type of vessel used—preliminary injunction—Respondent erroneously limits the actual nature of 11 the relief Petitioner is seeking. As Petitioner states in his opposition to the pending motion to 12 dismiss, “Petitioner filed the habeas corpus petition in this Court to enjoin the government from 13 removing him to Pakistan so that he could have a reasonable opportunity to be heard on his 14 motion to reopen.” ECF No. 8 at 4 (emphasis added). This demonstrates the relief Petitioner was 15 seeking and continues to seek, is not simply a stay of removal, but rather an opportunity to be 16 heard on his motion to reopen. The vessel chosen to achieve the ultimate relief sought is not, in 17 this Court’s view, conclusive when determining mootness in this context. If Petitioner sought an 18 10 In their reply in support of the motion to dismiss, Respondent relies on Hose v. I.N.S. for the 19 legal proposition that a petition seeking a motion to stay is mooted upon Petitioner’s deportation. ECF No. 9 at 3. As Petitioner asserts in his supplemental briefing, there does not 20 seem to be any support in Hose for this broad proposition. In Hose the Ninth Circuit notes, if petitioner was “merely…seeking a stay rather than relief on the merits—the request for stay 21 would be moot because [petitioner] has been deported.” Hose, 180 F.3d at 995. However, that can hardly be said to stand for the broad proposition that in every habeas case involving a stay 22 of removal, deportation renders the petition moot. This is especially true because the actual 23 holding of Hose relates to the district court’s jurisdiction under an old statutory immigration scheme not the mootness of a motion to stay. It may be true, in many instances, a habeas 24 petition seeking a stay of removal, especially in those cases seeking exclusively a stay of removal, becomes moot upon petitioner’s deportation. However, Hose does not establish this 25 as a matter of law and this Court expresses no opinion on that matter. This Court finds Hose to be unpersuasive and inapposite to the present case, where Petitioner 26 seeks a stay of removal as a means to vindicate his due process rights by pursing a motion to 27 reopen in with the BIA. The ultimate relief sought in this case is not a stay of removal, but an opportunity to be heard on a motion to reopen. Thus, even if this Court could find support for 28 Respondent’s broad proposition in Hose, such a broad proposition would not apply here. 1 affirmative injunction, a temporary restraining order, or any other procedural vessel, it would not 2 change the actual relief Petitioner is seeking—a day in court to pursue his motion to reopen. 3 Having identified the actual character of the relief sought, the Court must now 4 determine if such relief, if granted, would redress the enumerated collateral consequences— 5 Petitioner’s inability to reasonably pursue his motion to reopen with the BIA and a 10-year 6 statutory bar to reentry. 7 It is clear that granting Petitioner the relief requested—relief allowing him a 8 “reasonable opportunity” to be heard on his motion to reopen—would redress, in part the 9 collateral consequences identified by Petitioner. For example, an order from this Court 10 mandating Petitioner be returned to the United States for the purpose of pursuing a motion to 11 reopen, would both grant petitioner the relief sought and redress the collateral consequence 12 preventing Petitioner from meaningfully adjudicating his motion to reopen as it would place 13 Petitioner back in the United States where he could meaningfully pursue his motion to reopen. 14 The Court does recognize that such an order would not directly redress the ten- 15 year bar to reentry Petitioner is also suffering. As discussed at length above, unlike cases filed 16 prior to the REAL ID Act, this Court lacks subject matter jurisdiction to address the merits of the 17 final order of removal. As such, this Court has no power to vacate the BIA order of removal that 18 triggered the ten-year bar to readmission. This, however, is not determinative. It is true, the 19 relief sought in this case, a court order allowing Petitioner meaningful access to the BIA to 20 vindicate his due process rights through his motion to reopen, would not itself remedy the ten- 21 year bar to reentry. It would, however, give Petitioner access to the judicial body that could. In 22 other words, the relief sought is a necessary bridge providing Petitioner access to the BIA—the 23 body empowered to remove the ten-year bar to readmission. The relief sought in this case then, is 24 necessary for petitioner to vindicate his due process rights and seek redress of the ten-year bar to 25 readmission. 26 Absent a favorable ruling on the petition, Petitioner would be unable to 27 meaningfully access the only entity capable of redressing the collateral consequence. Because 28 Petitioner’s ability to remedy the ten-year bar to readmission is dependent on a favorable ruling 1 by this Court, this Court finds the relief sought is necessary to redress the collateral consequences 2 and thus meets the Abdala standard. 