John Doe v. Rodriguez, Civil Action No. 17-1709 (JLL)

Decision Date29 January 2018
Docket NumberCivil Action No. 17-1709 (JLL)
PartiesJOHN DOE, Petitioner, v. ORLANDO RODRIGUEZ, Respondent.
CourtU.S. District Court — District of New Jersey

NOT FOR PUBLICATION

OPINION

LINARES, Chief District Judge:

Presently before the Court is the Amended Petition for a Writ of Habeas Corpus and Motion for a Preliminary Injunction of Petitioner, John Doe, filed pursuant to 28 U.S.C. § 2241 (ECF No. 17, 24). The Government filed a response to the Amended Petition and Motion, (ECF No. 27), to which Petitioner has replied. (ECF No. 31). The Court decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the following reasons, the Amended Petition shall be dismissed without prejudice and Petitioner's Motion for a Preliminary Injunction shall be denied without prejudice as moot in light of the dismissal of his petition.

I. BACKGROUND

Petitioner, John Doe, is a native and citizen of Afghanistan. (See ECF No. 27-1 at 2). Between 2012 and 2017, Petitioner was employed as a waiter and cashier by a United States contractor performing services at the U.S. Embassy in Kabul. (Id.). In December 2016, Petitioner was granted a Special Immigrant Visa under the SQ1 program, which provides special visas to "Afghan nationals who have been employed by or on behalf of the United States Government in Afghanistan and who have experienced an ongoing serious threat as a consequence of such employment." (Id.). On March 12, 2017, Petitioner boarded a flight to Newark, New Jersey, where he arrived the following day. (Id.).

Upon his arrival, Petitioner, as an applicant for admission into the United States, was reviewed by a primary-inspection and processing agent. (Id.). After an initial review, this agent stamped Petitioner's passport "admitted," which the Government contends was done erroneously, as Petitioner's admission review had not yet been completed. (Id.). In any event, Petitioner was not permitted to leave the airport at that time, but was instead referred to secondary-inspection processing for further review and an interview. (Id.). At some point between the conclusion of the initial review and the completion of secondary-inspection, customs officials contacted the Department of State concerning Petitioner's visa and apparently requested that the visa be revoked. (Id.). The Department of State thereafter revoked the visa and informed the customs officials about the revocation. (Id. at 3). Petitioner was thereafter prepared to be returned to Afghanistan and was scheduled for departure on March 15, 2017. (Id.).

In preparation for his flight, Petitioner was temporarily transferred to the Elizabeth Detention Center. (Id.). Counsel thereafter filed a habeas petition on Petitioner's behalf seeking Petitioner's release, as well as a motion for an emergency injunction seeking to block Petitioner's removal from the country. (Id.; see also ECF No. 1). This Court denied that injunction request, and Petitioner appealed. (ECF No. 7, 8). On March 15, 2017, the Third Circuit granted Petitioner a temporary stay from removal without ruling on any of Petitioner's other requests or addressing this Court's prior opinion and order. (ECF No. 10). Petitioner thereafter withdrew his appeal withthe Government's consent so that he could complete the litigation of his habeas petition. (ECF No. 12).

On March 24, 2017, an asylum officer interviewed Petitioner and determined that he had a credible fear of persecution if he returned to Afghanistan. (ECF No. 27-1 at 3). That same day, DHS issued Petitioner a Notice to Appear, alleging that he was inadmissible. (Id.). As part of those proceedings, Petitioner filed a motion before the immigration court in which he argued that his removal proceedings should be terminated because he had been admitted to the United States as an SQ1 immigrant when his passport was stamped, and that the revocation was invalid. (See id. at 7). By way of an opinion and order issued on August 11, 2017, an immigration judge denied that motion, finding that, because Petitioner had never completed secondary inspection, he had never been admitted into the country for immigration purposes, and that Petitioner therefore remained an applicant for admission following the revocation of his visa. (Id. at 7-9). After determining that the relevant statutes and regulations permit the State Department to revoke Petitioner's SQ1 visa at any time prior to admission into the United States, the immigration judge explained his determination that Petitioner had never actually been admitted, regardless of the stamp in his passport, as follows:

