Castro v. U.S. Dep't of Homeland Sec.

• Decision Date: 16 February 2016
• Docket Number: all related cases,Civ. No. 15-6153 (Lead Case)
• Citation: 163 F.Supp.3d 157
• Parties: Rosa Elida Castro, et al., Petitioners, v. U.S. Department of Homeland Security, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

163 F.Supp.3d 157

Rosa Elida Castro, et al., Petitioners,

v.U.S. Department of Homeland Security, et al., Respondents.

Civ. No. 15-6153 (Lead Case)

all related cases

United States District Court, E.D. Pennsylvania.

Signed February 16, 2016

Jennifer Chang Newell, Stephen Kang, American Civil Liberties Union, San Francisco, CA, Lee Gelernt, Lindsay Nash, ACLU, New York, NY, Mary Catherine Roper, ACLU of PA, Philadelphia, PA, for Petitioners.

Erez Reuveni, U.S. Dept of Justice, Joseph Anton Darrow, Washington, DC, for Respondents.

MEMORANDUM

Diamond

, District Judge

Petitioners—twenty-nine Central American women and their thirty-five minor children—were seized by the Department of Homeland Security within minutes of their illegal entry into the United States. Acting pursuant to the Immigration and Naturalization Act, DHS ordered their “expedited removal” after finding that none had a “credible fear” of torture or persecution upon return to Central America. See 8 U.S.C. § 1225(b)(1)

. Seeking habeas relief, Petitioners argue that the Act's credible fear evaluation process is inadequate, resulting in erroneous negative credible fear determinations. The Government responds that the INA restricts judicial review of expedited removal orders, and outright bars the review Petitioners seek. Petitioners counter that such a reading of the Act would unconstitutionally suspend the writ of habeas corpus. U.S. Const. art. I, § 9, cl. 2.

Petitioners' contentions have been rejected by almost every court to address them. I agree with those uniform rulings. The INA affords Petitioners extensive Executive Branch process, including an interview by a DHS asylum officer, followed by supervisory review and a hearing before an immigration court judge. The Act's restriction on Judicial Branch review of those Executive Branch determinations is constitutional.

BACKGROUND

On November 16, 2015, Lead Petitioner, Rosa Elida Castro, filed a counseled Habeas Petition on behalf of herself and her minor child, A.A.G.C., challenging the validity of her expedited removal from this country. (Doc. No. 1.) She filed an Emergency Motion for Stay of Removal on November 19, 2015. (Doc. Nos. 2, 3.) That same day, with the Government's consent, I temporarily stayed Ms. Castro's removal while I determined whether this Court has subject matter jurisdiction over her Petition, Complaint, and Emergency Motion for Temporary Stay of Removal. (Doc. No. 5); Arbaugh v. Y & H Corp. , 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)

(Federal courts have “an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.”); United States v. Ruiz , 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (“[A] federal court always has jurisdiction to determine its own jurisdiction.”). I ordered supplemental briefing on the jurisdictional issues. (Doc. Nos. 5, 13, 20, 31.)

In the weeks that followed, thirty-four additional habeas challenges to the credible fear and expedited removal processes were filed in this District (six of which have since been voluntarily dismissed). The matters were reassigned to me to determine whether this Court has subject matter jurisdiction. (Doc. Nos. 16, 21, 24, 29, 42, 48, 50, 52.) I have stayed the expedited removal of sixteen Petitioners. (Doc. Nos. 5, 25, 36, 38, 41, 45, 51.) Apparently, the Government has taken no further action to remove the remaining Petitioners.

I. The Challenged Removal Process

All fifty-four Petitioners illegally crossed the southern border of the United States. (Aaron A. Hull Decl., Doc. No. 20, Ex. 3; Carl McClafferty Decl., Doc. No. 30, Ex. 1.) Some entered by raft; others on foot. (Doc. No. 20 at 11 n.6.) The twenty-nine adult Petitioners allege that they fled domestic abuse and gang violence in their native countries. (See, e.g. , Doc. Nos. 1, 3.) All but two of the Petitioners were apprehended by DHS less than a mile from the border, less than an hour after crossing; two were apprehended three miles from the border, three hours after crossing. (McClafferty Decl.; Hull Decl.; Doc. No. 20 at 11 n.6; Doc. No. 35 at 13 n.9.)

When the adult Petitioners indicated during their initial screening an intention to apply for asylum based on a fear of persecution or torture upon removal, they became subject to the Act's “expedited removal” process. See 8 U.S.C. § 1225(b)(1)

. Petitioners are now detained pending removal at Berks County Residential Center in Leesport, Pennsylvania. (See, e.g. , Doc. No. 1 at ¶ 2.)

