Patel v. Barr

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Veenaben Dhirubhai Patel, et. al., No. CV-20-00229-PHX-DLR(DMF) 10 Petitioners, ORDER 11 v. 12 William P. Barr, et al., 13 Respondents. [15] 16 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 17 Deborah M. Fine (Doc. 55) regarding Petitioners’ First Amended Petition for Writ of 18 Habeas Corpus and Complaint for Declaratory and Injunctive Relief (“First Amended 19 Petition”) (Doc. 25). The R&R recommends that Counts One through Four of the First 20 Amended Petition be dismissed as moot; that Counts Nine through Eleven, Thirteen 21 through Fifteen and Seventeen be dismissed without prejudice for lack of jurisdiction; that 22 Counts Twelve, Sixteen, and Eighteen be denied; and that the stay of removal issued by 23 the Court on January 31, 2020, remain in effect for thirty days following entry of judgment 24 to permit Petitioners to file a petition for review, if they so choose. 25 The Magistrate Judge advised the parties that they had fourteen days from the date 26 of service of a copy of the R&R to file specific written objections with the Court. 27 Respondents filed an objection to the R&R on October 21, 2020. (Doc. 64.) Petitioners 28 filed their response to those objections on November 4, 2020. (Doc. 70.) Petitioners filed 1 an objection to the R&R on October 28,2020. (Doc. 68.) Respondents filed a response to 2 Petitioners’ objections on November 4, 2020. (Doc. 69.) The Court heard oral argument 3 on March 30, 2021 and April 12, 2021. On April 12, 2021, Petitioners filed a Notice of 4 Supplemental Authorities and Motion for Leave to Discuss the Supplemental Authorities’ 5 Relevance to These Proceedings. (Doc. 77.) On April 21, 2021, Respondents filed their 6 Response. (Doc. 79.) On May 5, 2021, Petitioners filed their Reply. (Doc. 82.) The 7 matter is fully briefed. Having considered the objections and reviewed the R&R de novo, 8 see Fed. R. Civ. P. 72(b), 28 U.S.C. § 636 (b)(1), the Court overrules all objections and 9 adopts the R&R in its entirety. 10 I. Background 11 Petitioners are citizens of the United Kingdom who entered the United States in 12 1994 under the Visa Waiver Program (“VWP”) for an authorized stay of ninety days but 13 did not leave. In 2009, they were referred for removal proceedings. Fifteen years after 14 they first arrived, on December 7, 2010, an Immigration Judge entered administrative 15 removal orders against them. That same day, Immigration and Customs Enforcement 16 (“ICE”) issued orders of supervision permitting petitioners to continue residing in the 17 United States, free from custody, and allowing them to obtain work authorization. On July 18 6, 2012, the Board of Immigration Appeals affirmed the Immigration Judge’s decision. 19 ICE issued warrants for Petitioners’ removal in March 2017, but their removal was 20 temporarily stayed by the Ninth Circuit Court of Appeals after Petitioners filed petitions 21 for review of their removal orders. On January 26, 2018, Petitioners filed applications for 22 adjustment of status (“AOS”) with United States Citizenship and Immigration Services 23 (“USCIS”). In March 2018, the Ninth Circuit dismissed Petitioners’ petitions for review. 24 After ICE, on April 6, 2018, directed Petitioners to surrender for removal, 25 Petitioners submitted a request to have their removal orders withdrawn. ICE denied the 26 request. Then, on September 25, 2019, USCIS denied Petitioners’ applications for AOS. 27 In January 2020, ICE again directed Petitioners to surrender for removal. Petitioners then 28 filed new applications for AOS, Forms I-212 for waiver of removal, and their initial 1 petition in this action, and moved for injunctive and declaratory relief. The Court granted 2 Petitioners a temporary restraining order, enjoining Respondents from removing 3 Petitioners pending resolution of their motion for preliminary injunction request. 4 Petitioners were taken into ICE custody on February 10, 2020. Petitioners filed 5 their First Amended Petition on April 3, 2020. On April 8, 2020, the Court denied without 6 prejudice Petitioners’ motion for preliminary injunction but continued the stay of removal. 7 The Court also dismissed Counts Five through Eight without prejudice but permitted 8 Petitioners to present those counts in a separate action. Petitioners were released from 9 custody under orders of supervision on April 15, 2020, and June 30, 2020. 10 II. Petitioners’ Objections to the R&R 11 The Court reviews de novo those portions of an R&R to which specific objections 12 are raised. 