I.M. v. U.S. Customs & Border Prot.
| Decision Date | 21 January 2022 |
| Docket Number | 20-cv-3576 (DLF) |
| Court | U.S. District Court — District of Columbia |
| Parties | I.M., Petitioner-Plaintiff, v. U.S. CUSTOMS & BORDER PROTECTION et al., Respondents-Defendants. |
In this action, petitioner-plaintiff I.M. challenges his expedited order of removal to his native country of [XXXXX] Before the Court is the respondents-defendants' Motion to Dismiss for Lack of Jurisdiction, Dkt. 23. Because this Court lacks jurisdiction to hear this case, the Court will grant the respondents-defendants' motion.
In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No 104-208, 110 Stat. 3009 (), which amended the Immigration and Nationality Act (INA) and created an expedited removal scheme. Under the INA, as amended, aliens “arriving in the United States” are subject to expedited removal if an immigration officer determines they are inadmissible due to misrepresentation or lack of immigration papers. See 8 U.S.C. § 1225(b)(1)(A)(i). If such an alien indicates to the immigration officer that he fears persecution or torture if returned to his country, the officer “shall refer the alien for an interview by an asylum officer, ” id. § 1225(b)(1)(A)(ii), to determine whether he “has a credible fear of persecution [or torture], ” id. § 1225(b)(1)(B)(ii). If the interviewing asylum officer determines that the alien does not have a credible fear of persecution, the officer makes a “negative credible fear determination” and orders the removal of the alien “without further hearing or review, ” except by an immigration judge. Id. § 1225(b)(1)(B)(iii)(I). An alien may request that an immigration judge conduct a de novo review of the officer's negative credible fear determination see id. § 1225(b)(1)(B)(iii)(III), but if the immigration judge upholds the asylum officer's negative credible fear determination, the determination is final and the alien is subject to removal, 8 C.F.R. § 1208.30(g)(2)(iv)(A).
Federal district courts have limited review of orders of removal under § 1225. Except as provided in § 1252(e), the INA 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, ” 8 U.S.C. § 1252(a)(2)(A)(i); (2) “a decision by the Attorney General to invoke” the expedited removal regime, id. § 1252(a)(2)(A)(ii); and (3) the “procedures and policies adopted by the Attorney General to implement the provisions of [§ 1225(b)(1)], ” id. § 1252(a)(2)(A)(iv).
Section 1252(e), however, preserves judicial review for a small subset of issues relating to individual expedited removal orders:
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)]”- 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. See Id. § 1252(e)(3)(A)(i), (ii). Any such systemic challenge must be brought within sixty days after implementation of the challenged statute or regulation. Id. § 1252(e)(3)(B). “[T]he 60-day requirement is jurisdictional rather than a traditional limitations period.” Am. Immigr. Laws. Ass'n v. Reno, 18 F.Supp.2d 38, 47 (D.D.C. 1998), aff'd, 199 F.3d 1352 (D.C. Cir. 2000).
Petitioner-plaintiff I.M. is a citizen of [XXXXX] who works in education and sustainable farming. Pet. for Habeas Corpus & Compl. ¶¶ 20-21, Dkt. 3. In August 2019, I.M. obtained a B1/B2 business/tourism visa. Pet. ¶ 24. He first visited the United States in September and October of 2019 to learn about sustainable agriculture before returning to [XXXXX] Pet. ¶¶ 23, 25. On the same visa, he again flew back to the United States on October 29, 2020. Pet. ¶¶ 27- 28. Upon his arrival at O'Hare International Airport, a Customs and Border Protection (CBP) officer stopped I.M. for a secondary inspection. Pet. ¶ 29. The CBP officer who interrogated him “concluded that I.M. was being paid by” an American farm, and “then determined I.M. to be inadmissible.” Pet. ¶ 31. The CBP officer ordered I.M.'s removal, barred him from reentry, and notified him that his visa would be cancelled. Pet. ¶ 33.
