Alam v. Nielsen, et al

Filing 22

MEMORANDUM AND ORDER granting 10 Amended MOTION to Dismiss 1 Petition for Writ of Habeas Corpus without prejudice and vacating previously entered stay.(Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SYED MUEED ALAM,
Petitioner,
VS.
KRISTJEN NIELSEN, et al.,
Respondents.

May 09, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 4:18-CV-680
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MEMORANDUM & ORDER
The story of immigration in American life, it has been said, is a “complicated history of
inclusion and exclusion.” Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d
524, 526 (5th Cir. 2013) (Higginson, J.). At times to further inclusion, at other times to further
exclusion, the federal government “has broad, undoubted power over the subject of immigration
and the status of aliens.” Arizona v. U.S., 567 U.S. 387, 394 (2012). Even with that power’s
breadth, acts of exclusion have “unfolded according to law, but also contrary to law.” Villas at
Parkside Partners, 726 F.3d at 526. This case arises from the government’s use of its power to
exclude Petitioner Syed Mueed Alam from the United States. Alam contends that the
government has acted contrary to law. This Court must decide whether that is so.
A father of three who overstayed his visa nearly two decades ago so his daughter could
obtain health care, Alam is now in the custody of U.S. Immigration and Customs Enforcement
(ICE). His petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenges that custody as
a violation of federal regulations, 8 C.F.R. pt. 241, and a deprivation of due process. (Doc. No.
1.) Respondents––officials, departments, and contractors of the federal government––have

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moved to dismiss Alam’s petition, challenging this Court’s jurisdiction over its subject matter.
(Doc. No. 10.) In recognition of the jurisdictional question’s complexity, the Court has thus far
stayed the removal of Alam. (Doc. No. 9, 14.) In the interim, amici have added to the parties’
briefing on the jurisdictional question, advancing a theory distinct from Alam’s. (Doc. No. 20.)
Respondents have offered no justification for taking this man from his family and his
home after so many years of harmless presence here, and the Court can think of none. It is to this
Court’s regret, therefore, that Alam’s petition fails. It fails not for this Court’s lack of subjectmatter jurisdiction to consider his regulatory claims, but because those regulations furnish no
protection to a person in his unfortunate position. In furtherance of exclusion, Congress has laid
out a short and straight path by which the Executive may remove people whose presence here
violates the law. The Executive has adopted regulations to serve that purpose, the lawfulness of
which Alam does not challenge. A court’s role “is not to assess the optimal immigration policies
for our country.” City of Chicago v. Sessions, --- F.3d ---, 2018 WL 1868327, at *1 (7th Cir. Apr.
19, 2018). In carrying out its role, a court must abide the separation of powers, “one of the
bedrock principles of our nation, the protection of which transcends political party affiliation and
rests at the heart of our system of government.” Id. Sometimes the separation of powers counsels
judicial action. See id. Here, however, it counsels the opposite. This Court is not “compelled to
find the government’s action in this case fair or just.” Cf. Ortiz v. Sessions, 857 F.3d 966, 967
(9th Cir. 2018) (Reinhardt, J., concurring). But it is compelled to find it lawful.
Grateful for the efforts of the parties and amici, mindful of the momentous stakes, but
cognizant of its role in our system of government, the Court must grant Respondents’ Motion to
Dismiss.

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I
Alam, a native and citizen of Pakistan, was born there in 1965. (Doc. No. 1 at 3.) He
brought his family to the U.S. in July 2000 on tourist visas so that one of his daughters could
obtain medical care that was unavailable in Pakistan for “a life threatening condition.” (Id.)
Letters from American and Pakistani doctors attest to her condition’s hazards and to the
availability of treatment here but not there. (Doc. No. 1-1 at 26–35.)
Alam’s visa permitted him to be here only six months. (Doc. No. 8-2 at 1.) In March
2003, the government initiated proceedings against Alam for overstaying his visa. (Id.) Alam
sought asylum, withholding of removal, and relief under the Convention Against Torture,1 but an
Immigration Judge rejected his application. (Doc. No. 1 at 4.) In May 2004, the judge permitted
Alam to depart voluntarily, but instead, he remained in the U.S., appealing his case to the Board
of Immigration Appeals. (Doc. No. 8-2 at 1–2.) The Board dismissed his appeal in 2005, and the
Fifth Circuit dismissed his petition for review in August 2006. (Doc. No. 1 at 4.) ICE then took
Alam into custody that November. (Id.) The next month, however, Alam was released under an
Order of Supervision. (Id.) The Order, dated December 28, 2006, permitted Alam to be “at large”
in the U.S., provided that he reported when ordered and complied with other conditions. (Doc.
No. 1-2 at 34.) Alam supplies that Order as an exhibit, and it bears many stamps showing that he
reported as required over the intervening years. (Id. at 35.)
For a decade afterward, ICE stayed Alam’s removal, one or two years at a time. He
obtained his first stay, via a letter dated August 2007, from the ICE field office director. (Doc.
No. 1-1 at 37.) Relying on 8 C.F.R. § 241.6, the ICE official cited the medical needs of Alam’s