28 U.S.C. § 636 (b)(1). The Court’s task has been made more difficult by the 13 fact that Petitioners’ objection largely reiterates all of the arguments they made previously 14 to the Magistrate Judge in support of their First Amended Petition. Such an approach 15 defeats the efficiencies intended by the Magistrate Judge referral process. Nonetheless, the 16 Court, in the course of its review, has considered all of the arguments raised by Petitioners 17 and rejects them. 18 A. Counts One through Four are moot 19 The R&R addressed Counts One through Four as they related to the Petitioners’ 20 conditions of detention at the time the First Amended Petition was filed. Petitioners argue 21 that the R&R should have considered their release from detention under supervision as 22 “custody” for purposes of habeas corpus jurisdiction. They argue that custody is broader 23 than detention and does not require physical confinement. (Doc. 68 at 9.) 24 All four of the relevant counts identify “Detention” in their caption and specifically 25 argue for release from detention because of the process by which Petitioners were placed 26 into detention. (Doc. 25 at 63-65.) The R&R correctly recognized that, at the time 27 Petitioners filed the First Amended Petition, they were detained by ICE and for that reason 28 the Court had jurisdiction over the claims asserted in Counts One through Four. The R&R 1 also correctly found that the allegations in Counts One through Four are now moot because 2 Petitioners have been released from ICE detention under orders of supervision. See 3 Nsinano v. Barr, 808 Fed. App’x 554, 555 (9th Cir. 2020). The Court has no basis to enter 4 an order that prospectively bars re-confinement, to the extent that Petitioners are seeking 5 such relief, and if Petitioners’ conditions of release amount to “custody” for purposes of 6 habeas corpus, the objection raises claims different from those in the First Amended 7 Petition. Petitioners’ objection to the R&R’s recommendations pertaining to Counts One 8 through Four is overruled. 9 B. Petitioners waived their right to assert their non-detention-related claims 10 The R&R correctly found, based on controlling Ninth Circuit precedent, that 11 Petitioners have waived their claims that they should not be removed until they have 12 obtained adjudication of their applications for AOS. See Binham v. Holder, 637 F.3d 1040 , 13 1043-44 (9th Cir. 2011); Momeni v. Chertoff, 521 F.3d 1094, 1096-97 (9th Cir. 2008); 14 Handa v. Clark, 401 F.3d 1129, 1133-35 (9th Cir. 2005). When they entered the United 15 States through the VWP, Petitioners agreed to waive their rights to “contest, other than on 16 the basis of an application for asylum, any action for removal[.]” 8 U.S.C. § 1187 (b)(2). 17 This waiver is the “linchpin” of the VWP, which “assures that a person who comes with a 18 VWP visa will leave on time and will not raise a host of legal and factual claims to impede 19 his removal if he overstays.” Handa, 401 at 1135. Accordingly, because Petitioners did 20 not file their AOS applications or applications for provisional waivers during the ninety21 day visitation period permitted under the VWP, they may not now contest their removal on 22 the basis that their applications have not been adjudicated. The R&R correctly followed 23 Ninth Circuit precedent, and Petitioners’ objections to the R&R’s findings that they waived 24 their rights to challenge their removal based on pending AOS applications is overruled. 25 C. The Court lacks jurisdiction over Petitioners’ removal-based claims 26 Under 8 U.S.C. § 1252 (a)(5), “a petition for review filed with an appropriate court 27 of appeals in accordance with this section shall be the sole and exclusive means for review 28 of an order of removal entered or issued under any provision of this chapter[.]” Further, § 1 1252(g) provides that “no court shall have jurisdiction to hear any cause or claim by or on 2 behalf of any alien arising from the decision or action by the Attorney General to 3 commence proceedings, adjudicate cases, or execute removal orders against any alien 4 under this chapter.” 5 The R&R found that the Court lacks jurisdiction to decide whether Petitioners have 6 the right to postpone removal while they seek to adjust their status and over their claims 7 related to their applications for provisional waivers. In reaching that determination, the 8 R&R followed Ninth Circuit precedent. Specifically, in Bingham, the Ninth Circuit found 9 that, although a VWP entrant waives the right to contest removal except on the basis of 10 asylum, a VWP entrant nonetheless may “invoke § 1252(a) to challenge a final order of 11 removal on the basis that he or she is not at all subject to the VWP regime.” 