BLAKE v. MCALEENAN et al

Filing 30

OPINION. Signed by Judge Kevin McNulty on 9/3/2019. (nic, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

SEAN B.,
Civ. No. 19-10529 (KM)

Petitioner,
\7

KEVIN K. MCALEENAN et al.,

OPINION

Respondents.

KEVIN MCNULTY, U.S.D.J.:
I.

INTRODUCTION

Petitioner, Sean B.,’ is an immigration detainee, held at the Hudson
County Corrections Facility, in Kearny, New Jersey. He is proceeding by way of
counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C.

§

2241. The government has answered the habeas petition, arguing that it must
be dismissed for lack of jurisdiction.
This court’s jurisprudence has been guided by the principle that the
courts must be afforded the opportunity to adjudicate litigants’ rights in an
orderly manner, and that the parties cannot, by unilateral action, interfere with
that essential function of the courts. To vindicate that principle, I have in the
past construed liberally the court’s power to enter a limited stay in an
immigration case, even where, in the end, I ruled in favor of the opponent of
the stay. See, e.g., Ragbir v. United States, No. 17-1256, 2018 WL 1446407
(D.N.J. Mar. 23, 2018) (ICE case, granting petitioner’s application for stay but
ultimately ruling in government’s favor). Here that concern has particular
poignance, because it has a particular constitutional dimension. The very
reason that the immigration authorities may act without court intervention—

Consistent with guidance regarding privacy concerns in social security and
immigration cases by the Committee on Court Administration and Case Management
of the Judicial Conference of the United States, Petitioner is identified herein only by
his first name and last initial.
I

i.e., the reason that the court may permissibly be stripped of habeas

jurisdiction—is the existence of an alternative remedy, namely a process of
administrative review culminating in review by the Court of Appeals. Here,
however, the immigration authorities have acted in such a manner (I do not say
with the intention) that the effectiveness of Court of Appeals review is
compromised. Under the peculiar circumstances of this case, the Suspension
Clause of the U.S. Constitution requires that this Court retain a minimal level
of residual habeas jurisdiction.
For clarity, and to assist in review, I offer a schematic view of the logic
that leads me to that result:
1. A petitioner seeking to reopen removal proceedings will seek such
relief from an immigration judge (IJ) and can administratively appeal
an adverse result to the Board of Immigration Appeals (BIA).2
2. While the matter is pending in the agency, the petitioner may seek a
stay of removal from the IJ or the BIA. If such an administrative stay
is denied, a petitioner may be removed from the country before his
petition is adjudicated by the agency. That result, while sometimes
harsh, is ordinarily permissible; the Supreme Court has held that the
petitioner may be required to pursue his application from abroad,
subject to repatriation should the application ultimately be granted.3
3. If a petitioner files an appeal from a final decision of the BIA,
jurisdiction lodges in the relevant U.S. Court of Appeals. It is only at
that point that the Court of Appeals is empowered to enter its own
stay of removal pending appeal.4 As noted in paragraph 2, however, a

In this petitioner’s case, those administrative proceedings are occurring in New
York. He is, however, confined in New Jersey, so this habeas proceeding is venued
here.
2

3

While this may have occurred, I have not been directed to any example.

Again, because administrative proceedings are ongoing in New York, any such
appeal would go to the U.S. Court of Appeals for the Second, not the Third, Circuit.
Once an appeal is filed, stays pending appeal are fairly common. Both sides assume
that the Court of Appeals would lack jurisdiction to issue a stay in connection with
2

petitioner denied an administrative stay may already have been
deported.
4. The Real ID Act, S U.S.C.

§ 1252(g), strips the U.S. courts of habeas

(or any other) jurisdiction to interfere with the agency’s execution of a
removal order. So while immigration proceedings are pending, the
statute bars a district court from granting a stay of removal.
5. The jurisdiction-stripping effect of

§ 1252(g) is subject to one

Constitutional limitation, however. It may not rise to the level of a
suspension of the writ of habeas corpus. U.S. Const., art. I,

§ 9, cl.2.

6. An impermissible suspension of habeas corpus will not be found so
long as there is an adequate alternative remedy available. Cases
upholding the review scheme summarized above as adequate have
relied on the ultimate availability of review in the Court of Appeals. In
the vast majority of cases, the

§ 1252(g) removal of habeas jurisdiction

has been found constitutionally valid.
7. Under limited circumstances, however, cases have held that the
available alternatives to district court habeas review are not adequate
(or not available at all). Under such circumstances, the district court
has been found to retain limited habeas jurisdiction, as a
constitutional necessity.
8. I find that this is such a case. Petitioner’s order of removal was
entered in 2009, but he then pled guilty to drug-trafficking charges
and became a cooperating witness in the criminal prosecution of a
prominent Jamaican drug kingpin. In 2013, the government released
him and withheld execution of the order of removal. In January 2019,
however, he was placed in custody by ICE for the purpose of
executing the 10-year-old order of removal to Jamaica.

pending administrative proceedings, whether by mandamus or otherwise. See nn. 6 &
7, and cases cited.

3

9. Petitioner’s primary motivation for reopening removal proceedings is
that, since his order of removal, his cooperation has exposed him to a
realistic threat of being killed if he is returned to Jamaica. The person
against whom he testified wielded great influence there.5 Since
Petitioner’s testimony, his sister’s house was burned down, the house
of his children’s mother was bombed, six of his cousins have been
murdered, and his father was forced to flee the country. He claims
that during his recent enforced sojourn in Jamaica, before the court
ordered his return, his safety was threatened. The government does
not factually rebut these allegations, which I therefore take at face
value for present purposes.
10.

The IJ denied Petitioner’s application to reopen removal
proceedings. His appeal to the BIA is still pending. Both the lJ and
BIA denied motions to stay. There is no final order, so the Court of

Appeals does not yet have jurisdiction. Absent a court order, then,
Petitioner may be removed, even though his matter remains pending.
In short, he is to be removed to a country where he says he is likely to
be killed while the propriety of removing him to such a place is being
decided.
11.

Under these unusual circumstances, the “adequate alternative” to
habeas relief—review by the BIA and appeal to the Court of Appeals—
is not an effective alternative, unless supplemented by a stay of
removal. To deny habeas relief under such circumstances would
amount to a suspension of the writ. I find, therefore, that I have
limited jurisdiction to enter a stay.

As background, I take notice that Mr. Coke was the head of an extremely violent
drug gang active in Jamaica, the United States, and elsewhere. Efforts to extradite him
sparked what amounted to an armed insurrection that cost 70 lives. A sample of news
coverage of his conviction and sentence may be found at
https:/ /www.nytimes.com/topic/person/christopher-coke. The Immigration Judge
opined that the threat was stale, but the criminal organization involved, the Jamaican
Shower Posse, apparently remains active.

