Nken v. Chertoff

• Court: U.S. District Court — District of Columbia
• Writing for the Court: Colleen Kollar-Kotelly
• Citation: Nken v. Chertoff, 559 F.Supp.2d 32 (D. D.C. 2008)
• Decision Date: 18 June 2008
• Docket Number: Civil Action No. 08-1010 (CKK).
• Parties: Jean Marc NKEN, Petitioner, v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security, Respondents.

559 F.Supp.2d 32

Jean Marc NKEN, Petitioner, v. Michael CHERTOFF, Secretary of the United States Department of Homeland Security, Respondents.

Civil Action No. 08-1010 (CKK).

United States District Court, District of Columbia.

June 18, 2008.

Morton Sklar, World Organization for Human Rights USA, Washington, DC, for Petitioner.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

On June 13, 2008, Petitioner Jean Marc Nken filed an Emergency Petition for a Writ of Habeas Corpus, Injunctive Relief and for Stay of Removal. The Emergency Petition, which the Court received in Chambers on the morning of June 16, 2008, raises various claims and seeks various forms of relief. Most pressingly, however, the emergency portion of the Petition asks this Court to issue injunctive relief, in the form of a stay of Petitioner's removal from the United States, which is—to the Court's knowledge—currently scheduled to occur on Thursday, June 19, 2008. The Emergency Petition primarily argues that such a stay is necessary in order to allow the Board of Immigration Appeals ("BIA") to consider a currently pending motion to reopen Petitioner's asylum claim that Petitioner has filed with the BIA.

Upon receipt of the Emergency Petition, the Court held two telephonic motions hearings on the record with counsel for both parties participating, during which it heard argument on certain discrete issues regarding the Emergency Petition and the Court's jurisdiction to entertain it. As explained to counsel during those telephone calls, the Court has decided to bifurcate the emergency portion of the Petition—i.e., the request that this Court stay Petitioner's impending removal—from the remainder of the claims and requests for relief raised in the Emergency Petition. This Memorandum Opinion addresses only Petitioner's emergency request for a stay of removal, and concludes that the Court lacks jurisdiction to issue the relief Plaintiff seeks because the Immigration and Nationality Act ("INA"), as amended by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 302, vests sole authority to review final orders of removal, claims arising from actions and proceedings brought in connection with removals, and claims arising from Executive Branch decisions to execute removal orders, in the Fourth Circuit Court of Appeals.¹

I: BACKGROUND

Petitioner Jean Marc Nken is a national and citizen of Cameroon, who entered the United States in April 2001. Emerg. Pet. ¶ 2, Ex. F (Immigration Judge Decision). According to the Emergency Petition, Petitioner's first application for asylum, withholding of removal and protection under the Conventional Against Torture was denied by an Immigration Judge ("IJ") on March 4, 2005. Emerg. Pet. ¶ 4.² Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on March 31, 2005, and also submitted a motion to remand the case to the IJ in order to apply for an adjustment of status based on Petitioner's marriage to a U.S. citizen and pending 1-130 application. Id. ¶ 4. The BIA affirmed the IJ's denial of Petitioner's asylum application and denied the motion to remand on June 16, 2006. Id. ¶ 5. At that time, the BIA also issued a final order of removal. Id.

Petitioner filed a Petition for Review with the Fourth Circuit Court of Appeals on July 14, 2006. Id. ¶ 5. The Fourth Circuit denied that Petition for Review on April 3, 2007. Id. ¶ 8; Nken v. Gonzales, 227 Fed.Appx. 265 (4th Cir.2007). During the interim, Petitioner and his wife attended an 1-130 interview, at which Petitioner was arrested and placed in detention. Emerg. Pet. ¶ 6. Petitioner was then released from detention and' placed in the Intensive Supervision and Appearance Program ("ISAP"), a form of supervised parole. Id. Also during the interim, Petitioner filed two motions to reopen the BIA's asylum proceedings based on his marriage to a U.S. citizen. Gov't Mem. on Subject Matter Jurisdiction ("Gov't Mem.") at 1 n. 2. The BIA denied those motions to reopen, and the Fourth Circuit denied a Petition for Review of the BIA's denial of one of Petitioner's motions to reopen. Nken v. Mukasey, No. 07-1633, 2008 WL 961628 (4th Cir. Apr. 9, 2008). On May 6, 2008, Petitioner filed his third motion to reopen with the BIA, based on a claim of changed conditions in his home country of Cameroon. Emerg. Pet. ¶ 8. That motion to reopen is still pending with the BIA. Id.