637 F.3d at 12 1043. And in Momeni, the Ninth Circuit stated that “there are no administrative 13 proceedings available for entrants under the Visa Waiver Program except on the basis of 14 asylum,” and explained that a VWP entrant cannot avoid the implications of his waiver by 15 overstaying and then applying for AOS. 521 F.3d at 1095-97 . The R&R correctly 16 determined that, at bottom, Petitioners are challenging their removal orders on a basis other 17 than asylum. As VWP entrants, Petitioners waived the right to postpone their removal 18 while they pursue AOS. 19 Petitioners object to the R&R’s determination that § 1252(a)(5) deprives the Court 20 of jurisdiction over their claims related to their AOS and provisional waiver applications. 21 Petitioners assert that their claims are independent of removal proceedings and therefore 22 the jurisdictional bar of the REAL ID Act is inapplicable. The essence of Petitioners’ 23 objection is that the Ninth Circuit’s decisions in Momeni and Bingham were wrongly 24 decided, and that a November 14, 2013 USCIS policy memorandum addressing 25 “Adjustment of Status Applications for Individuals Admitted to the United States Under 26 the Visa Waiver Program” (“PM-602-0093”) corrects the Ninth Circuit’s 27 misunderstanding. (Doc. 68 at 26.) PM-602-0093 provided that the Secretary of 28 Homeland Security, through USCIS, would adjudicate untimely applications by VWP 1 entrants who were outside their ninety-day period of lawful presence, unless the alien was 2 subject to an outstanding order of removal. 3 In support, Petitioners cite to a brief filed by a former United States Acting Solicitor 4 General (“SG”)—Brief for the Respondent in Opposition’ to petitioner Heathcliffe John 5 Bradley’s Petition for a Writ of Certiorari to the United States Court of Appeals for the 6 Third Circuit in Bradley v. Holder, 562 U.S. 1135 (2011)—interpreting the language of 8 7 U.S.C. § 1255 as it pertains to a VWP’s application for AOS beyond ninety days and in the 8 face of a removal order. (Doc. 77-1.) The SG’s brief contains the SG’s interpretation of 9 the VWP’s no-contest clause, 8 U.S.C. § 1187 (b), and its position as to a VWP entrant’s 10 continued statutory eligibility for AOS beyond ninety days after entry and despite an order 11 of removal. According to the SG’s brief: 12 The two statutes address different points. Section 1255(a) and (c)(4) governs a VWP alien’s eligibility to seek adjustment of 13 status generally; Section 1187(b)(2) specifically controls a VWP alien’s ability to seek immigration benefits other than 14 asylum in removal proceedings. Because a VWP alien who is an immediate relative may seek adjustment of status outside 15 removal proceedings—in the manner specified “under [DHS] regulations,” 8 U.S.C. § 1255 (a)—there is no conflict between 16 the two statutes. [17] (Doc. 77-1 at 15 (emphasis in original).) The SG’s brief contends that AOS is a [18] discretionary action by the Secretary of Homeland Security, that “[t]he exercise of [19] discretion to adjust an alien’s status is ‘a matter of grace, not right[,]’” Id. at 9 (quoting [20] Elkins v Moreno, 435 U.S. 647, 667 (1978)), and that “[i]mmediate relatives therefore are [21] subject to the general rule that DHS may grant adjustment of status, ‘in [its] discretion and [22] under such regulations as [it] may prescribe,’” Id. at 14 (quoting 8 U.S.C. 1255(a)) [23] (emphasis and alterations in original). [24] The SG’s brief can be read to support the position Petitioners assert here: that the [25] no-contest clause does not waive the right to seek benefits outside of removal proceedings [26] after the ninety-day period of authorized stay. But this Court is bound by precedential [27] decisions of the Ninth Circuit and Supreme Court, not by positions taken by the SG in a [28] brief. The Ninth Circuit has spoken on this issue and has ruled that an AOS application 1 after the ninety-day visitation period has expired results in an “avoidable conflict” between 2 the AOS statute and the VWP no-contest provision. Momeni, 521 F.3d at 1097 . The R&R 3 correctly applied Momeni and Bingham to find that Petitioners waived their rights to 4 contest a removal action other than on the basis of asylum. Petitioners’ objection to the 5 R&R’s determination that the Court lacks jurisdiction over the claims in Counts Nine, Ten, 6 Eleven, Thirteen, Fourteen, Fifteen, and Seventeen is overruled. 