Pal v. United States Citizenship and Immigration Services ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KARAN PAL, 8 Cause No. C20-0775RSL Plaintiff, 9 v. ORDER OF DISMISSAL 10 UNITED STATES CITIZENSHIP AND 11 IMMIGRATION SERVICES, et al., 12 Defendants. 13 14 15 This matter comes before the Court on the “United States’ Motion to Dismiss Pursuant to 16 FRCP 12(b)(1).” Dkt. # 10. Having reviewed the memoranda, declaration, and case law 17 submitted by the parties, the Court finds as follows: 18 The motion to dismiss is GRANTED. Plaintiff’s habeas petition challenging defendants’ 19 determination that he should not be allowed to apply for asylum in the United States was 20 21 dismissed for lack of jurisdiction. Pal v. U.S. Dep’t of Homeland Sec., No. 1:20-CV-0011-P, 22 2020 WL 1166492, at *1 (W.D. La. Mar. 9, 2020). He has now filed this action under the 23 Administrative Procedures Act (“APA”) to obtain review of that same determination, arguing 24 that he was deprived of due process because the immigration judge did not allow him to present 25 relevant evidence and failed to conduct a de novo review of the asylum officer’s decision. Dkt. 26 27 # 1 at ¶¶ 1.1, 2.5, 8.4, and 8.6. The Government moved to dismiss plaintiff’s complaint for lack 1 of jurisdiction, pointing out that the Immigration and Nationality Act (“INA”) prohibits judicial 2 review of expedited removal orders and credible fear determinations. 8 U.S.C. § 1252(a)(2)(A) 3 (stating that “no court shall have jurisdiction to review . . . except as provided in subsection (e), 4 any individual determination or to entertain any other cause or claim arising from or relating to 5 the implementation or operation of an order of removal pursuant to § 1225(b)(1) of this title”). 6 7 See Dep’t of Homeland Sec. v. Thuraissigiam, __ U.S. __, 140 S. Ct. 1959, 1966 (2020) 8 (“[C]ourts may not review ‘the determination’ that an alien lacks a credible fear of 9 persecution.”) (quoting § 1252(a)(2)(A)). Congress provided only two methods for judicial 10 review of an expedited removal determination under subsection (e), neither of which is 11 applicable here.1 12 Plaintiff argues, however, that the APA provides a basis for judicial review of the 13 14 expedited removal determination in this case because the determination was based on a July 19, 15 2019, interim final rule that has been enjoined as inconsistent with the INA and therefore 16 unlawful. See E. Bay Sanctuary Covenant v. Barr, 385 F. Supp.3d 922 (N.D. Cal. 2019) 17 (preliminarily enjoining enforcement of a July 16, 2019, interim final rule entitled “Asylum 18 19 20 1 Plaintiff's habeas petition under 8 U.S.C. § 1252(e)(2) was dismissed, and plaintiff has not asserted a habeas claim here. Nor could he: plaintiff was never detained in the State of Washington, and 21 he was removed from the United States in June 2020 and is no longer in the government’s custody. See Dep’t of Homeland Sec. v. Thuraissigiam, __ U.S. __, 140 S. Ct. 1959, 1969 (2020) (noting that the writ 22 of habeas corpus has long been understood as a means of removing the injury of unlawful confinement) 23 (quoting 3 W. Blackstone, Commentaries on the Laws of England 137, and 3 Commentaries on the Constitution of the United States § 1333, p. 206 (1833) (Justice Story)). 24 With regards to the review available under 8 U.S.C. § 1252(e)(3), the district court’s jurisdiction over an APA challenge to the constitutionality or legal validity of the expedited removal system itself is 25 preserved. See Make The Rd. New York v. Wolf, 962 F.3d 612, 624-26 (D.C. Cir. 2020). Such a 26 challenge would have had to have been brought in the U.S. District Court for the District of Columbia within 60 days of implementation of the offending policy, rule, or procedure, however. 8 U.S.C. 27 § 1252(e)(3). 1 Eligibility and Procedural Modifications” that generally denied asylum to aliens arriving at our 2 border with Mexico unless they have first applied for, and been denied, asylum in Mexico or 3 another country through which they have traveled), aff’d, 964 F.3d 832 (9th Cir. 2020). There 4 are two problems with this argument. First, such a claim was not asserted in the complaint, 5 which clearly challenges the immigration judge’s failure to allow plaintiff to present additional 6 7 evidence and/or to conduct a de novo review of the asylum officer’s determination. Plaintiff filed 8 his complaint in May 2020, almost ten months after the July 19, 2019, interim final rule had been 9 enjoined, yet the complaint does not mention the rule, much less assert that his adverse 10 determination was caused by it. 11 Second, plaintiff is attempting to utilize the APA to get around the express limitations 12 Congress placed on judicial review of expedited removal orders. By arguing that the agency’s 13 14 determination was based on a policy or rule that has now been enjoined, plaintiff is presumably 15 challenging the determination as “not in accordance with law” or “in excess of statutory 16 jurisdiction authority, or limitations.” 5 U.S.C. § 706(2)(A) and (C). 17 But the APA’s general provision authorizing judicial review of final agency 18 actions must yield to the INA’s immigration-specific limitations. See Bultasa 19 [Buddhist Temple of Chicago v. Nielsen, 878 F.3d 570, 574 (7th Cir. 2017)] (“Appellants cannot avoid the jurisdictional bar established by 8 U.S.C. § 1252 20 simply by raising a claim under [§ 706] of the APA.”); Roland v. USCIS, 850 F.3d 21 625, 629 n.3 (4th Cir. 2017) (explaining the same idea). Put most simply, the APA 22 cannot be used to sidestep the highly specific limitations on judicial review 23 enacted in the INA. 24 Dijamco v. Wolf, 962 F.3d 999, 1003 (7th Cir. 2020) (involving APA review of the revocation of 25 a visa petition and denial of adjustment of status). See also Arumainayagam v. Barr, No. C20- 26 1776PHX-SMB (CDB), Dkt. # 5 at (D. Ariz. Sept. 16, 2020) (dismissing APA challenge to 27 1 adverse credible fear determination because 5 U.S.C. § 701(a)(1) of the APA makes clear that no 2 relief is available “to the extent that . . . statutes preclude judicial review”); Singh v. USCIS, No. 3 C19-1873JLR-MLP, Dkt. # 22 at 5 (W.D. Wash. June 12, 2020) (finding that the APA does not 4 provide a source of judicial review of a negative credible fear determination and expedited 5 removal order because the INA expressly precludes such review). 6 7 8 For all of the foregoing reasons, the Court finds that it lacks jurisdiction to review the 9 agency’s asylum determination or the expedited removal order. The United States’ motion to 10 dismiss is GRANTED. The Clerk is directed to enter judgment in favor of defendant and against 11 plaintiff. 12 13 14 Dated this 12th day of January, 2021. 15 16 Robert S. Lasnik 17 United States District Judge 18 19 20 21 22 23 24 25 26 27