Pelletier v. USA

Filing 157

ORDER granting 141 Motion for Summary Judgment; denying 152 Motion for Reconsideration ; denying 154 Motion to Amend/Correct/Modify; denying 155 Motion for Order. The Clerk shall enter final judgment in accordance with this order and shall terminate the case; and the parties shall bear their own costs, by Judge William J. Martinez on 07/17/2015.(cthom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-01377-WJM-CBS
GLEN PELLETIER,
CARRIE LYNN PELLETIER, and
HOBIE MATTHEW WITT,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
JOHN LONGSHORE, Field Director, Immigration and Customs Enforcement, Denver
District,
IMMIGRATION AND CUSTOMS ENFORCEMENT, Denver District, and
STEVEN M. BRANCH, Field Office Director, Salt Lake City Field Office,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT,
DENYING PLAINTIFFS’ THIRD RECONSIDERATION MOTION, DENYING
PLAINTIFFS’ MOTION TO AMEND THEIR SUMMARY JUDGMENT RESPONSE, AND
DENYING AS MOOT PLAINTIFFS’ MOTION TO ACCEPT UNTIMELY EXHIBIT

Before this Court is Defendants’ Motion for Summary Judgment. (ECF No. 141.)
The Court will refer to all Defendants collectively as “the Government.”
Also before the Court is Plaintiffs’ “Second Motion to Reconsider the Order
Denying Plaintiffs’ Motion to Reconsider the Order Granting Summary Judgment to
Defendants and Denying Summary Judgment for Plaintiffs.” (ECF No. 152.) The Court
will refer to all Plaintiffs collectively as “Pelletier.” Pelletier’s “Second Motion to
Reconsider . . .”, despite its title, is actually his third motion to reconsider this Court’s
pre-appeal summary judgment order (ECF No. 123), and will be referred to below as
the Third Reconsideration Motion.

Pelletier’s “Motion Pursuant to Rule 15 to Submit Amended Plaintiffs’ Response
to Defendants’ Motion for Summary Judgment” is before this Court. (ECF No. 154.)
Finally, Pelletier’s “Motion to Accept Untimely Submission of Exhibit C to ECF
154-1” (ECF No. 155) is before this Court as well.
For the reasons explained below, the Government’s Motion for Summary
Judgment is granted and Pelletier’s three motions are denied.
I. LEGAL STANDARD
A.

Summary Judgment
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the

movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “g enuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for
the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence
and all reasonable inferences therefrom in the light most favorable to the nonmoving
party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In
addition, the Court must resolve factual ambiguities against the moving party, thus
favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th

2

Cir. 1987).
B.

Reconsideration
In this case, the reconsideration standard is influenced by law-of-the-case

questions discussed below at Part V. Nonetheless, the ensuing narrative convinces the
Court of the need to emphasize that, whatever the standard, “the motion to reconsider
is not at the disposal of parties who want to rehash old arguments.” Nat’l Bus. Brokers,
Ltd. v. Jim Williamson Prods., Inc., 115 F. Supp. 2d 1250, 1256 (D. Colo. 2000)
(internal quotation marks omitted).
C.

“Motion to Amend”
Pelletier presents his motion to amend his summary judgment response under

Federal Rule of Civil Procedure 15(c)(1)(B), which addresses relation back of amended
pleadings. (See ECF No. 154 at 1.) That Rule has nothing to do with whether Pelletier
may supplement his summary judgment response. As will be shown below, Pelletier is
simply attempting to shore up his summary judgment arguments many weeks after they
were originally due. In effect, then, Pelletier’s is seeking relief under Federal Rule of
Civil Procedure 6(b), which permits this Court to extend a filing deadline “for good
cause” upon showing “excusable neglect.”
II. FACTS
The operative facts in this case have been essentially undisputed from the
beginning. Unless otherwise noted, the following narrative is undisputed and drawn
from this Court’s prior summary judgment order. (See ECF No. 123 at 3–5.)
Pelletier is a citizen of Canada. He is married to Plaintiff Carrie Lynn Pelletier, a

3

United States Citizen. Plaintiff Hobie Matthew Witt, also a United States Citizen, is his
stepson. Pelletier has been lawfully admitted to the United States as a B-2 visitor
numerous times, and he alleges that his most recent lawful admission occurred in June
2006. Pelletier further alleges that he was not issued a Form I-94 Arrival-Departure
Record at that time, and that he did not observe the admitting officer creating any
record of his inspection or admission.
For reasons that are not clear in the record, immigration enforcement agents
“encountered” and “detained” Pelletier on August 28, 2008, in Great Falls, Montana.
(ECF No. 141-1 at 3, ¶ 3.) The following day, he was issued a Form I-213 and Form
I-862 Notice to Appear charging him as a removable person based on his entry without
inspection. Pelletier posted bond on Septem ber 9, 2008 and was released from
detention.
Removal proceedings against Pelletier have been ongoing since that date,
although nothing of substance has happened. Rather, Pelletier has appeared at
several Immigration Court master calendar hearings, each of which pushed his removal
hearing date further into the future. (Id. at 4, ¶¶ 9–10.) His next scheduled hearing is
more than four years away (November 29, 2019) in Denver, Colorado. (Id. ¶ 10.)
After his removal proceedings commenced, Pelletier and his attorney requested
a record of Pelletier’s most recent entry to the United States. Their request was denied.
They subsequently made a Freedom of Information Act (“FOIA”) request for records of
Pelletier’s inspection and admission, including records of his entry in June 2006.
Pelletier received a response to his FOIA request on May 23, 2011, which had no
record of any I-94 issued to him in 2006.
4

III. PROCEDURAL HISTORY THROUGH THE APPEAL
A.

Original Complaint & TRO Hearing
On May 24, 2011, Pelletier filed a 19-page “Emergency Complaint for

Declaratory, Injunctive and Equitable Relief” (“Original Complaint”). (ECF No. 1.)
Pelletier was scheduled to attend an Immigration Court hearing the next day where he
feared that the Immigration Judge would order him removed. (Id. ¶ 11.) Pelletier
therefore sought, among other things, “judicial review over the constitutionality and
lawfulness of the failure of [the Government] to issue a document establishing lawful
admission to Canadian citizens, such as an I-94 document, who are lawfully admitted to
the United States as B-2 Visitors.” (Id. ¶ 1.) Although not cited in the Original
Complaint, later developments would make clear that Pelletier was referring here to 8
C.F.R. § 235.1(h)(1)(i) (“§ 235.1(h)(1)(i)”):
Unless otherwise exempted, each arriving nonimmigrant
who is admitted to the United States will be issued a Form
I-94 as evidence of the terms of admission. . . . Form I-94 is
not required by: * * * Any nonimmigrant alien described in
§ 212.1(a) of this chapter [Canadian citizens and certain
others] and 22 CFR 41.33 [permanent residents of Canada
with border crossing cards] who is admitted as a visitor for
business or pleasure or admitted to proceed in direct transit
through the United States . . . .
Pelletier was also alluding to portions of §§ 15.1, 15.12, and 21.7 of the United
States Customs and Border Protection Inspector’s Field Manual (“IFM”), which instructs
border crossing agents on how to implement § 235.1(h)(1)(i) and certain other

5

regulations.1 For simplicity, the Court will refer to § 235.1(h)(1)(i) and IFM §§ 15.1,
15.12, and 21.7 collectively as the “Regulatory Provisions.”
Simultaneous with his complaint, Pelletier filed a motion for a TRO. (ECF No. 2.)
This Court held a hearing the next morning and determined, among other things, that
Pelletier faced no threat of irreparable harm because the Immigration Court hearing set
for later that day was “very preliminary in nature” and would not result in a removal
order. (ECF No. 8 at 7.) The Court accordingly denied the TRO. (Id. at 11.)
B.