4

12.

The minimum necessary to meet constitutional standards, I find, is
a “bridge” stay sufficient to hold off removal until the BIA grants
Petitioner’s requested relief or the Court of Appeals takes jurisdiction
over an appeal from a final BIA decision.
II.

BACKGROUND AND PROCEDURAL HISTORY

Petitioner is a native and citizen of Jamaica. After being twice removed
from the United States, Petitioner was arrested for illegal entry in 2009 and
again ordered removed later that year. This time he was not actually removed.
Instead, he pled guilty to drug-trafficking charges and became a cooperating
witness in the federal government’s criminal prosecution of then then-head of a
violent Jamaican drug gang, Christopher “Dudus” Coke. Apparently he testified
under an alias, an unusual procedure and one indicative of a government belief
that he was in danger. Following Petitioner’s cooperation, the government
granted him deferred action, released him, and permitted him to work in the
United States from October 2013 until early 2019. On January 15, 2019,
however, the Department of Homeland Security, Immigration and Customs
Enforcement, (“ICE”) placed Petitioner in immigration custody for the purpose
of executing his long-deferred removal order.
Petitioner moved before an immigration judge (“IJ”) to reopen his removal
proceeding, asserting materially changed circumstances and seeking asylum.6
The United States District Court for the District of New Hampshire has usefUlly
summarized the procedural background of a motion to reopen.

6

Congress has granted aliens facing a removal order the right to file
a single motion to reopen removal proceedings within 90 clays of the
entry of a removal order. 8 U.S.C. § 1229a(c)(7). Aliens also are entitled
to obtain judicial review in the courts of appeals from decisions denying
motions to reopen. Mata v. Lynch, _U.S._,135 S.Ct. 2150, 2154, 192
L.Ed.2d 225 (2015). As the Supreme Court has explained, the right to file
a motion to reopen is “an ‘important safeguard’ intended ‘to ensure a
proper mid lawful disposition’ of immigration proceedings.” Kucana z.’.
Holder, 558 U.S. 233, 242, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010)
(quoting Dada v. Mukasey, 554 U.S. 1, 18, 128 S.Ct. 2307, 171 L.Ed.2d
178 (2008)). The First Circuit Court of Appeals underscored the
importance of this right in Santana v. Holder, 731 F.3d 50, 61(1st Cir.
2013), where the court concluded that an alien’s statutory right to
litigate a motion to reopen could not be curtailed by regulations that both
5

The IJ denied the motion to reopen as untimely. (See DE 14-4). The IJ further
found that Petitioner had failed to demonstrate changed country circumstances
or grounds for granting asylum or withholding of removal under the
Convention Against Torture. (See Id.).
Petitioner filed an appeal and an application to stay removal pending
appeal with the Board of Immigration Appeals (“BIA”). On April 12, 2019, the
BIA denied Petitioner’s request for a stay, finding little likelihood of success on
appeal. (See DE 14-5). It seems the BIA has not yet ruled on the merits of
Petitioner’s appeal. The parties seem to agree that, although the Court of
Appeals will have jurisdiction over any appeal from the final decision of the
BIA, and may, once it has taken jurisdiction, issue a stay pending appeal, it
lacks the current power to hear an appeal from the BIA’s denial of a stay.7
barred the filing of motions to reopen after removal and deemed existing
motions to be withdrawn once an alien is removed.
The filing of a motion to reopen in the BIA does not automatically
stay proceedings. 8 C.F.R. § 1003.2W. An alien, however, may request an
emergency stay of removal. See BIA Practice Manual § 6.4(b), 6.4(d)(i),
1999 WL 33435431 at *23. An emergency stay request is discretionary
and “may be submitted only when an alien is in physical custody and is
facing imminent removal.” BIA Practice Manual § 6.4(d)(i), 1999 WL
33435431 at *3 Further, because judicial review in the court of appeals
is “available only in judicial review of a final order,” an alien may not
appeal the denial of an emergency motion to stay. 8 U.S.C. § 1252(b)(9);
Gando-Coeflo v. LN.S., 857 F.2d 25, 26 (1st Cir. 1988) (holding, under
previous immigration statute, that circuit court jurisdiction is limited to
review of “final orders of deportation,” and that “a denial of a stay of
deportation pending disposition of a motion to reopen is not a ‘final
order’”) (citing 8 U.S.C. § 1 105a(a)). For the same reason, an alien cannot
file with the court of appeals a motion to stay pending the BIA’s
disposition of a motion to reopen. In other words, whether or not an alien
files an emergency motion to stay with the BIA, and whether or not the
BIA acts on such a motion, the court of appeals is without jurisdiction to
entertain a request to stay in connection with a motion to reopen
pending before the BIA.

Compere
7

ii.

Nielsen, 358 F. Supp. 3d 170, 179—80 (D.N.H. 2019).

Citing 8 U.S.C. § 1252(a)(l) and (b)(3)(B), the Government also argues
that the federal courts of appeals “have ample authority to halt the
execution of a removal order.” Docket No. 68 at 7. But that is not true,
because the circuit courts only have jurisdiction over a denial of a motion
to reopen, see Gando—Coeflo, 857 F.2d at 26 (holding that court of
6

Thus ICE, unless restrained in some manner, is free to deport Petitioner at any
time, and has demonstrated a determination to do so.
On April 16, 2019, acting through counsel, Petitioner filed a petition for
writ of habeas corpus in the United States District Court for the Southern
District of New York. Two days later, District Judge Paul A. Engelmayer
determined that this was the wrong venue for Petitioner’s habeas claims.
Although immigration proceedings were centered in New York, Petitioner was
detained in New Jersey when the petition was filed. Accordingly, Judge
Engelmayer transferred the proceeding to this Court.
Petitioner then filed a motion seeking a temporary restraining order
barring the respondents from removing him from the United States. (DE 12).
Petitioner argued that, because of his cooperation in the Dudus prosecution, he
would likely be killed if he is returned to Jamaica. He alleges that Dudus
exercised extensive control over parts of Kingston, over the police, and over a
major political party in Jamaica; that Dudus’s aunt threatened him during the
trial; and that, since his testimony, his sister’s house was burned down, the
house of his children’s mother was bombed, six of his cousins have been
murdered, and his father was forced to flee the country. The government has
not submitted any factual refutation of Petitioner’s allegations regarding the
danger he would be exposed to upon his return to Jamaica.
On May 29, 2019, I issued an order granting Petitioner’s motion for a
temporary restraining order and temporarily staying removal pending further
briefing by the litigants and a determination as to the Court’s jurisdiction. The
order was not entered on the clerk’s docket until the following day, May 30,
appeals’jurisdiction does not attach until there is a final administrative
order), which can happen after removal, see Diaz v. Sessions, No. 173669, 2018 WL 443879, at *2 (6th Cir. Jan. 17, 2018) (noting that BIA
denied petitioner’s motion to reopen approximately one month after she
was removed to Mexico). As the Government acknowledges, meaningful
judicial review is critical to a finding that a statutory scheme provides an
adequate substitute for habeas relief. See St. Cyr, 533 U.S. at 314 n.38,
121 S.Ct. 2271.
Devild v. Cronen, 289 F. Supp. 3d 287, 294 (D. Mass. 2018).

