Amaya Escobar v. Doll et al

Filing 15

MEMORANDUM OPINION AND ORDER - Petitioner Ryan Francisco Amaya Escobar's 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 is DISMISSED for lack of jurisdiction. However, in the interest of justice, the effect of this de cision is stayed until 5:00 p.m. on March 9, 2018. This will insure that the parties have, if necessary, adequate time to perfect an appeal, file a motion to reopen his removal order, or take any other action deemed appropriate to address Petitioners presence in this country without him being removed. The Clerk of Court is directed to close this case. Signed by Honorable Matthew W. Brann on 3/2/2018. (jr)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN FRANCISCO AMAYA
ESCOBAR,

No. 4:18-CV-00104
(Judge Brann)

Petitioner.
v.
CLAIR DOLL, et al.,
Respondents.
MEMORANDUM OPINION AND ORDER
MARCH 2, 2018
Petitioner Ryan Francisco Amaya Escobar filed the instant habeas corpus
action pursuant to 28 U.S.C. § 2241. Because this Court lacks jurisdiction to
review a final order of removal, this Petition will be dismissed.
I.

BACKGROUND
Petitioner Ryan Francisco Amaya Escobar (“Petitioner”) is an immigration

detainee in the custody of the United States Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”) at the York County Prison
pursuant to a final order of removal.1 He filed this counseled habeas corpus action

1

Petition for Writ of Habeas Corpus (ECF No. 1) ¶¶ 1–3.

-1 -

under 28 U.S.C. § 2241 on January 12, 2018.2 The history of immigration
proceedings relevant to disposition of the instant action is as follows.
On or about January 12, 2010, Petitioner, a native and citizen of Honduras,
was served with a Notice to Appear which informed him that removal proceedings
pursuant to Section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a,
had been instituted against him.3 Petitioner was found removable pursuant to
Section 212(a)(6)(i) on the basis that he was an alien present in the United States
without being admitted or paroled.4 He thereafter appeared before an Immigration
Court on January 14, 2010 for a custody determination, and was released from
custody on $7,500 bond.5
On or about April 7, 2010, Amaya-Escobar was granted a change of venue
to New York.6 Petitioner thereafter requested continuances at scheduled hearings
on June 9, 2010, September 19, 2010, February 9, 2011, and June 29, 2011.7 He
did not appear at the next scheduled hearing on August 17, 2011, and was ordered

2

Id.

3

Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh. 1
(Declaration of Christopher Snell) ¶ 2; Exh. 2 (January 12, 2010 Notice to Appear).

4

Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh. 2
(January 12, 2010 Notice to Appear).

5

Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh. 1
(Declaration of Christopher Snell) ¶ 4.

6

Id. ¶ 5.

7

Id. ¶¶ 6, 7, & 8.

-2 -

removed in absentia.8 Under this Order, Petitioner was required to report to
Enforcement and Removal Operations on or before January 6, 2012.9 After he
failed to report on that date, he was subsequently placed in fugitive status.10 On
December 20, 2017, Petitioner was arrested at his residence by ICE after it
receiving a tip from the Allentown Police Department following a traffic stop.11
Based on his imminent removal, Petitioner filed the instant Petition for Writ
of Habeas Corpus with Emergency Stay of Deportation on January 12, 2018.12
Petitioner specifically alleges that his due process rights under the Fifth
Amendment to the United States Constitution were violated when he was not
afforded a credible fear interview pursuant to 8 U.S.C. § 1225(b)(1)(A)(ii)
following his recent arrest.13 The Court subsequently issued a temporary stay of
deportation on January 12, 2018 pending resolution of the merits of this case,14 and
following briefing regarding this Court’s jurisdiction, this matter is now ripe for
disposition.15

8

Id. ¶ 9; See Petition for Writ of Habeas Corpus (ECF No. 1), Exh. C.

9

Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh. 1
(Declaration of Christopher Snell) ¶ 10.

10

Id.

11

See Petition for Writ of Habeas Corpus (ECF No. 1) ¶ 19.

12

ECF No. 1.

13

Id. ¶¶ 24–31.

14

ECF No. 2.

15

ECF Nos. 13 & 14.

-3 -

II.

