Alomaisi v. Decker
| Decision Date | 27 January 2020 |
| Docket Number | Civil Action 20 Civ. 5059 (VSB) (SLC) |
| Parties | HAZAEA MOHAMMED SENAN ALOMAISI, Petitioner, v. THOMAS R. DECKER, New York Field Office Director, Department of Homeland Security, Immigrations and Customs Enforcement, et al., Respondents. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Hazaea Mohammed Senan Alomaisi (“Alomaisi”), a citizen of Yemen, to which he was removed on January 28, 2020, filed a petition for a writ of habeas corpus and for mandamus (the “Petition”), asking this Court to order various federal government agencies and officials (the “Respondents”)[1] to return him from Yemen to the United States pending adjudication of the motion to reopen his removal proceedings by the Board of Immigration Appeals (the “BIA”). (ECF No. 1 at 2). Respondents have moved to dismiss the Petition pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on the grounds that the Court lacks jurisdiction over Alomaisi's claims and that he has otherwise failed to state a plausible claim for relief (the “Motion”). (ECF Nos. 8-10).
For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED and the Petition be DISMISSED.
The Court draws the following summary of the facts underlying the Petition from the Petition (ECF No. 1), the Declaration of Supervisory Detention and Deportation Officer Christopher H. Smith (ECF No. 10), and Alomaisi's Statement in support of his opposition to the Motion (ECF No. 13-1), as well as the exhibits referenced in and attached to those filings. See Barros Anguisaca v. Decker, 393 F.Supp.3d 344, 346 n.2 (S.D.N.Y. 2019) (); Yearwood v. Barr, 391 F.Supp.3d 255, 258 (S.D.N.Y. 2019) (). The facts are largely undisputed, except as noted.
Alomaisi was born in Sanhan Village, Sanaa, Yemen, in 1978. (ECF Nos. 1 ¶ 19; 13-1 ¶ 1). On May 11, 1998, Alomaisi entered the United States based on a non-immigrant B-2 visitor visa that granted him permission to remain in the United States until August 10, 1998. (ECF No. 10 ¶ 5; see ECF No. 1 ¶ 20). After his visa expired, Alomaisi remained in the United States without permission. (ECF No. 10 ¶ 5).
From 2001 until 2008, Alomaisi was married to Diane Vogel, a United States citizen who petitioned for him to adjust his status to lawful permanent resident. (ECF No. 1 ¶ 21). The couple missed at least one appointment with United States Citizenship and Immigration Services (“USCIS”), which ultimately denied the application for adjustment of status. (Id.)
While in the United States, Alomaisi was employed as a driver and digital editor at PPR Inc. and as a freelance photojournalist. (ECF No. 1 ¶ 24). He “engaged in many demonstration activities against the Houthi rebels who control much of northern Yemen, as well as demonstrations and campaigns against those militias supported by the Kingdom of Saudi Arabia (KSA) and the United Arab Emirates (UAE).” (Id. ¶ 25). In the Petition, Alomaisi describes several demonstrations, some as recently as 2019, in which he participated by taking photographs and making signs. (Id. ¶¶ 26-32). In 2016, Alomaisi posted on YouTube a video he had made about Yemen, following which his family members in Yemen were told that if he continued such activities, “it would put the lives of his family in jeopardy.” (Id. ¶ 29). As a result of his association with well-known Yemeni political activists in the United States, he believes he is “in the spotlight throughout the world.” (Id. ¶ 32).
Since returning to Yemen, Alomaisi “live[s] in constant fear every single day” in an area, Aden, that is “very dangerous.” (ECF No. 13-1 ¶ 15). He alleges that people like him, who have criticized the Yemeni government, face harm from Saudi Arabian forces and UAE forces stationed in the southern part of the country, and from Houthi rebels located in the northern part of the country. (Id.; see ECF No. 1 ¶ 40). Out of fear of being recognized and exposed, he has stayed in his hotel room most of the time and does not use his real name. (ECF No. 13-1 ¶ 15). On August 2, 2020, while stopped at a checkpoint, his friends lied about his identity to keep him “from getting dragged out of the car and killed.” (Id.)
On June 25, 2002, the Immigration and Naturalization Service (“INS”)[2] arrested Alomaisi and charged him in a Notice to Appear (“NTA”) as removable for having remained in the United States longer than permitted in violation of the Immigration and Naturalization Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B). (ECF Nos. 10 ¶ 6, 10-1 at 4). The INS also served Alomaisi with a Notice of Custody Determination, which notified him that, pursuant to INA § 236(a), 8 U.S.C. § 1226(a), it had determined to detain him pending the outcome of his removal proceedings but that he could seek a bond hearing before an Immigration Judge (“IJ”). (ECF No. 10 ¶ 6). On July 3, 2002, the INS filed the NTA in the Immigration Court in Newark, New Jersey, with the effect of commencing removal proceedings against Alomaisi. (Id. ¶ 7). On July 9, 2002, after Alomaisi posted (through an obligor) a $3, 000 bond set by an IJ at a bond hearing, the INS released him from detention. (Id. ¶ 8).
