Mendy v. Bureau of Immigration and Customs Enforcement

Filing 5

ORDER Vacating Stay of Removal and Dismissing Case for Lack of Jurisdiction. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHEL MENDY,
Plaintiff,

No. 2:13-cv-11712

vs.

Hon. Gerald E. Rosen

DIRECTOR, BUREAU OF
IMMIGRATION AND CUSTOMS
ENFORCEMENT, et al.,
Defendants.
____________________________/
ORDER VACATING STAY OF REMOVAL AND DISMISSING
CASE FOR LACK OF JURISDICTION
I. INTRODUCTION
On April 16, 2013, Plaintiff Michel Mendy filed a motion for a writ of habeas corpus
or, in the alternative, a motion to stay the removal of Plaintiff from the United States by
Defendant Bureau of Immigration and Customs Enforcement (“ICE”). That same day, the
Court entered an Order Directing Service and Amending Caption, which stayed Plaintiff’s
removal from the United States pending further review and allowed the Defendants to move
to vacate the stay for good cause shown. Defendants made such a motion on April 25, 2013,
arguing that this Court lacks jurisdiction to stay Plaintiff’s removal. Plaintiff replied to
Defendants’ motion on May 1, 2013, in compliance with this Court’s order.
Having reviewed and considered Plaintiff’s Complaint, the Defendants’ Motion, Brief
and supporting documents, the Court finds that the facts and legal arguments pertinent to the
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parties’ positions have been adequately presented in the parties’ filings and concludes that
oral argument would not aide the judicial process. Therefore, pursuant to Eastern District
of Michigan Local Rule 7.1(f)(2), this matter will be decided on the briefs and documents
filed.
The Court also finds, for the reasons set forth below, that it is without jurisdiction stay
Plaintiff’s removal or to adjudicate any issues pertaining thereto. Therefore, the Court will
VACATE the Order Staying Removal and DISMISS Plaintiff’s Complaint, without
prejudice.
II. FACTUAL BACKGROUND
Plaintiff Michel Mendy, a national of Senegal, entered the United States as a nonimmigrant on September 10, 1998. His visa authorized him to stay in the United States for
one year, and it is not disputed that he overstayed that period without authorization.
On March 5, 2010, Plaintiff was served with a Notice to Appear in immigration court,
charging him with being subject to removal under INA § 237(a)(1)(B), 8 U.S.C. §
1227(a)(1)(B), as a non-immigrant who remained in the United States for a time longer than
permitted. At his first hearing, held on June 2, 2010, he confirmed that his address was 1995
Glynn Court, Detroit, MI. He confirmed this address at both his August 11 and August 25,
2010 hearings, as well as his November 10, 2010 hearing, at which he submitted an
application for asylum. Plaintiff is a homosexual and sought asylum from his native Senegal
because “[h]omosexuality is greatly punished in Senegal” and he “fears for his life.”
Plaintiff’s case was scheduled for hearing on August 7, 2012. However, Plaintiff
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failed to appear at this hearing, and the immigration judge ordered him removed in absentia.
Following this order, Plaintiff moved to reopen the case and rescind the in absentia order of
removal, alleging his representation was ineffective because counsel failed to notify him of
the hearing. Plaintiff claims that he never received notice of the hearing because the address
he provided at his hearings -- 1995 Glynn Court -- was not his actual address. Rather, he has
submitted an affidavit of Pastor Leslie Matthews which avers that Plaintiff has lived with him
at 4261 Sturtevant Street, Detroit, MI, since February 1998. This motion was denied on
April 28, 2013. In its denial, the immigration court noted: (i) that Pastor Matthew’s affidavit
lacked any credibility, as it contradicted Plaintiff’s previous four statements regarding his
address; (ii) that Plaintiff’s counsel had made numerous attempts -- utilizing a variety of