First Amended Complaint
On August 23, 2011, Pelletier filed an amended complaint (“First Amended

Complaint”). (ECF No. 39.) In contrast to his 19-page Original Complaint, the First
Amended Complaint swelled to 57 pages, mostly through a meandering and somewhat
unchronological statement of facts and a lengthy but unfocused preemptive argument
against the jurisdictional challenges anticipated from the Government.
The First Amended Complaint culminates (more or less) with the following:
Petitioners assert that the issuance of Forms I-213 and I-862

1

The relevant IFM portions are as follows:

•

“A Form I-94 is not required for * * * [a] Canadian national or other nonimmigrant
described in 8 CFR 212.1(a) or 22 CFR 41.33 admitted as a visitor for pleasure or
business or in transit through the U.S. . . . .” IFM § 15.1(b)(4)(A).

•

“Authority exists in 8 CFR 101.2 to create a record of a previous admission where none
exists or to correct an erroneous record, provided the error was not a result of deliberate
deception or fraud on the part of the alien.” Id. § 15.12(a).

•

“Most Mexican and Canadian land border applicants are exempt [from] issuance of a
Form I-94 pursuant to the policy described in Chapter 15.1(b).” Id. § 21.7(a).

The IFM may be found at https://shusterman.com/pdf/cbpinspectorsfieldmanual.pdf.
Apparently this is the only publicly available version.

6

[to commence removal proceedings]; [the Immigration
Court’s] denial of motion for continuance; [2] [the Immigration
Court’s] denial of motion to terminate [the removal
proceedings]; [the Immigration Court’s] denial of [a] motion
to suppress [the documents justifying his removal
proceeding, such as the Forms I-213 and I-862]; and
promulgation of 8 C.F.R. § 235.1(h) and the IFM sections
cited are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” within the meaning of
5 U.S.C. §706. Petitioner also asserts that the f ailure to
issue a document establishing lawful admission such as an
I-94 document, or maintain records of the admission of
Canadian citizens in B-2 status, in conjunction with 8 C.F.R.
§ 235.1(h), 8 U.S.C.S. §1182(a)(6)(A)(I), 8 U.S.C.S.
§ 1182(a)(9)(B), 8 C.F.R. § 1240.8(c), 8 C.F.R. § 101.2,
8 C.F.R. § 103.21, 8 C.F.R. §1003.1(d), 8 U.S.C.S. § 1361,
8 U.S.C.S. § 1229a(c)(2)(B), 5 U.S.C. § 552a, 5 U.S.C. §
553, 5 U.S.C. §702 et seq., 5 U.S.C. §706, IFM § 31.1[,] IFM
§15.1(b)(4), IFM § 15.12, IFM §21.7, equal protection and
due process is unlawful, where United States Citizenship
and Immigration Services accepts entry documents or
affidavits to establish lawful admission of Canadian citizens
seeking adjustment of status.
(Id. ¶ 157.) As will become significant later, one of the statutes cited as a basis for
relief is 28 U.S.C. § 2241, the general habeas corpus statute (“§ 2241”). (Id. ¶¶ 13,
144.)
C.

The Second Amended Complaint
On September 14, 2011, Pelletier filed another amended complaint (“Second

Amended Complaint”). (ECF No. 54.) Ostensibly “to correct formatting and
typographical errors” (ECF No. 46 at 1), the Second Amended Complaint runs to 59
pages. Largely, however, it covers the same ground as the First Amended Complaint

2

This appears to refer to an instance in which Pelletier sought and was denied a
continuance of his May 25, 2011 hearing. (Id. ¶¶ 6, 49–50.) Pelletier has not since pursued
any serious claim in this regard.

7

(although in somewhat more detail), and asserts the same theories of liability, including
a mention of § 2241 habeas relief. (See ECF No. 54 ¶¶ 14, 168, 181–97.)
The Government moved to dismiss this complaint for lack of subject matter
jurisdiction. (ECF No. 62.) The Government relied on 8 U.S.C. § 1252(g) (“§ 1252(g)”):
. . . notwithstanding any other provision of law (statutory or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision . . . 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 . . . .
The Government also argued that Pelletier could not satisfy § 2241’s requirement that
the petitioner be “in custody,” see 28 U.S.C. § 2241(c)(3), because Pelletier was no
longer physically detained, nor did he face any severe restraint on his liberty. (ECF No.
62 at 9–12.)
In resolving the Government’s motion, this Court sua sponte raised the question
of whether Pelletier’s Second Amended Complaint complied with Federal Rule of Civil
Procedure 8(a). (ECF No. 68 at 5.) Characterizing the Second Amended Complaint as
“confusing, repetitive, and disjointed” (id.), the Court nonetheless “attempted to parse”
the document “to identify any claims over which it might have jurisdiction” (id. at 6). The
Court identified what it designated the “APA Claim,” meaning the argument that the
Regulatory Provisions were promulgated and executed in violation of the Administrative
Procedures Act. (Id.) The Court also identified what it called the “Constitutional Claim,”
referring to the argument that the Regulatory Provisions violate Pelletier’s Fourteenth
Amendment rights to equal protection and due process of law. (Id.) As for the

8

remainder of Pelletier’s attempted claims for relief, the Court deemed them
“incomprehensible”:
Though there are a number of factual allegations unrelated
to the APA Claim and the Constitutional Claim—such as
those involving the decisions made by the Immigration
Judge during Pelletier’s removal proceedings—the Court
cannot discern under what statutory provision these claims
may be brought or what facts would support different
statutory claims. Accordingly, on the Court’s own motion it
dismisses all claims other than the APA Claim and the
Constitutional Claim without prejudice to Plaintiffs filing
[another] amended complaint that more clearly delineates
between the causes of action being asserted and specifically
references the facts supporting such cause of action.
(Id. at 6–7.)
As for the Government’s § 1252(g) jurisdictional argument, the Court noted that
the Supreme Court has construed § 1252(g) fairly narrowly. (Id. at 7–8.) The Court
held that it does not extend either to the APA Claim or the Constitutional Claim because
neither claim necessarily flows from the Government’s decision to commence removal
proceedings against Pelletier. (Id. at 9.) The Court therefore denied the Government’s
motion.
D.