7 D. Petitioners’ due process and Administrative Procedures Act (“APA”) 8 claims are inextricably linked to their removal orders 9 In Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir. 2012), the Ninth Circuit 10 determined “[t]he exclusive means to challenge an order of removal is the petition for 11 review process.” A court may consider claims that are independent of challenges to 12 removal orders, but “[w]hen a claim by an alien, however it is framed, challenges the 13 procedure and substance of an agency determination that is ‘inextricably linked’ to the 14 order of removal, it is prohibited by § 1252(a)(5).” Id at 623. The Ninth Circuit also stated 15 that it was joining the Second Circuit’s holding in Delgado v. Quarantillo, 643 F.3d 62 , 55 16 (2d Cir. 2011) in prohibiting APA claims “that indirectly challenge a removal order.” Id. 17 at 622. Applying Martinez, the R&R correctly determined that Petitioners’ APA and due 18 process claims are inextricably linked to their removal orders, such that the Court lacks 19 jurisdiction to consider them in the context of a habeas petition. See also Em v. Whitaker, 20 No. CV-18-04279-PHX-DWL (JZB), 2018 WL 6663437 , at *3 (D. Ariz. Dec. 19, 2018). 21 The R&R also correctly noted that the Ninth Circuit in Riera-Riera v. Lynch, 841 F.3d 22 1077, 1080 (9th Cir. 2016) found that a VWP-entrant’s due process rights to pursue an 23 application for AOS are adequately accommodated by the restrictions of the VWP waiver. 24 In arguing otherwise, Petitioners rely on Singh v. Gonzales, 499 F.3d 969 (9th Cir. 25 2007), but Singh is distinguishable. In Singh, the district court had jurisdiction over a 26 “narrow” ineffective assistance of counsel claim when the only remedy was restarting the 27 thirty-day period for filing a petition for review with the Ninth Circuit. Id. at 979 . Here, 28 however, Petitioners request a stay of their removal orders until their applications for AOS 1 and provisional waivers are resolved. Petitioners have cited no authority extending Singh 2 to this context. Petitioners’ objections on this point therefore are overruled. 3 E. PM-602-0093 does not provide Petitioners relief 4 The R&R correctly determined that, by its own terms, PM-602-0093 offers 5 Petitioners no relief because they were subject to orders of removals. Moreover, PM-6026 0093 states that it “was not intended to, does not, and may not be relied upon to create any 7 right or benefit, substantive or procedural, enforceable at law or by any individual or other 8 party in removal proceedings, in litigation with the United States, or in any other form or 9 matter.” (Doc. 55 at 15.) 10 Relying on DHS v. Regents of the University of California, 140 S.Ct. 1891 (2020), 11 Petitioners argue that they have a right to rely on PM-602-0093 despite its disclaimer. In 12 DHS, the Supreme Court found that similar disclaimer language did not automatically 13 preclude reliance but remained relevant to assessing the strength of any reliance interests. 14 The reliance interests in DHS were significant: 15 [S]ince 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased 16 homes, and even married and had children, all in reliance” on the DACA program. The consequences of the rescission, 17 respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U.S.-citizen 18 children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money 19 in training them. In addition, excluding DACA recipients from the lawful labor force may, they tell us, result in the loss of 20 $215 billion in economic activity and an associated $60 billion in federal tax revenue over the next ten years. Meanwhile, 21 States and local governments could lose $1.25 billion in tax revenue each year. [23] 140 S.Ct. at 1914 (internal citations omitted). Merely applying for AOS and paying the 24 filing fees, however, does not create the kind of reliance interests the Supreme Court found 25 relevant in DHS. The Court finds that the R&R correctly determined that PM-602-0093 26 did not change the consequences of the VWP waiver. 27 F. Petitioners’ claims under the APA do not establish jurisdiction 28 The R&R correctly found that because the VWP expressly precludes judicial 1 review, the principle that agency actions are reviewable under federal question jurisdiction 2 is inapplicable to Petitioners’ claims. See Allen v. Milas, 896 F.3d 1094, 1103 (9th Cir. 3 2018); Zhang v. United States, No. C19-1211-RSM, 2020 WL 2114500 , at *3 (W.D. Wash. 4 May 4, 2020). 