Alam’s filings do not make clear why he feared a return to Pakistan. The exhibits concerning his daughter’s health
condition and need for medical care suggest a link between her condition, the perception of that condition in
Pakistani culture, and his fear of returning there. Alam has chosen to be discreet, however, and in respect for his
family’s privacy, the Court declines to speculate.
1

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daughter as the justification. (Id.) Alam also provides letters dated September 2015 and
December 2016, granting one-year stays for the same reason. (Id. at 40–41.) In the interim, Alam
and his family lived peacefully in the Houston area. (Doc. No. 1-1 at 12.) Alam worked and paid
taxes. His other daughter married a U.S. citizen, became one herself, and produced a U.S. citizen
grandchild. His two other children––the daughter in need of medical care and a son––received
protection under Deferred Action for Childhood Arrivals (DACA). (Id.)
In December 2017, Alam again applied for a stay of removal (Doc. No. 1-2 at 7), but the
government departed from its previous course. In a letter dated January 29, 2018, the ICE field
office director, Patrick Contreras, recounted the history of Alam’s case and the justifications for
prior stays, but without explanation, Contreras concluded that a stay was “not warranted at this
time.” (Doc. No. 1-1 at 79–80.)
Alam had last reported to ICE in August 2017 and was told then to come back in August
2018. (Doc. No. 1-2 at 145.) But after his stay of removal was discontinued, he received a letter
instructing him to appear on March 2, 2018.2 (Id. at 147.) When Alam appeared on March 2, ICE
“verbally cancelled” the Order of Supervision under which he had been living and took him into
custody. (Doc. No. 8-2 at 2.) His counsel filed the pending habeas petition that same day. (Doc.
No. 1.)
As Alam was pursuing renewal of the stay, he was also working to obtain an adjustment
of his status. (Doc. No. 1 at 4.) His U.S. citizen daughter had filed a visa petition on his behalf,
which was approved on February 2, 2018. (Id.) On this basis, Alam returned to the Board and
filed a motion to reopen his case, on which the Board had last ruled more than a decade earlier.
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The letter bore the insignia of U.S. Citizenship and Immigration Services, not ICE, and directed Alam to appear at
the “Houston District Office Non Detained Duty Window.” “INTERVIEW” was the reason given for the
appearance. The letter was signed by Contreras, whose title in this instance simply was “Field Office Director,” with
no mention of ICE. (Doc. No. 1-2 at 147.) Alam notes these oddities but does not ground his claims on their
potential to mislead.

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(Doc. No. 1-1 at 5.) Alam’s motion, filed on February 9, sought an emergency stay of removal
and invoked the Board’s authority to reopen proceedings sua sponte “in unique situations where
it would serve the interest of justice.” (Id. at 7.) The Board denied his request for an emergency
stay on March 19; his motion remains pending before the Board. (Doc. No. 17 at 9.)

II
Alam’s petition relies on the regulations that govern ICE’s authority to revoke orders of
supervision and return immigrants to detention. (Doc. No. 1 at 6.) Alam cites 8 C.F.R. § 241.13,
which “establishes special review procedures for those aliens who are subject to a final order of
removal and are detained … [but] where the alien has provided good reason to believe there is no
significant likelihood of removal … in the reasonably foreseeable future.” Id. § 241.13(a). Alam
charges that “ICE acted beyond the scope of its regulatory framework.” (Id.)
Respondents argue that a provision of the REAL ID Act, 8 U.S.C. § 1252,3 strips this
Court of jurisdiction to consider Alam’s claim. (Doc. No. 10 at 5.) “Federal courts are courts of
limited jurisdiction. They possess only that power authorized by Constitution and statute.”
Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). “It is to be presumed
that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests
upon the party asserting jurisdiction.” Id. Accordingly, the Court must determine whether
Respondents’ interpretation of the REAL ID Act is correct.
The statute addresses judicial review of final orders of removal. It provides that “a
petition for review filed with an appropriate court of appeals … shall be the sole and exclusive

