Arega v. Evans et al
Filing
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ORDER AND REPORT AND RECOMMENDATION: It is RECOMMENDED that Petitioner's claims be DISMISSED in their entirety. It is FURTHER RECOMMENDED that the Court certify that for the foregoing reasons an appeal of any Order adopting this Report and Recommendation would not be taken in good faith and therefore deny Petitioner leave to appeal in forma pauperis. (Objections to R&R due by 10/25/2018). Petitioner's motions to compel 6 , 8 and 12 are DENIED AS MOOT. The Clerk is DIRECTED to forward a copy of the Petition 9 and this Order and Initial Screen Report and Recommendation to the Defendants at the addresses listed on the Petition. Signed by Magistrate Judge Elizabeth Preston Deavers on October 11, 2018. (jlk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIZAZU AREGA,
Petitioner,
Case No. 2:18-cv-562
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers
v.
IMMIGRATION JUDGE D.
WILLIAM EVANS, et al.,
Respondents.
ORDER AND INITIAL SCREEN REPORT AND RECOMMENDATION
Petitioner, Tizazu Arega, a state inmate who is proceeding without the assistance of
counsel, brings this mandamus and prohibition action against Defendants-Respondents
Immigration Judge D. Williams Evans, Cleveland Immigration Court, and DHS/ICE
(collectively, “Respondents”). (ECF No. 1-4.) On August 22, 2018, Petitioner was granted
leave to proceed in forma pauperis in this action. (ECF No. 10.) This matter is before the Court
for the initial screen of the Petition under 28 U.S.C. §§ 1915(e)(2) and 1915A to identify
cognizable claims and to recommend dismissal of the Petition, or any portion of it, which is
frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. Having performed the initial screen of
the Petition, for the reasons that follow, it is RECOMMENDED that the Court DISMISS this
action.
I.
Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to
“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992).
In doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are
assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from
filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490
U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e)1 as part of the
statute, which provides in pertinent part:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that-*
*
*
(B) the action or appeal-(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or . . . .
28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte
dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or
upon determination that the action fails to state a claim upon which relief may be granted.
To properly state a claim upon which relief may be granted, a plaintiff must satisfy the
basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also
Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure
12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule
8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the
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Formerly 28 U.S.C. § 1915(d).
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual
demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,
727 F.3d 502, 503 (6th Cir. 2013).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on
a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted). Further, the Court
holds pro se complaints “‘to less stringent standards than formal pleadings drafted by lawyers.’”
Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010 WL 1252923, at *2 (6th Cir. April
1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient treatment, however,
has limits; “‘courts should not have to guess at the nature of the claim asserted.’” Frengler v.
Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591,
594 (6th Cir. 1989)).
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II.
A.
Prior proceedings
Petitioner, an inmate at CCI, was a native and citizen of Ethiopia who later adjusted his
status to that of a lawful permanent resident alien of the United States. (ECF No. 9;1 ECF No. 15 at PAGEID # 30.) According to the Petition and exhibits, on April 12, 2012, Respondent
Department of Homeland Security (“Respondent DHS”) issued a notice to appear, charging
Petitioner with removability under the Immigration and Nationality Act (“INA”) §
237(a)(2)(A)(iii) for having been convicted of an aggravated felony as defined in the INA §
101(a)(43)(A) (murder, rape, or sexual abuse of a minor). (Id. at ¶ 7; ECF No. 1-5.)
On March 14, 2016, Respondent Immigration Judge D. William Evans (“Respondent
Judge Evans”) issued a decision in Petitioner’s removal proceedings, In The Matter Of: Tizazu
Fekadu Arega, File Number A055-037-019. (ECF No. 1-5 (excerpt from decision).)
Respondent Judge Evans concluded that Petitioner’s conviction for rape in violation of Ohio
Rev. Code § 2907.02 and sexual battery in violation of Ohio Rev. Code § 2907.03 were not
aggravated felonies under INA § 101(a)(43)(A). Respondent Judge Evans therefore concluded
that Petitioner was not removable. (Id. at PAGEID # 32.) Respondent Judge Evans directed
Respondent DHS to file additional charge(s) by April 2016, or Petitioner’s case would be
terminated. (Id.)
On March 21, 2016, Respondent DHS filed an additional charge, stating that Petitioner
was subject to being taken into custody and deported or removed from the United States pursuant
to INA § 237(a)(2)(A)(iii) because Petitioner was convicted of an aggravated felony as defined
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Petitioner has filed duplicates of his Petition with the Court. (Compare ECF No. 1-4,
with ECF No. 2, with ECF No. 9.) For ease of reference, the Undersigned will refer to the laterfiled Petition, ECF No. 9.