7

2019. Meanwhile, on the morning of May 30, before the government had
received notice of the temporary restraining order, Petitioner was removed to
Jamaica. I ordered Petitioner to be returned safely to the United States, and he
was returned as of June 2, 2019. It seems he has remained in immigration
custody since that time.
A briefing schedule was set. At the court’s request, Petitioner’s counsel
submitted a supplemental letter brief on the issue of the Court’s jurisdiction on
June 4, 2019. (DE 26). The government filed a response to the habeas petition
focused primarily on the jurisdictional issue on June 28, 2019. (DE 27).
Petitioner did not file any reply within the time permitted.
III.

ARGUMENTS AND ANALYSIS

A. Habeas Jurisdiction Generally

“Federal courts are not courts of general jurisdiction” and that they “have
only the power that is authorized by Article III of the Constitution and the
statutes enacted by Congress.” Bender v. Williamsport Area 5th. Dist., 475 U.S.
534, 541 (1986). Congress has granted the federal courts much of their
jurisdiction, and Congress has the power to limit that jurisdiction, so long as
the result is not unconstitutional. See Patchak v. Zinlce, 138 5. Ct. 897, 907—08
(2018).
Generally, a district court may exercise jurisdiction over a habeas
petition, under 28 U.S.C.

§ 2241, when the petitioner is in custody and alleges

that this custody violates the constitution, laws, or treaties of the United
States. 28 U.S.C.

§ 2241(c); Maleng v. Cook, 490 U.S. 488, 490 (1989). A
petitioner must typically seek § 2241 relief in the district in which he is in
custody. United States v. Figueroa, 349 F. App’x 727, 730 (3d Cir. 2009).
Petitioner was detained within this district when he filed his habeas petition
and, as the District Court for the Southern District of New York concluded, this
Court is the proper one to hear Petitioner’s core habeas claims. (See DE 7).

8

B. The Parties’ Arguments Regarding Jurisdiction in this Case

Unlike most habeas petitioners in the custody of ICE, Petitioner here
raises no direct challenge to the propriety of his confinement per se.8 Instead,
the petition asks the Court to bar Petitioner’s removal pending the BIA’s review
of the IJ’s denial of Petitioner’s motion to reopen. (See Pet., DE 17). In the
words of the petition, “Petitioner asks this Court to review whether ICE has the
legal authority to remove Petitioner pursuant to a valid removal order without
first affording him the opportunity to have his claims heard in an immigration
court as permitted by DHS regulations.” (Id.

¶

22). The petition asserts two

claims: (1) that “execution of the removal order would strip Petitioner of his
right to seek agency review and thereby violate his due process rights” and (2)
that “execution of the removal order would violate petitioner’s rights under the
lAdministrative Procedure Aeti.” (Id. at

9

26—30).

The government argues in opposition that 8 U.S.C.

§

1252(g) deprives

this Court of jurisdiction to enjoin the agency’s execution of a removal order.
(DE 14 at 3). It asserts that Petitioner had failed to establish any right to relief
under the Refugee Act of 1980 or any “constitutional right to be free from
detention during the pendency of an appeal of a denial of a discretionary
motion to reopen.” (Id. at 3—4). It contends that the BIA, not this Court, is the
proper entity to review the IJ’s denial of Petitioner’s application to reopen his
case or to determine whether a stay of removal is warranted. (Id. at 4). It
further argues that Petitioner had failed to identify a constitutional right
implicated by his potential removal. (Id.).
In his supplemental brief regarding jurisdiction, Petitioner contends that
the government fails to “precisely specify how this Court is stripped of
jurisdiction pursuant to the REAL ID Act.” (DE 26 at 2). He asserts that the
cases relied upon by the government are distinguishable, and that the
Supreme Court has emphasized the narrow scope of the jurisdiction-stripping
Although the petition contains a boilerplate list of forms of relief, including
supervised release from custody or a bond hearing, the rest of the petition presents no
legal or factual basis for awarding such relief (See DE 17).
8

9

provisions of 1252. (Id. at 2—4, 7—8). He urges that “[s]ection 1252(g) does not
apply to a purely legal question that does not challenge the Attorney General’s
discretionary authority, even if the answer to that question forms the backdrop
against which the Attorney General will later exercise discretionary authority.”
(Id. at 8—9). Petitioner claims that he is not challenging the government’s
discretion in executing removal orders, but instead challenges the legal
authority to execute a removal order while he “has an alleged right to seek
relief made available.” (Id.). Petitioner concludes that “[wjhether Respondents’
actions were legal is not a question of discretion, and, therefore, falls outside
the ambit of 1252(g).” (Id.).
In its answer to the petition, the government reiterates that this Court is

§ 1252 from exercising any jurisdiction over Petitioner’s claims. (See
DE 27). It specifically contends that § 1252 bars review of the constitutionality

barred by

of discretionary determinations. (Id. at 6). The government asserts that the
Suspension Clause applies only to core applications of the writ of habeas
corpus and that, as Petitioner challenges his removal rather than his detention,
he is not protected by the Suspension Clause. (Id. at 10—11).
C. Background of

§ 1252(g)

The government, citing 8 U.S.C.

§ 1252(g), asserts that “Petitioner’s last-

minute attempt to halt his removal is precisely the type of claim that Congress
sought to bar.” (See DE 14 at 2—3). I agree that

§ 1252(g) is the provision most

relevant to jurisdiction over Petitioner’s claims.9
Historically, non-citizens could raise legal challenges to removal orders
by way of habeas petitions. See INS v. St. Cyr, 533 U.S. 289, 306—10 (2001). In
1996, however, Congress curtailed that jurisdiction by enacting the AntiTerrorism and Effective Death Penalty Act (“AEDPA”) and the Illegal
Immigration Reform and Immigration Responsibility Act (“IIRIRA”). See AEDPA,
Pub. L. No. 104-132,

§ 401—443, 110 Stat. 1214, 1258—81 (1996); IIRIRA, Pub.

The government makes tangential mentions of other paragraphs of the statute,
but they are not central to the analysis here.

10

L. No. 104-208,

§ 304—307, 110 Stat. 3009, 3009-587 through 3009-614

(1996). These acts together largely eliminated a district court’s jurisdiction to
review a removal order, in effect channeling review to the BIA and ultimately
the Courts of Appeals. See 8 U.S.C.