The Third Amended Complaint
Responding to the Court’s Rule 8(a) analysis, Pelletier filed his Third Amended

Complaint on April 27, 2012. (ECF No. 75.) The Third Amended Complaint—which
remains the operative complaint to this day—names six causes of action:
1.

“APA Review,” claiming that the Regulatory Provisions were unlawfully
promulgated or executed, or both (id. ¶¶ 56–101);

2.

“Review of Constitutional Questions,” alleging numerous due process and
9

equal protection violations (e.g., failing to provide Forms I-94 to
Canadians with B-2 visas but not others violates equal protection; FOIA
provides insufficient process; removal proceedings against Canadian B-2
visitors violates due process because Canadian B-2 visitors do not receive
Forms I-94 to prove their lawful admission; etc.) (id. ¶¶ 102–10);
3.

“Habeas Review,” apparently under § 2241(c)(3), arguing—
a.

Pelletier “was unlawfully arrested . . . and remains unlawfully in
custody . . . for habeas purposes pursuant to the terms of his
immigration bond, because no warrant of arrest or other authority
to arrest him existed . . . when he was arrested,”

b.

the bond “is a severe restriction of Pelletier’s liberty interests
because he cannot travel to Canada to visit his family,” and

c.

“Pelletier is required to appear for hearing[s] in the Denver
Immigration Court . . . pursuant to the terms of his Immigration
Bond” (id. ¶¶ 111–19);

4.

“Suppression,” asking that the immigration forms justifying his removal
(e.g., I-213, I-862) “be suppressed, set aside, and held unlaw ful in
accordance with due process because they are fundamentally unfair and
prejudice petitioners’ constitutionally protected interest in fair procedures”
(id. ¶¶ 120–28);

5.

“Declaratory Judgment that applicable regulations and procedures are
ultra vires,” effectively duplicating his claim for APA review (id.

10

¶¶ 129–34); and
6.

“Equitable Estoppel,” essentially arguing that it is unconscionable for the
Government to base removal proceedings on the lack of record of a lawful
entry when the government does not issue Forms I-94 to Canadian B-2
visitors (id. ¶¶ 135–52).

The Government moved to strike the Third Amended Complaint under Rule 8(a),
or to dismiss it under Rules 12(b)(1) and 12(b)(6). (ECF No. 84.) The Government
argued that the Third Amended Complaint continued to fail the Rule 8(a) pleading
standard. (ECF No. 84-1 at 4–5.) The Government also argued that this Court lacked
subject matter jurisdiction over, and that Pelletier had otherwise failed to state a claim
for, his Habeas Review, Suppression, Declaratory Judgment, and Equitable Estoppel
causes of action. (Id. at 5–14.)
The Court partially granted this motion. (ECF No. 110.) The Court declined to
strike the complaint altogether because the Third Amended Complaint was minimally
sufficient “to give notice to Defendants of the basis of [Pelletier’s] arguments,” even
though the Third Amended Complaint remained “confusing and, at times, repetitive.”
(ECF No. 110 at 6.) However, as discussed below, the Court granted the
Government’s request to dismiss Pelletier’s Habeas Review and Suppression claims for
lack of jurisdiction, and Pelletier’s Declaratory Judgment and Equitable Estoppel claims
for failure to state a claim. (Id. at 7–11.)
1.

Habeas Analysis

The Court’s habeas analysis particularly turned on Dry v. CFR Court of Indian
Offenses for Choctaw Nation, 168 F.3d 1207 (10th Cir. 1999). In Dry, three members
11

of the Choctaw tribe filed a § 2241 habeas petition in the Eastern District of Oklahoma,
challenging the jurisdiction of the Choctaw Court of Indian Offenses, which had charged
the petitioners with certain crimes under tribal law. Id. at 1208. The district court
dismissed the § 2241 petition for lack of jurisdiction, reasoning that the petitioners did
not meet § 2241(c)’s “in custody” requirement because they had been released on their
own recognizance pending trial. Id. The Tenth Circuit reversed:
A petitioner must satisfy the “in custody” requirement as a
prerequisite to habeas corpus jurisdiction. A petitioner need
not show actual, physical custody to obtain relief. A
petitioner is in custody for purposes of the statute if he or
she is subject to “severe restraints on [his or her] individual
liberty.” A restraint is severe when it is “not shared by the
public generally.”
In this case, tribal authorities charged, arraigned, and
released Appellants on their own recognizance pending trial.
Although Appellants are ostensibly free to come and go as
they please, they remain obligated to appear for trial at the
court’s discretion. This is sufficient to meet the “in custody”
requirement of the habeas statute.
Id. (citations and footnote omitted).
Pelletier argued that he was in substantially the same position as the Dry
petitioners, but this Court disagreed:
While Pelletier must appear at immigration court hearings if
he is to continue defending himself against removal
proceedings, he is not restrained from leaving the country
and returning to Canada at will. Insofar as Pelletier may not
be permitted to return to the United States once he has
departed, he would share that restraint with all other foreign
nationals lacking permission to enter the country.
(ECF No. 110 at 8 (citation omitted).) Consequently, the Court determined that Pelletier
was not “in custody” for purposes of § 2241, meaning that the Court lacked subject
12

matter jurisdiction over any § 2241 claim.
2.

Suppression Analysis

The Government’s challenge to Pelletier’s Suppression claim once again relied
on § 1252(g). The Government argued that the immigration forms Pelletier hoped to
suppress were solely for use in removal proceedings and therefore directly and
immediately connected to the Government’s decision to commence such proceedings.
(ECF No. 84-1 at 9.) This Court agreed, meaning that § 1252(g) stripped the Court of
jurisdiction to hear Pelletier’s Suppression claim. (ECF No. 110 at 9–10.)
3.

Declaratory Judgment Analysis

The Court dismissed Pelletier’s Declaratory Judgment claim as duplicative of his
APA Claim. (Id. at 10.)
4.

Equitable Estoppel Analysis

The Court dismissed Pelletier’s Equitable Estoppel claim because Pelletier had
failed to plead facts supporting several of the elements of equitable estoppel. (Id. at
11.)
E.

Summary Judgment
On April 12, 2013, the Government moved for summary judgment on Pelletier’s

remaining claims, i.e., the APA Claim and the Constitutional Claim. (ECF Nos. 117 &
117-1.) Pelletier cross-moved that same day, arguing that the Regulatory Provisions
violated his due process and equal protection rights (the Constitutional Claim) and that
his lawful admission could be established as a matter of law. (ECF No. 119.)

