Patrice Compere, a Haitian national, came to the United States with his family at two years old.[1] Fleeing Haiti, he and his family were allowed to remain in the United States on humanitarian parole.[2] But Mr. Compere was eventually thrust into deportation proceedings on the basis of minor drug-related offenses, and he was ultimately ordered deported back to Haiti.[3]
Hoping to prevent his deportation to a country in which he would be at risk of persecution, Mr. Compere filed motions to reopen and reconsider,[4] asserting that both the immigration court and the Board of Immigration Appeals (BIA) applied the wrong legal standard when assessing his application for persecution-based relief from deportation.[5] Mr. Compere’s motion to reopen (MTR) was based on his fear that, should he be deported, it is likely that he would be detained, tortured, or even killed as a consequence of his criminal history.[6] Despite that fear, Mr. Compere was still at risk of deportation while the MTR remained pending.[7] For that reason, he filed a request that the BIA stay his removal until his motion could be decided.[8] When that stay was denied,[9] Mr. Compere was suddenly thrust into a legal limbo—at imminent risk of deportation, but unable to access federal court review of his stay denial while his motion remained pending before the BIA.[10] And so, Mr. Compere filed a habeas petition in the District of New Hampshire, which, in relevant part, found that it had jurisdiction over Mr. Compere’s petition.[11] In doing so, the court saved Mr. Compere from being deported to a country where he likely would have been lynched, detained, or forced into hiding, and would thus have been functionally precluded from fighting for his right to remain in the United States.[12]
Until recently, courts confronting habeas petitions like Mr. Compere’s often assumed, without analysis, that they did not have jurisdiction to review such claims.[13] In designing the immigration system, Congress enacted harsh provisions that purport to strip federal district courts of jurisdiction over many immigration-related claims,[14] even when those claims come in the form of a habeas petition.[15] For example, these provisions seek to limit federal courts’ power to certify certain class actions,[16] grant equitable relief in some cases,[17] and, in some circumstances, enjoin a noncitizen’s removal or provide other types of injunctive relief.[18] Until recently, district courts often found petitions like Mr. Compere’s to be unreviewable under one of these jurisdictional bars—8 U.S.C. § 1252(g)—which provides, in relevant part, that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”[19]
It is becoming increasingly obvious that it is necessary for district courts to recognize that they have jurisdiction over at least some of the habeas petitions that might otherwise be barred by § 1252(g) because of the absence of viable alternative procedures for noncitizens to raise important legal claims. The Suspension Clause[20] requires that Congress provide adequate and effective substitute procedures should it seek to strip federal district courts of habeas jurisdiction.[21] In theory, the statutory framework that governs the immigration system could provide such a substitute, granting noncitizens in immigration proceedings an avenue to challenge their removal in federal court.[22] This avenue—called a petition for review (PFR)—allows a noncitizen to petition a federal court of appeals to review challenges related to their deportation orders.[23] But in reality, as this Note will explain, this mechanism is often inadequate as a substitute to habeas.
In order for the PFR to be an adequate and effective substitute for the writ of habeas corpus, it must be available in practice as well as theory.[24] But there are a number of requirements for invoking federal jurisdiction through a PFR that ultimately prevent many noncitizens at risk of imminent deportation from accessing any federal court review of their removal, even when it is necessary for the petitioner to remain in the United States in order to access a meaningful opportunity to seek immigration relief as provided by statute or regulation.[25] In these cases, the PFR should not be considered an adequate substitute to habeas, and the Suspension Clause is thus violated.
One of the most litigated examples of this occurs when individuals have a pending motion to reopen their removal proceedings, but have been denied a stay of removal.[26] Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996,[27] stays of removal are no longer automatic when an MTR is filed.[28] Rather, these individuals must actively request a stay of their removal in order to remain in the country while the MTR is adjudicated.[29] Frequently, the BIA will deny the stay request while the MTR remains pending.[30] But while such a motion remains pending, courts of appeals usually find that they lack jurisdiction to consider a PFR of that stay denial and the resulting deportation.[31] Therefore, in order to remain in the country, a noncitizen must file a habeas petition in a federal district court, asking the court to issue a temporary order staying the noncitizen petitioner’s removal.[32]
Moreover, the harsh immigration enforcement policies of the Trump Administration have resulted in a dramatic increase in the enforcement of old removal orders.[33] This increase is likely attributable to both the Trump Administration’s changed policies regarding prosecutorial discretion in the immigration enforcement context,[34] as well as the mass-scale immigration enforcement raids targeting immigrant communities, often in order to enforce old removal orders against those individuals who, until now, have been receiving the benefit of the previous administration’s prosecutorial discretion.[35] The prosecutorial discretion policies and increased enforcement efforts have placed more people in deportation proceedings,[36] exacerbating the problem wherein noncitizens increasingly find themselves in procedural postures where they are unable to file a PFR, leaving more and more people subject to deportation orders that they have no way of challenging but through a habeas petition in federal district court.
But the Trump Administration’s policies have also produced a growth in public awareness that has served a critical role in inspiring the trend of district courts finding that they have jurisdiction in such habeas petitions. In recent decisions,[37] inspired partially by the Trump Administration’s anti-immigrant rhetoric and policies,[38] district courts have found jurisdiction over habeas petitions that would formerly have been dismissed under § 1252(g), either by narrowly construing the statute to allow jurisdiction in such cases,[39] or, in finding that the statute does apply to such cases, holding that such application is an unlawful suspension of habeas corpus.[40]
This Note aims to articulate a cohesive legal argument to support finding federal district court jurisdiction despite § 1252(g) in certain habeas petitions where the petitioner is precluded from filing a PFR. The Supreme Court has long construed § 1252(g) narrowly to bar review of only a subset of immigration claims.[41] But lower courts remain split over precisely how to define the outer limits of the statute.[42] While interpreting § 1252(g) broadly raises Suspension Clause concerns—at least in the context described in this Note—lower courts have only recently begun to construe the statute narrowly, and the approaches differ across the country.[43] This Note proposes that, while the recent trend of finding jurisdiction despite § 1252(g) has led to the correct outcome, courts have been applying improper rationales. Rather, district courts should employ the doctrine of constitutional avoidance[44] to construe § 1252(g) narrowly in such a way as to grant jurisdiction over habeas petitions filed by noncitizen petitioners who seek temporary stays of removal until such time as they are able to meaningfully pursue immigration relief provided by statute or regulation.
This Note proceeds in three Parts. Part I provides a general background of how the immigration system interacts with federal courts and the statutory framework that strips federal courts of jurisdiction in certain cases, particularly in the context of habeas petitions. Part II analyzes the recent jurisprudential trend wherein federal district courts have found jurisdiction over habeas petitions despite § 1252(g), including those decisions grounded in statutory construction as well as those decided on constitutional grounds. Part III proposes that courts must construe § 1252(g) to allow federal court jurisdiction over certain habeas petitions where the petitioner is precluded from filing a PFR. Section 1252(g) is an ambiguous statute, where a broad construction stripping courts of jurisdiction over such habeas petitions would raise a constitutional question regarding the statute’s constitutionality under the Suspension Clause. For this reason, the canon of constitutional avoidance requires that courts construe the statute narrowly, finding jurisdiction over such habeas petitions in order to avoid the constitutional question.
Table of Contents
I. Background
A…. Federal Courts and the Immigration System
B…. IIRIRA and the Implementation of § 1252(g)
C….. Habeas Corpus in the Immigration Context
1….. The “Plain Statement” Rule and INS v. St. Cyr
2….. Habeas Jurisdiction after St. Cyr: The Adequate and Effective Substitute Inquiry
II. Analysis
A…. The Pure Statutory Construction Approach
B…. The Suspension Clause Approach
III. Proposal: Construe § 1252(g) Narrowly to Allow Habeas Review of Stay Denials
A…. The Application of Constitutional Avoidance Is Appropriate Because § 1252(g) Is an Ambiguous Statute
B…. A Broad Construction of § 1252(g) Raises a Suspension Clause Issue Where Deportation Would Deprive Petitioners of a Meaningful Opportunity to Pursue Relief Provided by Statute or Regulation
Conclusion
It is essential to begin by providing a general explanation of the immigration court system and the way that system interacts with federal courts, as well as some insight into the alphabet soup of immigration practice.
When the Department of Homeland Security seeks to deport an individual, it initiates removal proceedings that take place before an Immigration Judge (IJ) in an administrative court within the Executive Office of Immigration Review (EOIR), a sub-component of the Department of Justice (DOJ).[45] If the IJ ultimately orders the noncitizen to be deported, the noncitizen has a right to appeal to the BIA, a centralized group of immigration appeals judges who hear the appeals from every IJ in the country.[46] The BIA may reverse and remand the IJ’s decision on various grounds, or it may affirm the IJ’s removal order.[47] While awaiting a decision from the BIA, the noncitizen is safe from deportation, because while the appeal is pending before the BIA, the deportation order is not yet administratively final.[48]
Until this point, the entire removal process has taken place within the administrative immigration adjudication structure within the EOIR.[49] If the BIA affirms a person’s removal order, an individual may seek additional review of their deportation order within thirty days through a PFR. The PFR is a procedural mechanism that allows a noncitizen to access review by an Article III court by petitioning a federal circuit court of appeals within thirty days to review the IJ and BIA’s decision.[50]
Additionally, every person with a final order of removal has a statutory right to file one MTR with the BIA,[51] which, if granted, will allow them to have their removal case reopened for further litigation.[52] Among other grounds,[53] noncitizens may file an MTR based on “changed country conditions,” reopening their removal proceedings in order to seek persecution-based relief such as asylum, withholding of removal, or relief under the Convention against Torture (CAT).[54]
But filing an MTR does not automatically stay deportation;[55] rather, these individuals must affirmatively request a stay of their removal, and that motion must be granted, in order to remain in the country while the MTR is adjudicated.[56] Frequently, the BIA—where such MTRs are filed—will deny the stay request while the MTR remains pending on its docket.[57] As a result, noncitizens with meritorious MTRs are often deported before their MTR is even adjudicated.[58] And, for individuals whose MTRs are based on changed country conditions, they are being deported to countries in which they fear persecution while their legal effort to seek relief—ironically based on that same persecution—is ongoing.[59] Moreover, while the MTR is pending, noncitizens are precluded from filing a PFR to review the denial of their stay request.[60] Thus, the practice of denying stays while MTRs remain pending often prevents noncitizens from seeking any review of their stay denials before they are deported.[61]
In theory, this should not create a critical problem for noncitizens. After all, regulations dictate that an MTR may be adjudicated after a person has been removed,[62] and courts have held that it is not a due process violation to do so.[63] But in practice, the consequences of deportation can be deadly. Petitioners like Mr. Compere, who face imminent persecution upon deportation to their country of origin, may be kidnapped, tortured, or even killed before they are ever able to receive a decision on their MTR.[64] For these petitioners in particular, the question of whether their deportation may be stayed while their MTR is adjudicated is, potentially, a matter of life or death. At best, once deported to such a country, these individuals are forced to live in hiding, unable to even contact their lawyer in order to continue pursuing their removal case.[65] At worst, these individuals will be killed long before they have the opportunity to receive an order on their MTR or file a PFR.[66] Thus, for noncitizens whose MTRs are based on changed country conditions, the jurisdictional bars described above functionally deprive them of the opportunity to avail themselves of any review of their motions, let alone the Article III court review to which they are entitled.[67] This deprivation has constitutional implications under the Suspension Clause.
