Ded Rranxburgaj v. Chad Wolf

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0500n.06
No. 19-2148
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
DED RRANXBURGAJ, ) Aug 26, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
CHAD WOLF1, et al., ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
Defendants-Appellees. )
)
)
BEFORE: GIBBONS, GRIFFIN, and THAPAR, Circuit Judges.
GRIFFIN, Circuit Judge.
Plaintiff Ded Rranxburgaj filed this suit after United States Immigration and Customs
Enforcement (ICE) denied his request for a temporary stay of his removal order. He claims that
ICE’s decision to deny his application on procedural grounds was contrary to law. However, the
district court dismissed Rranxburgaj’s complaint for lack of subject-matter jurisdiction, and
although our reasoning differs, we agree that the lower court lacked jurisdiction and affirm.
I.
In 2001, plaintiff Ded Rranxburgaj and his wife Flora Rranxburgaj fled their native
country of Albania and sought asylum in the United States. However, their asylum application
was denied, and in 2006 an Immigration Judge ordered them removed. Three years later, the
1
Chad Wolf, as the acting Secretary for the Department of Homeland Security has been
automatically substituted as a defendant pursuant to Federal Rule of Civil Procedure 25(d).
No. 19-2148, Rranxburgaj v. Wolf, et al.
Board of Immigration Appeals dismissed their appeal. But while those proceedings were
ongoing, Flora developed multiple sclerosis. As a consequence, the government placed the
Rranxburgajs under orders of supervision. See 8 C.F.R. § 241.5. Thus, while the government
could still execute their removal orders at any time, the Rranxburgajs were allowed to continue
living in the United States.
Things changed in October 2017 when plaintiff reported for one of his regular check-ins
with ICE in Detroit, Michigan. An agent with ICE told Rranxburgaj that the agency intended to
remove him in January 2018 and instructed him to purchase a plane ticket. Plaintiff complied,
purchasing airfare to Albania with a January 25, 2018 departure date, which he presented to ICE
at a subsequent check-in on November 30, 2017. About a week later, Rranxburgaj filed an
application for a temporary stay of removal. Specifically, he requested a one-year stay of
removal, citing Flora’s “advanced” multiple sclerosis. He explained that Flora was “entirely
dependent on [him] for everything, including the most basic needs.” If he were removed,
Rranxburgaj stated, it would “be a death sentence for [his] wife.” The application included his
wife’s medical records, thirteen years’ of tax returns, and more than eighty letters of support.
Weeks passed, but ICE did not act on Rranxburgaj’s application. Less than three weeks
before his scheduled removal, Rranxburgaj attended another check-in, and yet ICE did not
address his application. Instead, the agency told him only to return for another check-in, eight
days before his removal date. Rather than return for that last check-in, Rranxburgaj moved
himself and his family into the Central United Methodist Church in Detroit, Michigan and
claimed sanctuary. Church leaders held a press conference, and Rranxburgaj made a public
statement that he was seeking sanctuary from removal to care for his wife.
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The following day, ICE announced that it considered Rranxburgaj a “fugitive” based on
his failure to attend the check-in as scheduled. The agency also sent a letter to Rranxburgaj’s
counsel, which indicated that it had denied Rranxburgaj’s application for a temporary stay of
removal as “moot,” because his “willful failure to comply with the terms of his supervised
release” rendered him a “fugitive from ICE.” Rranxburgaj asked ICE to reconsider, but the
agency held firm to its position that Rranxburgaj’s failure to report disentitled him from
discretionary relief.
Rranxburgaj then filed suit in the United States District Court for the Eastern District of
Michigan in June 2018 to “challenge the refusal” of the agency to “adjudicate on the merits his
application for a stay of removal.” He invoked the Administrative Procedure Act, claiming that
the court had authority to compel agency action which had been “unreasonably withheld or
delayed[,]” and asserted that the court should set aside the agency determination that he was a
fugitive as contrary to law.2 As relief, he asked the court to enjoin the defendants from removing
him, declare the agency’s actions arbitrary and capricious, and issue an injunction compelling the
defendants to consider the merits of his stay application.