Admission is defined as the "lawful entry of the alien into the United States after inspection and authorization by an immigration officer." INA § 101(a)(13)(A). The [Board of Immigration Appeals ("BIA")] has held that an application for "admission" is a continuing one, rather than an act limited to the exact time that the alien enters the United States. See Matter of Valenzuela-Felix, 26 I&N Dec. 53, 56 (BIA 2012). In Matter of Valenzuela-Felix, the BIA explained:
[T]he Attorney General and [the] Board have consistently treated an application for admission as a continuing one and have held that, ultimately, admissibility is authoritatively determined on the basis of the law and facts existing, not at the time the alien first presents himself at the port of entry, but atthe time the application for admission is finally considered during the proceedings before the Immigration Judge.
Id. at 56. Accord Minto v. Sessions, 854 F.3d 619, 624 (9th Cir. 2017); Ali v. Reno, 22 F.3d 442, 448 n. 3 (2d Cir. 1994); Munoz v. Holder, 755 F.3d 366, 372 (5th Cir. 2014); Palmer v. I.N.S., 4 F.3d 482, 485 n. 11 (7th Cir. 1993). Although the Third Circuit and the BIA have addressed the parameters of the definition of "admission" in other contexts—i.e., adjustment of status, returning lawful permanent residents, and departure from the U.S.—they have not decided whether an alien who presents himself at a port of entry and who receives an erroneous admission stamp has been "admitted." See, e.g., Taveras v. Att'y Gen., 731 F.3d 281, 290 (3d Cir. 2013) (interpreting the term "seeking admission" under § 101(a)(13)(C)(v)); Martinez v. Att'y Gen., 693 F.3d 408, 413-14 (3d Cir. 2012) (comparing the definition of "admitted" to the term "lawfully admitted for permanent residence"); Totimeh v. Att'y Gen., 666 F.3d 109 (3d Cir. 2012) (holding that the date of an alien's adjustment of status was not a "date of admission" for purposes of determining whether alien was subject to removal for a crime involving moral turpitude); Tineo v. Ashcroft, 350 F.3d 382, 384 (3d Cir. 2003) (analyzing whether a returning lawful permanent resident was properly classified as an alien "seeking an admission"); see also Matter of Espinosa Guillot, 25 I&N Dec. 653 (BIA 2011); Matter of Rodarte, 23 I&N Dec. 905 (BIA 2006).
In addition, although the traditional test for entry—(1) physical presence; (2) inspection and admission by an immigration officer, or actual and intentional evasion of inspection at the nearest inspection point; and (3) freedom from official restraint—is of limited importance given the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRAIRA"), the test still remains relevant. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub.L. No. 104-208, 110 Stat. 3009-546 (1996); Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995); Matter of Z, 20 I&N Dec. 707 (BIA 1993). IIRAIRA replaced the term "entry" with "admission," and defined "admission" as the "lawful entry of the alien into the United States after inspection and authorization by an immigration officer," INA § 101(a)(13)(A). Given that the term "admission" requires a "lawful entry," the pre-IIRAIRA definition of entry is therefore applicable.
In the instant case, [Petitioner] arrived at Newark Liberty International Airport and the visa page of his passport was stamped as "admitted." DHS, however, contends that [Petitioner's] passportwas "erroneously stamped with an admission stamp prior to the completion of his immigration processing." Notwithstanding the admission stamp during primary-inspection processing, the exact timing of the stamp is not necessarily dispositive here; when [Petitioner] landed at the airport, he became an applicant for admission, a status that he retained throughout his entire airport processing. Even though he was initially stamped as admitted, his application for admission was not yet complete; he was referred to secondary inspection, where the [Department of State] revoked his SQ1 visa, he was informed of the revocation, and he was asked whether he wished to withdraw his application for admission to the U.S., to which he agreed. Moreover, [the Department of Homeland Security] has submitted a statement from a [customs deputy chief officer] stating that the admission stamp was erroneous. The fact that the stamp was erroneous further supports the contention that [Petitioner's] admission was not a lawful entry. In addition, [Petitioner] does not satisfy the third requirement of a "lawful entry"—namely, freedom from official restraint. See Yang v. Maugans, 68 F.3d 1540 (3d Cir. 1995). On the contrary, he was questioned by [customs] officers during the pendency of his secondary-inspection processing. Thus, in reviewing the "basis of the law and facts" existing at the time the application for admission is considered during proceedings, the Court finds that [Petitioner] was not "admitted" to the United States. See Valenzuela-Felix, 26 I&N Dec. at 56. As such, the State Department was authorized to properly revoke his visa.

(ECF No. 27-1 at 7-8 (citations omitted)). The immigration judge, based on his finding that Petitioner remained an applicant for admission without a valid visa, sustained the charge that Petitioner was inadmissible, denied Petitioner's motion to terminate...

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