§ 1252(a). The original version of 8 U.S.C. §

1252(g), enacted at that time, read as follows:
Except as provided in this section and notwithstanding
any other provision of law, 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.
IIRIRA,

§ 306, 110 Stat. at 3009-607 through 3009-6 12.

Shortly thereafter, the Supreme Court considered the impact of these
amendments upon habeas jurisdiction, in St.

yr,

533 U.S. 289. Applying the

doctrine of constitutional avoidance, St. Cyr declined to construe

§ 1252 as

limiting habeas jurisdiction, to avoid a conflict with the Suspension Clause.
Section 1252, the Court held, did not “speak with sufficient clarity to bar
jurisdiction pursuant to the general habeas statute.” See id. at 298—304, 312—
134.
Thereafter, Congress enacted the Real ID Act of 2005 (“Real ID”), which
modified the provisions of 1252 to specifically remove jurisdiction under 28

§ 2241, as well as any other sort of habeas jurisdiction. See Real ID,
Pub. L. No. 109-13, § 106, 119 Stat. 231, 310—11(2005). As amended,
§ l252(g) now reads as follows:
U.S.C.

Except as provided in this section and notwithstanding
any other provision of law (statutory or nonstatutonj),
including section 2241 of Title 28, or any other habeas
corpus provision, and sections 1361 and 1651 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.

11

8 U.S.C.

§

1252(g) (emphasis of amendment added). There is now no question

that Congress intended this law, and other parts of

§ 1252 similarly modified,

to limit habeas jurisdiction.10
11 Applicability and Constitutionality of
Petitioner here argues that

§ 1252(g)

§ 1252(g) does not preclude this court’s

jurisdiction, for two reasons: (1) the statutory bar to jurisdiction must be
narrowly construed in a manner that does not encompass his claims; and (2)
that even if it does encompass his claims, such a restriction of habeas
jurisdiction would violate the Suspension Clause of article 1 of the
Constitution.
1. Narrow Statutory Construction
I first address the Petitioner’s narrow-construction argument. (See DE 26
at 3—4, 8). 1 find that the statute, on its face, does purport to remove habeas
jurisdiction over Petitioner’s claims.
In Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471
(1999) (hereinafter, “AADC’), the Supreme

Court

rejected the interpretation of

§ l252(g) as a “zipper clause” that covered “all or nearly all deportation claims.”
Id. at 478—87. Instead, it held that § 1252(g) “applies only to three discrete
actions that the Attorney General may take,” which are identified by the
statute. Id. at 482. The section 1252(g) bar, the Court held, bars challenges to
“the decision or action by the Attorney General to [1] commence proceedings,
[2] adjudicate cases, or [3] execute removal orders against any alien under
[chapter 81.” Id.
Narrow the categories may be, but I conclude that Petitioner’s claims fall
within one of them: the bar against review of the Attorney General’s “decision
or action” to “execute removal orders.” The primary, perhaps only, goal of this
petition is to halt the execution of a removal order. (See DE 17 at pp. 8—10).
Real ID did not, however, close all avenues of review. It relegated judicial review
of constitutional and legal questions to the Court of Appeals, to avoid the potential
constitutional Suspension Clause issues identified by the Supreme Court in St. yr.
See Real ID Act § 106 (codified at 8 U.S.C. § 1252(a)(2)(D)).
10

12

Petitioner does not legitimately call into question the validity of the issuance of
the 2009 order for his removal, nor does he raise any arguments concerning
the propriety of his confinement.Lt (See Id.). As to this narrow point, I follow the
reasoning of the Courts of Appeals for the Second and Sixth Circuits. See
Ragbir v. Homun, 923 F.3d 53, 63—66 (2d Cir. 2019);12 Hamama v. Adducci,
912 F.3d 869, 874—75 (6th Cir. 2018) (“Under a plain reading of the text of the
statute, the Attorney General’s enforcement of long-standing removal orders
falls squarely under the Attorney General’s decision to execute removal orders
and is not subject to judicial review.”).’3
Petitioner argues that

§ 1252(g) “does not apply to a purely legal question

that does not challenge the Attorney General’s discretionary authority, even if
the answer to that question forms the backdrop against which the Attorney
General will later exercise discretionary authority.” (DE 26 at 8). Elaborating,
he proposes a statutory distinction between administrative decisions and
administrative actions:
[Hjere, the habeas petition does not challenge the
discrete decision to remove Petitioner. The question
before the Court is not why the Secretary chose to
I note that, in his supplemental brief concerning jurisdiction, Petitioner
additionally asserts that he should be considered eligible for a reasonable-fear
interview by immigration officials. (DE 26 at 11). As this was not asserted in his
petition, I do not consider it as a claim before the Court.
12
As discussed further below, the Second Circuit ultimately concluded that the
Suspension Clause required that the district court exercise jurisdiction to hear
Ragbir’s claims because, although § 1252(g) facially limited such jurisdiction, the
government had not disputed Ragbir’s assertion that there existed no adequate
alternative to habeas relief under the peculiar circumstances of that case. See Ragbir,
923 F.3d at 73—74 & n.27.

Petitioner might frame his claim as a challenge, not to the execution of the
removal order, but to the agency’s revocation of its decision to defer action on that
order. The distinction does not persuade, and I believe that the 1252(g) bar would still
apply. The very case that Petitioner cites to in support of the proposition that
revocation of deferred action implicates due-process rights also explicitly found “that 8
precludes the District Court from exercising jurisdiction over
U.S.C. § 1252(a)(4)
[such a] habeas petition.” Khouzam u. Att’y Gen. of US., 549 F.3d 235, 245 (3d Cir.
2008). Accordingly, any such claim would have to be raised on appeal to the Court of
Appeals, not in a habeas petition.
.

.

.

13

execute the removal order. Rather, the question is
whether the way Respondents acted accords with the
Constitution and the laws of this country. Whether
Respondents’ actions were legal is not a question of
discretion, and, therefore, falls outside the ambit of
§ 1252(g).
(Id. (emphasis added)). This suggested distinction, I find, is not supported by
the statutory language or the relevant case law.
First, Petitioner’s argument that the statute applies only to the reasoning
underlying a decision but not to the actions of ICE in executing a removal order
runs contrary to the language of 1252(g). Section 1252(g) explicitly applies to
a “decision or action” to “execute [a] removal order[].” (emphasis added).
Petitioner’s interpretation would render the phrase “or action” superfluous, a
result disfavored under ordinary principles of statutory construction. See TRW
Inc. v. Andrews, 534 U.S. 19, 31(2001); Conn. Nat’l Bank v. Gennain, 503 U.S.
249, 253 (1992).
Second, the cases cited by Petitioner do not support his interpretation. In
this connection, Petitioner cites United States v. Hovsepian, 359 F.3d 1144 (9th
Cir. 2004), and Garcia v. Attorney General, 553 F.3d 724 (3d Cir. 2009). (DE 26
at 8). It is true that in Hovsepian—perhaps the inspiration for Petitioner’s
argument here—the U.S. Court of Appeals for the Ninth Circuit stated that
“[t]he district court may consider a purely legal question that does not
challenge the Attorney General’s discretionary authority, even if the answer to
that legal question—a description of the relevant law—forms the backdrop
against which the Attorney General later will exercise discretionary authority.”
359 F.3d at 1155. The context of that case, however, demonstrates that it is
largely irrelevant to the circumstances here. In Hovsepian, two men faced
imminent deportation because recent amendments had rendered deportable
their previously non-deportable offenses of conviction. In the district court,
they sought a retroactive change to their sentences under the Federal Youth
Corrections Act, for which they would have been eligible at the time of their
convictions. If the prior sentences were changed as requested, they would not