13

Remarkably, Pelletier never responded to the Government’s motion.3 The Court
nonetheless decided both motions on the merits, often referring back to the Third
Amended Complaint for arguments that Pelletier failed to advance in his summary
judgment briefing. (See, e.g., ECF No. 123 at 1, 7, 10 n.4.) 4 The Court granted the
Government’s motion in full and denied Pelletier’s motion in full, as explained below.
1.

APA Claim

Pelletier’s APA Claim involved several challenges to the Regulatory Provisions,
including challenges directly to IFM §§ 15.1, 15.12, and 21.7, and other challeng es
directly to § 235.1(h)(1)(i).
a.

IFM §§ 15.1, 15.12, and 21.7

Pelletier argued that IFM §§ 15.1, 15.12, and 21.7 were promulgated unlawfully
because they were not preceded by a notice-and-comment period. (ECF No. 75
¶¶ 56–101.) The Court found, however, that these IFM sections are “interpretive,” not
“legislative,” and therefore require no notice-and-comment period. (ECF No. 123 at
7–9.)
Pelletier also argued that the Government violated the APA when failing to issue
him an I-94 at his most recent alleged unlawful entry. (ECF No. 75 ¶¶ 56–101.) The
Court rejected this argument, finding that the Regulatory Provisions exempt Canadian
citizens such as Pelletier from the requirement to issue Forms I-94, and the

3

In addition, although the Government responded to Pelletier’s motion (ECF No. 122),
Pelletier elected not to file a reply.
4

This Court’s summary judgment order mistakenly refers to the Third Amended
Complaint as the Second Amended Complaint or “SAC.”

14

Government therefore followed its own regulations when it did not issue an I-94 to
Pelletier. (ECF No. 123 at 9–10, 11–12.)
b.

§ 235.1(h)(1)(i)

Although § 235.1(h)(1)(i) is certainly a “legislative” rule subject to
notice-and-comment procedures, the Court found that Pelletier’s APA challenge to
§ 235.1(h)(1)(i) was barred by a six-year statute of limitations and that Pelletier had not
made any argument for a deferred accrual date. (ECF No. 123 at 10–11.)
2.

Constitutional Claim

Pelletier’s Constitutional Claim, as advanced in his summary judgment motion,
involved an Equal Protection challenge to the Regulatory Provisions and a Fourth
Amendment challenge to his arrest in August 2008. As advanced in his Third Amended
Complaint, Pelletier’s Constitutional Claim also included a Due Process challenge.
a.

Equal Protection

Pelletier’s Equal Protection argument rested on the notion that the Regulatory
Provisions impermissibly discriminated based on national origin, i.e., by granting Forms
I-94 to individuals from certain countries but not others (such as Canada). (ECF No.
119 at 3–12.) This Court held, however, that discrimination between noncitizens of
varying nationalities (as opposed to discriminating between citizens and noncitizens
generally) is permissible if justified by a rational basis. (ECF No. 123 at 13–14.) The
Court found a rational basis in Congress’s desire to “reduce[] bureaucratic barriers to
the high volume of bilateral trade conducted between the United States and Canada
and the large numbers of tourists and business visitors regularly crossing this country’s
northern border.” (Id. at 14.) Consequently, the Court rejected Pelletier’s Equal
15

Protection argument.
b.

Due Process

Pelletier’s Due Process challenge essentially argued that the Government’s
failure to give him an I-94 deprived him of his right to be meaningfully heard in
immigration proceedings, or in other words, to offer evidence of his lawful entry. (ECF
No. 75 ¶¶ 79, 96, 104–10.) The assumption underlying Pelletier’s argument is that an
I-94 is essential to proving lawful admission.
The Court found that it had no jurisdiction over evidentiary rulings in Pelletier’s
ongoing removal proceedings, and therefore could not grant any relief in that regard.
(ECF No. 123 at 16–17.) Moreover, the Court noted that Pelletier had an opportunity at
his last lawful entry to request an I-94, and he could also obtain one af ter the fact,
assuming he could prove lawful admission (which would obviously require evidence
other than an I-94). (ECF No. 123 at 17–19.) T hus, the Court found no Due Process
violation.
c.

Fourth Amendment

Finally, Pelletier argued that his initial arrest in August 2008 lacked probable
cause, violating the Fourth Amendment, and that all “evidence” thereby obtained
(meaning the Forms I-213 and I-862 that began his removal proceedings) should be
“suppressed” as “fruits of the poisonous tree.” (ECF No. 119 at 12–16.)
The Court reiterated its previous holding that § 1252(g) deprived it of jurisdiction
to “suppress” the Forms I-213 and I-862. (ECF No. 123 at 18; see also Part III.D.2,
supra.) As for the predicate claim that Pelletier’s arrest lacked probable cause, the
Court held that the only hint of such a cause of action in the Third Amended Complaint
16

came in Pelletier’s request for “Habeas Review,” which the Court had already dismissed
for lack of jurisdiction under § 2241. (ECF No. 123 at 18–19; see also Part III.D.1,
supra.) Moreover, in that request, Pelletier made several references to lack of a
warrant, but did not invoke the Fourth Amendment. (ECF No. 75 ¶¶ 111–19.) Rather,
the only cited authority conceivably relevant to probable cause was a citation to
8 C.F.R. § 287.3(b), which establishes procedures for questioning an alien arrested
without a warrant on suspicion of being in violation of the immigration laws. (See id.
¶ 113.) The Court accordingly deemed this Fourth Amendment argument “outside the
scope of the complaint,” and therefore waived. (ECF No. 123 at 19.)
F.

First Reconsideration Motion
This Court entered final judgment against Pelletier on December 31, 2013. (ECF

No. 124.) On February 25, 2014, Pelletier filed a motion for reconsideration (“First
Reconsideration Motion”) based on the “mistake” prong of Federal Rule of Civil
Procedure 60(b)(1). (ECF No. 125.)
The main thrust of the First Reconsideration Motion is the “and/or argument,”
which has come to dominate subsequent proceedings in this case. The and/or
argument relies on the following distinction between § 235.1(h)(1)(i) and IFM § 15.1:
•

“Form I-94 is not required by: * * * Any nonimmigrant alien described in
§ 212.1(a) of this chapter [Canadian citizens and certain others] and 22
CFR 41.33 [permanent residents of Canada with border crossing cards]
who is admitted as a visitor for business or pleasure or admitted to
proceed in direct transit through the United States . . . .” 8 C.F.R.

17

§ 235.1(h)(1)(i) (emphasis added).
•

“A Form I-94 is not required for * * * [a] Canadian national or other
nonimmigrant described in 8 CFR 212.1(a) or 22 CFR 41.33 admitted as
a visitor for pleasure or business or in transit through the U.S. . . . .” IFM
§ 15.1(b)(4)(A) (emphasis added).

