BORODACHEV v. RODRIGUEZ et al

Filing 29

MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 5/8/2013. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

EVGUENE BORODACHEV,

Civ. No. 13-1999 (KM)

Petitioner,
MEMORANDUM OPINION
V.

ORLANDO RODRIGUEZ, Warden,
et al.,
Respondents.

This matter comes before the Court upon the Verified Petition for Writ of
Habeas Corpus and Complaint for Injunctive Relief staying the Order of
Removal from the United States of Petitioner Evguene Borodachev
(“Borodachev”). Petitioner maintains that he is not challenging the validity of
the removal order itself, but rather, the discretionary decision denying his
request for a stay of his removal from the United States. According to
Petitioner, because a Petition for Review (PFR) is not available to challenge the
Government’s discretionary stay decision, I must necessarily have habeas
jurisdiction over his claim. Whether this Court has jurisdiction to hear
Petitioner’s habeas challenge is a threshold issue. For the reasons set forth
below, I hold that, under Section 1252(g) of the Immigration and Nationality
Act (“INA”), this Court lacks jurisdiction to review Petitioner’s claims.

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I.

BACKGROUND
The facts regarding Mr. Borodachev’s immigration history are

uncontested. As set forth in his Petition, he entered the United States as a
visitor for pleasure on August 4, 1995. (Petition

¶

36.) That status was

extended once for a period of 6 months. (Declaration of Jane Miniciello (“JM
Decl.”), Ex. 1.) Petitioner subsequently obtained a change in status to an F-i
Student. (Petition

¶

36.) In 2004, Petitioner attempted to obtain a more

permanent status in the United States. His application was referred to an
Immigration Judge.
In February 26, 2005, ICE issued to Borodachev a Notice to Appear in
removal proceedings, based on his remaining in the U.S. longer than permitted.
(Petition

¶

37.) On June 27, 2007, an Immigration Judge granted Borodachev

voluntary departure or, in the event he did not depart, ordered his removal to
Kazakhstan. (Petition

¶

38.) Borodachev appealed to the Board of Immigration

Appeals (BIA). The BIA dismissed his appeal on July 31, 2009. (Petition

¶

39.)

On March 19, 2010, in response to Petitioner’s motion, the BIA reissued
its decision dismissing the appeal. (Petition

¶

40.) On April 7, 2010,

Borodachev filed a Petition for Review (PFR) of the BIA’s decision with the Sixth
Circuit Court of Appeals. (Petition

¶

41.) The Sixth Circuit issued a stay of

removal during the pendency of the PFR. On October 11, 2011, the Sixth
Circuit denied the PFR, thereby upholding the Removal Order. (Id.) Following
the Sixth Circuit’s denial of the PFR, Borodachev again moved to reopen his

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removal proceedings. (Petition

¶

42.) On May 17, 2012, the BIA denied

Petitioner’s motion to reopen proceedings. (Id.)
On December 12, 2012, Borodachev was convicted in the U.S. District
Court for the Southern District of New York of Conspiracy to Transport Stolen
Goods and Commit Access Device Fraud. (Petition

¶

43; JM Dccl., Ex. 2.) Two

days later, ICE took custody of him pursuant to a warrant of removal. (JM
Deci., Ex. 3.) He has remained in ICE custody pending his removal since that
time. (Id.)
On February 27, 2013, Petitioner applied for an administrative stay of
removal. (Petition

¶

46.) On March 8, 2013, the request for an administrative

stay of removal was denied by ICE Field Office Director John Tsoukaris
following a review of Petitioner’s submission and his file.
On March 11, 2013, ICE obtained a travel document for Borodachev and
transported him to JFK Airport for removal to Kazakhstan. Borodachev
maintains that he was not given notice or the opportunity to collect his
belongings. Borodachev refused to leave the transport van and would not get
on the plane. (Petition

¶

45.) Two days later, Petitioner submitted a second

application for an administrative stay of removal. (Petition

¶

50.)

On April 4, 2013, Borodachev filed the pending petition and this Court
issued an Order to Show Cause. On April 18, 2013, I conducted a hearing on
the Order to Show Cause and ordered supplemental briefing on the issue of
this Court’s jurisdiction to hear Petitioner’s habeas petition.’