14

expose them to deportation, even under the statutes as amended. See id. at
1147—50. The district court set aside the prior convictions, sealed the relevant
criminal records, and granted a motion by Hovsepian to enjoin the government
from deporting him. Id. at 1150—51. True, the Ninth Circuit affirmed the
district court’s jurisdiction to issue its injunction, which involved a “pure legal
question.” Ic?. at 1155—56. The reason, however, did not involve the distinction
between “decisions” and “actions” that is proposed here. What was critical in
Hovsepian was not merely that the issue could be deemed “legal”; the court’s
point was that the “legal question” was one of federal criminal law and
procedure—not, as in this case, the permissibility of the immigration
authorities’ actions as such. Because the petitioners (albeit nunc pro tunc were
not convicted of a deportable offense, non-deportability was the result of, but
not the foundation of, their claim before the district court. 14
Petitioner also points to Garcia case, a reported decision by the U.S.
Court of Appeals for the Third Circuit. Garcia, of course, is binding, but less
relevant. It was a direct petition to the Court of Appeals for review of a final BIA
order of removal, as expressly authorized by 8 U.S.C.

§

1252(b). See Garcia,

553 F.3d at 726. The BIA had rejected Garcia’s argument that the removal
proceedings were untimely under the applicable five-year statute of limitations.
Id. at 726—27 (citing Bamidele v. INS, 99 F.3d 557 (3d Cir. 1996)). The Court of
Compare Ragbir v. United States, No. 17-1256, 2018 WL 1446407 (D.N.J. Mar.
23, 2018). In that case, the petitioner (the same Mr. Ragbir who was the petitioner in
the Second Circuit case already cited herein) filed a petition for writ of coram nobis,
seeking to overturn the criminal conviction that had rendered him removable under
immigration law. See id. Thus, as in Hovsepian, his motive was to undermine the
grounds for removal, but the claim itself was a challenge to a criminal conviction, not
to any actions of the immigration authorities. I granted a motion by Ragbir to stay his
removal pending resolution of the coram nobis claim, finding, among other things, that
the Court had the inherent power to preserve its jurisdiction over a coram nobis case.
See id. at .h7_*12. I rejected the government’s arguments that § 1252(g) deprived the
Court of jurisdiction to grant such a stay, reasoning that Ragbir’s claim did not “arise
from” any immigration proceeding and because the question of whether Ragbir was
guilty of a removable offense was “a question not of executive discretion but of legal
and judicial status under the criminal law.” Id. “To look at it another way,” I wrote,
“neither the cm-am nobis application nor the stay application is an attempt to review
any action taken by the executive.” Id. at *10.
14

15

Appeals reversed and remanded to the BIA, finding that Bamidele’s
interpretation of the statute of limitations issue should have been applied. Id.
at 728, 729. In doing so, it rejected the government’s argument that

§ 1252(g)

precluded review. The application of the statutory limitations period, the Third
Circuit reasoned, did not challenge the Attorney General’s discretion. Id. at
728—29. Citing AADC, Garcia concluded that

§ 1252(g) “has nothing to do with

petitions for review of final orders of deportation, or indeed with any sort of
review of such orders.” Id. (quoting Shah v. Reno, 184 F.3d 719, 722 (8th Cir.
1999)). Thus, Garcia held that the

§ 1252(g) jurisdictional bar did not apply,

because “Garcia is not challenging the discretionary decision to commence
proceedings, but is challenging the government’s yen’ authority to commence
those proceedings after the limitation period has expired.” Id. at 729.
Context, again, is key. The Garcia Court, under Section 1252, possessed
jurisdiction to review the agency’s final orders of removal. It was reversing as
legally erroneous a final agency decision, affirmed by the BIA, that misapplied
binding authority, namely Bamidele. Here, by contrast, Petitioner has filed a
habeas petition asking this Court to directly bar the government from
executing a facially valid (if old) removal order in an ongoing matter.’5
Petitioner’s proposed differentiation between administrative decisions
and actions is not sustainable. Many a challenge to an immigration action
could readily be reframed as a “pure legal question.” On the other hand, an
exercise of discretion, with no relevant legal question implicated, might not
trigger habeas review at all; a habeas claim under

§ 2241 typically depends on

an allegation that the government’s conduct is “in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.

§ 224 1(c)(3) (emphasis

added).
In support of his argument that § 1252(g) permits review of purely legal
questions that do not clrnllenge discretionary decisions, Petitioner additionally cites to
the oral argument in a case in this District, Tazu v. Barr, No. 19-7872. I note that
District Judge Esther Salas denied Tazu’s request to stay his removal pending the
adjudication of his motion to reopen, finding that he lacked any right to a final
reopening decision before removal. See Tazu, No. 19-7872, DE 39 at 5—9.
‘5

16

Petitioner correctly observes that the Supreme Court in AADC construed

§ l252(g) to apply narrowly to three situations. This is one of them. AADC itself
concluded that § 1252(g), however narrowly construed, eliminated jurisdiction
over the plaintiffs’ claims that the commencement of removal proceedings
against them violated their constitutional righLs. See A4DC, 525 U.S. at 475,

§ 1252(g) does
not apply to constitutional claims). I therefore conclude that the § 1252(g) bar,
487; see also Ragbir, 923 F.3d at 64—66 (rejecting argument that

as a matter of statutory construction, applies to claims challenging the decision
or action of the Attorney General (or a designee) to execute a removal order,
and that Petitioner’s habeas claims here fall within that statutory limitation on
jurisdiction.
2. Constitutionality Under the Suspension Clause
I therefore move to the second, constitutional step of the analysis.
Petitioner argues that, if

§ 12 52(g) is interpreted to remove habeas jurisdiction

here, the result will be an unconstitutional suspension of the writ of habeas
corpus.
The Suspension Clause reads as follows: “The Privilege of the Writ of
Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.” U.S. C0NST. art I,

§ 9, cl. 2. If, as

here, a statute is found to remove jurisdiction over a petitioner’s habeas claim,
the Court must then determine whether “Congress has provided adequate
substitute procedures for habeas corpus.” Boumediene v. Bush, 553 U.S. 723,
771 (2008); see also OsoHo-Maflinez u. Att’y Gen. of US., 893 F.3d 153, 166 (3d
Cir. 2018); Castro a DHS, 835 F.3d 422, 445 (3d Cir. 2016), cert. denied, 137
S. Ct. 1581 (2017). If such “adequate substitute procedures” are in place, the
removal of habeas jurisdiction does not offend the Suspension Clause.
(a) Application of Suspension Clause to removal
A threshold issue is whether the Suspension Clause even applies to an
application, not for release from illegal confinement (the traditional concern of
the habeas remedy), but instead to bar Petitioner’s removal from the country.