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The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) enacted this provision. In INS
v. St. Cyr, the Supreme Court construed it not to deprive district courts of habeas jurisdiction over challenges to the
Attorney General’s use of discretion in deportation proceedings. 533 U.S. 289 (2001). Congress then amended 8
U.S.C. § 1252 in the REAL ID Act of 2005 to include habeas corpus in the jurisdiction-stripping provisions.

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means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5). The statute makes
expressly clear that this limitation applies to habeas corpus. Id. “[A]ll questions of law and fact,
including interpretation and application of constitutional and statutory provisions, arising from
any action taken or proceeding brought to remove an alien from the United States,” are
consolidated in this single review. Id. § 1252(b)(9). “[N]o other 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.” Id. § 1252(g).
As all-encompassing as those provisions may seem, the Supreme Court has noted their
limitations. Section 1252(g) does not “cover[] the universe of deportation claims.” Reno v.
American-Arab Anti-Discrim. Cmte., 525 U.S. 471, 482 (1999). Rather, “it applies only to three
discrete actions that the Attorney General may take: [the] ‘decision or action’ to ‘commence
proceedings, adjudicate cases, or execute removal orders.’” Id. (emphasis in original). “There are
of course many other decisions or actions that may be part of the deportation process.” Id.
Habeas challenges to immigrant detention are among the claims that lie outside Section
1252(g)’s scope. See Jennings v. Rodriguez, 138 S. Ct. 830 (2018); Zadvydas v. Davis, 533 U.S.
678 (2001). In Jennings, the Supreme Court considered whether certain immigrants, detained
during removal proceedings, were entitled to periodic bond hearings. 138 S. Ct. at 836. Justice
Alito observed that the petitioners were not asking for orders of removal or any aspect of their
removal proceedings to be reviewed. Id. at 841 (plurality opinion).4 He rejected characterizing
the petitioners’ claims as arising from their removal proceedings, because such an “expansive”

Only two other justices joined this part of Justice Alito’s opinion. The Court’s three dissenters, however, would
have granted relief to the petitioners. 138 S. Ct. at 859. With only Justices Thomas and Gorsuch taking the view that
no jurisdiction existed, and with Justice Kagan recused, a 6–2 majority therefore favored the conclusion that Section
1252 did not deprive the courts of jurisdiction.
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and “extreme” interpretation would yield “staggering results.” Id. at 840. It “would make claims
of prolonged detention effectively unreviewable. By the time a final order of removal was
eventually entered, the allegedly excessive detention would have already taken place.” Id.
Accordingly, jurisdiction existed to consider the petitioners’ challenge. Id. at 841.
Likewise, in Zadvydas, the Supreme Court considered whether immigrants subject to
final orders of removal could challenge their detention. 533 U.S. at 686. The government would
ordinarily detain them for a “removal period” of ninety days after the orders of removal were
entered, and statute permitted detention thereafter under certain circumstances. Id. at 682 (citing
8 U.S.C. § 1231(a)(6)). The petitioners faced the prospect of indefinite detention because the
particulars of their cases made removal unlikely. Id. at 683–86. Noting that the petitioners
challenged only their detention, not their removal, the Court found that no statute deprived it of
habeas jurisdiction. Id. at 687–88.
So too here. Alam is clear that he does not challenge the order of removal entered against
him in 2004 and affirmed by the Board in 2005. Rather, his claim is against the process that ICE
followed in cancelling his Order of Supervision and returning him to detention. (Doc. No. 1 at 6.)
District courts have habeas jurisdiction to consider such claims. See, e.g., Rombot v. Souza, 2017
WL 4812037 (D. Mass. Oct. 25, 2017) (“Even after the REAL ID Act, however, the district court
holds jurisdiction to review habeas challenges to unlawful immigration detention.”); Rombot v.
Souza, 2017 WL 5178789 (D. Mass. Nov. 8, 2017) (granting relief to an immigrant detained in
violation of 8 C.F.R. § 241.4).
That jurisdiction exists to consider a claim, however, does not necessarily mean the claim
is meritorious. As noted, Alam invokes 8 C.F.R. § 241.13, but this section of the regulations does
not apply to him. Section 241.13 concerns the specific class of immigrant detainees for whom

