Nianga v. Wolfe

• Decision Date: 27 January 2020
• Docket Number: CIVIL ACTION NO. 3:20-CV-0146-G
• Citation: 435 F.Supp.3d 739
• Parties: Ndembo NIANGA, Plaintiff, v. Richard WOLFE, Acting Secretary of Department of Homeland Security, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

435 F.Supp.3d 739

Ndembo NIANGA, Plaintiff,

v.Richard WOLFE, Acting Secretary of Department of Homeland Security, et al., Defendants.

CIVIL ACTION NO. 3:20-CV-0146-G

United States District Court, N.D. Texas, Dallas Division.

Signed January 27, 2020

Danial Gividen, Gividen Law PLLC, Dallas, TX, Patricia Freshwater, Lopez & Freshwater PLLC, Richardson, TX, for Plaintiff.

Brian Walters Stoltz, U.S. Attorney's Office, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior United States District Judge Before the court is the Plaintiff's Emergency Motion for a Temporary Restraining Order ("TRO") (docket entry 3) filed by the plaintiff Ndembo Nianga on the morning of January 21, 2020. By his motion, the plaintiff seeks an order enjoining the United States Department of Homeland Security, United States Immigration and Customs Enforcement, from removing him to his native country of Angola, where he fears he will be persecuted. Id. at 1. For the reasons set forth below, the court concludes that it lacks jurisdiction to adjudicate Nianga's claims and must therefore DENY the motion for a TRO, and DISMISS this case for lack of subject-matter jurisdiction.

I. BACKGROUND

The plaintiff alleges the following:

Ndembo Nianga is 51 years old and a native and citizen of the Republic of Angola. Plaintiff's Habeas Petition, Complaint, and Request for Temporary Restraining Order/Injunctive Relief ("Complaint") (docket entry 2) at 13. Nianga and his family are members of the CASA-CE political party, which opposes Angola's ruling MPLA party. Id. Nianga and members of his family have been accosted by Angolan government agents due to their political affiliation on various occasions. For example, government agents attacked Nianga's stepson and broke his arm because of his political activities. Id. at 13-14. In June of 2016, Angolan military and police officers attacked Nianga's wife, Antonio, and the couples' children in their home. Id. at 14. Antonio was arrested and jailed for three months, during which time she was beaten and interrogated regarding her involvement with "government business." Id. Antonio eventually escaped and fled to the United States with her two youngest children in October of 2016. Id.

In 2017, police officers came to Nianga's home looking for Antonio. Id. at 15. The police informed Nianga that they would arrest and detain him until his wife and children came back. Id. The police said they were arresting Nianga because his family participated in government protest marches, and because Nianga was a member of the same political group: CASA-CE. Id. at 14-15. Nianga managed to evade arrest that day, and continued to evade arrest until he left Angola on February 9, 2019 with the intent to seek asylum in the United States. Id. at 15.

He first traveled to Brazil, and then traveled through various South and Central American countries until arriving in Mexico, and finally, at the Mexico-United States border. Id. Nianga presented himself at the U.S. border and requested asylum in or around April of 2019, but was refused entry. Id. at 16. He again sought entry on September 15, 2019, and this time was allowed to enter credible fear proceedings to determine whether he would have the opportunity to file a I-589 Application for Asylum. Id. at 16. Nianga's credible fear interview took place on October 10, 2019. Id. The interview was conducted in the Brazilian dialect of Portugese, and Nianga speaks an Angolan dialect of Portugese. Id. Nianga alleges that he was not represented by counsel at his interview, that he did not fully understand the asylum officer's questions, and that his answers were not correctly translated. Id.

The asylum officer found Nianga's testimony regarding his fear of persecution in Angola credible, but concluded that Nianga was subject to a bar to asylum and withholding of removal under 8 C.F.R. § 208.13(c)(4) ("the (c)(4) bar"), as he had traveled through Mexico without first applying for asylum there. Id. at 16-17. Nianga appealed the asylum officer's decision to Immigration Court, and appeared before an immigration judge ("IJ") for a credible fear review hearing on November 4, 2019. Id. at 17. During the hearing, which lasted less than seventeen minutes, Nianga relayed to the IJ the reasons that he feared persecution in Angola; some of which he had previously stated to the asylum officer in his credible fear interview, others of which he had not. Id. at 17-18. When asked why he had not shared these additional facts with the asylum officer, "Nianga explained that the asylum officer did not listen to him well." Id. at 18. Nianga alleges that the IJ did not ask any questions relating to facts that are relevant to whether Nianga was subject to the (c)(4) bar. Id. At the close of the brief hearing, the IJ "agree[d] with the asylum officer's analysis" and affirmed the asylum officer's decision. Id.

