Tasci v. Tsoukaris

• Decision Date: 14 May 2013
• Docket Number: Civ. No. 13-2438 (KM)
• Parties: CENGIZ TASCI, Plaintiff, v. JOHN TSOUKARIS, FIELD OFFICER DIRECTOR FOR THE OFFICE OF ENFORECEMENT AND REMOVAL OPERATIONS, NEWARK FIELD OFFICE, Defendant.
• Court: U.S. District Court — District of New Jersey

CENGIZ TASCI, Plaintiff,

v. JOHN TSOUKARIS, FIELD OFFICER DIRECTOR FOR THE OFFICE OF ENFORECEMENTAND REMOVAL OPERATIONS, NEWARK FIELD OFFICE, Defendant.

Civ. No. 13-2438 (KM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Date: May 14, 2013

MEMORANDUM OPINION

This matter comes before the Court upon the Verified Petition for Writ of Habeas Corpus and Complaint for Injunctive Relief staying the Order of Removal from the United States of Petitioner Cengiz Tasci ("Tasci"). Petitioner maintains that he is not challenging the validity of the removal order itself or even the discretionary decision denying his request for a stay of his removal from the United States. Rather, Tasci maintains that he is challenging the Government's failure to apply internal policy guidelines in reaching its determination that Tasci should be removed. Whether this Court has jurisdiction to hear Petitioner's habeas challenge is a threshold issue. For the reasons set forth below, I hold that, under Section 1252(g) of the Immigration and Nationality Act ("INA"), this Court lacks jurisdiction to review Petitioner's claims.

I. BACKGROUND

Mr. Tasci, a 43 year-old citizen of Turkey, has been residing in the United States since 2001. See Brief in Support of Petition for Habeas Corpus, April 25, 2013, ECF No. 6 ("Tasci Brief"). He has a six-year-old daughter with his estranged wife, Theresa Godlove, who is a U.S. citizen, and he is awaiting the birth of a second child with his current girlfriend. Id. at 2. Tasci is currently detained at Essex County Correctional Facility in Newark, New Jersey. Id. at 1.

The facts regarding Tasci's immigration history are most clearly set forth in a letter from the U.S. Immigration and Customs Enforcement ("USICE" or "ICE") denying Tasci's application for an administrative Stay of Removal. See Letter of John Tsoukaris, USCIS Field Office Director, Regarding I-246 Denial, April 12, 2013, ECF No. 1-3 ("I-246 Denial"). According to the 1-246 Denial, Tasci was admitted to the United States on May 30, 2001, as a non-immigrant B2 Visitor for Pleasure with authorization to remain in the United States for a period of six months. Id. Tasci was "encountered on October 3, 2003 in Detroit, Michigan, by the U.S. Border Patrol and was taken into custody." Id. Tasci posted bail and was released, but thereafter failed to appear at his scheduled immigration hearing and was ordered removed to Turkey. Id. In March, 2005, Tasci filed a Motion to Reopen with the Executive Office for Immigration Reform (EOIR) which was denied on April 14, 2005. Id. On October, 2005, a "Petition for Alien Relative" (I-130) was filed on behalf of Tasci by his wife, Ms. Godlove, with U.S. Citizenship and Immigration Services("CIS"), but she subsequently withdrew that petition and it was later denied by CIS on April 16, 2007. Id. Tasci was encountered by ICE officials on January 22, 2013 and taken into custody. Id. While in custody, Tasci filed a VAWA petition¹ which is currently pending. Id. He also filed a second Motion to Reopen with the EOIR which was denied on March 4, 2013. Id. Tasci has filed an appeal with the BIA which also remains pending. Id. On March 27, 2013, ICE officials attempted to deport Tasci, but he refused to board the plane. Id.

Tasci does not challenge the facts as set forth in the I-246 Denial, but he offers a different interpretation of those facts and submits additional facts. First, Tasci maintains that the order of removal was issued in absentia because he never received notice of his initial hearing and his attempts to reopen the order have been denied as time-barred.² Tasci Brief at 1-2. Second, before ICEattempted to remove Tasci, he received a "Notice to Alien of File Custody Review" on March 5, 2013. See Ex. A to Tasci Brief. Tasci does not explain the procedural significance of this Notice,³ but the Notice itself states that the purpose of the Review is to determine whether individuals who are detained and subject to a final order of removal may be released on an "Order of Supervision" if their removal is not executed within a certain time frame. See id. The Notice provides that release "is dependent on [the alien's] demonstrating to the satisfaction of the Attorney General that [he] WILL NOT pose a danger to the community and WILL NOT present a flight risk." Id. The Notice indicates that ICE may consider, but is not limited to, ten listed factors including criminal history, failures to appear, and "equities" in the United States. See id. The Notice states that Tasci's File Review will take place "on or about April 1, 2013." ICE, however, attempted to execute Tasci's removal orderon March 27, 2013, before the Review was to take place. See Tasci Brief at 1. On March 28, 2013, Tasci submitted a Response to the Notice addressing each of the listed factors, see File Review Response, and filed an I-246 Application for a Stay of Deportation or Removal pursuant to 8 C.F.R. § 241.4(e). See Ex. B to Tasci Brief.