ICE moved to dismiss Rranxburgaj’s suit for lack of subject-matter jurisdiction and for
failure to state a claim. Fed. R. Civ. P. 12(b). It relied on 8 U.S.C. § 1252(g), which provides
that:
Except 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
2
Plaintiff also sought a writ of mandamus on the equitable theory that he had a right to a
timely merits decision on his stay application. Because he does not raise any argument related to
this claim in his statement of issues or the body of his brief on appeal, we deem it forfeited. See,
e.g., United States v. Calvetti, 836 F.3d 654, 664 (6th Cir. 2016).
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the decision or action by the Attorney General to commence proceedings,
adjudicate cases, or execute removal orders against any alien under this chapter.
The agency reasoned that § 1252(g) applied because the action arose “from the decision to deny
[plaintiff’s] application for a stay, and hence execute his removal order.” The district court,
however, granted ICE’s motion to dismiss for lack of jurisdiction on other grounds. It ruled that
8 U.S.C. § 1252(a)(2) and (a)(5) deprived it of jurisdiction because ICE’s denial of
Rranxburgaj’s request for a stay was directly related to his final removal order. The district court
then entered judgment, and Rranxburgaj timely appealed.
II.
We review de novo a district court’s dismissal of a complaint for lack of subject-matter
jurisdiction. Bucholz v. Meyer Njus Tanick, PA, 946 F.3d 855, 860 (6th Cir. 2020).
At the outset, the parties appear to agree that the federal question statute,
28 U.S.C. § 1331, confers jurisdiction to federal courts to review agency action under the terms
of the Administrative Procedure Act. See, e.g., Jama v. Dep’t of Homeland Security, 760 F.3d
490, 494 (6th Cir. 2014). They disagree, however, on whether § 1252(g) of the REAL ID Act of
2005 divested the district court of subject-matter jurisdiction over Rranxburgaj’s claims brought
under that authority.
The district court relied on two provisions of the REAL ID Act, 8 U.S.C. § 1252(a)(2)
and (a)(5), to hold that it lacked jurisdiction over Rranxburgaj’s claims. However, those
provisions reflect Congress’s decision to “channel judicial review of an alien’s claims related to
his or her final order of removal through a petition for review at the court of appeals.” Elgharib
v. Napolitano, 600 F.3d 597, 600 (6th Cir. 2010) (emphasis added). In his complaint,
Rranxburgaj did not challenge the validity of his final order of removal. He instead challenged
only the agency’s denial, on procedural grounds, of his application for a temporary stay of
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removal. That does not fall within the ambit of § 1252(a)(2) and (a)(5). See id. at 605. On
appeal, the parties agree that the district court was mistaken to rely on § 1252(a)(2) and (a)(5).
They instead focus on 8 U.S.C. § 1252(g), which further refines the subject-matter jurisdiction of
the federal courts over claims arising out of administrative action in the immigration setting.
More specifically, they contest whether Rranxburgaj’s claims “aris[e] from the decision or action
by the Attorney General to . . . execute [a] removal order[].” 8 U.S.C. § 1252(g). We hold they
do and, therefore, we lack jurisdiction.
First, we acknowledge that in Reno v. American-Arab Anti-Discrimination Committee,
525 U.S. 471 (1999) (hereinafter AADC), the Supreme Court interpreted the operative language
of § 1252(g) narrowly, reasoning that the jurisdictional bar applied only to the three “discrete
actions,” id. at 482, listed in the statute: “commenc[ing] proceedings, adjudicat[ing] cases, [and]
execut[ing] removal orders[.]” Id. at 483. The Court reasoned that Congress had good reason to
shield these actions from judicial review because the government had increasingly begun
exercising its discretion to abandon deportation and removal actions, either for humanitarian
reasons or for its own convenience. “Since no generous act goes unpunished, however, the
[agency’s] exercise of this discretion opened the door to litigation in instances where the
[agency] chose not to exercise it.” Id. at 484. Therefore, the Court reasoned that § 1252(g)
“seem[ed] clearly designed to give some measure of protection to ‘no deferred action’ decisions
and similar discretionary determinations, providing that if they are reviewable at all, they at least
will not be made the bases for separate rounds of judicial intervention outside the streamlined
process that Congress has designed.” Id. at 485. The AADC Court thus concluded that the
petitioners’ challenge to the Attorney General’s decision to “commence proceedings” against
them fell squarely within § 1252(g)’s jurisdictional bar. Id. at 492.