ANALYSIS
Federal courts are courts of limited jurisdiction that have a continuing duty

to satisfy themselves of jurisdiction before addressing the merits of a case.16 With
respect to habeas corpus petitions filed by United States Immigration and Customs
Enforcement (“ICE”) detainees, federal district courts have jurisdiction only when
the detainee is seeking immediate release on bond on the grounds that his
continued detention is unconstitutional.17 No such relief is requested in the present
matter.
Rather, Petitioner here asks that the Court (1) refer him to an asylum officer
in Lyndhurst, New Jersey for a credible fear interview, (2) issue a stay of
deportation pending the outcome of his credible fear interview, and (3) grant “any
other and further relief as this court may deem just and proper.”18 Petitioner argues
that this relief is appropriate because, following his arrest on December 20, 2017—
well past the issuance of an order of removal on August 17, 2011—he expressed a
fear of persecution if removed to Honduras and that immigration officials violated
his due process rights by denying him a credible fear interview.19 Respondents
answer that, pursuant to the Real ID Act of 2005, this Court is without jurisdiction
16

Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1049 (3d Cir. 1993).

17

Clarke v. Department of Homeland Security, No. 13-CV-1862, 2009 WL 2475440,
at *1 (M.D.Pa. Aug.12, 2009) (Jones, J.).

18

Petition for Writ of Habeas Corpus (ECF No. 1), at 8.

19

Petitioner’s Br. in Supp. of Jurisdiction (ECF No. 14), at 2–3.

-4 -

to adjudicate the matter, and, even if it had jurisdiction, the petition is otherwise
baseless for lack of entitlement to a credible fear interview and failure to exhaust
administrative proceedings.20 Because I conclude that this Court lacks jurisdiction,
I will not reach these latter arguments advanced by Respondent.
The Real ID Act of 2005, codified at 8 U.S.C. § 1252, eliminated district
courts’ jurisdiction to review final orders of removal.21 Indeed, Section
1252(a)(5) provides that:
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).22
Our Court of Appeals has cautioned, however, that courts “must be careful to
maintain the distinction Congress made in the REAL ID Act between those
challenges that must be transferred and those that must be retained in and decided
by the district court.”23 To that end, “only challenges that directly implicate the
order of removal . . . are properly the subject of transfer [to the Court of Appeals]

20

See generally Response to Petition for Writ of Habeas Corpus (ECF No. 13).

21

Jordon v. Attorney Gen. of U.S., 424 F.3d 320, 326 (3d Cir. 2005).

22

8 U.S.C. § 1252(a)(5)(emphasis added).

23

Nnadika v. Attorney Gen. of U.S., 484 F.3d 626, 632 (3d Cir. 2007).

-5 -

under the REAL ID Act.”24 Challenges to detention that are independent of
challenges to removal orders are, therefore, not precluded.25
Here, there is no dispute that a final order of removal was issued in absentia
on August 17, 2011.26 Rather, the issue remaining is whether the challenge lodged
by Petitioner implicates the final order of removal—precluding this Court’s
jurisdiction—or is independent of this order and thus properly before the Court. In
his petition and supplemental briefing ordered by this Court, Petitioner argues that
his challenge is independent of the final order of removal entered. As noted,
Plaintiff alleges that his Fifth Amendment right to due process was violated when,
following his arrest on December 20, 2017, he was scheduled to be removed
pursuant to the August 17, 2011 Order without the benefit of a credible fear or
reasonable fear interview.27 That relief was nevertheless available through the
prior Immigration Court proceedings, and Petitioner’s requests now show this
Court’s lack of jurisdiction. Here’s why.
The facts of this case reveal that removal proceedings against Petitioner
were commenced under Section 240 of the Immigration and Naturalization Act, 8

24

Id.

25

Id.

26

Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh. 1, ¶
9.

27

See generally Petitioner’s Br. in Supp. of Jurisdiction (ECF No. 14).

-6 -

U.S.C. § 1229a.28 Through those proceedings, Petitioner had the opportunity to
pursue asylum under 8 U.S.C. § 1158 before an Immigration Judge. After multiple
continuances, Amaya Escobar failed to attend the scheduled August 17, 2011
hearing and was ordered removed in absentia.29 Now, rather than filing a motion
to reopen proceedings,30 Petitioner attempts to re-litigate the validity of this order
by seemingly requesting either (1) a credible fear interview pursuant to 8 U.S.C. §
1225(b)(1)(A)(ii) or (2) a reasonable fear interview under 8 C.F.R. § 208.31.31
Neither of these requests are available under removal proceedings brought under 8
U.S.C. § 1229a.32 Therefore, while not “explicitly styled” as such, I find that the

28

See Exhibits in Support of Resp. to Petition for Writ of Habeas Corpus (ECF No. 13-1), Exh.
1 (Declaration of Christopher Snell) ¶ 2; Exh. 2 (January 12, 2010 Notice to Appear).