After this occurred, I.M. “expressed his fear of return to [XXXXX] Pet. ¶ 35, because there was an [XXXXX] and “he had twice received death threats” based on his [XXXXX] with the [XXXXX], Pet. ¶ 34. On November 6, 2020, a U.S. Citizenship and Immigration Services (USCIS) asylum officer found I.M. “credible” but nonetheless found “that he did not demonstrate a significant possibility of establishing eligibility for asylum.” Pet. ¶ 35; I.M.'s Suppl. Decl. ¶ 5, Dkt. 26. An immigration judge affirmed this decision on November 19. I.M.'s Suppl. Decl. ¶ 6. That evening, I.M. received an incomplete and unsigned expedited removal order. Id. ¶ 7. After requesting a completed and signed order of removal to Immigration and Customs Enforcement (ICE), he was notified that CBP would return his paperwork and serve the form on him at the airport upon his departure. Id. ¶ 9-10. An unknown CBP agent also revoked his visa sometime between October 29 and November 27, 2020. See Pet. ¶¶ 28-38. On November 27, I.M. was placed on a plane and returned to [XXXXX] Pet. ¶ 39.
On December 8, 2020, after his return to [XXXXX] I.M. filed a joint petition for writ of habeas corpus and complaint. See Dkt. 3. First, he seeks a writ of habeas corpus under 8 U.S.C. § 1252(e)(2) on the grounds that the CBP officers were not lawfully appointed and thus were not vested with legal authority to determine his admissibility and issue an order of removal. Pet. ¶ 95; see Pet. ¶¶ 90-95. He therefore requests that the Court (1) “[d]eclare that the determination of inadmissibility and order of removal purportedly issued against I.M. violated the Appointments Clause;” (2) “[d]eclare the determination of inadmissibility and order of removal purportedly issued against I.M. invalid and void ab initio;” and (3) “order Respondents to place I.M. into removal proceedings before a properly appointed Immigration Judge, ” “[i]f Respondents choose to seek I.M.'s removal upon his return.” Pet. at 24. Second, I.M. brings a claim under the Administrative Procedure Act (APA), seeking to have his visa revocation held unlawful and set aside as “not in accordance with law” and “in excess of statutory authority” under the APA. Pet. ¶¶ 98-99; see 5 U.S.C. § 706(2)(A), (C). He further requests this Court to “[o]rder Respondents to reinstate [his] visa.” Pet. at 24.
Before the Court is the respondents-defendants' motion to dismiss for lack of subject-matter jurisdiction on three separate grounds. The government argues that (1) 8 U.S.C. § 1252(e)(3) precludes this systemic challenge, see Resp'ts'-Defs.' Mem. in Supp. of Mot. to Dismiss at 9-11, Dkt. 23; (2) petitioner is not in custody and thus his claims are not cognizable in a habeas action, see Id. at 11-14; and (3) 8 U.S.C. § 1252(a) removes this Court's jurisdiction under 28 U.S.C. § 1331, see Id. at 14-22.
II. LEGAL STANDARD
Under Rule 12(b)(1), a party may move to dismiss an action or claim when the court lacks subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A motion for dismissal under Rule 12(b)(1) “presents a threshold challenge to the court's jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “Federal courts are courts of limited jurisdiction, ” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994), and it is “presumed that a cause lies outside this limited jurisdiction, ” id. ). Thus, to survive a Rule 12(b)(1) motion, a plaintiff must demonstrate that the court has jurisdiction by a preponderance of the evidence. Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)). A court that lacks jurisdiction must dismiss the action. Fed.R.Civ.P. 12(b)(1), (h)(3).
III.ANALYSIS
I.M. supplies two jurisdictional hooks to support his joint complaint and petition for a writ of habeas corpus. He brings his complaint for APA relief under the federal question statute, 28 U.S.C. § 1331, see Pet. ¶ 10, and his petition for a writ of habeas corpus under 28 U.S.C. § 1331 and 8 U.S.C. § 1252(e)(2)(B), see Pet. ¶¶ 8-9. The Court will address each in turn.
I.M seeks to have his visa revocation, which occurred along...
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