(See ECF No. 125 at 1–5.) Pelletier argued that the “and” in § 235.1(h)(1)(i) means
that only Canadian citizens with border crossing cards (BCCs) are exempt from
receiving I-94’s, and IFM § 15.1 was promulgated without authority to the extent it
converted “and” into “or.” (Id. at 4.)
While this First Reconsideration Motion was pending, Pelletier filed a notice of
appeal. (ECF No. 127.)
On June 19, 2014, the Court denied the First Reconsideration Motion. (ECF No.
133.) The Court noted that its reading of “and” as “or” was precisely the reading
advanced by the Government in its summary judgment briefing, to which Pelletier never
responded, and that Rule 60(b)(1) is not a vehicle to advance arguments that could
have been previously advanced. (Id. at 3–4.) Nonetheless addressing the merits, the
Court noted that the word “any” in § 235.1(h)(1)(i) precedes the reference to “§ 212.1(a)
of this chapter and 22 CFR 41.33.” (Id. at 3.) Accordingly, “the two regulatory
provisions listed are not a list of criteria that must be met but rather establish the scope
of exemption as containing ‘any nonimmigrant alien described’ therein.” (Id.)
G.

The Appeal
The Tenth Circuit resolved Pelletier’s appeal through an unpublished order and

18

judgment on October 21, 2014. Pelletier v. United States, 588 F. App’x 784 (10th Cir.
2014).
1.

The And/Or Argument

The Tenth Circuit began by noting that Pelletier never filed a separate notice of
appeal of this Court’s denial of the First Reconsideration Motion, and therefore the
Tenth Circuit had no jurisdiction over that denial. Id. at 787–88. The court found that
this lack of jurisdiction extended to Pelletier’s and/or argument (and all other arguments
deriving from that argument) because Pelletier had raised that argument for the first
time in the First Reconsideration Motion. Id. at 788–90.
2.

Fourth Amendment

The Tenth Circuit next turned to Pelletier’s lack-of-probable-cause challenge to
his arrest. The court observed that, as pleaded in the Third Amended Complaint,
Pelletier’s challenge to the lawfulness of his arrest relied on violations of “certain
statutory and regulatory provisions,” not on the Fourth Amendment. Id. (emphasis in
original). The court “affirm[ed]” this Court’s decision to deny the Fourth Amendment
claim as waived “because [Pelletier’s] citations to the Complaint do not support [his]
assertion that [he] pled a Fourth Amendment claim.” Id.
3.

Suppression

The Tenth Circuit then disposed of the Suppression claim. Id. at 790–91.
Pelletier specifically contested this Court’s conclusion that Forms I-213 and I-862 were
“solely” for initiating removal proceedings, and therefore fell within § 1252(g)’s
jurisdictional bar. (See ECF No. 110 at 9–10; see also Part III.D.2, supra.) Pelletier

19

argued that Form I-213 “could be used outside of [his] removal proceedings to deny him
adjustment of status and other benefits.” Pelletier, 588 F. App’x at 791. “But,” said the
Tenth Circuit, “[Pelletier’s] opportunity to advance this contention was in response to
Defendants’ motion to dismiss [the Third Amended Complaint]. Yet [he] did not raise
the argument, and the district court did not consider or make any ruling on it.” Id. The
court therefore “decline[d] to reach [Pelletier’s] argument concerning the district court’s
dismissal of [his] suppression claim, and [it] affirm[ed] the judgment on that claim in [the
Government’s] favor.” Id.
4.

Habeas (§ 2241)

Finally, the Tenth Circuit addressed this Court’s conclusion that Pelletier was not
“in custody” for purposes of § 2241(c), and the Court therefore lacked jurisdiction over
Pelletier’s habeas claim. (See ECF No. 110 at 8.) As noted above (Part III.D.1, supra),
this Court’s conclusion rested on distinguishing the Dry decision. The Tenth Circuit did
not agree with that distinction:
In attempting to distinguish Mr. Pelletier’s circumstances, the
district court reasoned that the appellants in Dry remained in
custody because they “could be ordered to appear for trial at
any time at the discretion of the court.” Aplt. App. at 120–21
(emphasis added). Defendants likewise suggest our
decision in Dry was based on the appellants’ lack of notice
in that case regarding when they would be required to
appear. But the decision says nothing more than that the
appellants were “obligated to appear for trial at the court’s
discretion.” Dry, 168 F.3d at 1208. Mr. Pelletier also must
appear at immigration hearings scheduled at the discretion
of the Immigration Court. We hold that, under Dry, Mr.
Pelletier alleged sufficient facts to satisfy the “in custody”
requirement in § 2241(c)(3). We therefore reverse the
district court’s dismissal of Plaintiffs’ habeas application for
lack of jurisdiction.
20

Pelletier, 588 F. App’x at 792.
IV. PROCEDURAL HISTORY SINCE THE APPEAL
A.

Status Report on Remand
The Tenth Circuit’s remand created a conundrum. Similar to statutes like

42 U.S.C. § 1983 and 28 U.S.C. § 2201 (declaratory judgment), § 2241 is a vehicle for
raising substantive claims, but is not itself a substantive claim. Thus, § 2241(c)(3)
requires the habeas petitioner to be “in custody in violation of the Constitution or laws or
treaties of the United States” (emphasis added). Naturally, then, the petitioner must
specify the portions of “the Constitution or laws or treaties of the United States” being
violated.
On every substantive claim asserted by Pelletier for violation of the Constitution
or a federal statute or regulation, the Tenth Circuit either dismissed for lack of appellate
jurisdiction or affirmed this Court’s judgment in favor of the Government. As will be
explained infra at Part V:
(a)

the dismissals for lack of jurisdiction evince Pelletier’s failure to appeal
certain portions of the judgment, rendering those matters at least law of
the case and therefore subject only to narrow and discretionary
reconsideration; and

(b)

the matters explicitly affirmed by the Tenth Circuit now fall under the
mandate rule and cannot be reconsidered by this Court.