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there is “no significant likelihood of removal … in the reasonably foreseeable future.” Id. §
241.13(a). That section specifies the processes by which such immigrants should be released
from custody. Id. § 241.13(d)–(h). It also constrains ICE’s authority to revoke their release and
return them to custody. Id. § 241.13(i). Removal is not “reasonably foreseeable” in cases “where
no country would accept the detainee, the country of origin refused to issue the proper travel
documents, the United States and the country of origin did not have a removal agreement in
place, or the country to which the deportee was going to be removed was unresponsive for a
significant period of time.” Clarke v. Kuplinski, 184 F. Supp. 3d 255, 260 (E.D. Va. 2016).
Nothing in Alam’s filings suggests that any such barrier now stands or ever stood in the way of
his removal.
If not 8 C.F.R. § 241.13, what governs Alam’s case? As noted, after an order of removal
is entered, the Attorney General has ninety days to remove the person and must detain the person
during that period. 8 U.S.C. § 1231(a)(1)–(2). The statute defines three points in time at which
the removal period may be considered to start: “(i) The date the order of removal becomes
administratively final[;] (ii) If the removal order is judicially reviewed and if a court orders a stay
of the removal of the alien, the date of the court’s final order[;] (iii) If the alien is detained or
confined (except under an immigration process), the date the alien is released from detention or
confinement.” 8 U.S.C. § 1231(a)(1)(B). Respondents contend that Alam currently is in the
removal period, asserting that Alam’s “most recent removal period began on March 2, 2018,
which is the latest date his supervised release was revoked.” (Doc. No. 10 at 8.) This argument is
meant to head off a claim from Alam under Zadvydas that his detention has continued for an
unlawfully long time, but it is inconsistent with the statute’s text. Alam’s current detention,

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coming more than a decade after his final order of removal was entered, quite plainly comports
with none of these three options in the text.
Rather, Alam’s current detention is best understood as occurring “beyond the removal
period,” per 8 U.S.C. § 1231(a)(6). It is thus subject to 8 C.F.R. § 241.4. That regulation
specifies a process for detaining people beyond the removal period and for releasing them
thereafter. Id. § 241.4(d)–(k). It also specifies a process for returning a person, once released,
back to detention. Id. § 241.4(l).
The regulation prescribes in considerable detail a set of custody reviews, release
procedures, and other processes, but through that forest has been cut that short and straight path
for immigrants whom the government is ready and able to remove. ICE officials can revoke a
person’s release when, in their discretion, “[i]t is appropriate to enforce a removal order.” 8
C.F.R. § 241.4(l)(2)(iii). In turn, the possibility of “prompt removal” suspends the custody
reviews that the regulation otherwise requires. Id. § 241.4(k)(3). No procedure in this regulation
creates a basis for Alam to challenge his current detention. Accordingly, Alam’s attempt to
deploy regulations against his current detention fails.

III
Amici, the American Civil Liberties Union Foundation, the ACLU Foundation of Texas,
and the American Immigration Council, advance a different theory of this Court’s jurisdiction.
(Doc. No. 20.) Rather than stake their theory on the regulations governing ICE’s release,
revocation, and detention decisions, amici focus on Alam’s motion to reopen, which is pending
before the Board. They highlight a problem with the Board’s handling of motions to reopen. The
Board can stay removal while an immigrant’s motion to reopen is pending. The circuit courts of