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A few years later, our court interpreted AADC in considering whether § 1252(g)
prevented a district court from exercising jurisdiction over a petition for a writ of habeas corpus,
challenging the decision of the Attorney General to deny a request for a temporary stay of
deportation. Moussa v. Jenifer, 389 F.3d 550, 554 (6th Cir. 2004). We held that it did. The
court began with the observation that Moussa “specifically challenge[d] the Attorney General’s
refusal . . . to grant [him] a stay of deportation.” Id. at 553. This, we said, was “a decision that is
wholly within the discretion of the Attorney General” and as such, it was “directly part of a
decision to execute a removal order.” Id. at 554. Accordingly, we held that Moussa’s attempt to
“enjoin the Attorney General from executing a valid order of deportation” was “protected from
subsequent judicial review under § 1252(g).”3 Id.
Our review did not end there because at the time, the Supreme Court
interpreted § 1252(g) to exclude habeas petitions raising colorable constitutional or statutory
claims under 28 U.S.C. § 2241. See INS v. St. Cyr, 533 U.S. 289 (2001). Therefore, the “final
part [of] our inquiry” was whether Moussa had asserted a colorable claim under the standard
announced in St. Cyr. Moussa, 389 F.3d at 554–55. In the end, we concluded that Moussa had
not presented such a claim and affirmed the district court’s judgment for lack of subject-matter
jurisdiction. Id. at 555. Importantly, this exception to the jurisdictional bar in § 1252(g) no
3
On this point, Moussa appears consistent with every other circuit to have considered the
issue. See, e.g., Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002) (“A request for a stay of
removal ‘arises from’ the Attorney General’s decision . . . to execute a removal order.”); Garcia-
Herrera v. Asher, 585 F. App’x 439, 440 (9th Cir. 2014) (mem. op.) (“[Petitioner] challenges
ICE’s decision not to delay his removal pending the adjudication of his application for relief
under DACA. . . . [T]his constitutes a challenge to ICE’s decision to execute a removal order.”);
Barrios v. Att’y Gen., 452 F. App’x 196, 198 (3d Cir. 2011) (“The BIA’s denial of a stay of
removal falls within its power to execute a removal order.”); McCloskey v. Keisler, 248 F. App’x
915, 917 (10th Cir. 2007) (“The Government argues that we lack jurisdiction to review Ms.
McCloskey’s petition because the essence of her challenge is ICE’s refusal to continue deferring
her removal. We agree.”).
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longer exists. “The REAL ID Act was enacted . . . in response to the Supreme Court’s decision
in INS v. St. Cyr . . . which held that under 28 U.S.C. § 2241, federal courts have jurisdiction
over habeas petitions brought by aliens in custody pursuant to a deportation order.” Almuhtaseb
v. Gonzales, 453 F.3d 743, 746–47 (6th Cir. 2006) (footnote and citation omitted); see also Jaber
v. Gonzales, 486 F.3d 223, 230 (6th Cir. 2007) (“The REAL ID Act of 2005 clearly eliminated a
habeas petition as a means for judicial review of a removal order, abrogating any holding in St.
Cyr to the contrary.”).
Turning back to the matter at hand, the government argues that Moussa controls, and that
the district court therefore lacked subject-matter jurisdiction over Rranxburgaj’s complaint. We
agree. By challenging ICE’s decision to deny his request for a stay of removal, Rranxburgaj is
seeking to enjoin the Attorney General from executing a valid order of removal. Moussa held
that decision is “protected from subsequent judicial review under § 1252(g),” so the district court
lacked jurisdiction over plaintiff’s complaint. 389 F.3d at 554.
III.