Third, Tasci's Counsel submitted on his behalf a letter to the ICE Deportation Officer attaching a Memorandum issued by John Morton, Director of USCIS, on March 2, 2011, regarding "Priorities for the Apprehension, Detention, and Removal of Aliens," ("Morton Memo"). See Ex. C to Tasci Brief. The Morton Memo cites ICE's limited resources and states that ICE is able to remove "less than 4% of the estimated illegal alien population in the United States . . . ICE must prioritize the use of its enforcement personnel, detention space, and removal resources to ensure that the removals the agency does conduct promote the agency's highest enforcement policies, namely national security, public safety, and border security." Id. The Memo then lays out a list of factors that "shall constitute ICE's civil enforcement priorities, with the first being the highest priority and the second and third constituting equal, but lower priorities . . . ." See Id. § A. Priority 1 are "Aliens who pose a danger to national security or a risk to public safety"; Priority 2 are "Recent illegal entrants"; and Priority 3 are "Aliens who are fugitives or otherwise obstruct immigration controls." Id. § A. The Morton Memo also instructs that, "Absent extraordinary circumstances or the requirements of mandatory detention, field office directors should not expend detention resources on aliens who areknown to be suffering from serious physical or mental illness, or who are disabled, elderly, pregnant or nursing, or demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest." Id. § C. However, the Memo makes clear that neither the listed "priorities," nor any other provision of the Memo "should be construed to prohibit or discourage the apprehension, detention, or removal of other aliens unlawfully in the United States." Id. § B. In other words, the Memo cannot be interpreted as prohibiting the enforcement of a removal order even where an individual subject to removal does not meet one of the listed "priorities."

In both his File Review Response and Letter in support of his Stay Application, Tasci stresses that he has no criminal record, that he has a U.S.-citizen child whom he has "consistently supported," and that he is expecting another child with his current girlfriend whom he also supports. See Tasci Brief at 2.

Tasci submits that he "does not challenge his removal order [or] the discretionary decision made by USCIS, although dissatisfied by the decision." Tasci Brief at 2-3. Rather, Tasci maintains that his claim before this Court "challenges USICE's failure to abide by their very own regulations and policies (Morton Memorandum, 8 C.F.R. Section 241.4(e), File Review and Stay factors) in arriving at their conclusion." Id. at 3.

II. LEGAL STANDARD

Section 1252(g), as amended by the REAL ID Act, Pub L. No. 109-13, 119 Stat. 231 (2005), explicitly bars judicial review by district courts of three classes of actions and decisions committed to the Government's discretion: "the 'decision or action to commence proceedings, adjudicate cases, or execute removal orders.'" Chehazeh v. Attorney General, 666 F.3d 118, 134 (3d Cir. 2012) (quoting Reno v. American Anti-Arab Discrimination Committee, 525 U.S. 471, 482, 119 S. Ct. 936, 142 L.Ed.2d 940 (1999). Specifically, Section 1252(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, United States Code, or any other habeas corpus provision, and sections 1361 [pertaining to district court jurisdiction over mandamus actions] and 1651 [pertaining to authority of district courts to issue writs] of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any 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 Act.

8 U.S.C. § 1252(g).

Section 1252(g) was "directed against a particular evil: attempts to impose judicial constraints upon prosecutorial discretion." Reno, 525 U.S. at 485 n. 9. Third Circuit precedent makes it clear that "§ 1252(g) was designed to make unreviewable prosecutorial decisions." Chehazeh, 666 F.3d at 135. Thus, if the decision to deny Tasci's application for a stay of removal is properly characterized as an exercise of prosecutorial discretion regarding the execution of a removal order, then Section 1252(g) precludes this court from reviewing the decision.

III. DISCUSSION

Tasci offers practically no argument as to why Section 1252(g) does not bar jurisdiction in this case. He implicitly acknowledges that he is prohibited from directly challenging the removal order in this Court by denying that he is challenging the removal order or the denial of an administrative stay. See Tasci Brief at 2-3 ("Tasci does not challenge his removal...