Thus, by remanding the § 2241 claim, the Tenth Circuit sent back an empty vehicle—a
procedure for asserting “violation[s] of the Constitution or laws or treaties of the United

21

States,” but without any such alleged violations remaining for adjudication, other than
(perhaps) under a discretionary reconsideration standard which would itself come into
play only if Pelletier moved for reconsideration.
Faced with this puzzling procedural stance, the Court ordered the parties to f ile a
joint status report stating their “belief as to the scope of the habeas claim and what
remains at issue before this Court.” (ECF No. 137.) In that status report, the
Government expressed its position that, although Pelletier’s bond rendered him “in
custody” for purposes of § 2241(c)(3), this Court lacks jurisdiction to grant habeas relief.
(ECF No. 139 at 1–2.) Specifically, to the extent Pelletier is seeking some sort of
release from his bond, 8 U.S.C. § 1226(e) strips this Court of jurisdiction:
The Attorney General’s discretionary judgment regarding the
application of this section [regarding immigration bonds]
shall not be subject to review. No court may set aside any
action or decision by the Attorney General under this section
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.
And, to the extent Pelletier is seeking relief from removal proceedings altogether,
§ 1252(g) continues to present a barrier because, in the Government’s view, this Court
would be tampering with a “decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against any alien.” (ECF No.
139 at 2.)
Pelletier disagreed with the Government’s position and asserted that his “habeas
claim includes the suppression issues raised in the prior proceedings, constitutional
issues raised in the prior proceedings and Administrative Procedure Act (‘APA’) issues
raised in the prior proceedings.” (Id.) In other words, Pelletier treated the Tenth
22

Circuit’s remand as an invitation to reargue his entire case, this time through the
habeas vehicle. Pelletier also re-asserted the and/or argument, claiming it is not
subject to law of the case “because it [is] a clear error resulting in manifest injustice.”
(Id. at 3.)
B.

The Government’s Summary Judgment Motion
After reviewing the status report, the Court ordered the Government to file a

summary judgment motion on Pelletier’s habeas claim “on or before March 20, 2015.
The deadlines for Plaintiffs’ Response and the Government’s Reply shall be as
prescribed under D.C.COLO.LCivR 7.1(d).” (ECF No. 140 (emphasis removed).) As
ordered, the Government filed its motion on March 20, 2015. (ECF No. 141.) Pursuant
to D.C.COLO.LCivR 7.1(d), Plaintiff then had 21 days (i.e., until April 10, 2015) to file a
response. Just as with the Government’s pre-appeal summary judgment motion,
Pelletier filed no response. (See Part III.E, supra.)
On May 26, 2015—over a month after Pelletier’s response deadline passed—the
Court issued an order noting that Pelletier
did not timely file a response and has not since filed
anything. The Court could therefore deem the
Government’s motion confessed. In the interests of justice,
however, the Court will not do so at this point. The
Government’s Motion raises the question of whether
8 U.S.C. § 1252(g) trumps this Court’s ability to evaluate
Plaintiff’s 28 U.S.C. § 2241 habeas petition, especially in
light of § 2241’s interpretation in Dry v. CFR Court of Indian
Offenses for Choctaw Nation, 168 F.3d 1207 (10th Cir.
1999). The Government addresses this only in a brief
footnote (ECF No. 141-1 at 7 n.3), which the Court finds
insufficient given the seriousness of the question, the Tenth
Circuit’s continued reliance on Dry in the previous appeal in
this case, and the fact that the Government apparently could
23

have raised its current argument in that appeal but did not.
Accordingly, no later than June 10, 2015, the Government
shall file a supplemental brief of no more than seven pages,
excluding the signature block and certificate of service, more
fully discussing the continuing applicability of 28 U.S.C.
§ 2241 in light of 8 U.S.C. § 1252(g). In the interests of
justice, the Court will also allow Plaintiff to file a response
brief no later than June 24, 2015. If Plaintiff files such a
brief, the Government may file a reply no later than July 8,
2015.
(ECF No. 142 (formatting in original).) The Government filed a supplemental brief on
June 10, 2015, as ordered. (ECF No. 143.)
C.

Second Reconsideration Motion
On June 19, 2015, Pelletier filed a “Second Motion to Reconsider the Order

Denying Plaintiffs’ Motion to Reconsider the Order Granting Summary Judgment to
Defendants and Denying Summary Judgment for Plaintiffs” (“Second Reconsideration
Motion”). (ECF Nos. 144, 144-1.) The Second Reconsideration Motion is 16 pages
long and is accompanied by a 67-page “memorandum of law in support.”5 The bulk of
those pages are spent re-arguing the and/or question (both on its merits and why the
question supposedly survived the appeal), but Pelletier also reprises essentially every
other issue already litigated.
On June 22, 2015, the Court struck the Second Reconsideration Motion w ith the
following order:
Before the Court is Plaintiffs’ Second Motion for
Reconsideration. This motion appears to ask this Court to
reconsider rulings already affirmed by the Tenth Circuit. The
5

All page counts are according to this Court’s practice standards, which count all pages
(including motions filed separately from briefs in support) except for the attorney signature block
and certificate of service. See WJM Revised Practice Standards III.C.1, III.E.3, III.E.7.

24

motion therefore appears meritless on its face.
Nonetheless, the Court need not so rule because the m otion
is 16 pages long and accompanied by a 67-page
“memorandum of law in support.” This vastly exceeds the
undersigned’s 15-page limit. See WJM Revised Practice
Standard III.C.1. The motion is therefore STRICKEN. In
addition, Plaintiffs are reminded of their [June] 24, 2015
deadline to respond to the Government’s Motion for
Summary Judgment and supplemental brief.
(ECF No. 145; see also ECF No. 146.)
D.

Motion to Reconsider Striking the Second Reconsideration Motion
On June 24, 2015—Pelletier’s deadline to respond to the Gov ernment’s

summary judgment motion—Pelletier filed a motion to reconsider this Court’s order
striking the Second Reconsideration Motion. (ECF Nos. 147 & 148.) Pelletier asserted
that he had been treated unfairly given that the Government’s pre-appeal summary
judgment motion had exceeded this Court’s page limits by 9 pages and this Court did
not act sua sponte to strike that motion. (ECF No. 148 at 1.) Pelletier also claimed that
his counsel “did not have ‘actual notice’ of the ‘actual practice standards,’ until the Court
issued [its order striking the Second Reconsideration Motion].” (Id. at 2.) Finally,
Pelletier sought an extension of time to respond to the Government’s current summary
judgment motion. (Id. at 5.)
Later that same day, the Court issued an order denying this motion. (ECF No.
149.) The Court stated that its choice, more than two years ago, not to strike the
Government’s previous summary judgment motion for being overlong by 9 pages has
no relevance to whether the Court may fairly strike the Second Reconsideration Motion,
which was overlong by 68 pages. (Id. at 1–2.) The Court also rejected Pelletier’s

25

“actual notice” argument: “All counsel are expected to be familiar with the practice
standards of all judicial officers in this District just as they are expected to be familiar
with the Federal Rules of Civil Procedure and this District’s Local Rules. Lack of ‘actual
notice’ is no excuse.” (Id. at 2.) Finally, as to the request for additional time, the Court
noted that Pelletier had received a total of 96 days to prepare his response, including
46 unauthorized days (from his original response deadline to the date of the order
resetting his response deadline). (Id. at 4.) Thus, no additional time was warranted.
(Id.)
E.

