Arguelles v. Dep't of Homeland Sec.

• Decision Date: 27 January 2023
• Docket Number: 4:18-cv-212-CDL-MSH
• Parties: FREDDY JOSE ARGUELLES, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.
• Court: U.S. District Court — Middle District of Georgia

FREDDY JOSE ARGUELLES, Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

No. 4:18-cv-212-CDL-MSH

United States District Court, M.D. Georgia, Columbus Division

January 27, 2023

ORDER AND RECOMMENDATION

Stephen Hyles, United States Magistrate Judge

Pending before the Court is Plaintiff Freddy Jose Arguelles's motion to reopen this case and enforce the parties' joint stipulation (ECF No. 26). For the reasons stated below, it is recommended the motion be denied.

BACKGROUND

Arguelles, a native and citizen of Venezuela, was granted lawful permanent residence in 2006. Arguelles v. U.S. Att'y Gen., 661 Fed.Appx. 694, 695-96 (11th Cir. 2016). On October 5, 2012, he pleaded guilty to conspiracy to violate the Arms Export Control Act in violation of 22 U.S.C. § 2778(b)(2). Id. at 696. On February 11, 2015, an immigration judge (“IJ”) rejected his request for asylum and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and ordered his removal from the United States. Id. at 700-02. The Board of Immigration Appeals (“BIA”) dismissed his appeal on July 23, 2015, and denied his motion to reopen on December 7, 2015. Id. at 703-04. The Eleventh Circuit denied his

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emergency motion to stay his removal, and he was removed from the United States to Venezuela on December 22, 2015. Id. at 704, 715. Once there, Arguelles was placed in prison immediately. Id. at 704. The Eleventh Circuit denied his petition for review on November 23, 2016. Arguelles, 661 Fed.Appx. at 695-96.

On March 6, 2017, the BIA granted Arguelles's motion to reopen proceedings and remanded the record to the IJ for further proceedings.^[1]Pl.'s Mot. for Temporary Restraining Order (“TRO”) Ex. A, at 3, ECF No. 15-2. At some point in late 2017, Arguelles was released from prison in Venezuela on some form of supervised release. Pl.'s Mot. for TRO Ex. C, at 5, 10, ECF No. 15-4; Pl.'s Reply Ex. A, at 69, ECF No. 29-1. On September 26, 2018, a hearing was held before the IJ, but Arguelles could not appear because he was in Venezuela. Pl.'s Mot. for TRO Ex. E, at 4, ECF No. 15-6. Further, the Department of Homeland Security (“DHS”) refused to coordinate Arguelles's return to the United States, and the IJ concluded there was no authority for conducting the hearing via video conference. Id. at 4-6. The IJ then ordered Arguelles's removal in absentia. Id. at 5-6. The IJ entered a written order on October 16, 2018. Id. at 6.

The same day the IJ entered the written order, Arguelles filed his complaint for mandamus relief and declaratory judgment (ECF No. 1) in this Court.^[2] In the Complaint,

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Arguelles alleged Defendants violated the Administrative Procedures Act (“APA”) by not facilitating his return to the United States following the reopening of his case. Compl. ¶¶ 30-37. He also alleged Defendants violated his Fifth Amendment Due Process rights by not allowing him to be present for his removal proceedings. Id. ¶¶ 38-41. Finally, Arguelles claimed that by not facilitating his return for removal proceedings, Defendants violated his Fifth Amendment right to counsel and 8 U.S.C. § 1362. Id. ¶¶ 42-43. Among the relief Arguelles requested was for the Court to order Defendants to either facilitate conducting removal proceedings via video or telephonic hearings or facilitate his return to the United States. Compl. 23.

On March 23, 2019, Defendants moved to dismiss Arguelles's complaint, arguing the Court's jurisdiction was barred by the REAL ID Act of 2005 (“Act”), 8 U.S.C. § 1252, specifically 8 U.S.C. § 1252(a)(5) and (b)(9).^[3]Defs.' Mot. to Dismiss 4-6, ECF No. 12. Defendants also argued Arguelles failed to exhaust his administrative remedies by not appealing the removal order to the BIA and then, if the appeal was unsuccessful, filing a petition for review with the Eleventh Circuit. Id. at 6-7. Finally, Defendants argued the

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Court did not have the authority to grant the relief Arguelles requested, including ordering the embassy in Venezuela-which was apparently closed at the time-to reopen so Arguelles could appear from there via telephone or video for his removal proceedings, or ordering the Government to allow his admission into the United States. Id. at 8-10.

