Thuraissigiam v. U.S. Dep't of Homeland Sec.

• Decision Date: 08 March 2018
• Docket Number: Case No.: 18–cv–00135–AJB–AGS
• Citation: 287 F.Supp.3d 1077
• Parties: Vijayakumar THURAISSIGIAM, Petitioner, v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.
• Court: U.S. District Court — Southern District of California

287 F.Supp.3d 1077

Vijayakumar THURAISSIGIAM, Petitioner,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Respondents.

Case No.: 18–cv–00135–AJB–AGS

United States District Court, S.D. California.

Signed March 8, 2018

Cody H. Wofsy, Jennifer C. Newell, ACLU Foundation Immigrants' Rights Project, San Francisco, CA, Lee Gelernt, ACLU Immigrants' Rights Project, New York, NY, John David Loy, ACLU Foundation of San Diego and Imperial Counties, San Diego, CA, for Petitioner.

U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, Joshua Samuel Press, U.S. Department of Justice Office of Immigration Litigation, Washington, DC, for Respondents.

ORDER:

(1) DISMISSING CASE WITH PREJUDICE FOR LACK OF JURISDICTION;

(2) DENYING PETITIONER'S EMERGENCY MOTION TO STAY;

(3) DENYING RESPONDENTS' MOTION TO DISMISS AS MOOT;

(4) DENYING PETITIONER'S EX PARTE APPLICATION FOR TEMPORARY STAY AS MOOT; AND

(5) DENYING THE JOINT MOTION TO SHORTEN TIME FOR PETITIONER'S EMERGENCY MOTION FOR STAY OF REMOVAL AS MOOT

Hon. Anthony J. Battaglia, United States District Judge

There are several motions currently pending before the Court. Most notable is Petitioner Vijayakumar Thuraissigiam's emergency motion for stay of his removal, (Doc. No. 52), and its related motions—Petitioner's ex parte application for a temporary stay pending his emergency motion for stay of removal, (Doc. No. 53), and the joint motion to shorten time for Petitioner's emergency motion for stay of removal, (Doc. No. 54). Pursuant to Civil Local Rule 7.1.d.1, the Court finds these matters suitable for determination on the papers and without oral argument. As will be explained in great detail below, the Court finds that it does not have jurisdiction to hear the instant habeas petition and thus DISMISSES the Petition. (Doc. No. 1.) Consequently, Petitioner's motion for stay of removal is DENIED and the remainder of the pending motions on the docket are DENIED AS MOOT . (Doc. Nos. 25, 52, 53, 54.)

I. BACKGROUND

Petitioner is a forty-six year old Sri Lankan Tamil man. (Doc. No. 1 ¶¶ 34, 35.) Tamil is an ethnic minority group in Sri Lanka. (Id. ¶ 35.) Beginning in the 1980s, a civil war between government forces and the Tamil separatist group, Liberation Tigers of Tamil Eelam ("LTTE"), began. (Id. ) In 2002, a cease fire was declared, however the cease fire collapsed in 2006. (Id. ¶¶ 36, 38.)

In 2004, during the political elections, Petitioner worked on behalf of M.K Shivajilingam, a candidate for parliament with the Tamil National Alliance. (Id. ¶ 37.) In 2007, Petitioner was then ordered to report to a Sri Lankan Army camp where he was detained and beaten, but was eventually released. (Id. ¶ 38.) Subsequently in 2009, the Sri Lankan government defeated the LTTE ending the civil war. (Id. ¶ 39.)

Thereafter in 2013, Petitioner again assisted Mr. Shivajilingam in his run as a candidate for provincial election. (Id. ¶ 40.) Petitioner's responsibilities were similar to those he held in 2004 and they included arranging public meetings in support of Mr. Shivajilingam. (Id. ¶¶ 37, 40.)

In 2014, Petitioner was approached by men on his farm who identified themselves as government intelligence officers and called Petitioner by his name. (Id. ¶ 41.) Petitioner was then pushed into a van where he was bound, beaten, and interrogated about his political activities and connection to Mr. Shivajilingam. (Id. ¶¶ 41, 42.) Petitioner then endured additional torture before he woke up in a hospital where he spent several days recovering. (Id. ¶¶ 42, 43.) Currently, Petitioner still suffers from numbness in his left arm and has scars from his beatings. (Id. ¶ 43.)

