Mehta v. Wolf et al

Filing 19

ORDER denying 2 Emergency MOTION to Stay Removal; adopting Report and Recommendations re 16 Report and Recommendations. Signed by District Judge Keith Starrett on 8/18/20 (LAT)

Case 5:20-cv-00080-KS-MTP Document 19 Filed 08/18/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION

KAMAL MEHTA

VS.

PETITIONER

CIVIL ACTION NO. 5:20cv80-KS-MTP

SHAWN GILLIS

RESPONDENT

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
AND DISMISSING CASE WITH PREJUDICE, ETC.
This cause is before the Court on Petition for writ of habeas corpus [1] and Emergency Motion
to Stay Removal [2] filed by Kamal Mehta (Petitioner). Shawn Gillis (Respondent) filed
Response [14] to Petition for writ of habeas corpus [1]. Petitioner Replied [15] and a, Report and
Recommendation [16] was entered by Magistrate Judge Michael T. Parker. The Court finds that
Petition [1] and Motion [2] should be DENIED and that the Petition for habeas corpus [1] should
be DISMISSED WITH PREJUDICE for the hereinafter stated reasons.
I. PROCEDURAL HISTORY
Kamal Mehta, a citizen of India, is currently held in immigration custody at the Adams
County Detention Center. He challenges his expedited order of removal and requests a new
asylum hearing. Petitioner brings this claim under the Suspension Clause of the United States
Constitution because other statutory provisions, discussed below, strip this Court of subjectmatter jurisdiction to review an alien’s expedited removal order.

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On April 20, 2019, Petitioner entered the United States without inspection.1 See Pet. [1]
at 2; Ex. A at 15. On April 24, 2019, he was taken into custody by Immigration and Customs
Enforcement (“ICE”) and placed in an expedited removal proceeding. During this proceeding,
Petitioner claimed that he was afraid to return to India and sought asylum in the United States.
Petitioner is a member of the Sikh faith, but his wife is Hindu. He alleges that this has
caused strife with his wife’s family and that their “love match” was unacceptable. Petitioner’s
wife’s uncle, a high-ranking member in the BJP, India’s ruling party, pressured Petitioner to
convert to Hinduism and allegedly beat Petitioner in 2014 and burned down his place of
business.
Petitioner claims that he continued to receive threats because he did not leave the Sikh
religion. On May 2, 2019, his wife’s uncle and a group of men attacked him again. They
allegedly chastised him for not converting to Hinduism and then beat him with hockey sticks.
Petitioner then attempted to move to a different part of the country but continued to feel unsafe.
He reported in his credible fear interview that he could not escape this oppressive political party
in India, and this caused him to leave India on April 8, 2019. Petitioner submits that members of
the BJP continue to harass his family, and he believes that a car accident involving his wife in
August of 2019 is related to this political pressure.
On May 13, 2019, Petitioner was granted a credible fear interview. The asylum officer
who conducted the interview determined that Petitioner was credible, but ultimately denied his
application for asylum. It was determined that Petitioner could not demonstrate that the people

“All aliens (including alien crewmen) who are applicants for admission or otherwise
seeking admission or readmission to or transit through the United States shall be inspected by
immigration officers.” 8 U.S.C. § 1225(a)(3).
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who harmed him were agents of the government or that the government was unwilling or unable
to control them. The asylum officer’s decision was subsequently affirmed by an immigration
judge.
Petitioner seeks an order vacating his expedited removal order and argues that the asylum
officer arbitrarily and erroneously applied the law. He filed his Petition [1] on March 23, 2020.
Shawn Gillis filed his Response [14] on April 23, 2020. Petitioner filed his Reply [15] on May
7, 2020. This matter is now ripe for review.
II. STANDARD OF REVIEW
When a party objects to a Report and Recommendation this Court is required to “make a
de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). See also Longmire v.
Gust, 921 F.2d 620, 623 (5th Cir. 1991) (Party is “entitled to a de novo review by an Article III
Judge as to those issues to which an objection is made.”) Such review means that this Court will
examine the entire record and will make an independent assessment of the law. The Court is not
required, however, to reiterate the findings and conclusions of the Magistrate Judge. Koetting v.
Thompson, 995 F.2d 37, 40 (5th Cir. 1993) nor need it consider objections that are frivolous,
conclusive or general in nature. Battle v. United States Parole Commission, 834 F.2d 419, 421
(5th Cir. 1997). No factual objection is raised when a petitioner merely reurges arguments
contained in the original petition. Edmond v. Collins, 8 F.3d 290, 293 (5th Cir. 1993).

III. PETITIONER’S OBJECTIONS AND ANALYSIS

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Petitioner has filed a lengthy and well written objection [18] to the Court’s Report and
Recommendation. One of the main issues addressed by the Report and Recommendation and
Objection is the applicability of the Suspension Clause to a challenge to expedited removal
proceedings. There is conflicting circuit law with the Fifth Circuit not having addressed the
applicability of the Suspension Clause to a challenge to expedited removal proceedings.
Petitioner entered the country illegally and was quickly apprehended and ordered
removed. Judge Parker found that §1252(a)(2)(A) strips Courts of jurisdiction to review claims
related to the expedited removal statute except as provided in §1252(e). Judge Parker’s finding
was that the District Court lacked jurisdiction to proceed and in a well reasoned Opinion
followed the precedent set forth by the Third Circuit. Castro v. U.S.Dep’t of Homeland Scc., 835
F.3d 422 (3d Cir.2016). Petitioner is not “an alien seeking initial admission to the United States”
and even though the Fifth Circuit has not considered this specific question, other District Courts
within the Circuit have reached the same conclusion. as Castro and found that petitioners could
not challenge their expedited removal orders by invoking the Suspension Clause. See HidalgoMejia, 343 F, Supp. 3d at 672; Natt v. Wolfe, 2020 WL 1430910, at *2 (W.D. La Feb. 28, 2020);
Nianga, 2020 WL 415927; Bansci v. Nielsen, 321 F, Supp. 3d 729, 738 (W.D. Tex, 2018). This
Court agrees with Judge Parker’s finding that Petitioner has not overcome his first hurdle and
cannot invoke the Suspension Clause
The Motion to Stay likewise should be DENIED for lack of subject matter jurisdiction
because Petitioner has not made a strong showing that he is likely to succeed on the merits.
This Court finds that the Petition [1] should be DISMISSED WITH PREJUDICE.
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IV. CONCLUSION
As required by 28 U.S.C. §636(b)(1) this Court has conducted an independent review of
the entire record and a de novo review of the matters raised by the objection. For the reasons set
forth above, this Court concludes that Mehta’s Objections lack merit and should be overruled.
The Court further concludes that the proposed Report and Recommendation is an accurate
statement of the facts and the correct analysis of the law in all regards. Therefore, the Court
accepts, approves and adopts the Magistrate Judge’s factual findings and legal conclusions
contained in the Report and Recommendation.
Accordingly, it is ordered that United States Magistrate Judge Michael T. Parker’s Report
and Recommendation is accepted pursuant to 28 U.S.C. §636(b)(1) and that Kamal Mehta’s
claim is DISMISSED WITH PREJUDICE.
SO ORDERED this the ___18th____ day of August, 2020,

__s/Keith Starrett_________________
UNITED STATES DISTRICT JUDGE

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