E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec., No. 19-2927

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBIBAS, Circuit Judge.
Citation950 F.3d 177
Docket NumberNo. 19-2927
Decision Date13 February 2020
Parties E.O.H.C.; M.S.H.S., a minor child, Appellants v. SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Commissioner United States Customs & Border Protection; Director United States Immigration & Customs Enforcement; Field Office Director Philadelphia United States Immigration & Customs Enforcement

950 F.3d 177

E.O.H.C.; M.S.H.S., a minor child, Appellants
v.
SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Commissioner United States Customs & Border Protection; Director United States Immigration & Customs Enforcement; Field Office Director Philadelphia United States Immigration & Customs Enforcement

No. 19-2927

United States Court of Appeals, Third Circuit.

Argued: November 12, 2019
Filed: February 13, 2020


Anthony Vale, Michael S. DePrince [ARGUED], Pepper Hamilton, 3000 Two Logan Square, Philadelphia, PA 19103, Tobias Barrington Wolff [ARGUED], 3501 Sansom Street Philadelphia, PA 19104, Bridget Cambria, Cambria & Kline, 532 Walnut Street, Reading, PA 19601, Amy Maldonado, Law Office of Amy Maldonado, 333 Albert Avenue, Suite 610, East Lansing, MI 48823, Counsel for Appellants

Joseph H. Hunt, William C. Peachey, Erez Reuveni, Archith Ramkumar [ARGUED], Office of Immigration Litigation, U.S. Department of Justice, Civil Division, P.O. Box 868, Ben Franklin Station, Washington, DC 20044, William M. McSwain, Veronica J. Finkelstein, Anthony St. Joseph, Paul J. Koob, Office of the United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellees

Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges

OPINION OF THE COURT

BIBAS, Circuit Judge.

950 F.3d 180

This case raises the age-old question: "If not now, when?" Mishnah , Pirkei Avot 1:14. For aliens who are challenging their removal from the United States, the answer is usually "later." But not always. And not here.

Federal district courts rarely have jurisdiction to hear disputes relating to removal. That is because the Immigration and Nationality Act (INA) strips them of jurisdiction over all claims "arising from any action taken or proceeding brought to remove" aliens. 8 U.S.C. § 1252(b)(9). Instead, an alien must typically litigate his removal-related claims before an immigration judge. Then, after an order of removal, he may appeal to the Board of Immigration Appeals. Only after that may he file a petition for review with a court of appeals. Usually, district courts are not part of this process.

But some immigration-related claims cannot wait. When a detained alien seeks relief that a court of appeals cannot meaningfully provide on petition for review of a final order of removal, § 1252(b)(9) does not bar consideration by a district court. Neither does § 1252(a)(4), a provision that generally requires Convention Against Torture claims to await a petition for review. For if these provisions did bar review of all claims before the agency issues a final order of removal, certain administrative actions would effectively be beyond judicial review. If "later" is not an option, review is available now.

Appellants E.O.H.C. and M.S.H.S., his seven-year-old daughter, came from Guatemala through Mexico to the United States. The Government seeks to return them to Mexico while it decides whether to grant them asylum or instead remove them to Guatemala. They brought several claims in the District Court, challenging the Government’s authority to return them to Mexico. The District Court dismissed all their claims for lack of subject-matter jurisdiction. We see things differently.

One claim, involving the statutory right to counsel, arises from the proceedings to remove them to Guatemala, so it can await a petition for review. But the rest of the claims challenge the Government’s plan to return them to Mexico in the meantime. For these claims, review is now or never. So we will affirm in part and reverse and remand in part.

950 F.3d 181

I. BACKGROUND

A. Facts

E.O.H.C. and M.S.H.S. are from Mixco, Guatemala, a city plagued by violent crime. Fleeing that violence, they traveled north through Mexico. In April 2019, they crossed into the United States and turned themselves in to U.S. Customs and Border Patrol officers. The Government began proceedings to remove them to Guatemala, setting a June hearing date in San Diego.