Pelletier’s Summary Judgment Response
About 8 minutes shy of midnight on June 24, Pelletier finally filed his summary

judgment response. (ECF No. 150.) It largely reargues the and/or question. (See id. at
14–18.) It also contains a lengthy Statement of Additional Disputed Facts, many of
which have no evidentiary support, in violation of Federal Rule of Civil Procedure
56(c)(1)(A) and WJM Revised Practice Standard III.E.6. (See, e.g., id. at 4–7.) Most of
these unsupported factual assertions appear to be an attempt to develop the Fourth
Amendment unlawful arrest argument that this Court and the Tenth Circuit already
rejected. (See id.)
The Government filed its reply on July 6, 2015. (ECF No. 151.)
F.

Third Reconsideration Motion
On July 10, 2015, Pelletier filed a “Second Motion to Reconsider the Order

Denying Plaintiffs’ Motion to Reconsider the Order Granting Summary Judgment to
Defendants and Denying Summary Judgment for Plaintiffs” (ECF No. 152), which bears

26

the same title as his Second Reconsideration Motion but is, in reality, his Third
Reconsideration Motion. It is, once again, a challenge to most every issue already
litigated.
G.

Motion to Amend Summary Judgment Response
On July 15, 2015, Pelletier filed a “Motion Pursuant to Rule 15 to Submit

Amended Plaintiffs’ Response to Defendants’ Motion for Summary Judgment.” (ECF
No. 154.) Pelletier’s proposed “amendment” adds a lengthy factual assertion (based on
a Government report) regarding immigration enforcement officials’ lax behavior at
certain ports of entry (ECF No. 154-2 at 2–4)—perhaps to support a claim that he could
have been lawfully admitted without any record created, although Pelletier does not
actually develop this argument. Pelletier also seeks to add 25 new “undisputed facts,”
which are mostly quotations from cases and statutes. (Id. at 14–18.) Finally, Pelletier
adds supposedly additional argument in support of his pre-existing arguments. (Id. at
18–32.)
V. ANALYSIS
As best the Court can discern from the Tenth Circuit’s remand and the parties’
briefing, the questions to be answered are: (1) whether any substantive theory of relief
remains for adjudication through the habeas vehicle; (2) whether this Court can—and if
so, whether it should—reconsider rulings that Pelletier failed to timely appeal; and
(3) whether this Court has jurisdiction to address the merits at all. Although subject
matter jurisdiction is usually a threshold inquiry, the Court finds that discussion of the
merits informs the jurisdictional question. The Court will therefore answer the foregoing

27

questions in the order presented above.
A.

Did Any Substantive Claim Survive the Appeal?
“[A]n appellate mandate binds a lower court on remand.” 18B Charles Alan

Wright et al., Federal Practice & Procedure § 4478.3 (2d ed., Apr. 2015 update). T his
is sometimes referred to as the “mandate rule.” See id.
The Tenth Circuit explicitly affirmed this Court’s judgment on Pelletier’s Fourth
Amendment and Suppression claims. Pelletier, 588 F. App’x at 790–91. These
matters, accordingly, are within the mandate and are no longer open for
reconsideration.
The and/or argument presents a thornier question. The Tenth Circuit did not
address this on its merits, but dismissed it for lack of jurisdiction. Generally, “[l]aw of
the case principles [such as the mandate rule] do not bar a district court from acting
unless an appellate decision has issued on the m erits of the claim sought to be
precluded.” Mitchell v. Maynard, 80 F.3d 1433, 1448 (10th Cir. 1996) (internal
quotation marks omitted).
That said, a ruling “made at one stage of litigation, unchallenged in a subsequent
appeal when the opportunity to do so existed, becomes the law of the case for future
stages of the same litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.” Concrete Works of Colo., Inc. v. City & Cnty. of
Denver, 321 F.3d 950, 992 (10th Cir. 2003) (internal quotation marks omitted). Courts
have found this rule “necessary to the orderly conduct of litigation” because it “ensures
that a party which fails to challenge a ruling in a first appeal does not stand better as

28

regards the law of the case than one who had argued and lost.” Id. at 992–93 (internal
quotation marks omitted).
The Court could find no case directly addressing this precise situation, i.e.,
where the appellant raises an issue on appeal but the issue is dism issed for lack of
jurisdiction, as opposed to an appellant who did not raise the issue at all. However, the
Court can see no reason to distinguish the two scenarios. If an issue is dismissed for
failure to file a notice of appeal, it would seem to be the functional equivalent of not
appealing. Moreover, the policy justification—ensuring that failing to appeal does not
put the party in a better position than one who appeals and loses—applies equally well
to both scenarios. Accordingly, the Court finds that the and/or argument became law of
the case when Pelletier failed to properly appeal it. Cf. Soc’y of Lloyd’s v. Bennett, 182
F. App’x 840, 845 (10th Cir. 2006) (holding that party in second appeal could not raise
an issue raised for the first time in a Rule 60(b) motion before the first appeal but not
argued in the first appeal).
B.

Can and Should this Court Reconsider its And/Or Ruling?
“[T]he law of the case doctrine does not implicate a court’s jurisdiction.”

Concrete Works, 321 F.3d at 993. Thus, law of the case does not preempt
reconsideration of the and/or argument. Nonetheless,
a district court’s authority to deviate from law of the case is
circumscribed by three exceptionally narrow exceptions:
(1) when the evidence in a subsequent trial is
substantially different; (2) when controlling authority has
subsequently made a contrary decision of the law
applicable to such issues; or (3) when the decision was
clearly erroneous and would work a manifest injustice.
29

Id. (internal quotation marks omitted).
Pelletier argues that this Court’s resolution of the and/or argument is clearly
erroneous and would work a manifest injustice. (ECF No. 150 at 17.) The Court
disagrees, but, in the rapidly thinning interests of justice, it will once again address this
issue on its merits.
To repeat, the relevant language is as follows:
•

“Form I-94 is not required by: * * * Any nonimmigrant alien described in
§ 212.1(a) of this chapter [Canadian citizens and certain others] and 22
CFR 41.33 [permanent residents of Canada with BCCs] who is admitted
as a visitor for business or pleasure or admitted to proceed in direct transit
through the United States . . . .” 8 C.F.R. § 235.1(h)(1)(i) (emphasis
added).

•

“A Form I-94 is not required for * * * [a] Canadian national or other
nonimmigrant described in 8 CFR 212.1(a) or 22 CFR 41.33 admitted as
a visitor for pleasure or business or in transit through the U.S. . . . .” IFM
§ 15.1(b)(4)(A) (emphasis added).