In his complaint Nianga asserts the following six claims: (1) that 8 C.F.R. § 208.13(c)(4) ("the (c)(4) bar") violates the Due Process Clause of the Fifth Amendment; (2) that the (c)(4) bar violates several provisions of the Immigration and Nationality Act ("INA") and the Administrative Procedures Act ("APA"); (3) that the (c)(4) bar violates the notice and opportunity for comment requirements under §§ 533 (b) and (c) of the APA; (4) that the (c)(4) bar violates the APA because it is arbitrary and capricious; (5) that the (c)(4) bar does not apply to Nianga because he was subjected to an unlawful metering policy,¹ and; (6) that the asylum officer's credibility determination and the IJ's review thereof violated the APA because they were arbitrary and capricious. Complaint at 21-25. Nianga seeks a TRO enjoining the Government from removing him from the United States until he is afforded a full and fair opportunity to have his asylum claim heard. See TRO at 1.

The plaintiff filed his complaint and TRO on January 21, 2020, and filed a supplemental brief addressing this court's jurisdiction to adjudicate the plaintiff's claims on January 24, 2020. Plaintiff's Supplemental Brief Addressing Jurisdiction ("Supplemental Brief") (docket entry 7). On the same day, the Government filed a response to the motion for a TRO in which the Government also addresses the arguments raised in the plaintiff's supplemental brief. Defendant's Response to Plaintiff's Motion for Temporary Restraining Order ("Response") (docket entry 8). According to the Government, the plaintiff's "removal is now scheduled to occur no earlier than January 28, 2020." Id. at 2 (page references to the Government's Response brief refer to the page numbers at the bottom of the page). The plaintiff's motion is now ripe for review.

II. ANALYSIS

A. Legal Standard for Temporary Restraining Orders

To obtain a temporary restraining order ("TRO"), a plaintiff must show the following: (1) there is a substantial likelihood of success on the merits; (2) there is a substantial threat that the plaintiff will suffer irreparable injury if injunctive relief is denied; (3) the threatened injury outweighs any damage that the TRO might cause the defendant; and (4) granting the TRO will not disserve the public interest. Sugar Busters LLC v. Brennan , 177 F.3d 258, 265 (5th Cir. 1999). The decision to grant or deny injunctive relief is left to the sound discretion of the district court. Mississippi Power & Light Company v. United Gas Pipe Line Company , 760 F.2d 618, 621 (5th Cir. 1985). Such relief is an extraordinary remedy which should only be granted if the movant has clearly carried his burden of persuasion on each of the four factors. Id. ; Allied Marketing Group, Inc. v. CDL Marketing, Inc. , 878 F.2d 806, 809 (5th Cir. 1989) (citations omitted).

B. Application

Before turning to Nianga's request for a TRO, the court must determine whether it has the authority to exercise jurisdiction over Nianga's claims. Federal courts are courts of limited jurisdiction and must therefore "affirmatively ascertain subject-matter jurisdiction before adjudicating a suit." Rodrigues v. McAleenan , No. 3:20-CV-0139-B, 435 F.Supp.3d 731, 735 (N.D. Tex. Jan. 22, 2020) (Boyle, J.) (quoting Sawyer v. Wright , 471 F. App'x 260, 260 (5th Cir. 2012) (per curiam)). A party seeking a TRO can not establish a "substantial likelihood of success on the merits" of his claim if the court concludes that it lacks jurisdiction to adjudicate the claim altogether. See id. As the party seeking relief, Nianga bears the burden of establishing subject-matter jurisdiction. See Sawyer , 471 F. App'x at 260.

The Government asserts, and the court agrees, that the court lacks jurisdiction to adjudicate the plaintiff's claims due to the jurisdiction-stripping provisions of 8 U.S.C. § 1252.

1. Title 8 U.S.C. § 1252 Strips the Court of Jurisdiction over the Plaintiff's Claims

The plaintiff is subject to an order of expedited removal under 8 U.S.C. § 1225(b)(1). Response at 1; Appendix to Defendants' Response to Plaintiff's Motion for Temporary Restraining Order ("Appendix") (docket entry 9) at App. 001, 012. It is undisputed that a federal district court's jurisdiction to review a determination made under Section 1225(b)(1) is circumscribed. See Supplemental Brief at 10. "[ Section] 1252(a)(2)(A) strips courts of jurisdiction to review claims relating to the expedited removal statute except as provided in § 1252(e), ‘[n]otwithstanding any other provision of law (statutory or nonstatutory).’ " Rodrigues , 435 F.Supp.3d at 736 (quoting 8 U.S.C. § 1252(a)(2)(A) ). Subsection (e) provides that where, as here, a plaintiff seeks "[j]udicial review of any determination made under section 1225(b)(1) [,]" such review "is available in habeas corpus proceedings, but shall be limited to" cases in which the plaintiff asserts a claim of mistaken identity, or asserts a claim that he was previously granted permanent resident status, refugee status, or asylum. See 8 U.S.C. § 1252(e)(2)(A)-(C) ; see also Shah v. Director, Jackson...