- IIRIRA[68] and the Implementation of § 1252(g)
In an effort to prevent their clients’ deportation in these circumstances, immigration lawyers across the country have been forced to find creative solutions to ensure their clients’ ability to stay in the United States while the clients’ MTRs are pending.[69] Many lawyers will file petitions for a writ of habeas corpus in federal district court, seeking the federal court to issue a temporary restraining order (TRO) or temporary injunction staying the petitioner’s deportation while the MTR remains pending.[70] Until recently, such petitions would have likely been summarily rejected on jurisdictional grounds.[71]
In 1996, Congress enacted the IIRIRA,[72] which completely overhauled the immigration system. Among the many changes to the immigration system, IIRIRA created a statutory framework whereby federal district courts were stripped of jurisdiction over many immigration-related cases.[73] Instead, removal proceedings are channeled from the IJ to the BIA and finally to the federal courts of appeals through the PFR mechanism.[74]
The statutory framework seeks to bar federal district court review of immigration matters in a number of ways. For example, subsection (a)(2)(A)(i) prevents courts from reviewing “any other cause or claim arising from or relating to the implementation or operation of an order of removal.”[75] Other subsections limit federal courts’ power to certify a putative class,[76] grant equitable relief,[77] and, in particular, enjoin a noncitizen’s removal or provide any other injunctive relief.[78]
Only one small part of that framework—§ 1252(g)—is at issue in this Note. As enacted, it provides:
Except as provided in this section and notwithstanding any other provision of law, . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.[79]
In Reno v. American-Arab Anti-Discrimination Committee (AADC), the Supreme Court was met with its first chance to interpret the statute.[80] The respondents in AADC were members of the Popular Front for the Liberation of Palestine, which the U.S. government characterized as an international terrorist and communist organization.[81] Respondents were charged as removable under the McCarran-Walter Act, which, repealed by the time of the Supreme Court decision, provided for the deportation of noncitizens who “advocate . . . world communism.”[82] Respondents challenged their immigration orders on First and Fifth Amendment grounds, arguing that the government had targeted the respondents for deportation proceedings because of their political affiliations.[83] Throughout the litigation, the government had argued that this statute was a “‘zipper’ clause,”[84] depriving federal district courts of jurisdiction in all immigration matters.[85] But at first instance, the lower courts found that § 1252(g) did not bar federal district courts from reviewing the respondents’ claim.[86] In 1999, the Supreme Court summarily rejected this “unexamined assumption” that § 1252(g) strips federal district courts of jurisdiction over the entire “universe of deportation claims.”[87] Rather, the Court explained that a key purpose of § 1252(g) was to shield the Attorney General’s discretionary decisions from judicial review.[88]
For that reason, the Court adopted a narrow reading of the statute, finding that the provision only bars review of the “three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate cases, or execute removal orders.”[89] Thus, because the AADC plaintiffs were directly challenging the Attorney General’s decision to execute removal orders against them,[90] the Court ultimately held that § 1252(g) deprived the federal district courts of jurisdiction to review the respondents’ claim.[91]
The Court further explained that § 1252(g) targeted these three discrete categories of Attorney General decisions because they “represent the initiation or prosecution of various stages in the deportation process.”[92] In other words, these three discrete actions represent the various stages at which the agents of the immigration system may choose to either proceed with removal proceedings against a noncitizen, or to exercise a form of prosecutorial discretion and abandon those proceedings.[93] Therefore, the Court reasoned that § 1252(g) was specifically targeted towards protecting that exercise of prosecutorial discretion from judicial review.[94] Thus, despite the Court’s narrow reading of § 1252(g), the AADC plaintiffs’ claim of selective prosecution fell clearly within the scope of the statute.[95]
AADC thus defined the claims barred by § 1252(g): challenges to the exercise of prosecutorial discretion, either by affirmatively choosing to “commence proceedings, adjudicate cases, or execute removal orders,” or by refraining from doing so.[96] Unsurprisingly, federal district courts have followed the Supreme Court in AADC and interpreted the jurisdictional bar in § 1252(g) to apply only to those discrete instances listed in the statute.[97] However, without further guidance on the scope of the statute from the Supreme Court, the statute has been interpreted to severely limit judicial review of claims that arguably do not challenge those three discrete actions, even when those claims implicate constitutional issues.[98]
- Habeas Corpus in the Immigration Context
- The “Plain Statement” Rule and INS v. St. Cyr[99]
In separate litigation, the jurisdictional stripping provisions of § 1252 were also challenged on Suspension Clause grounds. The issue arrived at the Supreme Court in 2001 in the form of INS v. St. Cyr.[100] In St. Cyr, the plaintiff was a lawful permanent resident (LPR or, colloquially, a green card holder) who was charged as deportable in 1997 based on a conviction that occurred prior to the passage of IIRIRA.[101] Critically, at the time of the plaintiff’s conviction, he would have been eligible for a waiver of deportation that was repealed as part of IIRIRA in 1996.[102] The plaintiff was denied that relief in immigration court, and filed a habeas petition in federal district court challenging the retroactive application of IIRIRA.[103]
While the Supreme Court eventually held that IIRIRA could not be applied retroactively in such a manner,[104] relevant to this Note is the Supreme Court’s holding regarding the application of IIRIRA’s jurisdictional stripping framework to habeas petitions filed in connection with immigration matters.[105] The lower courts had allowed for jurisdiction and held in favor of the plaintiff, granting his habeas petition.[106] The Supreme Court affirmed the lower court rulings and rejected the government’s argument that § 1252—specifically subsections (a)(1), (a)(2)(C), and (b)(9)—stripped the district court of jurisdiction over Mr. St. Cyr’s habeas petition.[107]
In its analysis, the Court first noted that there is a strong presumption in favor of jurisdiction over habeas review.[108] This presumption arises in large part out of the Suspension Clause, which provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”[109] Given the presumption in favor of habeas jurisdiction and its constitutional roots, the Court based its ruling on the “longstanding rule” that there must be “a clear statement of congressional intent” in order to strip jurisdiction over habeas petitions.[110] The Court noted that legislative history or statutory interpretation—including section titles[111]—may not be interpreted as such “clear statement.”[112] Rather, Congress must provide in the text of the legislation itself for such a repeal of habeas jurisdiction in a “specific and unambiguous” manner. [113]
The Court supported this “plain statement rule” by reference to other canons of statutory construction, including the canon of constitutional avoidance.[114] This canon demands that, where a statute is ambiguous, and where a possible construction of that statute would raise a constitutional issue, the statute must be construed in such a way as to avoid the constitutional issue.[115] The Court reasoned that a “serious Suspension Clause issue would be presented” if it construed the provisions at issue to strip federal district courts of habeas jurisdiction.[116] For that reason, the Court stated that it was essential to rely on the “plain statement rule” in the habeas context.[117]
In 2005, as part of the REAL ID Act,[118] Congress revised § 1252 to comport with the “plain statement” rule articulated in St. Cyr, inserting language that unambiguously conveyed the congressional intent to repeal habeas jurisdiction in immigration cases.[119] Ostensibly, the REAL ID Act was not intended to eliminate judicial review entirely; rather, the amendments were intended to reinstate the judicial review available in immigration proceedings to the pre-IIRIRA level.[120] Moreover, Congress was clear as to the outer limits of the scope of the provisions. The amendments were not designed to preclude habeas review over challenges to decisions that are independent of the removal orders.[121] Rather, they were intended to “eliminate habeas review only over challenges to removal orders.”[122]
But IIRIRA’s Suspension Clause problem did not end there. Should Congress provide for a repeal of habeas jurisdiction, the Suspension Clause requires that Congress provide an adequate and effective substitute to habeas review.[123] The legislative history shows that Congress was cognizant of the Suspension Clause issues raised by stripping habeas jurisdiction in this manner, but relied on the PFR procedure already in place to provide the adequate substitute to habeas review that the Suspension Clause demands.[124] However, the Trump Administration’s immigration policies have revealed that the PFR is not an adequate substitute for habeas for at least some noncitizens subject to removal proceedings.
As the Supreme Court reasoned in Boumediene v. Bush, adequacy of the substitute must be decided on a case-by-case basis, and the analysis depends in large part on the rigor of the initial process.[125] In Boumediene, noncitizen detainees of Guantanamo Bay challenged the provisions of the Military Commissions Act of 2006 (MCA) and the Detainee Treatment Act of 2005 (DTA), which, in relevant part, stripped courts of jurisdiction to review habeas petitions by Guantanamo detainees and channeled detention review to the circuit courts with severely limited jurisdiction.[126] After concluding that the Constitution—and thus the right to habeas corpus—applied to the petitioners,[127] the Court considered whether the substitute review provided in the DTA constituted an adequate and effective substitute to habeas.[128]
Comparing the DTA’s jurisdictional grant to that of the habeas statute, the Court noted that, in passing the DTA, Congress actually intended to create a substitute review mechanism that was more limited than habeas.[129] While this fact was persuasive, it alone was not sufficient to justify finding that the substitute was not adequate and effective.[130] Rather, the Court engaged in a fact-specific analysis in which it examined what would be required by an adequate and effective substitute in this case.[131]
The Court premised its analysis on the proposition that, at minimum, habeas corpus entitles a petitioner to a “meaningful opportunity” to challenge the legality of their detention.[132] Ultimately, the reviews at issue in Boumediene required a factual review, so that the detainee may present his evidence—even new evidence that was unavailable to him during the initial proceeding.[133] Because the substitute process prohibited reviewing courts from conducting such a review, the Court held that the DTA did not provide an adequate and effective substitute.[134] Thus, the provisions at issue in Boumediene violated the Suspension Clause.[135]
Just as the DTA and MCA habeas-stripping provisions were unconstitutional without an adequate and effective substitute, the jurisdictional stripping provisions of § 1252 would also be unconstitutional if Congress failed to provide such a substitute. Congress theoretically provided such a substitute to habeas by means of the PFR.[136] But the intent of Congress does not mean that the PFR is indeed an adequate and effective substitute for habeas in all matters. The petitioners described throughout this Note have been precluded from availing themselves of this so-called substitute; for that reason, in these cases, the PFR is decidedly inadequate as a substitute for habeas,[137] and it is well past time that federal courts recognize that inadequacy. Thus, for this category of litigants, § 1252(g) violates the Suspension Clause.
Until recently, district courts have routinely found that § 1252(g) divested them of jurisdiction to grant stays of removal to prevent the execution of a removal order while motions to reopen underlying proceedings remained pending.[138] Meanwhile, other district court decisions summarily find that jurisdiction is barred in such cases, assuming without citation or analysis that the issue is settled.[139] But, the question of whether § 1252(g) properly bars review over these claims is an open one that lies at the heart of this Note.
Recently, district courts are increasingly finding jurisdiction despite § 1252(g) over habeas petitions seeking a stay of removal where the petitioner’s underlying motion remained pending. These district court decisions can be divided into two categories. In the first category, courts have narrowly construed the statute to find that the denial of the motion to stay removal does not fall within the scope of actions described by the statute.[140] In the second category, district courts have held that § 1252(g) as applied violates the Suspension Clause.[141] But this Note proposes that there is a third, better approach: to employ the canon of constitutional avoidance to construe the statute narrowly in order to avoid the Suspension Clause issue.