17

(See DE 27 at 10—11). The government asserts that “Petitioner does not seek a

traditional exercise of habeas jurisdiction that is protected by the Suspension
Clause and it thus does not even come into play in this case.” (Id.).
The Supreme Court began its analysis of the Suspension Clause in St.
Cyr with the statement that “[ajt its historical core, the writ of habeas corpus
has served as a means of reviewing the legality of Executive detention, and it is
in that context that its protections have been strongest.” St. Cyr, 533 u.s. at
301. In Munaf v. Geren, 553 U.S. 674 (2008), the Supreme Court, albeit in
dissimilar circumstances,’6 similarly observed that “[hjabeas is at its core a
remedy for unlawful executive detention. The typical remedy for such detention
is, of course, release.” Id. at 693 (internal citation omitted).
Petitioner’s requested relief—a stay of his removal pending BIA review of
the IJ’5 denial of his motion to reopen—does not self-evidently fall within the
“historical core” of habeas relief Ironically, his petition might be seen from one
angle as one to remain in ICE custody. Nevertheless, the St. Cyr Court’s
reference to the “core” of habeas protections may be viewed as a floor, not a
ceiling. See 533 U.S. at 301 (“[A]t the absolute minimum, the Suspension Clause
protects the writ as it existed in 1789.” (internal quotation marks omitted;
emphasis added)). St. Cyr further observes that, until the statutory
jurisdiction-stripping began to take hold in the 1990s, non-citizens could raise
legal challenges to removal orders by way of habeas petitions. 533 U.S. at 306—
10 (2001). Indeed, St. Cyr seems to assume that a removal order falls within
the class of orders subject to habeas relief, and its analysis does not rest on
the distinction between release from detention and other forms of relieL
In Hamama, the Sixth Circuit, examining St. Cyr and Munaf, concluded
that petitioners who sought to prevent the execution of removal orders were not

In Munaf the petitioners were U.S. citizens who were in the custody of U.S.
forces in Iraq while awaiting criminal prosecution in the Iraqi court system. See
Munaf 553 U.S. at 679—85. They filed habeas petitions and sought injunctions against
their release to Iraqi authorities. Id. The Supreme Court determined that the writ of
habeas corpus did not apply to such circumstances. Id. at 689—705.
16

18

seeking the kind of habeas relief (i.e., release from custody) that the
Suspension Clause protects. See 912 F.3d at 875_76.17 I disagree.
Habeas corpus is the ultimate backstop against the executive’s illegal
application of force to detain a person. To my mind, “release” from detention
does not encompass the (by hypothesis) illegal, involuntary transportation of
that individual to a foreign nation. I think that the broad, remedial purposes of
the Great Writ may—all other things being equal, see infra—encompass a
challenge to an illegal order of removal.
I will therefore conclude what Harnama assumed arguendo: that the
effect of

§

1252(g) is to limit otherwise-available habeas relief. I proceed to the

second step of the Suspension Clause analysis: whether “adequate substitute
procedures” nevertheless remain available.
{b) Adequacy of alternatives to habeas relief.
As noted above, the Suspension Clause does not bar a limitation on
habeas jurisdiction if adequate substitute procedures are in place. I conclude,
however, that under the narrow circumstances of this case, substitute
procedures are inadequate or unavailable.
Petitioner here seeks a stay of removal pending the BIA’s review of the
IJ’s order denying his motion to reopen. (See DE 17). The alternatives to
habeas relief in this court, he says, are inadequate for several reasons.
Petitioner asserts that permitting his removal prior to a final decision would
violate his due process rights and the APA, in that he would be “left without a
timely forum for review.” (Id.

¶

26—30). He argues that

[executing [his} removal order
ithout
consideration of evidence of his past persecution, the
attempts to harm him during the short period he was
in Jamaica following his recent removal conlvicting
[sic] with this Court’s temporary restraining order, and
17
The Harnarna Court was perhaps less than certain that this principle was
settled, however. Although this first-step issue should have been dispositive, the court
nevertheless proceeded to the second step of a Suspension Clause analysis. Ultimately
it concluded that the petitioners had an adequate alternative to habeas relief—namely,
the petition-for-review process. Id. at 876—77.

19

fear of future persecution, would violate U.S. statutory
and international law because he is likely to be
persecuted and tortured once again if removed to
Jamaica.
(DE 26 at 11). The stay is thus sought as a step in the process of reopening the
immigration proceeding and obtaining relief from the removal order.’8
Initially, of course, Petitioner’s due process forum consisted of
proceedings before the Immigration Judge. After he was taken into immigration
custody, Petitioner filed a motion to reopen his removal proceedings and to stay
his removal. (DE 17

¶

18). He acknowledges that an IJ denied his motion,

finding it untimely but also “determin[ing] that the motion failed to establish
changed country conditions to warrant reopening to permit [Petitioner] to apply
for relief.” (Id.

¶

19).19

The second layer of review is the BIA. Petitioner appealed this decision to
the BIA and moved to stay his removal. (Id.

¶

19, 21). The BIA denied

Petitioner’s motion to stay on the basis that “there is little likelihood that the
appeal will be sustained.” (DE 14-5). The BIA has not, however, ruled on the
merits of the appeal.
The third layer of review is an appeal of the BIA’s final decision to the
U.S. Court of Appeals for the Second Circuit. That Court has full powers to
adjudicate appeals from final orders of the immigration courts and to grant
stays pending appeal. Indeed, it was in order to save

§

1252(g) from a

Suspension Clause challenge that Congress, in removing habeas jurisdiction,
simultaneously lodged jurisdiction in the Courts of Appeals to hear petitions for
review of immigration cases.

I note at the outset that alternative procedures are not considered inadequate
merely because relief has been denied. The Suspension Clause does not guarantee
success; it requires an adequate forum for presentation of claims.
Petitioner does not seem to be claiming that conditions have changed in
Jamaica since 2009. Rather, he claims that his decision to cooperate with the U.S.
government subsequently made Jamaica a dangerous place for him.