Ordinarily, aliens detained pending removal proceedings would be housed in the United States. But in December 2018, the Department of Homeland Security announced a new policy called the Migrant Protection Protocols. Under those Protocols, the Government now takes many aliens who cross the United States-Mexico border and returns them to Mexico while they await their immigration hearings. See Migrant Protection Protocols , U.S. Dep’t Homeland Security (Jan. 24, 2019), https://www.dhs.gov/news/2019/01/24/migrant-protection-protocols; see also 8 U.S.C. § 1225(b)(2)(C) (authorizing the Government to "return" certain aliens who "arriv[e] on land ... from a foreign territory contiguous to the United States" to that neighboring country pending removal proceedings). The Protocols thus apply to aliens who have no ties to Mexico.

Under the Protocols, the Government returned E.O.H.C. and his daughter to Mexico to await their hearing. They were left to fend for themselves in Tijuana, a dangerous and violent city. Fortunately, a local family took them in.

When he and his daughter came to San Diego for their hearing, E.O.H.C. told the immigration judge that he did not fear going back to Guatemala. He later alleged that a Customs and Border Protection officer advised him to say this. He was not represented by counsel at the time and says that he did not understand that this was bad advice. The immigration judge denied asylum and ordered appellants removed to Guatemala. E.O.H.C. waived the right to appeal, allegedly because he feared that the Government would return them to Mexico if they pursued an appeal. After the hearing, they were transferred to an immigration detention facility in Berks County, Pennsylvania, to await removal.

B. Procedural history

While appellants were detained in Berks County, they appealed to the Board of Immigration Appeals. Before the Board, they argued that E.O.H.C.’s appeal waiver was invalid because he had made it under duress. The Board granted them an emergency stay of removal pending appeal. But the stay order did not make clear whether it prevented their return to Mexico or only their removal to Guatemala. And the Government flew them back to San Diego, apparently to return them to Mexico.

So appellants filed an emergency mandamus petition in the U.S. District Court for the Eastern District of Pennsylvania. The Government then brought them back to Berks County for the time being, where they remain detained today. If the Government prevails in this case, it still plans to return them to Mexico.

In their mandamus petition and preliminary-injunction motion, appellants alleged that returning them to Mexico pending their appeal to the Board would violate the law in four ways. First, they argued that the Government lacks statutory authority to apply the Protocols to them. The Protocols, they asserted, are invalid because they were adopted in violation of the Administrative Procedure Act. And even if the Protocols were valid, they added, the statutory authorization for that policy does

950 F.3d 182

not extend to aliens entering the United States in their circumstances.

Second, they argued that returning them to Mexico would interfere with their relationship with their lawyer. This interference, they claimed, would violate their constitutional and statutory rights to counsel. See U.S. Const. amend. V (Due Process Clause); 8 U.S.C. § 1362.

Third, they argued that returning them to Mexico would violate the United States’s treaty obligations. In particular, the Convention Against Torture forbids "return[ing] (refouler ) or extradit[ing] a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, ¶1, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85, 114. And the Refugee Convention prohibits "expel[ling] or return[ing] (‘refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." Convention Relating to the Status of Refugees art. 33, ¶1, July 28, 1951, 189 U.N.T.S. 150, 176. The duty not to remove aliens to a place where they will face persecution is known as the "nonrefoulement" obligation. See, e.g. , INS v. Cardoza-Fonseca , 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987).

Fourth, they argued that returning M.S.H.S., a minor, to Mexico would violate the United States’s commitments under the 1997 Flores Settlement Agreement. See Stipulated Settlement Agreement, Flores v. Reno , No. CV-85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) (Flores Settlement Agreement). That Agreement sets forth the "nationwide policy for the detention, release, and treatment of minors" in immigration custody. Id. ¶ 9. By its terms, "[a]ny minor who disagrees" with the Government’s treatment of her may sue the Government to enforce her rights under the Agreement. Id. ¶ 24(B). The Agreement remains in effect today, under the continued oversight of a district judge in the Central...

