Sidhu v. Wolf
| Decision Date | 17 December 2020 |
| Docket Number | CV-20-1189-PHX-MTL (JFM) |
| Parties | Baljeet Singh Sidhu, Petitioner v. Chad Wolf, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) challenging the denial of his asylum application and resulting detention. Respondents have filed a Motion to Dismiss (or transfer) (Doc. 17). The motion is a dispositive motion, and accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
Petitioner is a 37-year-old Indian citizen who entered the U.S. near Mexico on or about May 30, 2019 without inspection. (Pet. Exh. A, Credible Fear Interview, Doc. 1-2, at 13, 11, and Record of Determination, Doc. 1-1 at 3.) Petitioner sought asylum, and while detained at the facilities in Eloy, Arizona, was interviewed by an Asylum Officer, who denied his application on August 14, 2019. (Id. at Record of Negative Credible Fear Finding, Doc. 1-2 at 2, 11.) Petitioner sought review by an immigration judge who affirmed. (Petition, Doc. 1 at 10; Motion, Doc. 17 at 3.) Petitioner was transferred out of the state of Arizona on September 29, 2019 and is currently held at the direction of the Department of Homeland Security at Adams County Detention Center in Natchez, Mississippi, where Respondent Shawn Gillis is the warden.
Petition - Petitioner commenced the current case by filing through counsel his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 on June 16, 2020 (Doc. 1). In Grounds One through Three, Petitioner claims that his credible fear proceedings denied him a fair and meaningful opportunity to apply for relief in violation of the governing statute, the implementing regulations, and the Due Process Clause of the Fifth Amendment. Petitioner alleges the asylum officer failed to employ the required non-adversarial procedures when conducting his credible fear interview, improperly allocated the burden of proof, and misapplied the relevant regulations and binding case law when evaluating his credible fear claim. In Ground Four, Petitioner requests attorney's fees and costs under the Equal Access to Justice Act. Petitioner asserts that this Court has habeas corpus jurisdiction to review his challenges pursuant to the Ninth Circuit's decision in Thuraissigiam v. U.S. Dep't of Homeland Sec., 917 F.3d 1097 (9th Cir. 2019), rev'd and Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (June 25, 2020). (Service Order 6/18/20, Doc. 5 at 2-3.)
In his demand for relief, Petitioner asks the Court to: (1) determine that his expedited removal order violated his statutory, regulatory, and constitutional rights and, as a result, he is being detained in violation of the law; (2) vacate the expedited removal order; and (3) order that he be provided a new, meaningful opportunity to apply for asylum and other relief from removal. (Doc. 1 at 22-23.)
Petitioner has named as respondents Acting DHS Secretary Chad Wolf, United States Attorney General William Barr, Acting United States Immigration and Customs Enforcement (ICE) Director Matthew T. Albence, Acting USCIS Director Kenneth Cuccinelli, USCIS New Orleans Field Office Director Stanley Crockett, and Adams County Correctional Center Warden Shawn Gillis. The Court deferred addressing whetherthe proper respondents had been named,1 and noted:
Under the rationale articulated in Armentero, infra, and in the absence of authority addressing who is the proper respondent in immigration habeas corpus proceedings under § 2241, the Court will not dismiss Respondents or the Petition for failure to name a proper respondent at this stage of the proceedings. See Armentero v. INS, 340 F.3d 1058, 1071- 73 (9th Cir. 2003) (), withdrawn, 382 F.3d 1153 (9th Cir. 2004) (order); see also Rumsfeld v. Padilla, 542 U.S. 426, 435 n.8 (2004) ().
(Doc. 5 at 2, n.2.) And, although noting its occurrence, the Court's service order did not address the effect of Petitioner's physical location at the time of the Petition.
The Order granted the Emergency Motion to Stay Removal (Doc. 2) and enjoined Respondents from removing Petitioner. (Doc. 5 at 4.)
Motion - Respondents sought (Doc. 13) and obtained (Doc. 16) leave to file a dispositive motion in lieu of a response to the Petition.