20

Court of Appeals review is an integral, constitutionally required
component of that review scheme; without it,

§ 1252(g) would violate the

Suspension Clause. Hamama has held, and I agree, that “[wihen Congress
stripped the courts of jurisdiction to grant habeas relief in

§ 1252(g), it

provided aliens with an alternative method to challenge the legality of removal
orders: a motion to reopen followed by a petition for review filed in a court of
appeals. See 8 U.S.C.

§ 1252(a)(5), (2)(D). Because this process provides an

alien with the same scope of relief as habeas, the REAL ID Act does not violate
the Suspension Clause.” 912 F.3d at 876; see also Gonzalez-Lora, 629 F. App’x
at 402 (“[W]hile we have acknowledged that the Suspension Clause requires at
least some judicial review of deportation cases, we have also held that the
REAL ID Act’s limitations on the petition right are constitutional.” (internal
quotation marks omitted)). Thus, in general, the Courts of Appeals have
rejected Suspension Clause challenges on the ground that a motion to reopen
plus a petition for review in the court of appeals would be an adequate
substitute for habeas corpus. See, e.g., Iastt v. Smith, 511 F.3d 881, 893 (9th
Cir. 2007) (rejecting as-applied challenge); Mohamed v. Gonzales, 477 F.3d
522, 526 (8th Cir. 2007) (same); Alexanth-e v. US. Attj Gen., 452 F.3d 1204,
1206 (11th Cir. 2006) (per curiam) (rejecting facial challenge).2°
For all of these reasons, I, too, hold that the jurisdiction-stripping
provisions of 1252 do not facially run afoul of the Suspension Clause, and
must be deemed facially effective.
That, however, does not end the matter. I must also consider whether the
alternative remedy is adequate under the circumstances of this case. I find
that, under these unusual circumstances, the alternative remedy is not

Petitioner objects that the IJ’s decision to deny Petitioner’s motion to reopen
was premised, at least in part, on grounds of untimeliness, rather than the merits of
the claim. That relief was denied on procedural grounds does not undermine the
adequacy of the alternative procedure for purposes of the Suspension Clause analysis.
See Gonzalaez-Lora v. Warden Fort Dix FCV, 629 F. Appx 400, 402 (3d Cir. 2015)
(“[T]he fact that the argument failed due to lack of exhaustion does not demonstrate
that his remedies were inadequate or ineffective.”).

20

21

adequate. Administrative proceedings, followed by Court of Appeals review, are
not adequate here unless supplemented by a stay pendente lite.
The alternative remedy proposed by the government is that Petitioner be
deported to Jamaica, and that he assert his appeal rights from there. It is true
that in general, a petition for review can be pursued from abroad. See generally
Nken u. Holder, 556

u.s.

418, 435, 129 S. Ct. 1749 (2009). Not so here,

however.
Petitioner alleges plausibly that because of his cooperation with the
United States government in the Dudus prosecution, he would likely be killed if
he is returned to Jamaica. Dudus, the head of a violent drug trafficking
organization, exercised control over parts of Kingston, the police, and certain
political figures; Dudus’s aunt threatened him during the trial; and, since his
testimony, his sister’s house was burned down, the house of his children’s
mother was bombed, six of his cousins have been murdered, and his father
was forced to flee the country. Petitioner alleges that he was threatened when
he was involuntarily returned to Jamaica in late May:. The government offers no
factual response to these contentions.
I find it quite likely that a person in that position in Jamaica—in hiding,
and under a threat of death— could not effectively litigate an immigration
appeal in the BIA or the Court of Appeals. Not to put too fine a point on it, the
death threats, if carried out, would moot and defeat the review process.
A narrow, as-applied exception to the

§

1252(g) bar has been recognized

in the very few cases with comparable facts.
The scene is set by the opinion of the Second Circuit in Ragbb; which
held that the Suspension Clause served to preserve a modicum of district court
jurisdiction despite

§

1252(g). There, the parties did not “dispute that Ragbir

ha[d] no ‘adequate substitute’ for a habeas petition” under the circumstances.
Raybir, 923 F.3d at 74. Unlike the claims in Hamama, “Ragbir’s constitutional
claims arose only after his removal order became final and after he had taken
full advantage of the review process prescribed by statute, including filling a

22

petition for review and the one motion to reopen to which he was entitled.” Id.
at 74 n.27 (emphasis added). Petitioner here, like Raghir, seeks to avoid
removal based on circumstances that arose after the time for a challenge had
passed. Unlike Ragbir, he is still in the midst of a petition to reopen (although
the 13 has rejected it as untimely). But this case shares with Raghira
procedural posture that tends to render his alternative remedies ineffectual,
and therefore requires that the residual habeas remedy be preserved.
Closer factually to this case is Compere v. Nielsen, 358 F. Supp. 3d 170
(D.N.H. 2019), app. pending. As in our case, that petitioner was threatened
with immediate removal. A motion to reopen technically remained available; the
court acknowledged that, in general, removal does not deprive a petitioner of
the ability to litigate a motion to reopen from abroad. Under the circumstances
of that case, however, removal to Haiti would “make it impossible for [petitioner
Compere] to litigate his motion to reopen.” Id. at 180—8 1. He faced the
likelihood of official detention for some period upon his arrival in Haiti, and
more importantly, like Petitioner here, he faced the likelihood of violent
reprisals. The court therefore held as follows:
Taken in combination—the possibility of detention while awaiting
the drug task force, the potential that he will be detained in
temporary housing if his uncle is unable to retrieve him, the
security threats under which he will live when he is housed with
Mr. Renois—the record demonstrates that, more likely than not,
Compere would be unable to litigate his motion to reopen if he is
removed to Haiti.
Id. at 182. The court ordered relief limited to “a stay of removal that will remain
in place until Compere’s motion to reopen is resolved and he has been given an
opportunity to appeal any adverse ruling.” Id.
Devitri v. Cronen, 289 F. Supp. 3d 287 (D. Mass. 2018) is fairly similar.
There, the U.S. District Court for the District of Massachusetts concluded that
the Suspension Clause applied because the petitioners, who were not detained,
were being threatened with removal before the BIA had adjudicated their
motions to stay removal. See Id. at 289. As in our case, those petitioners,