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in INA § 101(a)(43)(F), a crime of violence “for which the term of imprisonment is at least one
year.” (ECF No. 1-6 at PAGEID # 34 (copy of “Additional Charges of Inadmissibility /
Deportability”); ECF No. 9 at ¶ 8.) Thereafter, Respondent Judge Evans issued a decision
finding that Petitioner’s rape conviction under O.R.C. § 2907(A)(2) constituted a conviction for
an aggravated felony as defined in INA § 237(a)(2)(A)(iii) and that Petitioner was therefore
removable under that statute (“second decision”). (ECF No. 1-6 at PAGEID # 35 (one-page
excerpt of decision); ECF No. 9 at ¶ 9.)
B.
The present action
Petitioner brings the present action pursuant to the All Writs Act, 28 U.S.C. § 1651. (See
generally ECF No. 9.) Petitioner first contends that Respondent Judge Evans was, for a variety
of reasons, without subject matter jurisdiction to hold a “master hearing for new deportation
proceeding[,]” which resulted in the present request for issuance of a writ of prohibition. (Id. at
¶¶ 10–23.) Petitioner specifically asks this Court to issue a writ of prohibition preventing
Respondents from enforcing Respondent Judge Evans’s deportation order and to “vacate the
conviction and sentence[.]” (Id. at ¶¶ 10, 14, 22–23, 31.) Petitioner next argues that
Respondents violated his rights to due process and equal protection under the Fifth and
Fourteenth Amendments to the United States Constitution “by instituting new deportation
proceedings” against him, justifying the issuance of a writ of mandamus. (Id. at ¶¶ 24–30.)
Petitioner specifically seeks a writ of mandamus compelling Respondent DHS/ICE to terminate
the deportation proceedings and to restore his permanent residence status (Id. at ¶¶ 25–27, 30–
31.)
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III.
In the REAL ID Act of 2005, 28 U.S.C. § 1252, “Congress sought to channel judicial
review of an alien’s claims related to his or her final order of removal through a petition for
review at the court of appeals.” Elgharib v. Napolitano, 600 F.3d 597, 600 (6th Cir. 2010). 28
U.S.C. § 1252 provides in relevant part as follows:
Notwithstanding any other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus provision, and sections 1361
and 1651 of such title, 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 entered or issued under any provision of this
chapter, except as provided in subsection (e). For purposes of this chapter, in every
provision that limits or eliminates judicial review or jurisdiction to review, the
terms “judicial review” and “jurisdiction to review” include habeas corpus review
pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections
1361 and 1651 of such title, and review pursuant to any other provision of law
(statutory or nonstatutory).
8 U.S.C. § 1252(a)(5) (emphasis added); see also id. at § 1252(b)(2) (“The petition for review [of
an order of removal] shall be filed with the court of appeals for the judicial circuit in which the
immigration judge completed the proceedings.”) (emphasis added), § 1252(b)(9) (providing,
inter alia, that except as otherwise provided in this section, “no court shall have jurisdiction, by .
. . section 1361 or 1651 or such title . . . to review such an order or such questions of law or
fact”), § 1252(g) (stating that, except as otherwise provided in this section and
“[n]otwithstanding any other provision of law (statutory or nonstatutory),” “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”); Elgharib, 600 F.3d at 606–07 (holding that Section
1252(g)’s reference to “Attorney General” now refers to the Secretary of Homeland Security).
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In the present case, 8 U.S.C. § 1252 deprives this Court of jurisdiction because, as
detailed above, Petitioner seeks review of a final order of deportation. Id.; see also Elgharib,
600 F.3d at 605 (“Congress acted within its constitutional powers to limit judicial review of
constitutional questions under § 1252, and we conclude that § 1252(a)(5) & (g) both preclude
district-court jurisdiction over constitutional challenges to final orders of removal.”); Maxwell v.
Bd. of Immigration Appeals, No. 4:06-cv-353, 2006 WL 2987718, at *2 (N.D. Ohio Oct. 17,
2006) (“As a result, § 1252 now precludes all review, including habeas, in district courts.”). As
set forth above, the proper venue for review of a final order of deportation is the “[c]ourt of
appeals for the judicial circuit in which the immigration judge completed the proceedings,” 12
U.S.C. § 1252(b)(2), namely here, the United States Court of Appeals for the Sixth Circuit. See
Elgharib, 600 F.3d at 600; see also ECF No. 9 (complaining of a deportation order issued by
Respondent Judge Evans in the Cleveland Immigration Court); N.D. Ohio Civ. R. 3.8(a)
(identifying Cleveland, Ohio as falling in the Northern District of Ohio, Eastern Division).