Some courts have avoided ruling that § 1252(g) strips jurisdiction in such cases by narrowly construing the statute in various ways. Some of these courts have construed the statute to allow review of a “purely legal question,” even when that purely legal question implicates the Attorney General’s discretionary decisions.[142] For example, in Jama v. INS,[143] the Eighth Circuit created what they later described as an exception to the § 1252(g) jurisdiction bar for habeas claims that raise a pure question of law.[144] In Jama, the petitioner—whom INS (a predecessor to ICE) had ordered be deported to Somalia—challenged the Attorney General’s legal conclusion that the petitioner could be removed “without first establishing that Somalia will accept his return.”[145] Concluding that it had jurisdiction over Mr. Jama’s claim, the court reasoned that it is not within federal courts’ purview to “second-guess” the discretionary decisions of the Attorney General, but rather to address a “purely legal question of statutory construction.”[146] Therefore, because the petition raised a “purely legal question,” § 1252(g) did not strip the federal courts of jurisdiction.[147]
Other courts construe § 1252(g) in such a way as to allow jurisdiction over challenges to a government defendant’s legal authority to take one of the three discrete actions specified in the statute.[148] For example, the Ninth Circuit held in Arce v. United States[149] that § 1252(g) did not strip the federal courts of jurisdiction over the plaintiff’s Federal Tort Claims Act claim against DHS alleging, among other things, false arrest and imprisonment and intentional infliction of emotional distress.[150] The petitioner had been deported in violation of a stay of removal that was issued by the Ninth Circuit, which was considering his pending emergency PFR.[151] In reversing the district court’s decision that § 1252(g) barred jurisdiction, the Ninth Circuit explained that the statute does not strip the federal courts of jurisdiction over the “multitude” of discretionary decisions that are part of executing a removal order, including the decision “to refuse reconsideration of that order.”[152] Ultimately, the Supreme Court found that § 1252(g) did not strip jurisdiction, because the petitioner was “not attacking the removal itself,” but rather asserting that DHS lacked the authority to execute the removal order.[153]
The District Court of the Southern District of New York has used similar reasoning in a number of recent cases where the court found jurisdiction despite § 1252(g).[154] In these cases, petitioners filed habeas petitions seeking a stay while they were in the midst of adjusting status through the stateside provisional waiver process.[155] In one such case, You v. Nielsen,[156] the Southern District of New York found jurisdiction despite § 1252(g), granting a stay of removal where the petitioner was arrested while he was in the early stages of the process.[157] Mr. You had been struggling with the immigration system since he first came to the United States in 2000.[158] In 2015, his wife became a United States citizen.[159] He immediately petitioned to adjust his status, with his wife petitioning for him as her immediate relative.[160] But although his I-130 was already approved, Mr. You was detained without notice pursuant to a 2002 order of removal when he arrived for his I-485 interview.[161] He filed an MTR and a request to stay his removal, but the BIA denied the stay while the MTR remained pending.[162] Left with no other way to prevent his deportation, he filed a habeas petition and sought an order staying his removal, which the court granted.[163]
In finding that it had jurisdiction over Mr. You’s habeas petition, the court narrowly construed § 1252(g) in two significant ways. First, the court reasoned that the petition did not challenge a discrete decision to execute removal, but rather challenged the legality and constitutionality of the respondents’ actions.[164] Specifically, Mr. You’s claim alleged a procedural due process violation challenging the manner in which he was detained and arguing that he “should have been afforded notice, an opportunity to be heard, and a determination that he was either dangerous or a flight risk before being arrested and detained.”[165] The court held that while review of a discrete decision would be barred by § 1252(g), review of the manner in which a discrete decision is carried out is not.[166] To illustrate this distinction, the court used an extreme example: while a decision to remove a noncitizen is non-reviewable, § 1252(g) would not bar review of a decision to do so “by dropping Petitioner on a life raft in the middle of the Atlantic Ocean.”[167] More realistically, the court noted that indefinite detention is one such “manner” of executing a removal order that has been found to be constitutionally deficient.[168] In other words, § 1252(g) does not strip courts of jurisdiction to review how the government acts to remove noncitizens, even if it deprives courts of jurisdiction to review the removal order itself.[169] Thus, You supports the proposition that review of the manner of removal (rather than the final order of removal itself) is not barred by § 1252(g).
Additionally, the You court rejected the Government’s argument that § 1252(g) bars review of “any claims ‘arising from’ the decision to execute an order of removal.”[170] In order to do so, the Court turned to a recent Supreme Court decision, Jennings v. Rodriguez,[171] to guide its interpretation of the scope of § 1252(g).[172] It concluded that the language of § 1252(g) refers only to those specific actions themselves, not any claim that can be construed to “aris[e] from” those actions.[173] In Jennings, the Supreme Court considered in relevant part whether § 1252(b)(9) barred jurisdiction over the review of a denial of a bond request.[174] Analyzing the statute that limited review over “questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States,” the Supreme Court criticized a broad reading of the phrase “arising from.”[175] Referring to its decision in AADC,[176] the Court specifically used § 1252(g) as an example of a statute where such a broad reading of “arising from” would lead to such troubling results, allowing a statute that specifically mentions three distinct discrete actions to become a “zipper clause.”[177] Based on this rationale from Jennings, the You court concluded that § 1252(g) did not bar review of the denial of motion to stay removal while motions to reopen removal proceedings and adjustment of status proceedings remained pending.[178]
In another case, Calderon v. Sessions, the Southern District of New York again drew a distinction between a challenge to a discrete decision and a challenge to the legality of the actions underlying that decision.[179] The petitioner in this case was an undocumented immigrant, married to a United States citizen, and was in the process of adjusting his status to become an LPR through the stateside provisional waiver process, which was specifically created to allow noncitizens like Mr. Calderon to adjust their status without spending a lengthy time outside of the country.[180] Nevertheless, while in the midst of this process, the petitioner was detained pursuant to a removal order from 2010.[181] He filed a habeas petition seeking to stay his removal.[182]
The court was heavily influenced by the fact that there was an avenue of relief available to the petitioner, and that this relief was specifically intended to be available to him while he remained in the United States.[183] Like in the Ninth Circuit’s ruling in Arce,[184] it was again critical that the petitioner was not challenging ICE’s choice to commence removal proceedings, but rather ICE’s legal authority to commence removal proceedings while such a specified avenue of relief was available.[185]
The Southern District of New York’s approach to § 1252(g) in the provisional waiver context has influenced other district courts. The District Court of New Jersey recently relied on both You and Calderon in deciding De Jesus Martinez v. Nielsen, a similar case regarding the provisional waiver program.[186] In Martinez, the petitioner was in the process of adjusting his status through the provisional waiver program, but was detained without notice when he arrived at his interview.[187] Like the courts in You and Calderon, the District Court of New Jersey was particularly frustrated with the fact that Mr. De Jesus Martinez was detained by ICE and thrust into the deportation process despite the fact that he was following DHS procedures that are prescribed precisely for people like him.[188] Thus, using the same reasoning and relying heavily on the Southern District’s decisions in You and Calderon, the District of New Jersey found that § 1252(g) did not bar review over the petitioner’s claim and granted the stay.[189]
In sum, district courts that have found jurisdiction despite § 1252(g) have taken three overlapping approaches to construing the statute narrowly, reasoning that review was permitted because the case (1) raised a pure legal question, (2) challenged legal authority to make decision, not the decision itself, or (3) challenged the manner in which a decision was carried out, rather than the decision itself. These courts have all recognized the narrow construction of § 1252(g) that is required by the Supreme Court’s decisions in AADC and Jennings.[190] Such a narrow construction has allowed the courts to avoid the constitutional Suspension Clause issues that denying jurisdiction would raise, allowing these courts to avoid the tangled legal analysis of those courts which take a different approach, ruling that the statute does strip the court of jurisdiction, but nevertheless granting jurisdiction on the basis that the statute violates the Suspension Clause as applied.
In none of the cases described above did the courts discuss the petitioners’ claims that § 1252(g) as applied violated the Suspension Clause.[191] However, other courts are taking a different approach. Despite finding that § 1252(g) does apply to such cases, these courts have nevertheless held that the application of the statute to the petitioners in the matters before them amount to an unlawful suspension of habeas corpus in violation of the Suspension Clause.[192]
For example, in Devitri v. Cronen,[193] the District of Massachusetts found jurisdiction on Suspension Clause grounds over a habeas petition filed by fifty-one Indonesian Christians who were subject to final orders of removal but feared deportation on religious persecution grounds.[194] Prior to the Trump Administration, the petitioners had all been living in the United States under OSUPs granted through a formal program called Operation Indonesian Surrender, which allowed them to remain in the United States under OSUPs without fear of deportation.[195] But the Trump Administration terminated the program in early 2017, and, in June 2018, began ordering these individuals to purchase tickets to return to Indonesia within thirty days.[196] Since 2010, these Indonesian nationals had lived in the United States without fear of deportation, believing in the government’s promise to allow them to remain in the United States provided they complied with the program requirements.[197] But the Trump administration reneged on that promise, and the former beneficiaries of Operation Indonesian Surrender were suddenly at risk of being sent to a country where they feared persecution based on their religion.[198] They scrambled to file MTRs and motions to stay their removal, and they petitioned the District of Massachusetts, requesting that the judge order temporary stays until their motions could be adjudicated.[199]
In considering § 1252(g), the District of Massachusetts construed the statute broadly, describing it as “absolute.”[200] Moreover, the court turned to precedential decisions in the Sixth and Fourth Circuits to support the proposition that a stay denial “clearly ar[ises] from” the decision to execute a removal order, and is thus barred from habeas review under § 1252(g).[201] For this reason, the court held that § 1252(g) does bar jurisdiction over the claim.[202] But the court then continued its analysis, recognizing the way in which deportation would deprive the plaintiffs of an opportunity to pursue their claims: should the plaintiffs be deported, they would be at risk of harms such as persecution and torture, that, should they occur, would prevent them from ever adjudicating their claims.[203] For this reason, the court found jurisdiction squarely under the Suspension Clause.[204]
Similarly, the dire consequences that would result from plaintiffs’ deportation played a significant role in the Eastern District of Michigan’s reasoning in a similar case, where the court considered a petition by a class of Iraqi nationals with final orders of removal who feared deportation to Iraq because of their status as persecuted religious minorities and/or their affiliation with the United States.[205] The petitioners requested a TRO and/or stay to prevent their removal until they could prepare motions to reopen their immigration proceedings and have their claims for persecution-based relief adjudicated.[206] The Government moved to dismiss on jurisdictional grounds, arguing in relevant part that § 1252(g) bars the court from reviewing the petitioners’ claim.[207] The petitioners contended that their claim was outside the scope of § 1252(g); and, in the alternative, that § 1252(g), as applied to bar the petitioners’ claim, would amount to an unlawful suspension of habeas corpus in violation of the Suspension Clause.[208] In considering the petition, the court reasoned that § 1252(g) would properly bar this class’s habeas petition because the claim challenged an action that clearly fell within the scope of the statute.[209]
However, the court further held that the statute violated the Suspension Clause as applied to restrict the court’s jurisdiction over the petitioners.[210] Opposing the Suspension Clause argument, the Government argued that the MTR allows the petitioners’ claims to be reviewed on the merits, and that PFR provided an adequate substitute for review of that decision.[211] But the court rejected the Government’s adequacy argument, finding that the “extraordinary” consequences of removing the petitioners should they be denied the stay merited a finding of jurisdiction squarely under the Suspension Clause. [212]
Drawing inferences in favor of the petitioners, the court was convinced that deportation “would expose Petitioners to the substantiated risk of death, torture, or other grave persecution before their legal claims can be tested in a court” through adjudication of their MTRs.[213] For this reason, the petitioners’ MTRs would not be an adequate substitute for habeas review.[214] As such, applying § 1252(g) to divest jurisdiction in these “extraordinary circumstances” would amount to an unlawful suspension of habeas corpus.[215]
In deciding to rule on constitutional grounds, the type of relief sought by the petitioners played a significant role.[216] The court was influenced greatly by the severity of the consequences that would result in the noncitizen petitioners’ removal to Iraq.[217] The consequences would not merely be that the petitioners would be forced to attempt to litigate their MTRs from abroad, but rather that they would be killed, tortured, or otherwise harmed before they would be able to do so.[218] It was that consequence—the death of the noncitizen before they would be able to litigate their MTR—that, for the court, amounted to a violation of the Suspension Clause.[219]
On appeal, the Sixth Circuit reversed the district court ruling in relevant part on the grounds that a stay of deportation is not an appropriate remedy for habeas.[220] While there are highly persuasive arguments that Hamama was wrongly decided by the Sixth Circuit, it is outside the scope of this Note to fully address that proposal. Instead, it is sufficient to point to the dissenting opinion, in which Judge White deftly addresses this argument, looking, inter alia, to Supreme Court precedent in INS v. St. Cyr to show that stays are well within the scope of appropriate habeas remedies, and consequently have often been ordered as such.[221] Moreover, Judge White’s dissent has already proved persuasive in courts outside of the Sixth Circuit when the U.S. District Court for the District of New Hampshire endorsed her reasoning and noted separately that the cases supporting this argument are “legion.”[222] Thus, courts should not ultimately be persuaded by the Sixth Circuit majority decision in Hamama. Rather, courts facing such habeas petitions in the future should consider that, if they find that § 1252(g) bars habeas petitions, such as those described in this Note, they will inevitably raise a constitutional question under the Suspension Clause.[223]
III. Proposal: Construe § 1252(g) Narrowly to Allow Habeas Review of Stay Denials
How then, should courts address this inevitable constitutional question? Until now, courts have either construed the statute narrowly, finding jurisdiction without reaching the constitutional issue, or construed the statute broadly but nevertheless found jurisdiction squarely on Suspension Clause grounds.[224] This Note, however, proposes that there is a third path. The canon of constitutional avoidance provides that, when a statute is ambiguous such that it may reasonably be construed in multiple ways, courts should adopt an interpretation that avoids raising a constitutional question of whether § 1252(g) as applied to strip courts of jurisdiction over habeas petitions violates the Suspension Clause.[225] Federal district courts should follow the Supreme Court in AADC and Jennings by construing § 1252(g) narrowly in such a way that allows habeas jurisdiction to review stay denials until such time that petitioners have a meaningful opportunity to pursue immigration benefits specifically provided to them by Congress or the agency, such as MTRs based on changed country conditions or the stateside provisional waiver, avoiding the Suspension Clause issue that such petitions inevitably raise.