methods -- to contact Plaintiff prior to the first hearing, and was not ineffective in his
representation; and (iii) that Plaintiff failed to communicate his correct address and telephone
number to counsel and the Court.
Plaintiff now requests that this Court: (i) grant a Writ of Habeas Corpus; and (ii) grant
Plaintiff protection from removal under the U.N. Convention and Protocol relating to the
protection of refugees. In support, Plaintiff argues that the in absentia order removing
Plaintiff violates his constitutional right to due process, as failure to change his address -causing him to miss his hearing and thereby forfeit his ability to present his purportedly
meritorious asylum claim -- does not justify deportation. Defendant counters that (i) the U.N.
Convention and Protocol are not self-executing, and therefore are not judicially enforceable,
and (ii) this Court lacks jurisdiction to stay Plaintiff’s removal or hear a claim for relief from
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a final removal order.
III. DISCUSSION
Although Plaintiff seeks to challenge the immigration court’s order to remove him
from the United States -- and to stay his removal while he pursues this challenge -- he must
establish as a threshold matter that the Court has subject matter jurisdiction over this suit.
In their response to Plaintiff’s motion for a temporary restraining order or preliminary
injunction, Defendants argue that this jurisdiction is lacking. The Court agrees.
The REAL ID Act of 2005, codified at 8 U.S.C. § 1252, et seq., significantly
narrowed the scope of judicial review for removal orders in immigration cases and essentially
stripped district courts of jurisdiction over such cases. Section 106(a) of the REAL ID Act
amended section 242 of the Immigration and Nationality Act (the “INA”), 8 U.S.C. § 1252,
to make clear that district courts do not have jurisdiction, habeas or otherwise, to review any
removal order for any alien. Among the amendments, the REAL ID Act added subsection
242(a)(5), 8 U.S.C. § 1252(a)(5), which provides that a petition filed with the appropriate
court of appeals “shall be the sole and exclusive means for judicial review of an order of
removal entered or issued under any provision of this chapter, except as provided in
subsection (e) of this section [pertaining to injunctive relief from exclusion orders and class
actions].”
Section 242(g) of the amended INA, 8 U.S.C. § 1252(g) emphasizes the exclusivity
of appellate court jurisdiction and specifically precludes this Court from exercising
jurisdiction over this matter. It provides:
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Except as provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of title 28, United
States Code, or any other habeas corpus provision, and sections 1361
[pertaining to district court jurisdiction over mandamus actions] and 1651
[pertaining to the court’s authority to issue writs in aid of the court’s
jurisdiction] 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.
8 U.S.C. § 1252(g) (emphasis added).
Plaintiff’s complaint here is brought pursuant to the Court’s mandamus jurisdiction
as provided in 28 U.S.C. § 1361. The Court entered its stay of removal pursuant to 28 U.S.C.
§ 1651. The REAL ID amendments to section 242(g), however, stripped this Court of its
jurisdiction under these sections with respect to removal of aliens. Exclusive jurisdiction lies
in the Sixth Circuit Court of Appeals.
In an apparent effort to avoid this clear and statutorily mandated outcome, Plaintiff
seems to suggest in his motion and underlying complaint that he is not challenging a removal
order, but instead is asserting a due process claim on the grounds that his removal (i) violates
the U.N. Convention Relating to the Status of Refugees and (ii) will result in a punishment
that is too severe for his asserted error -- as he sees it -- of forgetting to notify the
immigration court of his change in address.1