Moreover, Petitioner essentially concedes that he has not utilized the available appeal procedure
and exhausted his administrative remedies. (ECF No. 9 at 14 (contending that “the availability
of alternate remedies, such as an appeal, are immaterial”)); see In re Int’l Union of Operating
Eng’rs, Local 18, No. 84-3953, 1985 WL 12892, at *1 (6th Cir. 1985) (“A petition for a writ of
mandamus or prohibition cannot be used as a substitute for an appeal.”); In re Buckey, 395 F.2d
385, 387 (6th Cir. 1968) (“It is well settled that these extraordinary writs [writs of prohibition
and writs of mandamus] cannot be used as a substitute for appeal.”). For all these reasons, this
Court lacks jurisdiction to consider the Petition.
In addition, while Petitioner captions his Petition as “an original jurisdiction action”
under the All Writs Act, 28, U.S.C. § 1651 (ECF No. 9 at caption), he may not obtain review
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because Sections 1252(a)(5) and (g) “specifically prohibit” his claims that directly attack his
order of removal. Elgharib, 600 F.3d at 605; cf. Muka v. Baker, 559 F.3d 480, 483–86 (6th Cir.
2009) (upholding decision excluding habeas review from the district court’s jurisdiction under §
1252(a)(5) & (g) against a claim that this violated the Suspension Clause “[b]ecause there is a
remedy available, a petition for review filed with the court of appeals,” and § 1252(b)(9)
explicitly states that habeas review is unavailable). As previously noted, the Petition
specifically asks this Court to issue a writ of prohibition preventing Respondents from enforcing
Respondent Judge Evans’s deportation order and to “vacate the conviction and sentence” (ECF
No. 9 at ¶¶ 22–23, 31) and to issue a writ of mandamus compelling Respondent DHS/ICE to
terminate the deportation proceedings and to restore his permanent residence status (id. at ¶¶ 25–
27, 30–31). The Sixth Circuit has previously held that “[t]he REAL ID Act renders petitions for
review the exclusive means for judicial review for all orders of removal, except for limited
habeas review of expedited removal orders.” Almuhtaseb v. Gonzales, 453 F.3d 743, 747 (6th
Cir. 2006). Accordingly, “[b]oth § 1252(a)(5) and § 1252(g) deprive the district court of subjectmatter jurisdiction over [Petitioner’s] constitutional challenge to her final order of removal.”
Elgharib, 600 F.3d at 606.
Finally, “federal courts must have an independent basis for subject matter jurisdiction in
order to issue a writ in aid of such jurisdiction [under the All Writs Act].” Tropf v. Fidelity Nat.
Title Ins. Co., 289 F.3d 929, 943 (6th Cir. 2002); see also Yisra’EL v. U.S. Dep’t of Justice, No.
5:11-00289, 2011 WL 4458772, at *3 (E.D. Ky. Sept. 23, 2011) (“[T]he All Writs Act is not an
independent grant of jurisdiction to a court, but permits the issuance of writs in aid of the
jurisdiction which a court independently possesses.”). Here, Petitioner seeks review of a final
order of removal. Section 1252 specifically provides that the court of appeals in the judicial
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circuit in which the immigration judge completed the proceedings is the appropriate venue for
considering review of a removal order. The extraordinary relief that Petitioner seeks is therefore
unavailable under § 1651 because § 1252 specifically governs petitions for review of orders of
removal. See Tropf, 289 F.3d at 943; Yisra’EL, 2011 WL 4458772, at *3.
IV.
For the reasons explained above, the Court lacks jurisdiction to consider the Petition. It
is therefore RECOMMENDED that Petitioner’s claims be DISMISSED in their entirety. It is
FURTHER RECOMMENDED that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that
for the foregoing reasons an appeal of any Order adopting this Report and Recommendation
would not be taken in good faith and therefore deny Petitioner leave to appeal in forma pauperis.
See McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997).
Petitioner’s motions to compel the Clerk to send copies of summons forms and Marshal
service forms (ECF Nos. 6, 8) and his motion to compel this Court to conduct an initial screen
(ECF No. 12) are DENIED AS MOOT.
The Clerk is DIRECTED to forward a copy of the Petition (ECF No. 9) and this Order
and Initial Screen Report and Recommendation to the Defendants at the addresses listed on the
Petition.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
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Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat=l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.
Date: October 11, 2018
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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