M.S.P.C. v. U.S. Customs & Border Prot., CIV 14–769 JCH/CG.

Citation60 F.Supp.3d 1156
Decision Date16 October 2014
Docket NumberNo. CIV 14–769 JCH/CG.,CIV 14–769 JCH/CG.
CourtUnited States District Courts. 10th Circuit. District of New Mexico
PartiesM.S.P.C., Petitioner, v. U.S. CUSTOMS AND BORDER PROTECTION; U.S. Department of Homeland Security; Jeh Johnson, Secretary of DHS; Eric H. Holder, Jr., Attorney General of the United States; R. Gil Kerlikowske, Commissioner of CBP; Thomas S. Winkowski, Principal Deputy Assistant Secretary, Immigration and Customs Enforcement; Leon Rodriguez, Director of U.S. Citizenship and Immigration Services; Hector Mancha, El Paso Director of Field Operations, CBP; Martin E. Zelenka, ICE Officer–in–Charge, Artesia; and Adrian P. Macias, El Paso Field Office Director, ICE, Respondents.

Alexandra Freedman Smith, ACLU, Albuquerque, NM, Andre Segura, Judy Rabinovitz, Lee Gelernt, Lindsay Nash, American Civil Liberties Union Foundation, New York, NY, Katherine Desormeau, Cecillia D. Wang, Jennifer Chang Newell, Stephen Kang, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, for Petitioner.

Gisela A. Westwater, Sarah L. Vuong, Kirsten Daeubler, U.S. DOJ Washington, DC, Roberto D. Ortega, U.S. Attorney's Office, Albuquerque, NM, for Respondents.

MEMORANDUM OPINION AND ORDER

JUDITH C. HERRERA, District Judge.

This matter comes before the Court on Petitioner M.S.P.C.'s Emergency Motion for Stay of Removal (ECF No. 2). The Court held a telephonic hearing on the motion on September 4, 2014, and ordered supplemental briefing. The Court, having considered the motion, briefs, arguments of the parties, applicable law, and otherwise being fully advised, concludes that Petitioner's emergency motion for stay of removal must be denied for lack of jurisdiction.

I. FACTUAL BACKGROUND

Petitioner M.S.P.C. is a native and citizen of El Salvador who fled her home country with her 10–month old son because they became the targets of gangs who controlled the area where they lived. Petition ¶¶ 4, 26, 27, ECF No. 1. One gang tried to force Petitioner to become an informant for them; the other accused her of acting as an informant for its rival; and members of both gangs threatened to kill her and her baby. Id. ¶ 27. Gang members came to her house and harassed her, caressing her face and running the barrel of their guns along her neck threateningly. Id. In Petitioner's experience, the police in El Salvador can do nothing to stop the gangs, the police will often tell gangs if a person makes a report against them, and the gangs then retaliate against the citizen who reported them. Id. ¶ 28. After one gang told her she had “48 hours to leave or they would kill [her],” she fled the country with her baby. Id. ¶ 27. Petitioner also fears returning to El Salvador because her son's father subjected her to violent abuse, repeatedly beating her. Id. ¶ 29. He also abused her after she decided to flee El Salvador. Decl. of M.S.P.C. ¶ 22, ECF No. 14.

On June 25, 2014, thirty minutes after Petitioner and her son entered the United States via raft at or near Hidalgo, Texas, United States Border Patrol officers apprehended them. See Resp't's App'x, ECF No. 34 at 2 of 14; Petition at 1, ¶¶ 4, 15, ECF No. 1. They were placed into expedited removal under 8 U.S.C. § 1225(b)(1)(A)(iii). Petition at 1, ¶ 15, ECF No. 1.

While detained in a Border Patrol facility, an immigration officer interviewed her and asked why she came to the United States. Id. ¶ 33. When she told him that she came because she was threatened by gang members, she was not allowed to say more; instead, the immigration officer made her sign papers in English that she did not understand. Id. ¶ 33. Petitioner and her son were later transferred to the Artesia Family Residential Center in Artesia, New Mexico. Id. at 1, ¶ 34.

On or near July 9, 2014, in Artesia, Petitioner had a credible fear interview, but she asserts that procedural and substantive flaws undermined the fairness of the interview. See Petition ¶ 35, ECF No. 1; Resp't's App'x, ECF No. 34 at 6 of 14. When first notified of the interview, she was not told what its purpose was, and when she tried to find a lawyer to help her, an immigration officer told her “it was not necessary,” so she had no attorney to consult with or attend the interview with her. Id. ¶ 37. During the interview, she was holding her baby and found it hard to concentrate, because she was not offered childcare. Id. ¶ 38. Although there was a Spanish interpreter on the telephone, Petitioner did not think the interpreter could speak Spanish well and did not seem to understand her.Id. ¶ 39. Consequently, she found it difficult to explain why she left El Salvador and why she was afraid to return. Id. At the end of the interview, the asylum officer gave her a paper written in English, but she does not understand English, so she could not read what it said. Id. ¶ 40. The asylum officer issued a negative credible fear determination. Id. ¶ 41.

