Higgins v. Strafford County Department of Corrections, Superintendent
///ORDER granting 5 Motion to Dismiss. So Ordered by Judge Paul J. Barbadoro.(vln)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Albert Lloyd Higgins
Case No. 18-cv-147-PB
Opinion No. 2018 DNH 050
Department of Corrections, et al.
MEMORANDUM AND ORDER
Albert Lloyd Higgins is a Jamaican citizen.
He is in
custody and is subject to a final order of removal from the
Higgins has filed a habeas corpus petition in
this court seeking to stay his removal until he is able to file
a motion to reopen the removal proceeding with the Board of
Immigration Appeals (BIA).
Defendants have argued in a motion
to dismiss that I lack subject matter jurisdiction to consider
Higgins was granted lawful permanent residence status in
In 2001, he was convicted of witness tampering in
Several years later, immigration officials
commenced proceedings to remove Higgins from the United States
based on his criminal conviction. 1
Higgins obtained an attorney
and unsuccessfully challenged the removal proceedings before an
immigration judge, the BIA, and the Second Circuit Court of
His final appeal was resolved in 2012.
Higgins was arrested on January 19, 2018 by officers of the
Department of Immigration and Customs Enforcement (ICE).
filed his habeas corpus petition in this court on February 16,
Higgins argues that he was denied effective assistance of
counsel during the proceedings that led to the removal order
because his attorney made no effort to challenge his witness
tampering conviction and failed to inform him that his challenge
to the removal order was unsuccessful.
He concedes that the
proper way to present his claim is by filing a motion to reopen
with the BIA.
He asserts, however, that he needs a temporary
stay from this court preventing his removal while he prepares
his motion to reopen.
He argues that a stay is required because
he will be barred from filing his motion if he is removed before
he can file the motion.
I draw the background facts from Higgins’ habeas corpus
petition (Doc. No. 1) and the Second Circuit’s decision in
Higgins v. Holder, 677 F.3d 97 (2d Cir. 2012).
Defendants base their motion to dismiss on 8 U.S.C. §
1252(a)(5) and (b)(9), which purport to strip federal district
courts of jurisdiction to entertain most challenges to a removal
See Filippi v. President of the United States, 2017 DNH
Higgins acknowledges the fact that the jurisdiction
stripping provisions appear to bar his petition.
he argues that his case is an exception to the general rule
because his rights under the Constitution’s suspension clause
would be violated if this court declines to act on his request.
The suspension clause provides that “[t]he writ of habeas
corpus shall not be suspended unless when, in cases of rebellion
or invasion, the public safety may require it.”
art. I, § 9, cl.2.
Notwithstanding the clause’s broad wording,
the Supreme Court has held 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.”
Swain v. Pressley,
430 U.S. 372, 381 (1977).
Existing law allows a person subject to a removal order to
challenge the constitutionality of the order by filing a motion
to reopen with the BIA.
(1st Cir. 2013).
Santana v. Holder, 731 F.3d 50, 55-56
Although Higgins concedes that the motion to
reopen process is a constitutionally adequate substitute for a
habeas corpus challenge to a removal order in most cases, see,
e.g., Luna v. Holder, 637 F.3d 85, 97 (2d Cir. 2011), Higgins
argues that his case is different because he cannot avail
himself of the motion to reopen process until his counsel has an
opportunity to inspect his immigration file.
Nor can he obtain
a stay of removal from the BIA until he files a motion to
Because Higgins is in danger of being removed before
this process can be completed and he contends that he will lose
his right to file a motion to reopen once he is removed, Higgins
argues that he has no effective alternative way to protect his
constitutional rights other than to obtain a stay of removal
from this court.
The fatal flaw in Higgins’ argument is that he bases it on
the incorrect assumption that he will lose his right to file a
motion to reopen if he is removed before he can file his motion.
Higgins grounds his argument on 8 C.F.R § 1003.2(d), a BIA
regulation that purports to bar a removed person from filing a
motion to reopen.
In Luna v. Holder, 637 F.3d 85 (2d Cir.
2011), however, the Second Circuit followed every other circuit
that has addressed the issue in holding that the BIA’s postdeparture bar regulation cannot be applied to categorically
prevent a removed person from filing a motion to reopen after
the removal has occurred.
See id. at 100-01; see also Santana,
731 F.3d at 55-56; Garcia-Carias v. Holder, 697 F.3d 257, 264
(5th Cir. 2012); Contreras-Bocanegra v. Holder, 678 F.3d 811,
818 (10th Cir. 2012); Coyt v. Holder, 593 F.3d 902 (9th Cir.
2010); William v. Gonzalez, 499 F.3d 329, 333 (4th Cir. 2007).
Although the Luna court left open the possibility that the postdeparture bar regulation may be valid in certain unspecified
contexts, see 731 F.3d at 102, Higgins does not identify any
unusual circumstances in his case that would make the regulation
effective against him.
Accordingly I am unpersuaded by his
argument that the motion to reopen process will provide him with
an inadequate substitute for habeas corpus relief.
637 F.3d at 102 (power to remove aliens subject to a final order
of removal does not prevent motion to reopen process from being
an adequate substitute for habeas corpus where the process
otherwise remains adequate and effective). 2
Higgins bases his argument on Devitri v. Cronen, No. 17-cv11842, 2017 WL 5707528, at *7 (D. Mass. Nov. 27, 2017). In that
case, however, the court rested its jurisdictional finding in
part on a determination that the petitioners in those particular
circumstances would lose their ability to file a motion to
reopen if they were removed before the motion was filed.
Moreover, the petitioners in that case faced persecution or
torture if they were removed, which obviously could render a
later ruling in their favor on a motion to reopen meaningless.
As I have explained, Higgins is not barred from filing a postdeparture motion to reopen and he does not have a credible claim
that he will face persecution or torture if he is removed from
the United States. Therefore, this case is distinguishable from
For the aforementioned reasons, Congress has stripped this
court of jurisdiction to consider Higgins’ habeas corpus claim.
The jurisdiction stripping provisions do not deny Higgins his
rights under the Constitution’s suspension clause because he has
an adequate alternative means to present his constitutional
claim through a motion to reopen before the BIA.
Defendants’ motion to dismiss for lack of subject matter
jurisdiction (Doc. No. 5) is granted.
United States District Judge
March 12, 2018
Edgar L. Fankbonner, Esq.
James H. Moir, Esq.
Terry L. Ollila, Esq.
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