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The Court notes that Plaintiff’s asserted error -- “failure to change an address” -does not align with the facts presented in this case. At all times prior to his request to
reopen his case and rescind his removal order, Plaintiff provided the immigration court
with one address: 1995 Glynn Court. It was not until after he was ordered removed that a
second address -- 4261 Sturtevant Street -- became associated with Plaintiff. However,
even accepting that Plaintiff resided at the Sturtevant location, the affidavit of Pastor
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Yet, as this Court recognized in Benitez, the jurisdiction-stripping effect of the REAL
ID amendments “applies both to direct and indirect challenges to an alien’s removal order.”
Benitez v. Dedvukaj, 656 F. Supp. 2d 725, 727 (E.D. Mich. 2009).

Plaintiff cannot

“circumvent the REAL ID Act’s review provisions and express limitation of district court
jurisdiction by claiming that he is pursuing in this court a due process claim that is somehow
distinct from his removal order.” Benitez, 656 F. Supp. 2d at 728; see also Nwankoso v.
Department of Homeland Security, 2006 WL 212368 at *1 (N.D.N.Y. 2006) (disallowing
indirect challenge to removal order); Ginters v. Cangemi, 419 F. Supp. 2d 1124, 1131 (D.
Minn. 2006) (while petitioner’s action “does not challenge his removal per se. . . a review
[of the visa petition] by this Court resulting in a favorable determination for [petitioner]
would indirectly challenge the validity of the removal order”).
In Yzo v. Gonzales, 2007 WL 1840145 (E.D. Mich. 2007) (Zatkoff, J.), the petitioner,
who had been lawfully temporarily admitted to the United States, had been unsuccessful with
his petition for asylum. He was subsequently taken into ICE custody and was ordered
removed. Yzo filed a petition for a writ of habeas corpus in the district court. Upon receipt
of the petition, the court entered an order directing service and stayed the deportation. The

Matthews states that Plaintiff has been living at that address since February 1998. These
facts support two possible scenarios: Plaintiff either (i) lived on Glynn Court -- as he
stated in four separate hearings -- and therefore received notice of this action, or (ii) lived
on Sturtevant Street since 1998, in which case he lied about his address in four separate
hearings. Neither narrative supports Plaintiff’s assertion that he had recently changed his
address and merely forgot to notify the Court.
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government responded and moved to lift the stay. Finding that the REAL ID Act stripped
the district court of jurisdiction over such matters, Judge Zatkoff vacated the stay and
dismissed Yzo’s habeas petition, without prejudice. In so doing, Judge Zatkoff rejected the
petitioner’s argument that he was not challenging his order of removal but was instead
asserting claims of Fifth and Sixth Amendment deprivations. The court reasoned:
[A]lthough Petitioner challenges his detention, the fact of the matter is that his
detention is only illegal if the order of removal was erroneously entered. If the
order of removal is valid, so is the BICE’s action in detaining him. At this
time, therefore, Petitioner’s true objective is, and must be, to challenge the
order of removal entered by the Immigration Judge and upheld by the BIA.
His argument that he has “not had a meaningful opportunity to address. . . his
meritorious asylum claim, and . . . the propriety of his release from detention”
exemplifies that objective.
2007 WL 1840145 at *3.
Plaintiff’s failure to appear at his hearing, and resultant inability to present his case
for asylum, does not alter this outcome. In Bakal v. Ashcroft, 56 Fed. App’x 650, 653-54
(6th Cir. 2003), the Sixth Circuit considered whether an in absentia order of removal violated
plaintiff’s constitutional right to due process. The Court rejected the claim, stating:
Bakal was given a fair opportunity to be heard at her deportation hearing. Her
claim of a denial of Due Process simply ignores the reality that she failed to
attend her own hearing. Generally, we are dubious of an alien's claim of
violation of Procedural Due Process where the deportation order is entered
because the alien has failed to attend her deportation hearing for less than
exceptional circumstances. In such an instance, the alien has simply failed to
prosecute her own case. The resulting in absentia order is akin to a default
judgment.
Bakal v. Ashcroft, 56 F. App'x 650, 654 (6th Cir. 2003).
Plaintiff’s due process claim, premised on the fact that he will be mistreated if he
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returns to Senegal, is nothing more than a backdoor attempt to argue for asylum, which he
forfeited when he failed to appear at his removal hearing. As this Court does not have
jurisdiction to hear indirect challenges to removal orders, it cannot grant Plaintiff the relief
he seeks.
IV. CONCLUSION
For all of the foregoing reasons, the Court concludes that it lacks jurisdiction to stay
Plaintiff’s removal or to adjudicate any issues pertaining thereto. Jurisdiction over this
matter lies exclusively in the Sixth Circuit Court of Appeals. Therefore,
IT IS HEREBY ORDERED that Defendants’ Motion to Vacate Stay of Removal
[Dkt. # 3] is GRANTED. Accordingly,
IT IS FURTHER ORDERED that the Court’s April 16, 2013 Order Staying
Petitioner’s removal [Dkt. # 2] is hereby VACATED.
IT IS FURTHER ORDERED that this case is DISMISSED, WITHOUT PREJUDICE.
IT IS SO ORDERED.

S/Gerald E. Rosen
Chief Judge, United States District Court
Dated: May 6, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on May 6, 2013, by electronic and/or ordinary mail.
S/Julie Owens
Case Manager, [phone]

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