Filippi v. President of the United States of America et al

Filing 7

///ORDER dismissing without prejudice 1 Complaint. The clerk is directed to enter judgment accordingly. So Ordered by Judge Paul J. Barbadoro.(vln)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Renato Filippi
v.

Case No. 17-cv-459-PB
Opinion No. 2017 DNH 221

President of the United States
Of America, et al.
MEMORANDUM AND ORDER

Renato Filippi is a Brazilian national facing an order of
removal.

He has challenged that order in a Petition for Writ of

Habeas Corpus and Complaint for Declaratory and Injunctive
Relief.

For the reasons that follow, I determine that I do not

have subject matter jurisdiction to grant Filippi the relief he
seeks.

I.

BACKGROUND

Filippi traveled to the United States in 2002.

With the

help of a “coyote” (a criminal smuggler), he crossed the Rio
Grande River from Mexico into the United States, but he was soon
taken into custody by United States immigration agents.
Filippi’s case proceeded through administrative proceedings
in the immigration court and the court ultimately issued a final

order of removal.

While the case was proceeding in the

immigration court, Filippi agreed to help the government by
“supplying information concerning the operation of the smuggling
organization which had brought him to the United States” and
“testi[fying] against its members. . . .”

Doc. 1 at 4.

According to Filippi, government agents told him that, in
exchange for his cooperation, he “would be permitted to remain
‘forever’ in the United States.”

Doc. 1 at 4.

Filippi initially remained in immigration detention,
subject to a final order of removal.

After eleven months of

detention, however, he was released on an “Order of
Supervision.”

Pursuant to the Order of Supervision, Filippi had

to check in with immigration authorities periodically.

He

continued to work with government officials to aid in the
capture of individuals who smuggled people across the border
from 2003 until 2009.
Filippi also obtained employment at a self-storage facility
in 2003.

He bought a house, where he lives with his wife, a

lawful permanent resident, and his daughter, who is a citizen.
He has no criminal history in the United States.
On January 25, 2017, Executive Order 13768 went into
effect.

Proclamation No. 13768, 82 Fed. Reg. 8799 (January 25,

2

2017).

The Executive Order states that the department of

“Homeland Security shall prioritize for removal” those
individuals who “are subject to an order of removal, but who
have not yet complied with their legal obligation to depart the
United States.”

Id. at 8800.

On September 3, 2017, Filippi went to United States
Immigration and Customs Enforcement (ICE) to check in pursuant
to his Order of Supervision.

He was told that he must report

back to ICE on October 6, 2017 with plane tickets and an
itinerary detailing his departure from the United States, and
that he must depart by November 6, 2017.

Doc. 1 at 9.

Filippi filed his Petition and Complaint in this court on
October 2, 2017.

He alleges that the removal order cannot be

enforced because it is stale, he has not been given an adequate
opportunity to challenge the order, he will face persecution
and/or torture if the order is enforced, and any attempt to
enforce the order will breach the government’s promise to allow
him to remain in the United States permanently.

He asserts a

claim based on the Immigration and Nationality Act (“INA”)
(Count One), a procedural due process claim (Count Two), a
habeas corpus claim (Count Three), a claim for injunctive relief
(Count Four), a claim for declaratory judgment (Count Five), and

3

a claim for costs and fees (Count Six).

II.

ARGUMENT

A federal district court may not consider a claim for
relief unless Congress has given the court jurisdiction to act.
Finley v. United States, 490 U.S. 545, 547-548 (1989).

Filippi

argues that the court has both federal question jurisdiction and
habeas corpus jurisdiction, but his argument fails to properly
account for 8 U.S.C. § 1252, which gives the courts of appeals
exclusive jurisdiction over claims that arise from a removal
order.
8 U.S.C. § 1252(b)(9) provides in pertinent part that
“[e]xcept as otherwise provided in this section, no court shall
have jurisdiction, by habeas corpus under section 2241 of Title
28 . . . or by any other provision of law (statutory or
nonstatutory), to review [a removal] order . . . .”

8 U.S.C. §

1252(a)(5), further specifies that “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 . . . .”