- The Application of Constitutional Avoidance Is Appropriate Because § 1252(g) Is an Ambiguous Statute
In order to apply the canon, a court must first find that the statute at issue is ambiguous, meaning that it could reasonably be interpreted to have multiple constructions.[226] The question of whether the statute is ambiguous is a preliminary one that courts must address before applying the canon.[227] For example, in Jennings v. Rodriguez, the Supreme Court rejected the Ninth Circuit’s construction of mandatory detention statutes to include an implicit six-month limitation on detention.[228] The Ninth Circuit’s construction was grounded in an attempt to avoid the constitutional question raised in Zadvydas v. Davis[229] regarding the constitutionality of indefinite detention.[230] Rejecting this approach, the Supreme Court accused the Ninth Circuit of “all but ignor[ing] the statutory text.”[231] Rather, the Court categorized the Ninth Circuit’s approach as an attempt to “graft a time limit onto the text of” the statute.[232]
The Court contrasted the Ninth Circuit’s approach in Jennings with its invocation of the constitutional avoidance in Zadvydas.[233] In Zadvydas, the Court relied on the constitutional-avoidance canon when it found that the phrase “may be detained” contained in the statute at issue rendered the statute ambiguous.[234] The use of the word “may” implies discretion, but the degree of discretion is ambiguous.[235] For that reason, the Zadvydas Court held that the statute was ambiguous.[236] In contrast, the statute at issue in Jennings used the word “shall,”
eliminating the possibility of interpreting the statute ambiguous regarding the degree of discretion that may be used.[237] Thus, the Supreme Court found that the constitutional-avoidance canon could not be used to read an implicit six-month limit on detention in Jennings.[238]
The Supreme Court has long viewed § 1252(g) as an ambiguous statute that may give rise to multiple constructions.[239] Recall that § 1252(g) strips federal district courts of jurisdiction “to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.”[240] As the Court observed in both AADC and as dicta in Jennings, the phrase “arising from”—like the word “may” at issue in Zadvydas—gives rise to multiple constructions.[241] In particular, the Court described the phrase “arising from” as a “capacious phrase[],” which, if read through a lens of “uncritical literalism” would lead to outcomes that “no sensible person could have intended.”[242] It is unclear where the outer limits of this phrase lie; but the ambiguity in the statute with respect to at least some claims is nevertheless undisputable.
The ambiguity of § 1252(g) is moreover evident in the recent trend of decisions[243] where courts reach conflicting conclusions as to the scope of the statute.[244] None of these courts have “rewrit[ten]” the statute,[245] but they have nevertheless reached conflicting interpretations of its scope. A survey of this jurisprudence,[246] coupled with the Supreme Court’s own dicta regarding the phrase “arising from,”[247] thus makes it clear that § 1252(g) is ambiguous as to its outer limits.[248] While a broad construction of the phrase “arising from” that bars jurisdiction over habeas petitions described in this Note would inevitably raise a Suspension Clause issue, a narrower construction that allows jurisdiction would avoid that issue. For that reason, courts should construe the phrase “arising from” narrowly in order to find jurisdiction over the habeas petitions described in this Note and avoid the constitutional Suspension Clause question.
- A Broad Construction of § 1252(g) Raises a Suspension Clause Issue Where Deportation Would Deprive Petitioners of a Meaningful Opportunity to Pursue Relief Provided by Statute or Regulation
Although the statute is clearly ambiguous, the canon may only be invoked if one of the possible constructions of § 1252(g) raises a constitutional issue (here, under the Suspension Clause). But, as outlined above, a jurisdictional bar over habeas petitions may be found constitutional if Congress has provided an adequate and effective substitute.[249]
In the most obvious procedural postures, the PFR provides what courts consider to be an adequate substitute to habeas review.[250] But the restrictions on PFR review raise questions as to the adequacy of the PFR as a substitute to habeas in all cases, particularly where deportation would deprive the petitioner of a meaningful opportunity to pursue relief provided by statute or regulation. For example, district courts have found that they have jurisdiction to grant stays of removal in cases where the petitioner was awaiting a decision on an application for a T-Visa.[251] The T-Visa is a form of nonimmigrant status provided by statute and made available to noncitizen victims of human trafficking who are present in the United States on account of that trafficking.[252] Critically, in order to be eligible for a T-Visa, a person must be present in the United States.[253] Therefore, deporting a person who is eligible for and is awaiting a decision on an application for a T-Visa would in fact deprive them of any opportunity—let alone a meaningful one—to pursue statutory relief that Congress has specifically provided for them.[254]
Similarly, district courts have found jurisdiction to grant stays of removal when petitioners are in the process of adjusting status through the stateside provisional waiver program.[255] Again, in these cases, jurisdiction is appropriate because petitioners were pursuing an avenue of relief specifically designed to allow noncitizens like the petitioners to adjust their status without being forced to leave their families and spending a lengthy time outside of the country.[256]
Perhaps in the worst position are those noncitizens who file MTRs based on changed country conditions in order to seek persecution-based relief. Such noncitizens file these MTRs based on a good faith belief that they will be persecuted should they be deported to their countries of origin. Despite their fear of persecution, they are precluded from filing a PFR to review their stay denial before they are deported if their MTR remains pending.[257] As a result, these individuals have no access to meaningful review of their stay denial and are completely deprived of review of their persecution-based claim before they are deported to a country where they will be subjected to persecution, including detention, torture, or even death.[258] This functional deprivation of access to review renders the PFR inadequate and ineffective as a substitute to habeas. Courts should therefore find that § 1252(g) as applied to such individuals raises a Suspension Clause issue.
Consider, for example, Mr. Compere, whose story is described in the opening paragraphs of this Note.[259] In deciding Mr. Compere’s habeas petition, the District Court of New Hampshire considered both Mr. Compere’s statutory right to file an MTR, as well as the conditions he would face upon deportation to Haiti.[260] The court found that there would be a likelihood that, upon deportation to Haiti, Mr. Compere would be confined or detained.[261] Even if not detained, he would likely be confined to his own home, unable to safely leave his house for fear of being lynched.[262] Moreover, Mr. Compere’s limited knowledge of Creole would leave him entirely dependent on his uncle and would make it difficult to communicate with any legal counsel he might find in Haiti.[263] Thus, it would be nearly impossible for Mr. Compere to continue pursuing his claims while detained or in hiding, and unable to communicate with counsel.[264] In such conditions, Mr. Compere would be jurisdictionally permitted to file an MTR, but he would not have any meaningful opportunity to do so.[265] For these reasons, the court rightly concluded—as all courts should when faced with similar facts—that, as applied to Mr. Compere, the PFR and MTR are inadequate substitutes to habeas.[266]
Because Congress specifically designed an avenue of relief for the above-described petitioners, and because of the severe consequences of deportation for individuals who fear persecution, their petitions may be easily distinguished from other cases where courts have held that the PFR and MTR are indeed adequate substitutes. For example, in Luna v. Holder, the Second Circuit held that the thirty-day filing requirement for PFRs did not violate the Suspension Clause as applied, and after conducting a fact-specific inquiry, found that the MTR and PFR together served as an adequate and effective substitute to habeas.[267] But, unlike in Luna, individuals who are pursuing an avenue of relief specifically provided by statute or regulation are stuck in a peculiar procedural posture that has left them in a legal limbo.[268] The Luna petitioner had been given the opportunity to avail himself of the PFR mechanism, but missed that opportunity when his application did not meet the thirty-day statutory filing deadline.[269] In contrast, noncitizens like those pursuing the stateside provisional waiver process or awaiting a decision on a pending MTR are pursuing precisely the pathway that Congress and the agency designed for them. But without final orders on their pending motions or applications, they are jurisdictionally barred from filing a PFR to review their deportation until their motion or application has been decided.[270] Unable to access review, they are nevertheless at risk of deportation, often to countries where they risk persecution. In such circumstances, § 1252(g) should be construed narrowly to prevent that troubling result.
In sum, courts should read § 1252(g) narrowly to allow jurisdiction in these cases. For the individuals described in this Note, the conclusion that the MTR or PFR is an adequate substitute should quickly disintegrate under the even lightest scrutiny of the unique posture in which they find themselves.[271] When these petitioners are denied a stay of removal while their MTRs based on changed country conditions remain pending, the application of § 1252(g) to bar habeas jurisdiction to order a stay leaves them in a legal limbo and at imminent risk of deportation, while unable to fight that deportation or seek any review of the MTR.[272] And, although they are theoretically able to litigate an MTR or file a PFR from abroad, the difficulties they face while enduring persecution in their country of origin prevent them from doing so.[273] They are thus functionally deprived of the “meaningful opportunity” for review to which every person in the United States has a constitutional right.[274] The writ of habeas corpus—the Constitution’s last line of defense against tyranny[275]—should properly be permitted to provide them that review.