29

See 8 U.S.C. § 1229a (“Any alien who, after written notice required under paragraph
(1) or (2) of section 1229(a) of this title has been provided to the alien or the alien's counsel
of record, does not attend a proceeding under this section, shall be ordered removed in
absentia if the Service establishes by clear, unequivocal, and convincing evidence that the
written notice was so provided and that the alien is removable (as defined in subsection
(e)(2)).”).

30

See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 U.S.C. § 1229a(b)(5)(C)(“Such an order may be
rescinded only--(i) upon a motion to reopen filed within 180 days after the date of the order
of removal if the alien demonstrates that the failure to appear was because of exceptional
circumstances (as defined in subsection (e)(1))”).

31

Petitioner’s Br. in Supp. of Jurisdiction (ECF No. 14), at 7–8.

32

A “credible fear” interview is afforded to arriving aliens encountered at the border who are
issued expedited removal orders under 8 U.S.C. § 1225(b)(1). A “reasonable fear” interview
under 8 C.F.R. § 208.31 is afforded aliens ordered removed pursuant to Section 238(b) of the
INA (expedited removal of aliens convicted of committing aggravated felonies) or Section
241(a)(5) (reinstatement of orders concerning aliens who have reentered the United States
illegally after having been removed or having departed voluntarily). Neither of these
circumstances apply to Petitioner, and through his removal proceedings under Section 240,
he nevertheless had the opportunities afforded by these provisions.

-7 -

instant petition, requesting relief afforded below, necessarily implicates the validity
of the removal order of August 17, 2011 and divests this Court of jurisdiction.33
Petitioner also avers, however, that this Court has jurisdiction pursuant to the
All Writs Act, codified at 28 U.S.C. § 1651 and Section 702 of the Administrative
Procedures Act (“APA”).34 First, Petitioner’s citation to the All Writs Act, or 28
U.S.C. § 1651, is inapposite. Indeed, as recognized explicitly by our Court of
Appeals, citation to the act does not provide this Court with jurisdiction to grant
the relief requested—a stay of removal.35 Section 1252(g), or the portion of the
INA restricting jurisdiction of the courts, applies notwithstanding the All Writs
Act.36
Petitioner’s citation to the Administrative Procedures Act mandates a similar
conclusion. Jurisdiction under the APA is available when (1) the agency action is
final, (2) the action adversely affects the party seeking review, and (3) the action is
non-discretionary.37 The first of these elements—finality—requires that (1) the
action marks the “‘consummation’ of the agency’s decisionmaking process,” and

33

See Jimenez v. Holder, 338 F.App’x. 194, 196 (3d Cir. 2009).

34

See Petitioner’s Br. in Supp. of Jurisdiction (ECF No. 14), at 8–9.

35

See Barrios v. Attorney General of the United States, 452 F.App’x. 196, 198 (3d Cir.
2011)(non-precedential).

36

See 8 U.S.C. § 1252(g) (stating that the restrictions on jurisdiction apply “notwithstanding
any other provision of law (statutory or nonstatutory), including ... [28 U.S.C. § 1651]”).

37

Pinho v. Gonzales, 432 F.3d 193, 200 (3d Cir. 2005).

-8 -

(2) the action must be one by which “‘rights or obligations have been
determined.”38
The action challenged here—failure to refer Petitioner for a credible fear or
reasonable fear determination—fails to satisfy these elements. Indeed, this denial
of remedies ultimately not applicable to Petitioner comes years following the
consummation of removal proceedings. Pertinent to this determination is 8 U.S.C.
§ 1101(a)(47). That section describes that an order of removal—such as the instant
August 17, 2011 Order—is final upon the earlier of (1) an affirmance by the BIA
or (2) “the expiration of the period in which the alien is permitted to seek review of
such order by the” BIA. Petitioner’s order of removal issued in absentia may be
rescinded only:
(i) upon a motion to reopen filed within 180 days after the date of the
order of removal if the alien demonstrates that the failure to appear
was because of exceptional circumstances (as defined in subsection
(e)(1)), or
(ii) upon a motion to reopen filed at any time if the alien demonstrates
that the alien did not receive notice in accordance with paragraph
(1) or (2) of section 1229(a) of this title or the alien demonstrates that
the alien was in Federal or State custody and the failure to appear was
through no fault of the alien.39

38

Id. at 200 (citations omitted).