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Petitioner’s arguments at the April 18, 2013 hearing and in his supplemental briefing
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II.

LEGAL STANDARD
Section 1252(g), as amended by the REAL ID Act, Pub L. No. 109-13, 119

Stat. 231 (2005), explicitly bars judicial review by district courts of three
classes of actions and decisions committed to the Government’s discretion: “the
‘decision or action to commence proceedings, adjudicate cases, or execute
removal orders.”’ Chehazeh v. Attorney General, 666 F.3d 118, 134 (3d Cir.
2012) (quoting Reno v. American Anti-Arab Discrimination Committee, 525 U.S.
471, 482, 119 5. Ct. 936, 142 L.Ed.2d 940 (1999). Specifically, Section 1252(g),
entitled “Exclusive jurisdiction,” provides that:
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 authority of district courts to issue
writs] 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 Act.
8 U.S.C.

§ 1252(g).

Section 1252(g) was “directed against a particular evil: attempts to
impose judicial constraints upon prosecutorial discretion.” Reno, 525 U.S. at
on jurisdiction focused on habeas jurisdiction. To the extent the Petition may be
interpreted to allege claims under the Administrative Procedure Act (APA), this Court
lacks jurisdiction. The APA excludes judicial review “to the extent that (1) statutes
preclude judicial review; or (2) agency action is committed to agency discretion by
law.” 5 U.S.C. § 701(a). Statutory preclusion of review is discussed herein. Moreover,
the regulation governing the grant or denial of an administrative stay clearly commits
the decision to the agency’s discretion, and does not supply any meaningful standard
against which the Court could judge such a decision. 8 C.F.R. § 241.6(a) (the decision
maker “in his or her discretion” may grant a stay of removal); see Heckler v. Chaney,
470 U.S. 821, 830 (1985) (section 70 1(a)(2) forecloses review “if the statute [governing
the agency’s actions] is drawn so that a court would have no meaningful standard
against which to judge the agency’s exercise of discretion.”)
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485 n. 9. Third Circuit precedent makes it clear that

“

1252(g) was designed to

make unreviewable prosecutorial decisions.” Chehazeh, 666 F.3d at 135. Thus,
if the decision to deny Petitioner’s application for a stay of removal is properly
characterized as an exercise of prosecutorial discretion regarding the execution
of a removal order, Section 1252(g) would preclude this court from reviewing
the decision.
III.

DISCUSSION

Petitioner acknowledges that he is prohibited from directly challenging
the removal order in this Court. Petitioner’s removal has been decided
administratively and reviewed by the Court of Appeals; he has exhausted his
challenges to removal, and is in removal status. In short, his removability is
settled, and no further review is available. Petitioner maintains, however, that
he can circumvent that jurisdictional bar by seeking habeas review of the
agency’s discretionary denial of his request for an administrative stay of
removal. I find, however, that the denial of a stay is an unreviewable
discretionary decision “to

...

execute removal orders.” 8 U.S.C. § 1252(g).

Petitioner relies heavily on INS v. St. Cyr, 533 U.S. 289 (2001), to support
his argument that this court retains habeas jurisdiction over ICE’s
discretionary denial of a stay. In St. Cyr, the Supreme Court declared that there
is a “long standing rule requiring a clear statement of congressional intent to
repeal habeas jurisdiction.” 533 U.S. at 298. In applying that rule, the
Supreme Court refused to interpret certain provisions of an earlier version of
the INA, the Illegal Immigration Reform and Immigrant Responsibility Act of
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1996 (“IIRIRA”) so as to foreclose all judicial review of an order of removal. Id.
at 311. The Court concluded that the IIRIRA provisions did not eliminate
habeas jurisdiction because, despite expressly precluding “judicial review” and
“jurisdiction to review,” none of them explicitly mentioned “habeas corpus” or
28 U.S.C. § 2241. Id. at 314. The “lack of a clear, unambiguous, and express
statement of congressional intent to preclude judicial consideration on
habeas,” combined with the absence of an alternate judicial forum, was fatal to
the Government’s jurisdictional argument. Id.
In reaching this conclusion, the St. Cyr Court observed that noncitizens
have always had access to the courts through habeas corpus, and that the
Suspension Clause establishes a minimum level of judicial review that
Congress must always preserve. Id. at 300. Therefore, the majority stated, the
total elimination of legal challenges to removal orders would trigger “serious
constitutional questions.” Id. at 314. Importantly, the Court observed that
while the Suspension Clause requires some judicial review of deportation
orders, it does not require that that review mechanism be a habeas petition in
district court; Congress could provide an “adequate substitute.” Id. at 305. The
Court thus suggested that Congress could return to a judicial review system
similar to the pre- 1996 scheme by resurrecting the courts of appeals as the
primary forum for judicial review of removal orders. Id. at 305; see also Gerald
L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98
C0LuM.