Alomaisi was represented by counsel during his removal proceedings, during which he admitted the factual allegations in the NTA, conceded the charge of removability, filed an application for adjustment of status, and challenged the denial of his petition for a visa. (ECF No. 10 ¶ 9). On February 28, 2005, an IJ held a hearing and issued an oral decision, finding Alomaisi removable and denying his application for relief from removal. (Id. ¶ 10; ECF No. 10-2 at 4-10; ECF No. 1 ¶ 21). Alomaisi appealed to the BIA, which dismissed his appeal on May 31, 2006, such that as of that date he was subject to a Final Order of Removal. (ECF Nos. 1 ¶ 22; 10 ¶ 10; 10-2 at 3).
On August 28, 2006, ICE issued a notice requesting that the obligor on Alomaisi's bond surrender him to ICE at 26 Federal Plaza on October 24, 2006. (ECF No. 10 ¶ 11). Alomaisi claims not to have received ICE's notice. (ECF No. 13-1 ¶ 7). Alomaisi did not surrender on that date, in breach of his bond. (ECF No. 10 ¶ 11).
Four and one-half years later, on March 30, 2011, ICE arrested Alomaisi in Elmsford, New York, and transported him to 26 Federal Plaza for purposes of executing his Final Order of Removal. (ECF No. 10 ¶ 12). ICE undertook to secure a travel document to remove him to Yemen. (Id.) Despite his arrest, Alomaisi did not then, nor during the next nearly nine years, seek from ICE a stay of his removal or file a motion with the IJ or the BIA to reopen his Final Order of Removal. (Id.) On July 1, 2011, unable to secure a travel document to remove Alomaisi to Yemen, ICE released Alomaisi on an Order of Supervision (“OSUP”). (Id. ¶ 13). Between July 1, 2011 and January 21, 2020, Alomaisi remained subject to the OSUP and reported periodically, on 20 occasions, to ICE as directed. (Id. ¶ 14; ECF No. 13-1 ¶ 8).
On March 28, 2019, ICE resumed its efforts to secure a travel document to remove Alomaisi to Yemen. (ECF No. 10 ¶ 15). On October 1, 2019, when he reported to ICE pursuant to his OSUP, Alomaisi's Deportation Officer told him that ICE was “actively working” to obtain a travel document to remove him to Yemen, and that once ICE received the travel documents, it would remove him to Yemen. (Id. ¶ 16; ECF No. 13-1 ¶ 9). On October 8, 2019, ICE submitted a request through the electronic Travel Document System (“ETD”) for a travel document for Alomaisi. (ECF No. 10 ¶ 17). On December 6, 2019, ICE received from the Government of Yemen a travel document for Alomaisi that was valid from December 3, 2019 until March 3, 2020. (Id. ¶ 18). On December 10, 2019, when Alomaisi reported to ICE, Smith instructed him to report back to ICE on January 21, 2020, at which time he would be detained for removal to Yemen. (Id. ¶ 19). Alomaisi admits that he was told to report to ICE on January 21, 2020, but disputes that he was told he would be detained for removal to Yemen. (ECF No. 13-1 ¶ 10).
On January 21, 2020, when Alomaisi reported to 26 Federal Plaza as directed, ICE revoked the OSUP and took him into custody to execute the Final Order of Removal. (ECF Nos. 1 ¶ 33; 10 ¶ 20; 13-1 ¶ 11). ICE gave Alomaisi an informal interview, during which he “begg[ed] and plead[ed]” not to return to Yemen out of fear that he would be killed. (ECF Nos. 10 ¶ 20; 13-1 ¶ 11). From January 21, 2020 until January 28, 2020, Alomaisi was detained at Hudson County Correctional Facility, where he had access to a telephone and the law library and was given a list of free legal service providers. (ECF Nos. 10 ¶ 21; 13-1 ¶ 12). Alomaisi hired counsel, who represents him in this action. (ECF No. 13-1 ¶ 12). Alomaisi alleges that ICE officers told him that “because he already had a final order of removal he could not see a judge, and there was nothing more he could do about it.” (ECF No. 1 ¶ 34).
On January 28, 2020, Alomaisi was taken to John F. Kennedy Airport (“JFK”), where he was boarded on a commercial flight to Yemen (via Rome and Egypt) pursuant to his Final Order of Removal. (ECF No. 10 ¶ 22; ECF No. 1 ¶ 37). Alomaisi claims that on January 28, 2020, he was transferred first to 26 Federal Plaza, where his counsel tried to see him but was told Alomaisi was “already gone, ” and then to JFK, where he was “forced” onto the plane in...
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