39

8 U.S.C. § 1229a(b)(5)(C)( “The filing of the motion to reopen described in clause (i) or (ii)
shall stay the removal of the alien pending disposition of the motion by the immigration
judge.”).

-9 -

The order is therefore not in itself appealable to the BIA. Rather, appeal is limited
to an Immigration Judge’s denial of a motion to reopen.40
Here, the time in which to file a motion to reopen the August 17, 2011 Order
of removal under 8 U.S.C. § 1229a(b)(5)(C) has long since passed. It is that
passage of time which marks the formal consummation of the agency’s decision
making process.41 The action challenged—denial of a credible fear or reasonable
fear interview—implicates two provisions outside the scope of removal
proceedings under Section 240 of the INA. Their citation is therefore inapplicable
and the denial of such interviews cannot be considered a final agency action
determinative of Petitioner’s rights. In sum, as finality of agency action cannot be
found in the challenged actions, jurisdiction is similarly wanting under the APA.
Finally, while this Court is without jurisdiction, a petition may nevertheless
be transferred to the Court of Appeals in certain circumstances. Petitions for
review, the sole vehicle whereby aliens can challenge removal orders, must
however be filed with the proper court of appeals within the first thirty (30) days
after issuance of an order of removal, and any transfer must fall within that

40

See 8 C.F.R. § 1240.15 (“no appeal shall lie from an order of removal entered in absentia.”);
8 C.F.R. § 1241.1(e) (“An order of removal . . . shall become final . . . [i]f an immigration
judge orders an alien removed in the alien’s absence immediately upon entry of such
order.”).

41

Pinho, 432 F.3d at 200.

- 10 -

window.42 Here, Petitioner is challenging an August 17, 2011 order of removal.
This matter is therefore untimely for transfer as its commencement on January 12,
2018 is well beyond the above thirty (30) day window.43 Furthermore, the factual
record before this Court demonstrates that Petitioner has not exhausted his
administrative remedies by filing a motion to reopen the removal order and
thereafter appealing any adverse decision to the Board of Immigration Appeals
(“BIA”).44 Therefore, because there is no question that the BIA is capable of
granting the remedy Petitioner seeks—a reopening of his removal order, this
failure to exhaust would divest the Court of Appeals of jurisdiction over a petition
for review.45 Transfer is therefore inappropriate.
AND NOW, in accordance with the above reasoning, Petitioner Ryan
Francisco Amaya Escobar’s Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2241 (ECF No. 1) is DISMISSED for lack of jurisdiction.
However, in the interest of justice, the effect of this decision is stayed until
5:00 p.m. on March 9, 2018. This will insure that the parties have, if necessary,
42

8 U.S.C. § 1252(B)(1); Kolkevich v. Attorney General of the United States, 501 F.3d 323,
329 (3d Cir. 2007).

43

See Bakayoka v. Decker, No. 08-CV-1158, 2008 WL 4148241, at *1 (M.D.Pa. Aug. 28,
2008)(citing Monteiro v. Attorney General, 261 F. App’x. 368, 369 (3d Cir. 2008) (per
curiam) (nonprecedential).

44

See Yi v. Maugans, 24 F.3d 500, 503-04 (3d Cir. 1994)(“This statutory exhaustion
requirement is jurisdictional, (citation omitted), and generally includes the filing of an appeal
of a final order of removal or exclusion to the BIA.”).

45

See Joseph v. Attorney General of the United States, 235 F. App’x. 885, 888 (3d Cir.
2007)(non-precedential).

- 11 -

adequate time to perfect an appeal, file a motion to reopen his removal order, or
take any other action deemed appropriate to address Petitioner’s presence in this
country without him being removed.
The Clerk of Court is directed to close this case.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

- 12 -