II. The Instant Litigation

Petitioners all challenge the expedited removal procedures and seek the same relief: that I reject as erroneous DHS's negative credible fear determinations, vacate their expedited removal orders, and order DHS to restart the removal process. (See, e.g. , Doc. No. 1 at ¶¶ 16-17; Doc. No. 13 at 7.) I have received extensive submissions from Petitioners, the Government, and a group of law professors as Amici Curiae. (Doc. Nos. 1, 3, 13, 19, 20, 31, 35.)

Unfortunately, some of Petitioners' submissions generate more heat than light. For instance, Petitioners confuse expedited removal and deportation. See, e.g. , Doc. No. 13 at 5 (“If the Government's jurisdictional position were now to prevail, it would be the first time in U.S. history that noncitizens facing deportation were denied access to the Great Writ to challenge the legal validity of their removal orders.”). As courts have repeatedly explained, however, expedited removal relates only to the Government's decision to exclude (or not to admit) an arriving alien; deportation relates to the expulsion of an alien who resides here. See Landon v. Plasencia , 459 U.S. 21, 25, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982)

; Galindo–Romero v. Holder , 640 F.3d 873, 875 n. 1 (9th Cir.2011). The law governing each is distinct: deportees have greater rights than those who are excluded. Zadvydas v. Davis , 533 U.S. 678, 693, 721, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ; Plasencia , 459 U.S. at 25–26, 103 S.Ct. 321.

Nor have all the Government's submissions been entirely helpful. The Government has taken contradictory positions as to whether undocumented aliens seeking admission to the United States have any habeas rights. Compare Doc. No. 10 in 15-cv-6279 (“Thus, non-admitted aliens lack Suspension Clause rights in relation to their admission.”), and Doc. No. 20 at 5 (“[E]xpedited removal cases involving non-admitted aliens, including aliens apprehended almost immediately after an unlawful entry do not implicate [Suspension Clause] issues.”), with Doc. No. 35 in 15-6153 (“Contrary to amici's framing of the argument..., the Government does not maintain that there is no Suspension Clause violation here merely because Petitioners are not lawfully admitted aliens.”); see also Doc. No. 31 at 6 (during oral argument in Clark v. Martinez , 543 U.S. 371, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005)

Government acknowledges before the Supreme Court that illegal aliens have due process rights).

EXPEDITED REMOVAL

The issues I must address are best evaluated with an understanding of how the challenged removal procedures came to be and how they operate. The Government has submitted affidavits from the Chief of DHS's Asylum Division and other officials detailing Petitioners' apprehension and the expedited removal process. (John L. Lafferty Decl., Doc. No. 20, Ex. 2; Brett Endres Decl., Doc. No. 20, Ex. 4; Hull Decl.; McClafferty Decl.) Petitioners offer no evidence to contradict the Government's submissions, which I may consider in determining whether I have jurisdiction. See Constitution Party of Pennsylvania v. Aichele , 757 F.3d 347, 358 (3d Cir.2014)

(When faced with a “factual attack” on jurisdiction—“an argument that there is no subject matter jurisdiction because the facts of the case”—“the District Court may look beyond the pleadings to ascertain the facts” relevant to the jurisdictional inquiry.). Petitioners offer only the affidavit of Lead Petitioner, who describes her reasons for seeking asylum. (Rosa Elida Castro Decl., Doc. No. 3, Ex. 1.) I will consider this affidavit as well.

I. Enactment

The Immigration and Naturalization Act, as adopted in 1952, included no expedited removal procedures. See generally Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in sections of 8 U.S.C.). During the 1980s, expedited removal (known then as “summary exclusion”) was first proposed in response to the flood of illegal immigrants into Southern Florida during the “Mariel boatlift.” See Alison Siskin & Ruth Ellen Wasem, Cong. Research Serv., RL33109, Immigration Policy on Expedited Removal of Aliens 3 (2006). Congress sought to “stymie unauthorized migration by restricting the hearing, review, and appeal process for aliens arriving without proper documents at ports of entry.” Id. That legislation was never enacted. In 1993, the Clinton Administration proposed similar legislation “to target the perceived abuses of the asylum process by restricting the hearing, review, and appeal process for aliens at the port of entry.” Id. Again, the proposed legislation failed.

With the 1996 passage of the Illegal Immigration Reform and Immigrant Responsibility Act, Congress amended the INA, codifying two procedures then known as “exclusion” (governing the removal of arriving aliens) and “deportation” (governing the removal of aliens residing in the United States). Vartelas v. Holder , ––– U.S. ––––, 132 S.Ct. 1479, 1484, 182 L.Ed.2d 473 (2012)

; see Pub. L. No. 104-208, 110 Stat. 3009 (1996). In thus enacting an “expedited removal” regime, Congress promulgated accelerated administrative procedures respecting the exclusion of certain inadmissible “arriving aliens.” 8 U.S.C. § 1225(b)(1)

(expedited removal procedures); see id. § 1252(e) (judicial review of expedited removal orders); see also Kucana v. Holder , 558 U.S. 233, 249, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (“Congress amended the INA...