After these events, Petitioner went into hiding in Sri Lanka and India, and then in 2016 he fled the country. (Id. ¶ 44.) Petitioner then made his way through Latin America, where he was finally able to reach the U.S.–Mexico border. (Id. )

On February 17, 2017, Petitioner entered the United States where he was apprehended by a Border Patrol Agent patrolling the area of "Goats Canyon" four miles west of the San Ysidro Port of Entry.¹ (Id. ¶ 45; Doc. No. 25–1 at 15.) According to Petitioner, he was then afforded only a "cursory administrative asylum hearing" and then was issued an expedited removal order pursuant to 8 U.S.C. § 1225(b)(1) after the government determined that he did not have a credible fear of persecution. (Doc. No. 1 at 3, 13.) Petitioner argues that absent court intervention, he will be deported to Sri Lanka, where he will no doubt face further beatings, torture, and death because of his political associations. (Id. at 3.) Petitioner is currently detained at the Otay Mesa Detention Center in San Diego, California. (Id. )

Petitioner filed his petition on January 19, 2018.² (Doc. No. 1.) On March 5, 2018, Respondents filed their motion to dismiss. (Doc. No. 25.) Briefing has not yet been completed on this motion. Thereafter, on March 7, 2018, in short succession, and after Court operating hours, Petitioner filed his emergency motion for stay of removal, his ex parte application, and both parties filed their joint motion to shorten time. (Doc. Nos. 52, 53, 54.)

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(1) allows a motion to dismiss where a court lacks subject-matter jurisdiction. Because "[f]ederal courts are courts of limited jurisdiction[,]" a court "presume[s] that a cause [of action] lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). A Rule 12(b)(1) motion "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico , 880 F.2d 199, 201 (9th Cir. 1989). No presumption of truthfulness attaches to the allegations of the plaintiff's complaint as the plaintiff bears the burden of establishing subject matter jurisdiction. Thornhill Publ'g. Co. v. Gen. Tel. & Elec. Corp. , 594 F.2d 730, 733 (9th Cir. 1979). Thus, the court must presume it lacks jurisdiction until subject matter jurisdiction is established. Stock West, Inc. v. Confederated Tribes , 873 F.2d 1221, 1225 (9th Cir. 1989). Any party may raise a defense based on lack of subject matter jurisdiction at any time. See Attorneys Trust v. Videotape Computer Products, Inc. , 93 F.3d 593, 594–95 (9th Cir. 1996).

III. DISCUSSION

Cognizant that Respondents' motion to dismiss is based solely on arguing that this Court has no jurisdiction to hear his claims, Petitioner's emergency motion for a stay of removal devotes an entire section to asserting that this Court has jurisdiction to hear his Petition under 8 U.S.C. § 1252(e)(2)(B) and the Suspension Clause. (Doc. No. 52–1 at 24.) Regrettably, despite all of the arguments produced and the urgency and nature of the Petition and motions, the Court finds that it does not have subject matter jurisdiction over Petitioner's habeas claims.

Congress expressly deprived courts of jurisdiction to hear a direct appeal from an expedited removal order. See 8 U.S.C. § 1252(a)(2) (limiting review of expedited removal orders to habeas review under § 1252(e) ). Section 1252(e) states that:

Judicial review of any determination made under section 1225(b)(1) of this title is available in habeas corpus proceedings, but shall be limited to determinations of—(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee under section 1157 of this title, or has been granted asylum under section 1158 of this title[.]

8 U.S.C. § 1252(e)(2).³ The Ninth Circuit holds that this statute "strictly circumscribes the scope of review of expedited removal orders to the grounds enumerated in § 1252(e)." Garcia de Rincon v. Dep't of Homeland Sec. , 539 F.3d 1133, 1138 (9th Cir. 2008). Thus, "[b]y the clear operation of these statutes, federal courts are jurisdictionally barred from hearing direct challenges to expedited removal orders." Torre–Flores v. Napolitano , No. 11-CV-2698-IEG (WVG), 2012 WL 3060923, at *2 (S.D. Cal. July 25, 2012) (citation and internal quotation marks omitted).

Despite the Act's narrow, limited, and explicit terms, Petitioner seeks to have this Court review his habeas petition under the second factor—whether Petitioner was ordered removed. (Doc. No. 52–1 at 28.) Petitioner contends that § 1252(e)(2)(B)"permits review of the type of threshold question presented here: whether Petitioner was ‘ordered removed[.]’ " (Id. at 29.) Furthermore, Petitioner states that "there must be review of whether the negative credible fear determination was properly made—a prerequisite for issuing the expedited removal order." (Id. )

Unfortunately, the preceding assertions are not only wholly unsupported by applicable case law, but they also amount to nothing more than Petitioner's own self-serving assumptions. First, the Court notes that in determining whether an alien has been removed under § 1252(e)(2)(B), "the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner." 8 U.S.C. 1252(e)(5). The Court declines to broaden and expand the clear writing of this section of the Act to include the characterization Petitioner impresses on the Court. Moreover, the Court rejects Petitioner's contention that § 1252(e)(2)(B) is ambiguous. (Doc. No. 52–1 at 30.) There could be nothing further from the truth.

Next, and most importantly for purposes of the instant Petition, the clear case law from this circuit forecloses this Court's ability to evaluate the negative credible fear determination that resulted in Petitioner's expedited removal order. See Galindo–Romero v. Holder , 621 F.3d 924, 928 n.4 (9th Cir. 2010) (noting...