† Notes Editor, Cardozo Law Review, Volume 41. J.D. Candidate, June 2020, Benjamin N. Cardozo School of Law; B.A. Yale University, 2015. I am eternally grateful to the students and faculty of the Kathryn O. Greenberg Immigration Justice Clinic for inspiring me to write about this subject and for giving me the space and encouragement to think out loud throughout the process. In particular, I would like to thank Professor Lindsay Nash, my Note Advisor and Clinic Supervisor, for her invaluable guidance and edits, without which this Note would have never been written. Thank you to all of the friends, colleagues, and professors who provided edits and feedback—Professor Deborah Pearlstein; Geroline Castillo; Rikke Bukh; Emily Lundgren; Alisa Whitfield; and the staff and editors of Cardozo Law Review Volumes 40 and 41. Most importantly, thank you to my family—Cheryl Hanin, Ofer Ben Tov, Daniela Rochsar, and Michael Leopold—for their infinite patience and unconditional support.
[1] Compere v. Nielsen, 358 F. Supp. 3d 170, 173 (D.N.H. 2019).
[2] Id. The Immigration and Nationality Act (INA) and accompanying regulations authorize the Department of Homeland Security (DHS) to grant parole to noncitizens on a case-by-case basis for humanitarian reasons. Immigration and Nationality Act § 212(d)(5), 8 U.S.C. § 1182(d)(5) (2018); 8 C.F.R. § 212.5 (2019).
[3] Compere, 358 F. Supp. 3d at 173.
[4] A motion to reconsider allows a noncitizen to request that the immigration courts reconsider her deportation order on the basis of “errors of law or fact in the previous order.” 8 U.S.C. § 1229a(c)(6)(C). Meanwhile, a motion to reopen (MTR) allows a noncitizen to reopen her case based on new facts. 8 U.S.C. § 1229a(c)(7)(B). For the most part, this Note discusses MTRs, but because both types of motions place petitioners in a nearly identical procedural posture with respect to federal court jurisdiction, the distinction between these two motions is irrelevant for this Note’s proposal.
[5] Compere, 358 F. Supp. 3d at 173–83.
[12] Id. at 182 (“[T]he record demonstrates that, more likely than not, Compere would be unable to litigate his motion to reopen if he is removed to Haiti.”).
[13] E.g. Garcia v. Holder, 788 F. Supp. 2d 326, 329 n.16 (S.D.N.Y. 2011) (assuming without analysis that a “petitioner’s right to file an MTR and have the BIA’s ruling thereon reviewed by the Court of Appeals is an adequate and effective substitute for habeas review”).
[14] See INA § 242, 8 U.S.C. § 1252 (2018).
[15] See discussion infra Sections I.B–C and accompanying notes.
[16] 8 U.S.C. § 1252(e)(1)(B).
[20] U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).
[21] Boumediene v. Bush, 553 U.S. 723, 771–79 (2008); see also Swain v. Pressley, 430 U.S. 372, 381–84 (1977) (“[T]he substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.”); Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1107 (9th Cir. 2019) (“[A]t step one, we examine whether the Suspension Clause applies to the petitioner; and, if so, at step two, we examine whether the substitute procedure provides review that satisfies the Clause.”).
[22] See 8 U.S.C. § 1252(a)(5) (“[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this Act.”).
[24] Review must not only be available; that review must also be meaningful. See Boumediene, 553 U.S. at 779.
[25] See infra Section I.A and accompanying notes.
[26] See generally infra Section I.C.2, Part II.
[27] See generally Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.).
[28] See 8 C.F.R. § 1003.2(f) (2019) (“[T]he filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case,” including the decision to execute a removal order).
[29] See id. (“Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board, the Immigration Judge, or an authorized officer of the Service.”); see also Am. Immigration Council, The Basics of Motions to Reopen EOIR-Issued Removal Orders: Practice Advisory 9 (2018), https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/the_basics_of_motions_to_reopen_eoir-issued_removal_orders_practice_advisory.pdf [https://perma.cc/QL4Q-EPJ9] [hereinafter AIC MTR Practice Advisory].
[30] AIC MTR Practice Advisory, supra note 29, at 9.
[33] See Sarah Pierce et al., Migration Policy Inst., U.S. Immigration Policy Under Trump: Deep Changes and Lasting Impacts 3 (2018), https://www.migrationpolicy.org/sites/default/files/publications/TCMTrumpSpring2018-FINAL.pdf [https://perma.cc/B3TQ-N9LJ] (reporting a thirty-seven percent increase in deportations and a forty-two percent increase in U.S. Immigration and Customs Enforcement (ICE) arrests in the first eight months of the Trump Administration compared to the same months in the previous year); U.S. Immigration & Customs Enf’t, Fiscal Year 2017 ICE Enforcement and Removal Operations Report 2 (2017), https://www.ice.gov/sites/default/files/documents/Report/2017/iceEndOfYearFY2017.pdf [https://perma.cc/CR8E-JHR2]. From fiscal year 2017 to fiscal year 2018, ICE arrests increased by an additional eleven percent and ICE deportations tied to such arrests increased by an additional thirteen percent. U.S. Immigration & Customs Enf’t, Fiscal Year 2018 ICE Enforcement and Removal Operations Report 2, 10 (2018), https://www.ice.gov/doclib/about/offices/ero/pdf/eroFY2018Report.pdf [https://perma.cc/2EF8-V9WN].
[34] The Trump Administration all but eliminated the exercise of prosecutorial discretion to grant relief for noncitizens in the form of deferred action, administrative closure, or orders of supervision (OSUPs). See generally Shoba Sivaprasad Wadhia, Immigration Enforcement Under Trump: A Loose Cannon, Harv. L. Rev.: Blog (Feb. 21, 2018), https://blog.harvardlawreview.org/immigration-enforcement-under-trump-a-loose-cannon [https://perma.cc/H9AS-E5K6]. The Trump Administration’s guidance regarding immigration enforcement has de-emphasized, if not completely ignored, the option of using prosecutorial discretion to resolve removal proceedings, particularly in comparison to guidance issued by previous administrations. Id. As a result of these Trump policies, noncitizens with final orders of deportation who had little fear of deportation under the Obama Administration now live under the constant threat of imminent deportation, and in many cases are being thrust back into removal proceedings at the whim of the government. Id.
[35] In early 2017, the Trump Administration began conducting large-scale raids on immigrant communities, seeking to enforce old deportation orders against individuals who had previously benefited from prosecutorial discretion in their immigration proceedings. See, e.g., Tal Kopan, Immigration Arrests Rise in First Months of Trump Administration, CNN (Apr. 17, 2017, 8:23 PM), https://www.cnn.com/2017/04/17/politics/immigration-arrests-rise/index.html [https://perma.cc/E7T5-69XA] (describing an increase in arrests by ICE of undocumented individuals without criminal convictions); Liz Robbins & Caitlin Dickerson, Immigration Agents Arrest 600 People Across U.S. in One Week, N.Y. Times (Feb. 12, 2017), https://www.nytimes.com/2017/02/12/nyregion/immigration-arrests-sanctuary-city.html [https://perma.cc/P57V-4YLC] (describing a significant increase in arrests by ICE during one of the first weeks of the Trump Administration); Maria Sacchetti, ICE Immigration Arrests of Noncriminals Double Under Trump, Wash. Post (Apr. 16, 2017), https://www.washingtonpost.com/local/immigration-arrests-of-noncriminals-double-under-trump/2017/04/16/98a2f1e2-2096-11e7-be2a-3a1fb24d4671_story.html?noredirect=on&utm_term=.fc94a28d60c9 [https://perma.cc/9FFM-QR55] (similarly describing that immigration arrests rose 32.6 percent in the first weeks of the Trump Administration because of a bigger focus on arresting undocumented noncitizens who are otherwise law-abiding); Maria Santana, Source: ICE Is Targeting: ‘Sanctuary Cities’ with Raids, CNN (Mar. 25, 2017, 8:54 AM), https://www.cnn.com/2017/03/23/politics/sanctuary-city-ice-raids/index.html [https://perma.cc/4VJS-BUXT] (describing an increase felt by leaders of sanctuary cities in the number of raids conducted by ICE in their jurisdictions).
[38] For example, in an opinion granting jurisdiction over a noncitizen’s habeas petition despite § 1252(g), Judge Crotty of the Southern District of New York offered a strong rebuke of an immigration enforcement system that, at every turn, seeks to prevent hard-working immigrants from following the pathway to citizenship made available to them by the law. Calderon v. Sessions, 330 F. Supp. 3d 944, 951 (S.D.N.Y. 2018) (“It should not be difficult to discern that families should be kept together rather than be separated by the thoughtless and cruel application of a so called ‘zero tolerance’ policy. This is especially so where the organization seeking removal has also provided a pathway for a person in Petitioner’s position to regularize his immigration status with minimal disruption to his family life. Petitioner should be allowed to pursue the pathway. He deserves it due to his hard work, his dedication to the family, and his clean criminal record[.] Rather than provide him with this opportunity, however, Respondents inexplicably want to remove him. There is no justification for this mercurial exercise of executive power. Justice demands that Petitioner be accorded an opportunity to pursue the relief the law allows.”).
[39] See discussion infra Section II.A and accompanying notes.
[40] See discussion infra Section II.B and accompanying notes.
[41] See, e.g., Reno v. Am.-Arab Anti-Discrimination Comm. (AADC), 525 U.S. 471 (1999); see also infra notes 80–98 and accompanying text.
[42] See generally infra Part II.
[43] See infra Section II.A and accompanying notes.
[44] See infra notes 225–238 and accompanying text.
[45] See 8 C.F.R. § 1003.0(a) (2019).
[47] See generally 8 C.F.R. § 1003.1–8.
[48] AIC MTR Practice Advisory, supra note 29, at 9; Am. Immigration Council, Seeking a Judicial Stay of Removal in the Court of Appeals: Practice Advisory 2–4 (2014), https://www.americanimmigrationcouncil.org/sites/default/files/practice_advisory/seeking_a_judicial_stay_of_removal_fin_1-21-14.pdf [https://perma.cc/6L43-JHL9] [hereinafter AIC Stay Practice Advisory]. An agency action is administratively final when it represents a final agency decision. See generally Jesi J. Carlson et al., Finality and Judicial Review Under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform, 49 U. Mich. J.L. Reform 635, 639–50 (2016). In the context of deportation orders, administrative finality is required in order for the DHS to execute a removal order. Id.; see also 8 U.S.C. § 1231(a)(1)(B) (2018).
[49] See 8 C.F.R. § 1003.1–47.
[50] The court of appeals with jurisdiction over the place where the immigration court is located has jurisdiction over the PFR (e.g., a noncitizen whose removal proceedings took place in New York City would file his PFR in the Second Circuit); see 8 U.S.C. § 1252(a)(2)(d) (referring to petitions for review in the “appropriate court of appeals”).
[51] Dada v. Mukasey, 554 U.S. 1, 14 (2008) (finding that § 1229a(c)(7) codified a statutory right to file one MTR); see also Kucana v. Holder, 588 U.S. 233, 242 (2010).
[52] AIC MTR Practice Advisory, supra note 29, at 2–3.
[53] Other grounds for motions to reopen include, inter alia, ineffective assistance of counsel in prior removal case, change of law, domestic violence, or a newly vacated conviction. See generally id. at 1–3.
[54] See 8 U.S.C. § 1229a(c)(7)(C)(ii) (“There is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for relief under sections . . . 1158 [Asylum] or 1251(b)(3) [Withholding of Removal] and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and would not have been discovered or presented at the previous proceeding.”); 8 C.F.R. § 1003.2(c)(3)(ii) (providing that there is no time limit for filing motions to reopen “[t]o apply or reapply for asylum or withholding of deportation based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing”).
[55] See 8 C.F.R. § 1003.2(f) (“Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board, the Immigration Judge, or an authorized officer of the Service.”); see also AIC MTR Practice Advisory, supra note 29, at 7–10.