On April 1, 2019, Arguelles filed an emergency motion for a TRO and asked the Court to immediately order Defendants to issue him a travel document to return to the United States or facilitate video or telephonic hearings in immigration court proceedings. Pl.'s Mot. for TRO 10, ECF No. 15. On April 12, 2019, the Court held a telephone conference with the parties' counsel and ordered that they file supplemental briefs or provide notice of settlement by April 19, 2019. Minute Sheet, ECF No. 19. On April 19, 2022, the parties notified the Court they had reached a “Stipulation” agreeing to settle the case and jointly moved the Court to retain jurisdiction to enforce it. Joint Mot. 1, ECF No. 21. Three days later, they filed the Stipulation (ECF No. 23). The Stipulation provided that the Defendants named in the Complaint, and bound by the terms of the stipulation, included DHS and the Department of Justice (“DOJ”)-through the office of the Attorney General-ICE, and the Executive Office of Immigration Review (“EOIR”). Stip. 2, ECF No. 23. Under the agreement, Defendants agreed they would not object to Arguelles appearing at immigration proceedings via video conference and would cooperate in good faith to avoid any logistical problems with Arguelles's participation by video conference. Id. The parties also agreed they would file a joint motion for remand with the BIA to return the case to the IJ for further proceedings. Id. at 3. The crux of the parties' current dispute concerns the final two sentences of the Stipulation, which state:

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During the immigration court proceedings under 8 U.S.C. § 1229a, Defendants will not raise jurisdictional objections to any legal argument or request for relief from removal based on the fact that Plaintiff is not physically present within the territory of the United States. Defendants will not challenge before the immigration court Plaintiff's assertion that the immigration court has jurisdiction over Plaintiff's removal proceedings even though the Plaintiff will testify from abroad.

Id. On April 24, 2019, the Court granted the parties' joint motion, dismissed the case with prejudice, but retained jurisdiction to enforce the Stipulation. Order, ECF No. 24.

Consistent with the parties' agreement, on May 10, 2019, Arguelles and DHS filed a joint motion for remand with the BIA, which was granted on August 2, 2022.^[4] Pl.'s Reply Ex. B, at 3, ECF No. 29-2. On October 11, 2022, the parties appeared before the IJ for a master calendar hearing. Resp'ts' Ex. 2, at 2, ECF No. 28-2. Pursuant to the stipulation, Arguelles was allowed to attend the hearing via video conference from Venezuela. Pl's Mot. to Reopen 3, ECF No. 26. However, instead of scheduling a hearing to consider whether Arguelles actually faces torture in Venezuela, the IJ sua sponte raised the issue of whether Arguelles was eligible for CAT relief in light of the fact he was already in the Venezuela. Resp'ts' Ex. 2, at 11, 13. The IJ stated he was “not raising a jurisdictional issue,” recognized he was bound by the Stipulation not to raise jurisdiction, and concluded he had jurisdiction. Id. at 13. He specified, however, that CAT only provided “prospective” relief and in order to be eligible for relief, the applicant cannot already be in the nation from which he or she is seeking to avoid torture. Id. at 13. The IJ relied on

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8 C.F.R. § 1208.16.^[5]Id. The IJ did not reach a final decision at the hearing but instead allowed the parties to submit briefs on the issue. Id. at 22. On November 22, 2022, the IJ notified the parties at a master calendar hearing that he was denying Arguelles's application for CAT relief and a written order was forthcoming. Pl.'s Mot. for Hr'g Ex. A, at 8, ECF No. 33-1. The IJ issued his written decision on December 21, 2022. Id. at 1.

In the meantime, on October 26, 2022, Arguelles filed his emergency motion to reopen this case to enforce the stipulation (ECF No. 26). He alleged Defendants-and especially the EOIR through the actions of the IJ-violated the stipulation by raising a jurisdictional objection to CAT relief. Mot. to Reopen 4. His requested relief included a demand that the Court order the IJ to “conduct proceedings to determine whether Plaintiff faces continued torture as defined by [CAT].” Id. at 6. In his latest motion for a hearing filed on January 6, 2023, however, Arguelles requests the Court order Defendants to provide him with travel documents to the United States.^[6]Pl.'s Mot. for Hr'g 3, ECF No. 33.

DISCUSSION

The only issue before the Court is whether Defendants violated the Stipulation. The

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Court is not tasked with deciding whether Defendants violated the APA or Arguelles's due process rights by not returning him to the United States following the BIA's reopening of his case as alleged in Arguelles's original complaint.^[7]This clarification is important because the parties do not address the law governing...