On May 30, 2008, Petitioner was arrested and placed in detention in Maryland. Id. ¶ 9. According to Petitioner, he was informed on June 11, 2008 that he would be deported on June 16 or June 17, 2008, and that his removal is the result of his failure to comply with the ISAP supervised parole program. Id. ¶ 20. The Court has since learned, through the representations of Respondent's counsel, that Petitioner is currently scheduled to be removed on Thursday June 19, 2008. On June 13, 2008, Petitioner filed his Emergency Petition, which was not received in Chambers until the morning of Monday June 16, 2008. The Emergency Petition raises various legal claims and requests for relief, which are not addressed in this Memorandum Opinion because they are not of an emergent nature. In addition, however, the Emergency Petition seeks injunctive relief to stay Petitioner's impending removal, primarily in order to allow the BIA to consider and resolve Petitioner's pending motion to reopen prior to any removal. Petitioner also filed a motion directly with the BIA asking for a stay of his removal pending resolution of his motion to reopen based on a claim of changed country conditions; however, the BIA denied that motion in a Decision dated June 17, 2008.³

Upon receipt of the Emergency Petition, the Court held a telephonic motions hearing on the record with counsel for both parties participating on the afternoon of June 16, 2008. During that telephone call, the Court focused the parties on the emergency portion of the Petition, and heard argument on certain issues concerning that portion. The Court also set a schedule for the receipt of supplemental briefing related to jurisdiction from both parties. After receiving that supplemental briefing, on the afternoon of June 17, 2008, the Court held another telephonic motions hearing on the record with counsel for both parties participating regarding further discrete issues pertaining to the Emergency Petition.

II: DISCUSSION

The initial issue facing the Court, and the one which the Court has focused the parties on in its telephonic motions hearings, is whether this Court has jurisdiction to grant the emergency relief Petitioner seeks—a stay of the BIA's final order of removal in order to allow the BIA to consider and resolve Petitioner's pending motion to reopen based on changed country conditions—or whether, instead, the REAL ID Act divests this Court of jurisdiction over Petitioner's request and places it in the Fourth Circuit Court of Appeals.

Section 106 of the REAL ID Act amended the INA, with the goal of "giv[ing] every alien a fair opportunity to obtain judicial review while restoring order and common sense to the judicial review process." H.R.Rep. No. 109-72 at 174 (2005). As amended by the REAL ID Act, 8 U.S.C. § 1252 clarifies "the circumstances under which and the venue in which judicial review is available in immigration cases." Sadhvani v. Chertoff, 460 F.Supp.2d 114, 120-21 (D.D.C.2006), aff'd 2008 WL 2185344 (May 13, 2008). Three provisions of 8 U.S.C. § 1252 are particularly relevant here. First, subsection (a)(5)—entitled "Exclusive means of review" —provides that:

Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title [the mandamus statute and the All Writs Act], a petition for review filed with the appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in subsection (e) of this section. For purposes of this chapter, in every provision that limits or eliminates judicial review or jurisdiction to review, the terms "judicial review" and "jurisdiction to review" include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).

8 U.S.C. § 1252(a)(5) (emphasis added).

Next, subsection (b)(9)—entitled "Consolidation of questions for judicial review" —provides that:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from, any action taken or proceeding brought to remove an alien from, the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28, or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

Id. § 1252(b)(9) (emphasis added).

Finally, subsection (g)—entitled Exclusive Jurisdiction-provides that:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of an alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

Id. § 1252(g) (emphasis added).

Courts addressing these provisions of § 1252 have found that the...