[56] AIC MTR Practice Advisory, supra note 29, at 7–10.
[57] Id. at 9 (“In recent months, attorneys have reported that the BIA frequently denies stay motions but takes no action on the accompanying motion to reopen for significant periods of time. In so doing, the BIA essentially prevents the person from pursuing the traditional course of adjudication prior to deportation, namely, seeking a judicial stay of removal from the courts of appeals in conjunction with a petition for review of the motion to reopen decision.”). The author is currently involved in ongoing litigation regarding this precise problem. See Press Release, Am. Immigration Counsel, Lawsuit Demands Government to Disclose Information About Unjust Deportations (Feb. 28, 2019), https://www.americanimmigrationcouncil.org/news/lawsuit-demands-government-disclose-information-about-unjust-deportations [https://perma.cc/XSA4-JNUJ]; see also Arvind Dilawar, The Government Has Not Revealed How Deportation Decisions Are Made, Pac. Standard (Mar. 12, 2019), https://psmag.com/social-justice/the-government-has-not-revealed-how-deportation-decisions-are-made [https://perma.cc/B3UE-SEUD]; Suzanne Monyak, Gov’t Hit with FOIA Suit over Requests to Pause Deportations, Law360 (Mar. 1, 2019, 2:45 PM), https://0-www-law360-com.ben.bc.yu.edu/articles/1133943/print?section=immigration; Claudia Valenzuela, The Government Is Hiding Information About How It Deports People–This Lawsuit Seeks to Expose That, Am. Immigration Council: Immigration Impact (Feb. 28, 2019), http://immigrationimpact.com/2019/02/28/government-hiding-information-deports-lawsuit [https://perma.cc/JP3F-J8FX].
[58] See Valenzuela, supra note 57.
[59] See Dilawar, supra note 57; Valenzuela, supra note 57.
[60] A noncitizen may not file a PFR until they have a “final order of removal.” See 8 U.S.C. § 1252(a)(1) (2018) (“Judicial review of a final order of removal . . . .”); id. § 1252(a)(5) (“[A] petition for review . . . shall be the sole and exclusive means for judicial review of an order of removal entered or issued . . . .”). Court of appeals jurisdiction over a PFR is thus predicated on the noncitizen’s removal order being “administratively final,” meaning that there has been a final agency decision. See generally Carlson et al., supra note 48, at 639–50. The denial of an MTR results in an administratively final removal order, and circuit courts therefore have jurisdiction to review that denial through a PFR. See id. However, the denial of a stay request does not result in an administratively final order; and, as long as the MTR remains pending, circuit courts generally find that they do not have jurisdiction to review the BIA’s denial of a stay request. AIC MTR Practice Advisory, supra note 29, at 9 (“If the BIA denies a stay but does not adjudicate the motion, no such [final] order [of removal] exists, and so courts of appeals generally do not find that they have jurisdiction over a petition for review of a BIA denial of a motion for a stay.”); see, e.g., Shaboyan v. Holder, 652 F.3d 988, 989–90 (9th Cir. 2011); Casillas v. Holder, 656 F.3d 273, 274 (6th Cir. 2011). For this reason, if the BIA denies a noncitizen’s stay request while their MTR remains pending, they are unable to use the PFR mechanism to access federal court to request a stay.
[61] This practice becomes more troubling upon considering the fact that the BIA often reviews the merits of these MTRs (and the accompanying stays) at the first instance. See generally 8 C.F.R. § 1003.2 (2019). Consequently, by precluding review of the stay denial in federal court, BIA practices actually prevent noncitizens from seeking any review of the merits of their motion at all before their deportation.
[62] In 1996, Congress lifted the post-departure bar on judicial review, allowing noncitizens who had departed or been removed from the United States to seek review of their removal orders from abroad. See 8 U.S.C. § 1105a(c) (repealed 1996). This was a change from the pre-IIRIRA MTR practice, in which MTRs could not be adjudicated once the noncitizen was deported. See, e.g., Immigration and Nationality Act, Pub. L. No. 87-301, sec. 1101, § 5(a), 75 Stat. 650, 653 (1961) (codified at 8 U.S.C. § 1105a(c) (1964)) (“An order of deportation or of exclusion shall not be reviewed by any court if the [noncitizen] . . . has departed from the United States after the issuance of the order.”). Courts have since found subsequent regulations providing for a post-departure bar to be unlawful. See, e.g., Contreras-Bocanegra v. Holder, 678 F.3d 811 (10th Cir. 2012) (en banc); Luna v. Holder, 637 F.3d 85 (2d Cir. 2011); Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011); Coyt v. Holder, 593 F.3d 902 (9th Cir. 2010).
[64] See, e.g., Compere v. Nielsen, 358 F. Supp. 3d 170, 178 n.10 (D.N.H. 2019); Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018); Hamama v. Adducci, 258 F. Supp. 3d 828 (E.D. Mich. 2017), vac’d in part, 912 F.3d 869 (6th Cir. 2018). See generally Dilawar, supra note 57; Valenzuela, supra note 57.
[65] See Dilawar, supra note 57; Valenzuela, supra note 57.
[66] See Dilawar, supra note 57; Valenzuela, supra note 57.
[67] See Dilawar, supra note 57; Valenzuela, supra note 57.
[68] Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.).
[69] For example, some attorneys have filed suits in circuit courts under the All Writs Act, 28 U.S.C. § 1651 (2012), requesting that the circuit has jurisdiction to issue a writ of mandamus ordering the adjudication of the MTR in order to protect its own jurisdiction over the PFR that a noncitizen would file upon the denial of the motion. E.g., Kyei v. INS, 65 F.3d 279 (2d Cir. 1995). Thus far, this argument has been unsuccessful. Id.
[70] See generally Part II and accompanying notes.
[71] See, e.g., Garcia v. Holder, 788 F. Supp. 2d 326, 329 n.16 (S.D.N.Y. 2011) (assuming without analysis that a “petitioner’s right to file an MTR and have the BIA’s ruling thereon reviewed by the Court of Appeals is an adequate and effective substitute for habeas review”).
[72] See generally 110 Stat. 3009 (codified as amended in scattered sections of 8 U.S.C.).
[73] IIRIRA § 306 (codified as amended in INA § 242, 8 U.S.C. § 1252). It was no surprise that the jurisdictional bars of IIRIRA raised constitutionality questions from the offset. See generally Lenni B. Benson, Back to the Future: Congress Attacks the Right to Judicial Review of Immigration Proceedings, 29 Conn. L. Rev. 1411 (1997) (discussing the effects and constitutionality of IIRIRA’s jurisdictional bars and concluding that “Congress defeated its goal of streamlining judicial review by ignoring habeas corpus jurisdiction”); Note, The Constitutional Requirement of Judicial Review for Administrative Deportation Decisions, 110 Harv. L. Rev. 1850 (1997) (proposing that, despite IIRIRA’s jurisdictional bars, “judicial review should remain available at least for all nonfrivolous claims of unconstitutional action by the executive branch”). Congress has repeatedly passed similar jurisdiction-stripping legislation to strip federal courts of jurisdiction in certain types of cases. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies § 2.9, at 156–87 (5th ed. 2015). The constitutionality of such provisions is the subject of controversy, in part because such provisions are often used to further political agendas rather than to truly create any type of efficiency. See generally id. There is an even greater potential for this controversy where the congressional authority is grounded in part in the plenary power doctrine, which locates the power to enact laws regulating immigration with Congress, despite no specific language in the Constitution that reasonably identifies that power as one of Congress’s limited and enumerated powers. See, e.g., The Constitutional Requirement of Judicial Review for Administrative Deportation Decisions, supra, at 1851–55.
[74] See 8 U.S.C. § 1252(a)(5) (2018) (“[A] petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter . . . .”).
[79] Id. § 1252(g) (as enacted by IIRIRA).
[80] Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999).
[84] The Court compared the language of § 1252(g) to that of a neighboring provision, § 1252(b)(9), which the Court described as “unmistakabl[y]” a “‘zipper’ clause” and has since become known as such. Id. at 483.
[89] Id. at 482 (emphasis in original) (internal quotation marks omitted) (quoting 8 U.S.C. § 1252(g) (2018)) .
[90] Id. at 487 (“Respondents’ challenge to the Attorney General’s decision to ‘commence proceedings’ against them falls squarely within § 1252(g)—indeed, as we have discussed, the language seems to have been crafted with such a challenge precisely in mind . . . .”).
[93] Id. at 483–84 (“At each stage [of removal proceedings] the Executive has discretion to abandon the endeavor, and at the time IIRIRA was enacted the INS had been engaging in a regular practice . . . of exercising that discretion for humanitarian reasons or simply for its own convenience.”); see also Wadhia, supra note 34.
[94] AADC, 525 U.S. at 483–84.
[96] For example, the Second Circuit has found that § 1252(g) precludes jurisdiction to review the Attorney General’s discretionary decision to either commence a proceeding or not to commence a proceeding. Ali v. Mukasey, 524 F.3d 145 (2d Cir. 2008) (court lacks jurisdiction over claim that DHS should have declined to place petitioners in removal proceedings when they were only subject to removal because they were victims of asylum fraud); Reyes v. INS, 229 F.3d 1136 (2d Cir. 2000) (unpublished table decision).
[97] See, e.g., Kilani-Hewitt v. Bukszpan, 130 F. Supp. 3d 858, 863–64 (S.D.N.Y. 2015) (citing several circuit court cases showing the application of [AADC] to “Attorney General’s ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders’”); Arostegui v. Holder, 368 Fed. App’x 169, 171 (2d Cir. 2010) (court lacked jurisdiction over claim that DHS violated a noncitizen’s due process rights by failing to initiate removal proceedings until five years after the noncitizen’s return to the United States); Duamutef v. INS, 386 F.3d 172, 180 (2d Cir. 2004) (court lacked jurisdiction to review mandamus petition seeking expedited execution of removal order); Xiuping Jiang v. Sessions, 691 Fed. App’x 691 (2d Cir. 2017) (summary order) (court lacked jurisdiction to review government’s refusal to support a joint remand to the BIA). For example, § 1252(g) bars review of claims of selective prosecution motivated by racial animus in violation of the Equal Protection Clause. See Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008). In Rajah v. Mukasey, the Second Circuit held that § 1252(g) barred review of a claim challenging the Special Call-in Registration Program of the National Security Exit-Entry Registration System (NSEERS). Id. Petitioners had challenged the program, claiming that their registration and subsequent deportation orders constituted selective prosecution on the basis of discriminatory animus and thus violated the Equal Protection Clause. Id. at 432–33. The Second Circuit found the Rajah plaintiffs’ claims of selective prosecution to be unavailing, describing the program as a “rational attempt to enhance national security” and reasoning that the program had a rational basis in the form of the 9/11 attacks and subsequent commission report that implicated the immigration system. Id. at 439. Thus, even a claim of selective prosecution that implicates a constitutional issue as critical to due process protections as the Equal Protection Clause is barred from review by § 1252(g).
[98] See discussion infra Part II.
[109] U.S. Const. art. I, § 9, cl. 2. The Framers viewed the writ as a vital tool in protecting individual liberty and preventing tyranny in the United States. See generally The Federalist No. 84 (Alexander Hamilton); Boumediene v. Bush, 553 U.S. 723, 739–67 (2008) (summarizing the history of the writ of habeas corpus and its importance to the Framers). Arbitrary detention was considered by the founders to be among “the favorite and most formidable instruments of tyranny.” The Federalist No. 84 (Alexander Hamilton); accord. Boumediene, 553 U.S. at 744. As such, having suffered repeated suspensions of habeas corpus under British rule, the Framers designed the Suspension Clause to protect against “cyclical abuses” such as those that they had suffered. Id. at 745.