Read together, these

provisions leave no doubt that this court lacks jurisdiction to
consider claims that arise from a removal order.

4

Filippi nevertheless argues that § 1252 does not limit this
court’s power to consider his claims because he is not
attempting to directly challenge the removal order itself.

This

argument is foreclosed by the First Circuit’s decision in
Aguilar v. United States Immigration & Customs Enforcement Div.,
510 F.3d 1, 9 (1st Cir. 2007).

In Aguilar, the court stated

that § 1252(b)(9) “aims to consolidate ‘all questions of law and
fact’ that ‘arise from’ either an ‘action’ or a ‘proceeding’
brought in connection with the removal of an alien.”

Id. at 9.

The court also explained that “[t]he petitioners cannot skirt
the statutory channel markers by lumping together a mélange of
claims associated with removal, each of which would be
jurisdictionally barred if brought alone, and eschewing a direct
challenge to any particular removal proceeding.”

Id. at 9-10.

What Filippi is attempting to do here is precisely what
Aguilar prohibits.

Filippi argues in Count One that the removal

order cannot be enforced without violating the INA because the
order is stale and new evidence will demonstrate that he faces
persecution and/or torture if he is returned to Brazil.

He

invokes the due process clause in Count Two in arguing that
using the removal order to force him to leave the United States
without an opportunity to present new evidence is

5

unconstitutional.

He seeks a declaration in Count Five that any

attempt to remove him based on the removal order violates the
government’s enforceable promise to allow him to remain here
permanently.

All of the remaining counts seek relief based on

similar grounds.

In short, Filippi cannot avoid § 1252 because

all of his claims arise from the removal order.1
Filippi also makes a half-hearted effort to convince me
that § 1252 is inapplicable because it only applies to
discretionary decisions and his claims are based on breaches of
mandatory legal duties that arise from the INA, the due process
clause, and contract law.

This argument falls well wide of the

mark because it completely fails to engage with the plain
language of § 1252, which bars challenges to removal orders
without regard to whether the duty breached is mandatory or
discretionary.
In a final attempt to support his claim, Filippi argues
that I have the emergency power to grant his request for

To the extent that Filippi argues that § 1252 does not
apply to his habeas corpus claim because that claim challenges
the Order of Supervision rather than the removal order, his
argument also fails. As Filippi’s petition makes clear, his
only argument that the supervision order is unlawful is that the
order cannot stand because it is based on the allegedly stale
removal order. Aguilar does not permit a petitioner to
circumvent § 1252 with such arguments.
1

6

injunctive relief even if I lack subject matter jurisdiction
over his claims.

This argument cannot be squared with either

the applicable law or the facts of Filippi’s case.

First, it is

simply untrue that a federal court can grant injunctive relief
to preserve the status quo even though it lacks subject matter
jurisdiction.

See Laker Airways Ltd. V. Sabena, Belgian World

Airlines, 731 F.2d 909, 921 (D.C. Cir. 1984).

(“If there is no

justification for the court’s exercise of jurisdiction, the
injunctive relief should necessarily fail.”)

In any event,

Filippi has an available forum for his claims in the court of
appeals, which belies his own contention that an emergency
situation exists that permits this court to act on his claims.2
Accordingly, I cannot grant Filippi relief based on a claim that
no other forum exists to consider his challenge to the removal
order.

III.

CONCLUSION

Congress has given the courts of appeals exclusive

Filippi invokes Hamama v. Adducci, 2017 WL 3124331 (E.D. MI
2017) to support his claim. Hamama appears to be based on the
premise the plaintiffs in that case did not have a right to seek
relief in the court of appeals. Filippi nowhere claims,
however, that he cannot present his claims to the court of
appeals. Thus, Hamama does not support his argument.
2

7

jurisdiction to consider the types of claims that Filippi is
seeking to raise in this case.

Because this court lacks subject

matter jurisdiction, I dismiss Filippi’s petition (Doc. No. 1)
without prejudice to his right to refile his claims in the Court
of Appeals for the First Circuit.

The clerk is directed to

enter judgment accordingly.
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
October 16, 2017
cc:

Robert E McDaniel, Esq.
George Bruno, Esq.
John J. Farley, Esq.

8