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appeals can as well, but they have jurisdiction to do so only after the Board has ruled on the
merits of the motion. If the Board denies a stay without ruling on the merits, there is a gap in
coverage. Nothing would prevent immigration authorities removing the immigrant even as his or
her motion remains pending. Amici urge this Court and other district courts to fill the gap,
staying removal until the Board reaches a merits decision on the motion to reopen. (Id. at 7–8.)
The problem, as Respondents note (Doc. No. 22), is that the REAL ID Act would seem to
foreclose a district court staying removal in this way, given that it deprives district courts of
“jurisdiction to hear any cause or claim … arising from the decision or action by the Attorney
General to … execute removal orders.” 8 U.S.C. § 1252(g). Amici cite numerous decisions by
district courts that nevertheless stay removal to permit resolution of motions to reopen. Some
courts have ruled that Section 1252 does not strip them of jurisdiction. See Sied v. Nielsen, 2018
WL 1142202 (N.D. Cal. Mar. 2, 2018); Chhoeun v. Marin, 2018 WL 566821 (S.D. Cal. Jan. 25,
2018); Gbotoe v. Jennings, 2017 WL 6039713 (N.D. Cal. Dec. 6, 2017); Devitri v. Cronen, 290
F. Supp. 3d 86 (D. Mass. 2017). Others have ruled that Section 1252 does strip them of
jurisdiction but thereby violates the Suspension Clause of the U.S. Constitution. See Ibrahim v.
Acosta, 2018 WL 582520 (S.D. Fla. Jan. 26, 2018); Hamama v. Adducci, 258 F. Supp. 3d 828
(E.D. Mich. 2017).
Some of these cases arise from the federal government’s recent efforts to deport religious
minorities back to countries where they face the risk of violent persecution. E.g., Devitri, 290 F.
Supp. 3d at 86 (Indonesian Christians); Hamama, 258 F. Supp. 3d at 832 (Iraqi Christians and
others). Others concern petitioners likely to face violence upon deportation for other reasons.
E.g., Ibrahim, 2018 WL 582520 at *2 (Somalis at risk from the “extremist fundamentalist group”
Al-Shabaab due to their time residing in the West). These petitioners invoke the statutory right to

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file a motion to reopen asylum claims based on changed conditions in the countries to which they
face removal. See 8 U.S.C. § 1229a(c)(7)(C)(ii). If removed, they would be attempting to litigate
their motions from the very countries where their lives and freedom are in jeopardy. A stay of
removal ensures that the statutory right to file those motions is meaningful.
Alam’s motion to reopen, by contrast, rests on the Board’s sua sponte authority to reopen
cases. Regulations give Immigration Judges and the Board the authority to reopen or reconsider
any case at any time. 8 C.F.R. § 1003.23(b)(1) (Immigration Judges); id. § 1003.2(a) (Board). A
so-called “regulatory motion to reopen” is not the same as a “statutory motion to reopen.” LugoResendez v. Lynch, 831 F.3d 337, 342 (5th Cir. 2015). The latter is a right, guarded by various
protections, while the former is akin to an act of grace. The difference is evident, for instance, in
whether denial of the motion is subject to judicial review. The Supreme Court has ruled that
denials of statutory motions to reopen are subject to judicial review. Kucana v. Holder, 558 U.S.
233, 253 (2010). The circuit courts, however, have agreed that denials of regulatory motions to
reopen are not. Id. at 251 n.18. Similarly, the “departure bar” regulations, which cut off
consideration of motions to reopen once immigrants are deported,5 have been invalidated as to
statutory motions to reopen. Garcia-Carias v. Holder, 697 F.3d 257, 264–66 (5th Cir. 2012).
They do apply to regulatory motions. Navarro-Miranda v. Ashcroft, 330 F.3d 672, 675–76 (5th
Cir. 2003).
Consequently, amici’s reasoning does not hold up when applied to regulatory motions to
reopen. Though much is at stake, a statutory right is not. Moreover, a circuit court could not
review a denial of the motion, so it is not the case that a gap exists between the Board’s power
and the circuit court’s power to stay removal. In the event a regulatory motion is denied, the
latter power never comes to be.
5

8 C.F.R. § 1003.2(d) (departure bar for the Board); id. § 1003.23(b)(1) (departure bar for Immigration Judges).

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Thus, the reasoning of the district court decisions cited above, however persuasive in
their contexts, does not establish this Court’s jurisdiction over the present case, nor does it justify
denying Respondents’ Motion to Dismiss.
***
Petitioner Syed Mueed Alam has not identified a valid basis for challenging the legality
of his current detention. Accordingly, this Court must GRANT Respondents’ Motion to Dismiss.
The stay that it previously entered (Doc. No. 9) is hereby VACATED. Owing to the possibility
that Alam’s removal is not speedily effected and a basis for challenging his detention might
develop in that event, Alam’s petition is DISMISSED WITHOUT PREJUDICE.
Finally, the Court observes that Respondents retain considerable power over Alam’s fate.
That power had been exercised humanely, if not by Respondents, then by their predecessors in
office across two presidential administrations. A compassionate and sensible decision is still
possible here. The Court cannot order it, but it can––and strenuously does––encourage it.
IT IS SO ORDERED.
SIGNED at Houston, Texas, on the 9th day of May, 2018.

HON. KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE

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