L. REv. 961, 1058 (1998) (“What matters constitutionally is the effective

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availability of judicial inquiry, not the particular federal court or the precise
procedural vehicle that provides the inquiry.”)
Through the REAL ID Act, Congress addressed the two principal
concerns underlying the St. Cyr decision. First, Congress amended Section
l252(g) to make it clear that it “preclude[s] any habeas corpus review” in
district court as to removal orders and matters regarding removal. See
Kumarasamy v. Attorney General, 453 F.3d 169, 172 n.5 (3d Cir. 2006).
Second, Congress addressed Suspension Clause concerns by providing for a
substitute means of review: direct review in the Courts of Appeals.
Despite these amendments, Petitioner argues that if Section 1252(g) is
read to strip district courts of habeas jurisdiction in this case, he will have no
recourse. According to Petitioner, such a denial of review would trigger the
Suspension Clause issue discussed in St. Cyr. I do not find that denial of a
discretionary stay, where Petitioner is concededly removable, implicates his
rights in the manner contemplated by St. Cyr.
Moreover, Petitioner’s argument assumes that habeas corpus review of
the discretionary decision to deny a stay of removal was available before
Congress passed the “jurisdiction-stripping” provisions of Section 1252. That is
not the case. The scope of federal habeas review under

§ 2241 is limited to

“questions of constitutional and statutory law.” Bakhtriger v. Elwood, 360 F.3d
414, 424 (3d Cir. 2004) (Bakhtriger was superseded on other grounds by
statute, REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 23, as recognized in
Kamara v. Attorney General, 420 F.3d 202 (3d Cir. 2005).) Thus my habeas
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jurisdiction would not extend to the review of discretionary decisions like the
denial of a stay of an order of removal that has been reviewed and has become
final.
Petitioner attempts to characterize his claim as a constitutional one by
making reference to his due process rights under the United States
Constitution. But the Petition fails to provide any factual allegations or legal
arguments to suggest that constitutional rights have been implicated by ICE’s
purely discretionary decision denying his request to stay removal. There is no
authority cited to support the argument that a stay rises to the level of a
protectable interest or that, as to the narrow issue of the stay, Petitioner was
entitled to any more process than he got. As discussed above, I do not have
habeas jurisdiction to review a claim that the discretionary denial of a stay was
an unsound or arbitrary decision.
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Petitioner’s argument that Section 1252(g) does not apply to this case because the
statute refers to the Attorney General, as opposed to the Secretary of Homeland
Security, is without merit. The detention and removal functions formerly implemented
by the Attorney General have been transferred to the Secretary of Homeland Security
or his or her delegates. See 6 U.S.C. § 251, 557; Neto u. Attorney General, No. 122263, 2013 WL 518578, at *2 (3d Cir. Feb. 13, 2013). The Homeland Security Act of
2002 specifically provided that statutory references to the INS or its officers were
replaced with references to the applicable DHS official. See Elgharb v. Napolitano, 600
F.3d 597, 607 (6th Cir. 2010). Petitioner’s contention that Section l252(g) does not
apply to the decision to deny the administrative stay of removal because the denial is
not a decision “under the Act” is also without merit. Clearly a decision to execute a
removal order is a decision under the Act (the INA).
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IV.

CONCLUSION
For the foregoing reasons, the Court lacks jurisdiction over this action

and it must be dismissed. An appropriate order will be filed.

KEVIN MCNULTY
United States District Jue
Date: May 8, 2013

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