In the Order granting Respondents leave to file a dispositive motion, the Court observed that the Supreme Court had recently reversed the Ninth Circuit case, Thuraisssigiam I, on which Petitioner relied to establish subject matter jurisdiction despite the jurisdiction stripping statutes. See Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. ___, 140 S. Ct. 1959 (2020) ("Thuraissigiam II"). The Court ordered Petitioner to show cause why the case should not be dismissed for lack of subject matter jurisdiction.
On July 1, 2020, Respondents filed the instant Motion (Doc. 17) arguing that the District of Arizona is not the proper forum because Petitioner was no longer detained in the District of Arizona at the time of his Petition. With regard to the latter, Respondents argue that territorial jurisdiction lies in the district of confinement, citing Rumsfield v. Padilla, 542 U.S. 426, 443 (2004). Respondents alternatively argue that venue is proper in the district of confinement, citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-94 (1973). Respondents argue that either dismissal or transfer to theproper district is appropriate, citing 28 U.S.C. § 1406(a) (improper venue).
In their Motion to Dismiss, Respondents suggest in a foonote that in light of Thuraissigiam II that this Court lacks subject matter jurisdiction, and seek leave to file a motion to dismiss on that basis if the instant motion is denied. (Motion, Doc. 17 at 1-2, n.1.)
Petitioner argues the Court retains jurisdiction after Thuraissigiam II.
Response - On August 10, 2020, Petitioner responded (Doc. 21) to the Motion and the Order to Show Cause. Petitioner argues that Thuraissigiam II was limited to challenges to the constitutionality of the process, but he challenges the application of the process. He further argues the Court retains subject matter jurisdiction under the Administrative Procedures Act.
Petitioner argues that rather than the place of custody, the place where the underlying proceedings took place is the proper venue, arguing that Padilla and its "immediate custodian" rule do not apply to removal orders, citing Armentero v. I.N.S., 340 F.3d 1058, 1071 (9th Cir. 2003), reh'g granted, opinion withdrawn, 382 F.3d 1153 (9th Cir. 2004), opinion after grant of reh'g, 412 F.3d 1088 (9th Cir. 2005) (). Petitioner argues that (despite its withdrawal) Armenterro remains persuasive law after Rumsfeld, citing various decisions form the District of Arizona and other district courts. Petitioner argues traditional venue considerations apply and call for resolution in the District of Arizona, citing Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 493-94 (1973). Petitioner argues that the BIA relies upon law from the circuit where the administrative proceedings were held, and thus Ninth Circuit law should apply, citing a district court case finding that a reason to place venue in the circuit where the administrative proceedings were conducted. Finally, Petitioner argues that transfer would be a denial of due process by denying Petitioner his counsel of choice.
Reply - Respondents Reply (Doc. 22) on both the Motion and the OSC. Respondents argue that the Court should first address the loss of subject matterjurisdiction, citing Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir.2016) and that that the distinctions raised by Petitioner do not avoid the holding of Thuraissigiam II, and the APA does not govern immigration proceedings, nor is habeas a proper forum to raise APA claims.
Respondents argue Petitioner does not avoid the jurisdictional rule of Padilla and improperly relies on venue authorities related to direct review, not habeas, and that Petitioner's venue analysis is flawed. Respondents argue that counsel need only seek admission in the Southern District of Mississippi and enforcement of the rule supports Padilla's goal of preventing forum shopping. Respondents argue that Petitioner's transfer was not an improper attempt to control the venue, but Petitioner's filing his habeas here was the epitome of forum shopping.
Surreply - Petitioner filed a reply (Doc. 23) on both the OSC and the Motion to Dismiss. Petitioner again argues Respondents read the as-applied decision in Thuraissigiam II too broadly, ignoring the differences, including that Petitioner seeks release from custody, and alleges he was denied his statutory due process rights. He argues jurisdiction over his constitutional claims and under the APA. He again argues Padilla does not control and traditional venue calls for the matter to be heard in Arizona.
Respondents argue that this Court lacks subject matter jurisdiction over Petitioner's claim, relying on the Supreme Court's recent decision in Thuraissigiam II. Petitioner opposes that conclusion.
Relying on Bibiano v. Lynch, 834 F.3d 966, 971 (9th Cir.2016), Respondents argue this Court must first resolve the subject matter jurisdiction issue. Specifically, Respondents rely on footnote 4 of Bibiano, where the circuit court noted: "C...
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