3 D. Chaudhry’s petition for a writ of habeas corpus is not moot 4 Petitioner has satisfied the three elements required under Abdala to establish a live 5 habeas petition after deportation. (1) Petitioner filed his petition for a writ of habeas corpus on 6 April 22, 2019, when he was in I.C.E. custody, (2) Petitioner was deported and suffers continuing 7 collateral consequences as a result of his deportation, and (3) the relief sought in his petition, if 8 granted, would redress the enumerated collateral consequences. 9 Petitioner’s liberty continues to be restrained by collateral consequences 10 preventing him from meaningfully pursuing his motion to reopen. Until Petitioner is able to 11 meaningfully pursue his motion to reopen, there remains unresolved collateral consequences and 12 Petitioner’s due process rights are wrongfully restrained. This continued deprivation of Plaintiff’s 13 due process rights constitutes a live case or controversy redressable through his writ of habeas 14 corpus. Therefore, this Court holds Chaudhry’s habeas petition is not moot. 15 This conclusion is not only supported by applicable case law as discussed above, 16 but also flows from the purpose of the writ of habeas corpus—giving the court broad latitude to 17 “dispose of the matter as law and justice require.” 238 U.S.C. § 2243. Chief Justice Earl Warren 18 described the writ as “a procedural devise for subjecting executive, judicial, or private restraints 19 on liberty to judicial scrutiny…” Peyton v. Rowe, 391 U.S. 54, 58 (1968). It is this “high 20 purpose” Chief Justice Warren stated, that “has made the writ both the symbol and guardian of 21 individual liberty.” Id. Here, Petitioner seeks relief in habeas to prevent a now ongoing due 22 process violation, created by a hole in the immigration statutory scheme. 23 As discussed at length above, it is undisputed Petitioner has a statutory right to file 24 a motion to reopen for changed country conditions. Mata v. Lynch, 135 S.Ct. 2150, 2153 (2015) 25 (citing 8 U.S.C. § 1229a(c)(7)(A). It is also undisputed that a petitioner seeking to vindicate his 26 statutory right to file a motion to reopen based on changed country conditions, who’s motion to 27 stay has been denied by the BIA, is unable to seek judicial review of the BIA’s denial of their 28 motion to stay. As such, that petitioner who has filed a motion to reopen based on changed 1 country conditions, can be deported without judicial scrutiny, while their motion to reopen 2 remains pending with the BIA. The practical consequence of this is that the government can 3 deprive a petitioner of any meaningful way of pursing their motion to reopen, by deporting them 4 prior to adjudicating the motion to reopen. This glaring gap in the immigration statutory scheme 5 deprives individuals of their due process rights and is the exact restraint on liberty the writ of 6 habeas corpus was intended to combat. 7 Additionally, the Court is troubled by Respondent’s position in this case. The 8 present habeas petition does not challenge the decision of the BIA or attempt to abscond the 9 immigration process. In fact, it is undisputed such a petition would be inappropriate for this court 10 to consider. Petitioner only seeks access to the judicial system. Yet Respondent would have this 11 Court and others similarly situated stand inert, allowing a gap in the immigration statutory 12 scheme to deprive petitioners of their day in court. As Justice Fortas wrote and this Court 13 emphasizes, “[t]here is no need in statute, the Constitution, or sound jurisprudence for denying to 14 petitioner his ultimate day in court.” Carafas v. LaVallee, 391 U.S. 234, 239 (1968). This Court 15 recognizes Petitioner may face strong opposition in pursuing his motion to reopen. Nonetheless, 16 the writ of habeas protects his right to pursue it. 17 18 IV. Conclusion 19 This Court has jurisdiction to hear Mr. Chaudhry’s petition for a writ of habeas 20 corpus and the petition for a writ of habeas corpus was not rendered moot by Mr. Chaudhry’s 21 deportation. Therefore, this Court recommends: 22 23 24 1. Respondent’s motion to dismiss be DENIED; 25 2. Respondent be ordered to parole Petitioner back to the United States 26 within 20 days of the date of this order; 27 // 28 // 1 3. Upon Petitioner’s return, a preliminary injunction will issue enjoining the 2 | government from removing Mr. Chaudhry from the United States. This injunction and order will 3 || terminate in connection with any of the following events: 4 a. a final non-appealable decision vacating Mr. Chaudhry’s removal 5 order; 6 b. Mr. Chaudry’s failure to (1) timely petition for review before the 7 | appropriate United States Court of Appeals a final adverse ruling from the BIA on his motion to 8 || reopen and (2) file a simultaneous motion to stay removal with the Court of Appeals; 9 C. A decision on a motion to stay removal by the Court of Appeals. 10 These findings and recommendations are submitted to the United States District 11 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 12 | after being served with these findings and recommendations, any party may file written objections 13 | with the court. Responses to objections shall be filed within 14 days after service of objections. 14 | Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 15 | Yist, 951 F.2d 1153 (9th Cir. 1991). 16 17 18 | Dated: August 6, 2019 19 DENNIS M. COTA 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 26