Rranxburgaj offers several arguments for why Moussa does not resolve this case. They
are unpersuasive.
First, he focuses on the last section of Moussa, arguing that he has raised a pure question
of law regarding ICE’s decision to disentitle him to discretionary relief, so he may avoid
§ 1252(g). But as we have already explained, Moussa relied on St. Cyr, which is no longer
precedent.4 We are aware of no other exception to § 1252(g) that would allow for review of pure
4
Along these same lines, Rranxburgaj’s reliance on United States v. Hovsepian, 359 F.3d
1144 (9th Cir. 2004) (en banc) is unpersuasive. That case also predates the REAL ID Act, and
we find no support beyond St. Cyr for its assertion that courts have jurisdiction for
“consideration of a purely legal question,” which would otherwise fall within the scope of
§ 1252(g). Id. at 1155–56. To the extent that Hovsepian relied on Spencer Enterprises Inc. v.
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questions of law. Cf. Hamama v. Adducci, 912 F.3d 869, 875 (6th Cir. 2018) (holding that
§ 1252(g) does not violate the Suspension Clause).
Plaintiff also cites Arce v. United States, 899 F.3d 796 (9th Cir. 2012) (per curiam), as
authority that the district court had jurisdiction to hear a legal challenge to the Attorney
General’s authority to execute a removal order. We find Arce distinguishable. There, the
government’s violation of a judicial stay of removal resulted in an alien’s removal from the
United States. Id. at 799. The alien plaintiff brought a Federal Tort Claims Act claim for
damages suffered as result of the removal. The Ninth Circuit held that this claim fell outside the
scope of § 1252(g) because “the stay of removal temporarily suspend[ed] the source of the
[government’s] authority to act.” Id. at 800 (first alteration in original, internal quotation marks
and citation omitted). In other words, while the stay was in place, the government “totally
lack[ed] the [statutory] discretion to effectuate a removal order.” Id. at 800–01. Therefore, the
Ninth Circuit concluded that the government’s “decision or action to violate a court order staying
removal . . . f[ell] outside” of § 1252(g)’s “jurisdiction-stripping reach.” Id. at 800. Here, the
government violated no such order, and Rranxburgaj’s challenge instead goes directly to ICE’s
decision to execute an order of removal. Accordingly, we are not persuaded by Arce that the
district court had subject-matter jurisdiction.5
Finally, Rranxburgaj argues that we should disregard Moussa either because it runs afoul
of AADC’s narrow interpretation of § 1252(g) or because it is distinguishable. We disagree. Our
court considered and applied AADC in Moussa, and we view that decision to be a faithful
United States, 345 F.3d 683, 689–90 (9th Cir. 2003), for that proposition, it is contrary to our
precedent. See CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 620 (6th Cir. 2002).
5
We also observe that the Eighth Circuit came to a contrary conclusion on an identical
claim in Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (holding that a claim
challenging the execution of a removal order, in violation of a judicial stay, fell
within § 1252(g)).
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application of the Supreme Court’s guidance. Nor is Moussa distinguishable; we discern no
principled difference between the denial of an application for a stay of removal on the merits and
a denial on procedural grounds. In either case, the decision to deny a temporary stay of removal
arises directly from the decision of the Attorney General to execute a removal order, so it is
rendered unreviewable by § 1252(g).
IV.
Based on the record before us, no one could dispute that Ded Rranxburgaj has made
significant contributions to our society since first arriving in the United States nineteen years
ago. He has raised his children here, legally worked and paid taxes, and committed no crime.
Moreover, he has demonstrated admirable devotion to his wife as she fights a terrible illness.
But as a court of limited jurisdiction, we adjudicate cases as Congress sees fit to authorize. In
the REAL ID Act, Congress decided that, as a matter of public policy, we do not have
jurisdiction to decide claims that arise from the decision of the Executive Branch to execute a
removal order—like the ones presented in this suit. Accordingly, whether or not we agree with
ICE’s decision to execute plaintiff’s removal order (and deny his application to temporarily stay
that order), those decisions are not reviewable by the federal courts.
The judgment of the district court is therefore affirmed.
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