Agarwal v. Lynch

• Decision Date: 06 July 2022
• Docket Number: Case No. 21-cv-12688
• Citation: 610 F.Supp.3d 990
• Parties: Amit Ramesh AGARWAL, Petitioner, v. Robert E. LYNCH, et al., Respondents.
• Court: U.S. District Court — Eastern District of Michigan

610 F.Supp.3d 990

Amit Ramesh AGARWAL, Petitioner,

v.Robert E. LYNCH, et al., Respondents.

Case No. 21-cv-12688

United States District Court, E.D. Michigan, Southern Division.

Signed July 6, 2022

David Isaacson, Cyrus D. Mehta, Cyrus D. Mehta & Partners PLLC, New York, NY, for Petitioner.

Jennifer L. Newby, U.S. Attorney, Defensive Litigation, Detroit, MI, for Respondents Robert E. Lynch, Alejandro N. Mayorkas, Antony J. Blinken, Merrick B. Garland.

Philip D. Goldsmith, Lennard & Graham, Monroe, MI, for Respondent Troy Goodnough.

OPINION AND ORDER DENYING RESPONDENTS’ MOTION TO DISMISS (ECF No. 14)

MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE

Petitioner Amit Ramesh Agarwal is a citizen of India. In October 2021, while Agarwal was present in the United States, officers from United States Immigration and Customs Enforcement ("ICE") took him into their custody, lodged him at the Monroe County Jail, and commenced expedited removal proceedings against him. Agarwal then filed a petition for a writ of habeas corpus in this Court against Respondents Robert E. Lynch, Alejandro Mayorkas, Anthony Blinken, and Merrick Garland. (See Pet., ECF No. 1.) In the petition, Agarwal argued, among other things, that he should immediately be released from custody because (1) he had not, in fact, been ordered removed under a final order of expedited removal and (2) assuming arguendo that a final order of expedited removal had been issued against him, the order was invalid under both the Appointments Clause and the Due Process Clause of the United States Constitution.

On the eve of Agarwal's scheduled removal, he filed an emergency motion for a temporary restraining order barring ICE from removing him. (See Agarwal Mot. for TRO, ECF No. 6.) The Court denied the motion because Agarwal had delayed seeking emergency relief and because he failed to persuade the Court, in the extremely limited period of time available for emergency review of his claims, that he had a substantial likelihood of success on the merits. (See Order, ECF No. 12.) A few hours after the Court denied the motion, Agarwal was removed to India.

Respondents have now moved to dismiss all of Agarwal's claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction and to dismiss one of his claims under Rule 12(b)(6) for failure to state a claim. (See Mot. to Dismiss, ECF No. 14.) Respondents’ primary argument is that Congress has sharply limited the grounds on which an immigrant may challenge an expedited removal order in federal court and that Agarwal's claims do not fall within the narrow class of claims that are subject to review. The motion has been thoroughly briefed by both sides, and both sides presented lengthy oral arguments to the Court at a hearing on Respondents’ motion. Thus, the Court has been able to review the key issues in this case much more carefully than it was previously able to do during the emergency TRO proceedings. Having completed that review, and for the reasons explained below, the Court DENIES Respondents’ motion to dismiss.

I

The Court begins with a brief explanation as to how the expedited removal process differs from the standard removal process and with a brief description of Congress’ effort to limit judicial review of expedited removal orders.

A

Under the Immigration and Nationality Act (the "INA"), 8 U.S.C. § 1101 et seq. , all non-citizens "present in the United States who [have] not been admitted or who arrive[ ] in the United States ... shall be deemed ... an applicant for admission" to this country. 8 U.S.C. § 1225(a)(1). All such "applicants for admission ... shall be inspected by [an] immigration officer[ ]." 8 U.S.C. § 1225(a)(3). In general, "if the examining immigration officer determines that [an applicant] seeking admission is not clearly and beyond a doubt entitled to be admitted, the [applicant] shall be detained" for a hearing before an immigration judge. 8 U.S.C. § 1225(b)(2)(A). "[A]t that hearing [the applicant] may attempt to show that he or she should not be removed." Dep't of Homeland Sec. v. Thuraissigiam , ––– U.S. ––––, 140 S. Ct. 1959, 1964, 207 L.Ed.2d 427 (2020). For example, an applicant "may apply for asylum on the ground that he or she would be persecuted if returned to his or her home country." Id. "If that claim is rejected and the [applicant] is ordered removed, the [applicant] can appeal the removal order to the Board of Immigration Appeals and, if that appeal is unsuccessful, the [applicant] is generally entitled to review in a federal court of appeals." Id. "The average civil appeal takes approximately one year. During the time when removal is being litigated, the [applicant] will either be detained, at considerable expense, or allowed to reside in this country, with the attendant risk that he or she may not later be found." Id.