Pelletier asserts that § 235.1(h)(1)(i)’s “and” must be read in its typical conjunctive
sense, and interprets § 235.1(h)(1)(i) to mean that only Canadian citizens with BCCs
are exempt from receiving an I-94. (ECF No. 150 at 15.) Pelletier overlooks the actual
language of the two cited regulatory provisions.
A “nonimmigrant alien described in § 212.1(a) of this chapter” is (i) a citizen of
Canada or Bermuda, (ii) a Bahamian national, or (iii) a British subject resident in the
30

Bahamas, the Cayman Islands, or the Turks and Caicos Islands. 8 C.F.R. § 212.1(a).
A “nonimmigrant alien described in . . . 22 CFR 41.33” is “a permanent resident of
Canada.” 22 C.F.R. § 41.33(a). Obviously a Canadian permanent resident is not a
Canadian citizen, nor is a Canadian permanent resident a British subject resident in the
Bahamas, the Cayman Islands, or the Turks and Caicos Islands. Thus, the only
individuals that would fall under both 8 C.F.R. § 212.1(a) and 22 C.F.R. § 41.33 are
Bermudian citizens and Bahamian nationals that are also Canadian permanent
residents.
The Court feels comfortable in assuming that this would be an extremely small
subset of individuals and plainly not what the Government sought to address through
§ 235.1(h)(1)(i). Rather, § 235.1(h)(1)(i) makes infinitely more sense when interpreted
as encompassing (1) all Canadian citizens and (2) all Canadian permanent residents
who meet the BCC criteria. (See ECF No. 117-1 at 19–21 (discussing the
Government’s policy justifications for easing the border crossing process between
Canada and the United States).) In other words, “[a]ny nonimmigrant alien described in
§ 212.1(a) of this chapter and 22 CFR 41.33” is, in fact, a disjunctive test, referring to
any nonimmigrant alien described in 8 C.F.R. § 212.1(a) and any nonimmigrant alien
described in 22 C.F.R. § 41.33.
Consequently, the Court finds no clear error and therefore cannot depart from
the law of the case on this question. Concrete Works, 321 F.3d at 993.
C.

Does This Court Have Any Jurisdiction Over the Merits?
To the extent Pelletier raises any other issue, the Court finds that it lacks subject

31

matter jurisdiction, for the reasons explained below.6
1.

8 U.S.C. § 1226(e)

As noted above (Part IV.A), 8 U.S.C. § 1226(e) strips this Court of to review the
Government’s decisions with respect to Pelletier’s bond. Therefore, to the extent
Pelletier seeks modification of his bond conditions, this Court cannot reach those
arguments.
2.

8 U.S.C. § 1252(g)

To repeat § 1252(g):
Except as provided in this section and notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title, no court
shall have jurisdiction to hear any cause or claim by or on
behalf of any alien arising from the decision or action by the
Attorney General to commence proceedings, adjudicate
cases, or execute removal orders against any alien under
this chapter.
The Government argues that this statute precludes jurisdiction over any habeas claim
based on Pelletier’s Suppression theory. (ECF No. 141-1 at 6–9.) The Court agrees.
The Court previously held as much (see Part III.D.2, supra) and the Tenth Circuit
affirmed (see Part III.G.3, supra). Thus, the Court finds the Government’s position both
correct on the merits and required by the mandate rule.

6

To the extent this Court lacks jurisdiction even to address the and/or argument, this
Part states the Court’s alternate holding. The Court further notes that the Government could
have avoided this entire remand if it had raised these jurisdictional arguments before the
appeal, or even on appeal, rather than relying solely on the definition of “in custody” under
§ 2241(c)(3). See Muskrat v. Deer Creek Pub. Sch., 715 F.3d 775, 784 (10th Cir. 2013) (“a
party may challenge subject matter jurisdiction at any time”).

32

3.

8 U.S.C. § 1252(b)(9)

Finally, the Government points to 8 U.S.C. § 1252(b)(9):
Judicial review of all questions of law and fact, including
interpretation and application of constitutional and statutory
provisions, arising from any action taken or proceeding
brought to remove an alien from the United States under this
subchapter shall be available only in judicial review of a final
order under this section. Except as otherwise provided in
this section, no court shall have jurisdiction, by habeas
corpus under section 2241 of Title 28 or any other habeas
corpus provision, by section 1361 or 1651 of such title, or by
any other provision of law (statutory or nonstatutory), to
review such an order or such questions of law or fact.
(See ECF No. 143 at 6.) The Supreme Court has contrasted this provision with
§ 1252(g), characterizing § 1252(g) as narrow and § 1252(b)(9) as broad. See Reno v.
Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482–83 (1999). And indeed it is
broad—broad enough to encompass every issue Pelletier has attempted to raise here
and channel it through his removal proceedings and eventually to the Court of Appeals.
See 8 U.S.C. § 1252(a)(5) (requiring judicial review of final orders of removal to be had
in the Court of Appeals); see also Aguilar v. U.S. Immigration & Customs Enforcement
Div. of Dep’t of Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007) (“In enacting section
1252(b)(9), Congress plainly intended to put an end to the scattershot and piecem eal
nature of the review process that previously had held sway in regard to removal
proceedings.”). Pelletier does not argue otherwise; he does not address this statute at
all.
The Tenth Circuit has suggested that § 1252(b)(9) does not apply when an alien
challenges his or her detention independently of his or her removal. Ochieng v.

33

Mukasey, 520 F.3d 1110, 1115 (10th Cir. 2008). T hat situation does not apply here.
Thus, the Court finds that § 1252(b)(9) strips it of jurisdiction to hear whatever
substantive claims, if any, Pelletier may still have.
VI. “MOTION TO AMEND”
As already discussed (Part I.C, supra), Pelletier’s “Motion Pursuant to Rule 15 to
Submit Amended Plaintiffs’ Response to Defendants’ Motion for Summary Judgment”
(ECF No. 154) requires a showing of “good cause” and “excusable neglect.” See Fed.
R. Civ. P. 6(b). Pelletier has not attempted to make any such showing, nor is there any
good cause or excusable neglect evident in the record. Moreover, the materials
Pelletier seeks to insert into his summary judgment response do not shed any
additional light on the questions resolved above. This motion is therefore denied, and
Pelletier’s “Motion to Accept Untimely Submission of Exhibit C to ECF 154-1” (ECF No.
155) is consequently denied as moot.
VII. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The Government’s Motion for Summary Judgment (ECF No. 141) is GRANTED.

2.

Pelletier’s Second Motion to Reconsider the Order Denying Plaintiffs’ Motion to
Reconsider the Order Granting Summary Judgment to Defendants and Denying
Summary Judgment for Plaintiffs (ECF No. 152) is DENIED;

3.

Pelletier’s Motion Pursuant to Rule 15 to Submit Amended Plaintiffs’ Response
to Defendants’ Motion for Summary Judgment (ECF No. 154) is DENIED;

4.

Pelletier’s Motion to Accept Untimely Submission of Exhibit C to ECF 154-1

34

(ECF No. 155) is DENIED AS MOOT;
5.

The Clerk shall enter final judgment in accordance with this order and shall
terminate the case; and

6.

The parties shall bear their own costs.

Dated this 17th day of July, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

35