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30 practice notes
  • Pennsylvania v. DeJoy, Civil Action No. 20-4096
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 28, 2020
    ...approach in determining the appropriateness of judicial review of agency action. See E.O.H.C. v. Sec'y U. S. Dep't of Homeland Sec. , 950 F.3d 177, 188 (3d Cir. 2020) ; see also Guerra v. Consol. Rail Corp. , 936 F.3d 124, 135 (3d Cir. 2019) ; cf. Adorers of the Blood of Christ v. FERC , 89......
  • Gov't Emps. Ret. Sys. of the V.I. v. Gov't of the V.I., Nos. 20-1749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 9, 2021
    ...judgment, an instrument with "attributes of both contracts and injunctions." E.O.H.C. v. Sec'y United States Dep't of Homeland Sec. , 950 F.3d 177, 192 (3d Cir. 2020). Sometimes a consent decree imposes a correction, coercing compliance, handing out punishment, prohibiting future wrongs. Th......
  • Pennsylvania v. DeJoy, CIVIL ACTION NO. 20-4096
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 25, 2021
    ...prohibit[s] all judicial review of agency decision making, it bears a heavy burden." E.O.H.C. v. Sec'y U. S. Dep't of Homeland Sec. , 950 F.3d 177, 188 (3d Cir. 2020) (internal citations omitted). When considering whether the statute precludes review, I look to whether "the congressional in......
  • Texas v. Biden, 2:21-CV-067-Z
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • August 13, 2021
    ...at an agency decision – the decision to "expand" MPP implementation to Tamaulipas."); E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec. , 950 F.3d 177, 191 (3d Cir. 2020) (same); Cruz v. Dep't of Homeland Sec. , No. 19-CV-2727, 2019 WL 8139805, at *4 (D.D.C. Nov. 21, 2019) (same).50. This readi......
  • Request a trial to view additional results
29 cases
  • Pennsylvania v. DeJoy, Civil Action No. 20-4096
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 28, 2020
    ...approach in determining the appropriateness of judicial review of agency action. See E.O.H.C. v. Sec'y U. S. Dep't of Homeland Sec. , 950 F.3d 177, 188 (3d Cir. 2020) ; see also Guerra v. Consol. Rail Corp. , 936 F.3d 124, 135 (3d Cir. 2019) ; cf. Adorers of the Blood of Christ v. FERC , 89......
  • Gov't Emps. Ret. Sys. of the V.I. v. Gov't of the V.I., Nos. 20-1749
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 9, 2021
    ...judgment, an instrument with "attributes of both contracts and injunctions." E.O.H.C. v. Sec'y United States Dep't of Homeland Sec. , 950 F.3d 177, 192 (3d Cir. 2020). Sometimes a consent decree imposes a correction, coercing compliance, handing out punishment, prohibiting future wrongs. Th......
  • Pennsylvania v. DeJoy, CIVIL ACTION NO. 20-4096
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 25, 2021
    ...prohibit[s] all judicial review of agency decision making, it bears a heavy burden." E.O.H.C. v. Sec'y U. S. Dep't of Homeland Sec. , 950 F.3d 177, 188 (3d Cir. 2020) (internal citations omitted). When considering whether the statute precludes review, I look to whether "the congressional in......
  • Texas v. Biden, 2:21-CV-067-Z
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • August 13, 2021
    ...at an agency decision – the decision to "expand" MPP implementation to Tamaulipas."); E.O.H.C. v. Sec'y U.S. Dep't of Homeland Sec. , 950 F.3d 177, 191 (3d Cir. 2020) (same); Cruz v. Dep't of Homeland Sec. , No. 19-CV-2727, 2019 WL 8139805, at *4 (D.D.C. Nov. 21, 2019) (same).50. This readi......
  • Request a trial to view additional results
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