5 G. The Suspension Clause does not provide relief 6 Petitioners argue that “Momeni stands for the proposition that the Court must find 7 jurisdiction otherwise a Suspension Clause violation would result.” (Doc. 68 at 40.) 8 However, the R&R correctly points out that Momeni did not find that it had jurisdiction. It 9 found jurisdiction was “arguable,” and then assumed, for purposes of the case, that the 10 scope of its jurisdiction included the VWP entrant’s claim that he was allowed to remain 11 in the United States to pursue AOS “in order to avoid the constitutional argument raised 12 by [the petitioner] that the REAL ID Act could not deprive the courts of habeas jurisdiction 13 without violating the Suspension Clause.” Momeni, 521 F.3d at 1096 . Momeni does not 14 support Petitioners’ claim that a Suspension Clause violation occurs if the Court does not 15 find jurisdiction. 16 Neither the Supreme Court nor any federal circuit court of appeals has directly 17 considered the application of the Suspension Clause to the removal of a VWP entrant. 18 However, in Ferry v. Gonzales, the Tenth Circuit Court of Appeals found that, by signing 19 the VWP waiver, the petitioner had “received all of the due process to which he was 20 entitled.” 457 F.3d 1117, 1129 (10th Cir. 2006). And in Riera-Riera, the Ninth Circuit 21 found that “the restrictions of the VWP comport with whatever due process such admittees 22 are entitled.” 841 F.3d at 1080 . These cases indicate that, even though a VWP entrant is 23 unable to bring her claim on removability in federal district court, the Suspension Clause 24 is not violated because of the willing and knowing waiver of the right to pursue an action 25 to contest removal. 26 Notably, Petitioners’ objection does not address the R&R’s reference to Swain v. 27 Pressley, 430 U.S. 372 (1977) and its conclusion that jurisdiction rests with the Ninth 28 Circuit. Petitioners have not established that a petition for review filed in the Ninth Circuit 1 would not provide an adequate opportunity for review of their challenge to removal. The 2 Court therefore accepts the R&R’s recommendation and finds that it lacks jurisdiction to 3 review Petitioners’ removal-based claims pursuant to § 1252(a)(5) and that jurisdiction for 4 judicial review rests with Ninth Circuit. 5 H. Petitioners do not have a right to relief under the Mandamus Act 6 The Mandamus Act is inapplicable to these facts. It grants district courts “original 7 jurisdiction of any action . . . to compel an officer or employee of the United States or any 8 agency to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361 . The R&R correctly 9 determined that Petitioners may contest their removal only based on an application for 10 asylum. 8 U.S.C. § 1187 (b)(2). PM-602-0093 does not provide a basis for mandamus 11 relief. Petitioners were subject to final orders of removal when they filed their applications 12 for adjustment of status. PM-602-0093 prevents Petitioners from qualifying for 13 discretionary adjustment of status filed after the ninety-day visitation period. Petitioners 14 have not established a clear and certain claim for relief and are therefore not entitled to the 15 extraordinary remedy of mandamus. 16 III. Respondents’ objection to the R&R 17 Respondents object to the R&R’s recommendation that the Court’s January 31, 2020, 18 stay of removal remain in effect for thirty days following entry of judgment. This objection 19 is overruled. An order staying removal for thirty days beyond entry of judgment to allow 20 time for an appeal to the Ninth Circuit is within the powers of the Court. Fed. R. Civ. P. 21 62; Nken v. Holder, 556 U.S. 418, 421 (2009). 22 IT IS ORDERED that the R&R (Doc.55) is ACCEPTED. 23 IT IS FURTHER ORDERED that Counts One through Four of the First Amended 24 Petition are dismissed as moot; Counts Nine through Eleven, Thirteen through Fifteen, and 25 Seventeen are dismissed without prejudice for lack of jurisdiction; and Counts Twelve, 26 Sixteen, and Eighteen are denied. 27 IT IS FURTHER ORDERED that the Court’s January 31, 2020 stay of removal 28 (Docs. 6, 28) remain in effect for thirty days following entry of judgment to permit 1 || Petitioners, if they so choose, to file a petition for review with the Ninth Circuit Court of || Appeals. 3 IT IS FURTHER ORDERED that the Clerk of the Court enter judgment 4|| accordingly and terminate this case. 5 Dated this 6th day of October, 2021. [7] : Ayes le 9 _- {UO 10 Upited States Dictric Judge [28] -ll-