23

denied a stay, would “be removed back to the very country where they fear
persecution and torture while awaiting a decision on whether they should be
subject to removal because of their fears of persecution and torture.” Id. at 294.
Under such extreme circumstances, the court found that petitioners had
demonstrated “a likelihood of success on their due process claim that they will
suffer prejudice through a denial of a meaningful opportunity to have a motion
to reopen rn-id motion to stay ruled on by the BIA and Court of Appeals prior to
removal to a country where they have a credible fear of persecution.” Id. at 295.
The court therefore granted a stay that did “no more than allow[ petitionersj to
use the administrative and judicial procedures that Congress designed and the
Constitution requires.” Id. at 298.
Finally, in Thrahirn v. Acosta, No. 17-24574, 2018 WL 582520 (S.D. Fla.
Jan. 26, 2018), the U.S. District Court for the Southern District of Florida
considered a putative class action on behalf of Somali nationals subject to
orders of removal. They sought to reopen the orders of removal based on
changed circumstances, citing the United Nations Convention Against Torture.
Renewed violence and publicity surrounding a botched deportation attempt,
they alleged, exposed them to likely reprisal if they returned to Somalia. In
addition to motions in the immigration proceedings, they sought a stay of
deportation from the district court, in order to permit them to litigate their
case. Id. at *3_*4 In conducting a Suspension Clause analysis, the court
concluded that, “[wjhile the motion to reopen process is facially adequate, it
does not provide an adequate and effective remedy for the exceptional
circumstances of this case.” Id. at *5_6. It took jurisdiction and granted a stay
as follows:
As applied in these circumstances, the jurisdictional bar in 8
U.S.C. § 1252(g) would preclude Petitioners from raising their new
legal claims in a manner which comports with the law, in violation
of the Suspension Clause. Therefore, the Court finds that the
jurisdiction stripping provisions of the REAL ID Act are
unconstitutional as applied to Petitioners, based on the
extraordinary circumstances of this case, because it suspends

24

their right to habeas relief without providing an adequate and
effective alternative.
Id. at *6.
Here, it cannot be said that proceedings on the motion to reopen have
literally been exhausted, as in Ragbir. Nevertheless, this case shares with
Ragbir, Compere, Devitri, and Thrahim a key determinative factor: The
constitutionally required adequate alternative remedy has been rendered
ineffective. As in Compere and Devitri, Petitioner here faces potential violence if
he is returned, pendente lite, to the very locus of the threat. See Devith, 289 P.
Supp. 3d at 294 (“[Tjhey will be removed back to the very country where they
fear persecution and torture while awaiting a decision on whether they should
be subject to removal because of their fears of persecution and torture.”). The
constitutionally required review process cannot proceed adequately under
those circumstances.
Further, as in Thrahim, the peculiar timing of events has rendered
ordinary review ineffectual. This Petitioner’s procedural quandary arises
because his cooperation (the circumstance that places him in danger) arose
long after the time to challenge his 2009 order of removal had passed. He is
attempting to reopen that decision, but in the meantime, he occupies a
jurisdictional no-man’s land. Court of Appeals review, remember, is the very
reason that this court can constitutionally be denied habeas jurisdiction; yet it
is that very lack of jurisdiction that permits the agency to act without judicial
intervention in a manner that will defeat the effectiveness of Court of Appeals
review.
To stop the spinning of this jurisdictional merry-go-round, only modest
measures are required. The minimum habeas jurisdiction that will ensure the
adequacy of the constitutionally required alternative procedures is a “bridge”
stay, permitting Petitioner to remain in the United States until administrative
proceedings are concluded and an appeal may be taken to the Court of
Appeals, if necessary. To ensure that the alternative to the writ, required by the

25

Suspension Clause, is adequate, this Court must retain the residual habeas
jurisdiction to consider and, if appropriate, grant such a stay.
E.

Stay of Removal

Finally, having found that I possess jurisdiction, I consider whether to
issue a stay. Such a stay is in the nature of an arrest of proceedings based on
the certainty of injury to Petitioner’s procedural and constitutional rights:
A stay, by contrast [to an ordinary injunction], is “[tjhe
postponement or halting of a proceeding, judgment or the like.”
Stay, Black’s Law Dictionary (9th ed. 2009). It is not an action
against a party or individual. “[Ijnstead of directing the conduct of
a particular actor, a stay operates upon the judicial proceeding
itself.” Nken v. Holder, 556 U.S. 418, 428, 129 S.Ct. 1749, 173
L.Ed.2d 550 (2009). A stay is thus a temporary measure, put in
place while the actual cause or claim is being adjudicated. A stay
is not a challenge to the basis of removal or any action taken by
the immigration authorities. The requested stay is merely a
“temporary setting aside of the source of the Government’s
authority to remove,” id. at 429, 129 S.Ct. 1749, while the court
adjudicates the actual underlying cause or claim
.

Ragbir v. United States, No. 2:17-CV-1256-KM, 2018 WL 1446407, at *8 (D.N.J.
Mar. 23, 2018), appeal dismissed, No. 18-2142, 2018 WL 6133744 (3d Cir.
Nov. 15, 2018) (noting traditional equitable factors, adaptable to the
circumstances of the case, of likelihood of success, irreparable harm, balancing
harm to the government, and the public interest). I surveyed the court’s
traditional authority to issue such a stay in Ragbir, id. at *10_*12, albeit
without the additional constitutional urgency of a violation of the Suspension
Clause. That analysis is incorporated by reference here.
On likelihood of success, I must observe that this is not the usual
preliminary injunction pendente lite, nor does this Court place itself in the
position of reviewing the decisions of the IJ or the BIA, or handicapping
Petitioner’s chances on a hypothetical appeal. That, I believe, is not required by
the Suspension Clause and hence would exceed the bounds of permissibility
under Real ID. I am most moved here by the constitutional necessity of a stay
under the Suspension Clause, see supra, and the likelihood of a violation of
26

Petitioner’s procedural and constitutional rights if it is not granted. Petitioner
may or may not prevail before the BIA or the Court of Appeals; the Constitution
requires, however, that his opportunity to put his case be preserved.
Irreparable injury requires little or no discussion. While deportation
might not inflict irreparable injury in every case, it does so here, for the
reasons stated above.
The balance of harms and the public interest also weigh in favor of a
stay. Petitioner’s order of removal was entered ten years ago. For the last six
years, the government has deferred action on his removal, based on his
valuable cooperation in the Dudus case. There is no particular urgency to
removing Petitioner now. The government was free, and remains free, to
accelerate the disposition of the matter by the simple expedient of having the
BIA render its final decision.
IV.

CONCLUSION

Petitioner makes a plausible claim that removal to Jamaica, delayed for
many years and hardly urgent, would expose him to great danger based on his
assistance to the prosecuting authorities in the United States. It does not seem
to be too much to ask that he be permitted to pursue the constitutionally
required process of review from the relative safety of a U.S. jail cell. To remove
him to Jamaica now, I have found, will drain the review procedure of efficacy
and violate the Suspension Clause. The Constitution requires, at a minimum,
that this court retain the residual habeas jurisdiction to grant a stay so that
the review process may unfold in an orderly and efficacious manner. I will
therefore enter a separate order staying his removal until 14 days after the BIA
renders its final decision.

DATED: September 3, 2019
KEVIN MCN LTY
United States District Judge

27