After Petitioner's interview with the asylum officer, a relative found a lawyer to help her, but numerous restrictions on her telephone access prevented her from talking to the lawyer before her hearing with the immigration judge. See id. ¶ 43; Decl. of M.S.P.C. ¶ 12, ECF No. 14. About 10 days after her interview with the asylum officer, Petitioner was called to a video hearing with the immigration judge. Decl. of M.S.P.C. ¶ 13, ECF No. 14. At the hearing, the immigration judge asked her if she had a lawyer, and she responded that she had not had a chance to talk to her attorney. Id. The judge said he would call her back in three days to give her an opportunity to consult with her attorney. Id. Over the next three days, she attempted to reach her attorney, but was unable to do so because she could only use the phone once a day for 15 minutes, and if she could not reach her lawyer, she could not try again until the next day. Id. ¶ 14.

Three days later, the judge held the hearing without counsel present. See id. ¶ 15; Petition ¶ 44, ECF No. 1. During the hearing, Petitioner's baby was present, which made it difficult for her to respond to questions. Decl. of M.S.P.C. ¶ 15, ECF No. 14. The immigration judge affirmed the asylum officer's negative credible fear determination and M.S.P.C. is now subject to an expedited removal order. Id. ¶¶ 15–16; Petition ¶ 46, ECF No. 1. Petitioner, through counsel, has filed four motions to reconsider the negative credible fear determination, and the Houston Asylum Office has denied two of the four motions to reconsider and the remaining two are pending denial. Resp't's App'x, ECF No. 34 at 13 of 14.

On August 22, 2014, Petitioner M.S.P.C., on behalf of herself and her 10–month old son, petitioned the Court for a writ of habeas corpus and for declaratory and injunctive relief. Petition 1, ECF No. 1. Petitioner asserts two causes of action based on the allegedly erroneous conclusion that she could not satisfy the “credible fear” test and for numerous purported violations of her procedural rights that undermined her right to a meaningful asylum hearing: (1) violations of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq.; the United Nations Convention Against Torture, implemented in the Foreign Affairs Reform Restructuring Act of 1998, 112 Stat. 2681, 2681–822 (codified as Note to 8 U.S.C. § 1231 ); and the INA implementing regulations; and (2) violation of the Due Process Clause of the Fifth Amendment. Petition 12–14, ECF No. 1. Among the procedural rights she alleges Defendants violated are the lack of adequate notice of the hearing, the failure to provide her a meaningful opportunity to consult with counsel, the failure to provide child care during the interviews, and applying a higher legal standard for her credible fear determination than is established by the INA and its regulations. See id. ¶¶ 53, 60.

Petitioner also filed an Emergency Motion for Stay of Removal, seeking a stay of proceedings pending the outcome of her habeas petition. Pet'r's Mem. 2, ECF No. 3. Petitioner contends she faces irreparable harm if removed, because she and her child may be killed or injured if returned to El Salvador.Id. She contends further that she has a likelihood of success on the merits because the facts of her situation easily satisfy the credible fear standard, which is generally set at a low threshold to ensure that the first stage of the process does not eliminate valid asylum claims, and because she had a constitutionally-protected liberty interest in applying for asylum under the Fifth Amendment that Defendants violated through the procedural defects in the hearing. See id. at 7–12. Finally, Petitioner contends that this Court has jurisdiction under 28 U.S.C. § 2241, 8 U.S.C. § 1252(e)(2)(B), and the Suspension Clause set forth in Article I, Section 9, Clause 2 of the Constitution.

The Government filed a response opposing the emergency motion for stay of removal. Resp't's Resp., ECF. No. 17. The Government argues that the Court lacks jurisdiction to issue an order staying execution of Petitioner's expedited removal order because 8 U.S.C. § 1252(g) expressly forecloses such relief. Id. at 4. The Government additionally asserts that, even if the Court has jurisdiction to grant the requested stay, Petitioner cannot show a likelihood of success on the merits, primarily because this Court lacks jurisdiction to review the immigration judge's negative credible fear determination. See id. at 5–10.

The Court held a hearing on the motion on September 4, 2014, during which it considered further argument by the parties. At the hearing, the Government conceded that this Court has jurisdiction to issue a stay of removal while it considers its own jurisdiction. The Court entered a limited stay to consider the jurisdictional issues and requested additional briefing on the Suspension Clause issue. Having considered the supplemental briefs (ECF Nos. 33 and 37) submitted by the parties, including Respondents' Amended Appendix (ECF No. 34) and Notice of Supplemental Authority (ECF No. 38) and Petiti...

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