[110] St. Cyr, 533 U.S. at 298.
[111] Id. at 308–09 (rejecting government’s argument that a section title reading “ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS” was, without more, sufficient to constitute a clear and unambiguous repeal of habeas jurisdiction).
[113] Id. at 299. (“Implications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction; instead, Congress must articulate specific and unambiguous statutory directives to effect a repeal.”).
[115] Id. (“[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems.” (citation omitted)).
[118] REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (codified as amended in scattered sections of 8 U.S.C.).
[119] See, e.g., H.R. Rep. No. 109-72, at 172–74 (2005) (Conf. Rep.) (discussing Congress’s intent that the 2005 amendments address the Supreme Court’s decision in St. Cyr). As amended, § 1252(g) now includes a new clause, providing that the jurisdictional bar would now apply “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.” 8 U.S.C. § 1252(g) (2018) (as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231) (emphasis of 2005 amendments added).
[120] H.R. Rep. No. 109-72, at 174 (2005) (Conf. Rep.) (“[T]his section does not eliminate judicial review, but simply restores such review to its former settled forum prior to 1996.”); see contra St. Cyr, 533 U.S. at 305, 314 (concluding that stripping district courts of jurisdiction over Petitioner’s habeas petition would constitute a “departure” from immigration practice prior to 1996).
[121] H.R. Rep. No. 109-72, at 176 (2005) (Conf. Rep.) (noting, for example, that the amendments were purportedly not intended to “preclude habeas review over challenges to detention that are independent of challenges to removal orders”).
[123] E.g., Swain v. Pressley, 430 U.S. 372, 379–81 (1997) (holding “that the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus”); see also Boumediene v. Bush, 553 U.S. 723, 771–72 (2008). In contrast, prior cases addressing the adequacy issue did so in the context of statutes that sought to streamline or strengthen habeas review. Id. at 771–76.
[124] H.R. Rep. No. 109-72, at 174–75 (2005) (Conf. Rep.) (asserting that “[n]o alien, not even criminal aliens, will be deprived of judicial review of such claims” as a result of the amendments).
[125] Boumediene, 553 U.S. at 780–83 (“Where a person is detained by executive order, rather than, say, after being tried and convicted in a court, the need for collateral review is most pressing.”).
[126] Id. at 735–36. The court of appeals had jurisdiction only to inquire whether “the standards and procedures” employed by the CSRT were lawful and was not permitted “to inquire into the legality of the detention generally.” Id. at 776–79. The DTA prevented the reviewing court of appeals from considering “newly discovered evidence that could not have been made part of the CSRT record because it was unavailable to either the Government or the detainee when the CSRT made its findings.” Id. at 790. The Supreme Court found that such a restriction impermissibly limited the scope of collateral review in such a manner as to render the process an inadequate substitute to habeas. Id. at 790–93 (“Although we do not hold that an adequate substitute must duplicate [habeas] in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus.”).
[128] Id. at 771–72 (“In light of this holding the question becomes whether the statute stripping jurisdiction to issue the writ avoids the Suspension Clause mandate because Congress has provided adequate substitute procedures for habeas corpus.”).
[130] Id. at 792 (“[W]e do not hold that an adequate substitute must duplicate [habeas review] in all respects . . . .”).
[136] H.R. Rep. No. 109-72, at 175 (2005) (Conf. Rep.) (“[I]n St. Cyr itself, the Supreme Court recognized that ‘Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals.’ By placing all review in the courts of appeals, Division B would provide an ‘adequate and effective’ alternative to habeas corpus.” (quoting INS v. St. Cyr, 533 U.S. 289, 314 n.38 (2001)).
[137] See infra Section III.B.
[138] See, e.g., Noor v. Homan, No. 17-CV-1558 (WFK), 2018 WL 1313233, at *3 (E.D.N.Y. Feb. 27, 2018) (finding court did not have jurisdiction to consider request for stay of removal); Pomaquiza v. Sessions, No. 3:17-cv-01549 (JAM), 2017 WL 4392878, at *2 (D. Conn. Oct. 3, 2017); Akhuemokhan v. Holder, No. 12-CV-1181 (JFB), 2013 WL 6913170, at *2 (E.D.N.Y. Dec. 30, 2013); Nieto-Ayala v. Holder, No. 08 Civ. 8347(LMM), 2011 WL 3918156, at *4 n.2 (S.D.N.Y. Aug. 30, 2011).
[139] See, e.g., Cerome v. United States, No. 08-CV-04019 (NGG), 2011 WL 128563, at *7 (E.D.N.Y. Jan. 14, 2011) (citing no case law to support proposition that stay of removal is barred from review by § 1252(g)); Royale v. INS., No. 10-CV-2105 (KAM), 2010 WL 2348651, at *1 (E.D.N.Y. June 9, 2010) (dismissing habeas petition requesting stay of deportation because court lacked jurisdiction); Eisa v. Immigration & Customs Enf’t, No. 08 Civ. 6204(FM), 2008 WL 4223618, at *4 (S.D.N.Y. Sept. 11, 2008); Rodney v. Gonzalez, No. 05 CV 3407 (SLT/RML), 2006 WL 73731, at *2 (E.D.N.Y. Jan. 10, 2006) (“By depriving district courts of jurisdiction to hear cases challenging final orders of removal, Congress necessarily deprived district courts of jurisdiction to grant stays of removal in such cases.”); Munoz v. Gonzalez, No. 05 Civ. 6056(SHS), 2005 WL 1644165, at *1 (S.D.N.Y. July 11, 2005) (holding that, after passage of the Real ID Act, district courts have no jurisdiction to stay an order of removal).
[140] See discussion infra Section II.A and accompanying notes.
[141] See discussion infra Section II.B and accompanying notes.
[142] See, e.g., Jama v. INS, 329 F.3d 630 (8th Cir. 2003).
[144] Silva v. United States, 866 F.3d 938, 941 (8th Cir. 2017) (“The [Jama] court essentially carved out an exception to § 1252(g) for a habeas claim raising a pure question of law, in part due to concerns that a contrary rule would give rise to substantial constitutional questions.”).
[146] Id. Although finding jurisdiction, the Eighth Circuit initially denied the stay. Id. at 635. Eventually, the mandate was recalled, and a stay was granted. Id.
[147] Id. The Eight Circuit would later decline to extend the rationale of Jama to a noncitizen’s petition challenging the petitioner’s unlawful removal and alleging claims under FTCA and the Fourth and Fifth Amendments. Silva, 866 F.3d at 941.
[148] See, e.g., Arce v. United States, 889 F.3d 796, 799–800 (9th Cir. 2018).
[152] Id. at 800 (emphasis added) (quoting Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999)); see also id. (finding that § 1252(g) does not strip the federal courts of jurisdiction over “the multitude of other decisions or actions that may be part of the deportation process—such as the decisions to open an investigation, to surveil the suspected violator, to reschedule the deportation hearing, to include various provisions in the final order . . . , and to refuse reconsideration of that order” (alteration in original) (internal quotation marks omitted)).
[153] Id. But see Ragbir v. Homan, 923 F.3d 53 (2d Cir. 2019) (rejecting the plaintiff’s attempt to frame his claim as a challenge to ICE’s legal authority to decide to execute a removal order when that decision is retaliatory).
[154] See, e.g., S.N.C. v. Sessions, No. 18 Civ. 7680 (LGS), 2018 WL 6175902, at *4–5 (S.D.N.Y. Nov. 26, 2018); You v. Nielsen, 321 F. Supp. 3d 451 (S.D.N.Y. 2018); Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018).
[155] E.g., You, 321 F. Supp. 3d 451.
[164] Id. at 457 (“The question before the Court is not why the Secretary chose to execute the removal order. Rather, the question is whether the way Respondents acted accords with the Constitution and the laws of this country. Whether Respondents’ actions were legal is not a question of discretion, and, therefore, falls outside the ambit of § 1252(g).”).
[166] Id. at 457–58 (“Respondents are empowered to remove Petitioner at their discretion. But they cannot do so in any manner they please.”).
[168] Id. (noting that while the Attorney General may detain an individual in order to facilitate their removal, she may not detain an individual for an indefinite amount of time (citing Zadvydas v. Davis, 533 U.S. 678 (2001)).
[169] The court further noted that this is an “uncontroversial” proposition. Id. at 456–57.
[171] Jennings v. Rodriguez, 138 S. Ct. 830, 840–41 (2018).
[172] You, 321 F. Supp. 3d at 458.
[174] Jennings, 138 S. Ct. at 838–41.
[175] Id. at 839–40 (“In past cases, when confronted with capacious phrases like ‘arising from,’ we have eschewed uncritical literalism leading to results that no sensible person could have intended.” (citations and internal quotations omitted)).
[176] Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999); see infra notes 80–97 and accompanying text.
[177] Jennings, 138 S. Ct. at 839–40 (“In past cases, when confronted with capacious phrases like ‘arising from,’ we have eschewed uncritical literalism leading to results that no sensible person could have intended.” (internal quotation marks omitted)). As discussed supra notes 80–97 and accompanying text, the AADC Court rejected a broad reading of § 1252(g) as a “zipper clause.” See AADC, 525 U.S. at 482. The argument that § 1252(g) is a zipper clause depends on a broad reading of the phrase “arising from.” Id. at 482. However, the Court found it to be “implausible” that Congress, in its attempt to draft precise legislation, would specifically mention three discrete attorney general decisions “along the road to deportation” when it intended to bar review of all decisions arising from deportation. Id. (“Not because Congress is too unpoetic to use synecdoche, but because that literary device is incompatible with the need for precision in legislative drafting.”).
[178] You, 321 F. Supp. 3d at 458.
[179] Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018).
[180] Id. at 950–51 (noting that “the organization seeking removal has also provided a pathway for a person in Petitioner’s position to regularize his immigration status with minimal disruption to his family life”).
[184] Arce v. United States, 899 F.3d 796, 799 (9th Cir. 2018).
[185] Calderon, 330 F. Supp. 3d at 954–55 (“Petitioner here does not challenge ICE’s prosecutorial discretion. Rather, Petitioner challenges ICE’s legal authority to exercise such discretion when the subject of the removal order also has a right to seek relief made available by the DHS [in the form of the Provisional Waiver Program].” (emphasis added)).
[186] De Jesus Martinez v. Nielsen, 341 F. Supp. 3d 400, 406–07 (D.N.J. 2018), appeal dismissed, Martinez v. Sec’y, U.S. Dep’t, No. 18-3478, 2019 WL 2064450 (3d Cir. Feb. 15, 2019).
[187] De Jesus Martinez, 341 F. Supp. 3d at 405.
[188] Id. at 406 (“ICE agents did not track down Mr. Martinez because of his final order of removal. Instead they waited until he appeared for an interview pursuant to DHS regulations that permit aliens in exactly Mr. Martinez’s position to gain legal status, and attempted to frustrate those regulations by detaining Mr. Martinez without warning or explanation. ICE arrested Mr. Martinez because he presented himself for an I-130 interview and, as such, exceeded its legal authority when it chose to arrest him after he had begun a lawful process but before it was completed.”).
[190] See supra notes 142–189 and accompanying text.
[191] For example, You was decided purely on statutory grounds without reaching the petitioner’s Suspension Clause claim. See You v. Nielsen, 321 F. Supp. 3d 451, 460 (S.D.N.Y. 2018). Calderon was also decided on statutory grounds, without even mentioning the petitioner’s Suspension Clause claim. Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018).