For certain classes of immigrants, Congress has created an expedited removal process. The criteria for expedited removal are codified in Section 1225(b)(1) of the INA, 8 U.S.C. § 1225(b)(1). Under that provision, "[a]n applicant is subject to expedited removal if ... the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not ‘been physically present in the United States continuously for the 2-year period immediately prior to the date of the determination of inadmissibility’; and (3) is among those whom the Secretary of Homeland Security has designated for expedited removal." Id. at 1964–65 (quoting 8 U.S.C. § 1225(b)(1)(A)(i), (iii)(I)–(III) ). "Once ‘an immigration officer determines’ that a designated applicant" is subject to expedited removal on these grounds, " ‘the officer [must] order the [applicant] removed from the United States without further hearing or review.’ " Id. (quoting 8 U.S.C. § 1225(b)(1)(A)(i) ). An applicant removed under these expedited removal proceedings is deemed "inadmissible" to the United States for a period of at least five years following that removal. 8 U.S.C. § 1182(a)(9)(A)(i).

B

Congress has substantially limited the authority of federal courts to review orders of expedited removal. Section 1252(a) of the INA, 8 U.S.C. § 1252(a) (" Section 1252(a)"), strips courts of jurisdiction to review those orders, except for the limited judicial review authorized by Section 1252(e) of the INA, 8 U.S.C. § 1252(e) (" Section 1252(e)"). In Castro v. United States Department of Homeland Security , 835 F.3d 422 (3d Cir. 2016), the United States Court of Appeals for the Third Circuit provided a helpful and comprehensive overview of the limitations imposed by Section 1252(a) and the limited review available under Section 1252(e). The Court quotes that overview at length below:

Section 1252 of Title 8 defines the scope of judicial review for all orders of removal. This statute narrowly circumscribes judicial review for expedited removal orders issued pursuant to § 1225(b)(1). [....] Moreover, except as provided in [ Section 1252(e) ], [ Section 1252(a) ] strips courts of jurisdiction to review: (1) "any individual determination or to entertain any other cause or claim arising from or relating to the implementation or operation of an [expedited removal] order"; (2) "a decision by the Attorney General to invoke" the expedited removal regime; and (3) the "procedures and policies adopted by the Attorney General to implement the provisions of [ § 1225(b)(1) ]." Id. § 1252(a)(2)(A)(i), (ii) & (iv). Thus, the statute makes abundantly clear that whatever jurisdiction courts have to review issues relating to expedited removal orders arises under [ Section 1252(e) ].

Section 1252(e), for its part, preserves judicial review for only a small subset of issues relating to individual expedited removal orders:

Judicial review of any determination made under [ § 1225(b)(1) ] is available in habeas corpus proceedings, but shall be limited to determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under [ § 1225(b)(1) ], and

(C) whether the petitioner can prove ... that the petitioner is [a lawful permanent resident], has been admitted as a refugee ... or has been granted asylum

....

Id. § 1252(e)(2). In reviewing a determination under subpart (B) above—i.e., in deciding "whether the petitioner was ordered removed under [ § 1225(b)(1) ]"—"the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually admissible or entitled to any relief from removal." Id. § 1252(e)(5).

Section 1252(e) also provides jurisdiction to the district court for the District of Columbia to review "[c]hallenges [to the] validity of the [expedited removal] system." Id. § 1252(e)(3)(A). Such systemic challenges include challenges to the constitutionality of any provision of the expedited removal statute or its implementing regulations, as well as challenges claiming that a given regulation is inconsistent with law. Seeid. § 1252(e)(3)(A)(i) & (ii). Nevertheless, systemic challenges must be brought within sixty days after implementation of the challenged statute or regulation. Id. § 1252(e)(3)(B); see alsoAm. Immigration Lawyers Ass'n v. Reno , 18 F.Supp.2d 38, 47 (D.D.C. 1998), aff'd , 199 F.3d 1352 (D.C. Cir. 2000) (holding that "the 60-day requirement is jurisdictional rather than a traditional limitations period").

Id. at 426–27.

II¹

A

Agarwal is a native and citizen of India. (See Pet. at ¶8, ECF No. 1, PageID.4.) Agarwal came to the United States to attend college, and he graduated from Farleigh Dickinson University in New Jersey. (See id. at ¶14, PageID.5.) "[B]eginning in 2009, Mr. Agarwal was the beneficiary of several approved petitions as an ‘H-1B’ nonimmigrant pursuant to 8 U.S.C. § 1101(a)(15)(H)(i)(b) as a noncitizen coming temporarily to the United States to perform services in a specialty occupation. Including a brief period as the ‘H-4’ nonimmigrant spouse of his wife, Sonal...