[192] See, e.g., Sied v. Nielsen, No. 17-cv-06785–LB, 2018 WL 1142202, at *25 (N.D. Cal. Mar. 2, 2018) (holding in favor of jurisdiction); Ibrahim v. Acosta, No. 17-cv-24574-GAYLES, 2018 WL 582520, at *6 (S.D. Fla. Jan. 26, 2018) (same); Devitri v. Cronen, 290 F. Supp. 3d 86 (D. Mass. 2017) (same); Hamama v. Adducci, 258 F. Supp. 3d 828, 829 (E.D. Mich. 2017), vac’d in part, 912 F.3d 869 (6th Cir. 2018) (same).
[193] Devitri, 290 F. Supp. 3d.
[195] Id. at 88–89. As part of the program, Indonesian nationals with final orders of removal were encouraged to identify themselves to ICE. In exchange, they were placed under OSUPs and granted temporary stays of removal, requiring them to check in with ICE regularly. Id.
[197] See id. at 89. Conditions of supervision orders included a condition that they did not commit crimes. Id.
[201] Id. (quoting Mapoy v. Carroll, 185 F.3d 224, 228 (4th Cir. 1999)).
[203] Id. at 92–93 (“[T]he problem for the government is that if section 1252(g) effectively ensures that this group of Indonesian Christians cannot effectively file their claims of possible persecution and torture before being removed to the country where they are at risk, it would be an unconstitutional deprivation of the statutory right to move to reopen without due process of law because there would be no meaningful opportunity to be heard on the motion to reopen.”).
[205] Hamama v. Adducci, 258 F. Supp. 3d 828, 830 (E.D. Mich. 2017), vacated in part, 912 F.3d 869 (6th Cir. 2018).
[208] U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”); Hamama, 258 F. Supp. 3d at 834.
[209] Hamama, 258 F. Supp. 3d at 838.
[214] Id. at 838–42; see also discussion supra Section I.C.2 (discussing the adequate substitute requirement of the Suspension Clause).
[216] Petitioners sought relief pursuant to asylum, withholding of removal and the CAT. See id. at 830.
[217] Id. at 840–42 (“The totality of these facts leads to the conclusion that casting Petitioners out of this court without a stay—in the extraordinary context of this case—would ignore the reality that the process for judicial review provided for in the Real ID Act would not be adequate or effective in protecting their habeas rights. The destructive impact would critically compromise their ability to file and prosecute motions to reopen—a legal right that the Supreme Court has characterized as ‘an “important safeguard” intended “to ensure a proper and lawful disposition” of immigration proceedings.’” (quoting Kucana v. Holder, 558 U.S. 233, 242 (2010)).
[218] Id. at 829; see also supra note 57.
[219] Hamama, 912 F.3d at 840 (“Without a stay in place, deportations will begin immediately, which may mean a death sentence for some deportees.”).
[220] Id. at 875 (agreeing with the government’s argument “that because Petitioners’ removal-based claims fail to seek relief that is traditionally cognizable in habeas, the Suspension Clause is not triggered”).
[221] Id. at 881–83 (White, J., dissenting) (“The relief available under habeas corpus is not nearly as narrow as the majority holds. In its order granting the preliminary injunction, the district court considered the relevant case law and correctly noted that ‘in none of the many cases cited by the parties and by the Court regarding habeas jurisdiction in immigration cases has a court refused to consider a petitioner’s argument on the grounds that the challenge to the removal order was not cognizable for failure to challenge detention.’” (citation omitted)).
[222] See Compere v. Nielsen, 358 F. Supp. 3d 170, 178 n.10 (D.N.H. 2019) (“As a preliminary matter, it is important to bear in mind that ‘[t]hroughout the history of the United States, the writ of habeas corpus has played a vital role in immigration cases as a vehicle for challenging deportation and exclusion orders (now commonly called “removal orders.”).’ Cases supporting this proposition are legion.” (alternation in original) (citations omitted)). Mere months after the Sixth Circuit ruling, the Ninth Circuit, perhaps in an implicit rejection of the Sixth Circuit’s rationale in Hamama, conducted a thorough review of the historical application of habeas in the immigration context, and ultimately concluded that the Suspension Clause applied to a petitioner who challenged the constitutionality of § 1252(e)—a neighboring statute to § 1252(g)—which prevented the review of his expedited removal. Thuraissigiam v. DHS, 917 F.3d 1097, 1104–13 (9th Cir. 2019).
[223] It should be recognized that a number of cases referenced in Part II involve petitioners who were not at risk of deportation to countries where they fear persecution, but rather were seeking to remain in the United States while their adjustment of status applications were adjudicated. See, e.g., De Jesus Martinez v. Nielsen, 341 F. Supp. 3d 400 (D.N.J. 2018), appeal dismissed, Martinez v. Sec’y, U.S. Dep’t, No. 18-3478, 2019 WL 2064450 (3d Cir. Feb. 15, 2019)); You v. Nielsen, 321 F. Supp. 3d 451 (S.D.N.Y. 2018); Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018). These petitioners admittedly may have weaker arguments under the Suspension Clause if they do not have a fear of persecution should they be deported to their countries of origin. However, such petitioners still face irreparable harms such as family separation or loss of property. See, e.g., Calderon, 330 F. Supp. 3d 944. It is outside the scope of this Note to fully address this argument. For the purposes of this Note, it is sufficient that these cases provide an important example of an approach of following the Supreme Court in construing § 1252(g) narrowly. See generally supra Section II.A.
[225] See, e.g., Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018); Clark v. Martinez, 543 U.S. 371 (2005).
[226] See Clark, 543 U.S. at 384–85 (“The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.”); see also Jennings, 138 S. Ct. at 836 (“Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to ‘choos[e] between competing plausible interpretations of a statutory text.’” (alteration in original) (emphasis added) (quoting Clark, 543 U.S. 371)). The Ninth Circuit recently held that one of § 1252(g)’s neighboring provisions—8 U.S.C. § 1252(e)—violated the Suspension Clause as applied to the petitioner. Thuraissigiam, 917 F.3d 1097. However, the court declined to apply the canon of constitutional avoidance precisely because the statute was not ambiguous. Id. at 1119 (“We do not think the statute can bear a reading that avoids the constitutional problems it creates.”).
[227] The Supreme Court has overruled court of appeals decisions applying the canon of constitutional avoidance when the Court viewed the lower courts’ construction of the statute at issue as implausible. E.g., Jennings, 138 S. Ct. at 843–47.
[230] Jennings, 138 S. Ct. at 842–43.
[233] Id.; accord Zadvydas, 533 U.S. 678.
[234] Jennings, 138 S. Ct. at 843–44 (citing Zadvydas, 533 U.S. at 697) (emphasis in original).
[239] See supra notes 80–96, 176 and accompanying text.
[240] 8 U.S.C. § 1252(g) (2018) (emphasis added).
[241] See supra notes 80–96, 176 and accompanying text. In Jennings, the Court addressed a neighboring provision—§ 1252(b)(9). Jennings, 138 S. Ct. 830. In doing so, the Court referred to its construction of § 1252(g) and the ambiguous phrase “arising from,” in AADC, 525 U.S. 471 (1999), to offer an example of language in a statute that may lead to ambiguity. Jennings, 138 S. Ct. at 839–40 (“In past cases, when confronted with capacious phrases like ‘arising from,’ we have eschewed uncritical literalism leading to results that no sensible person could have intended.” (internal citations and quotations omitted)). But see Ragbir v. Homan, 923 F.3d 53, 57 (2d Cir. 2019) (finding that § 1252(g) unambiguously applied to bar jurisdiction over activist Ravi Ragbir’s challenge to DHS’s decision to execute a removal order as retaliatory and unconstitutional, but finding jurisdiction under the Suspension Clause); Jimenez v. Nielsen, 334 F. Supp. 3d 370, 383 (D. Mass. 2018) (holding explicitly that § 1252(g) is not ambiguous and finding no jurisdiction to review a request for a stay of removal).
[242] Jennings, 138 S. Ct. at 840–41 (internal citations and quotations omitted).
[244] E.g., compare Calderon v. Sessions, 330 F. Supp. 3d 944, 954–55 (S.D.N.Y. 2018) (finding § 1252(g) does not bar jurisdiction to review habeas petition where petitioner is eligible to adjust status through the provisional waiver program), with Jimenez, 334 F. Supp. 3d at 383 (finding § 1252(g) does bar jurisdiction over a similar habeas petition).
[245] See Jennings, 138 S. Ct. at 843 (“Spotting a constitutional issue does not give a court the authority to rewrite a statute as it pleases. Instead, the canon permits a court to ‘choos[e] between competing plausible interpretations of a statutory text.’” (emphasis and alterations in original) (citations omitted)).
[246] See discussion supra Part II.
[247] See Jennings, 138 S. Ct. at 839–40; Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 477–83 (1999).
[248] Most recently, the Second Circuit found that § 1252(g) was not ambiguous with respect to a claim by activist Ravi Ragbir, who challenged DHS’s authority to execute his removal order as retaliation for his activism. Ragbir v. Homan, 923 F.3d 53, 63–64 (2d Cir. 2019). Mr. Ragbir argued that § 1252(g) did not bar jurisdiction to review his claim, framing his claim as a challenge to DHS’s authority to execute a removal order in a retaliatory manner, rather than as a direct challenge to the removal order. Id. The Second Circuit rejected this framing of the claim, instead interpreting it as a challenge to the decision to execute the removal order and thus squarely falling within the three discrete decisions specified in the statute. Id. For this reason, the Ragbir holding is distinguishable from the types of cases at issue in this Note.
[249] See discussion supra Section I.C.2 and accompanying notes.
[250] E.g., Luna v. Holder, 637 F.3d 85 (2d Cir. 2011). When the immigration court system is working properly, a noncitizen would be able to pursue full review of their removal order, appealing first to the BIA and then, through the PFR mechanism, to the court of appeals. See generally discussion supra Part I and accompanying notes.
[251] Fatty v. Nielsen, No. C17-1535-MJP-BAT, 2018 WL 2244713, at *1–3 (W.D. Wash. Apr. 5, 2018).
[252] 8 U.S.C. § 1101(a)(15)(T) (2018); 8 C.F.R. § 214.11(b) (2019).
[253] 8 U.S.C. § 1101(a)(15)(T); 8 C.F.R. § 214.11(b); see also Fatty, 2018 WL 2244713, at *2.
[254] See Fatty, 2018 WL 2244713, at *4–6.
[255] See, e.g., You v. Nielsen, 321 F. Supp. 3d 451 (S.D.N.Y. 2018); Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018); see also supra notes 179–189 and accompanying text.
[256] Calderon, 330 F. Supp. 3d at 951 (noting that “the organization seeking removal has also provided a pathway for a person in Petitioner’s position to regularize his immigration status with minimal disruption to his family life”).
[257] See, e.g., Compere v. Nielsen, 358 F. Supp. 3d 170 (D.N.H. 2019); Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018); Hamama v. Adducci, 258 F. Supp. 3d 828 (E.D. Mich. 2017), vac’d in part and remanded, 912 F.3d 869 (6th Cir. 2018).
[258] See sources cited supra note 257.
[259] Compere, 358 F. Supp. 3d at 173.
[267] Luna v. Holder, 637 F.3d 85, 93–105 (2d Cir. 2011).
[268] See generally supra notes 45–64 and accompanying text.
[269] Luna, 637 F.3d at 86–88.
[270] See 8 U.S.C. § 1252(b)(6), (9) (2018).
[271] See discussion supra Section III.B.
[272] See discussion supra Section III.B.
[273] See discussion supra Section III.B.