Vladimir Li v. Hodgson, C.A. NO. 12-12347-DPW

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: DOUGLAS P. WOODLOCK
• Parties: VLADIMIR LI, Petitioner, v. THOMAS HODGSON, ET AL., Respondents.
• Decision Date: 27 December 2012
• Docket Number: C.A. NO. 12-12347-DPW

VLADIMIR LI, Petitioner,
v.
THOMAS HODGSON, ET AL., Respondents.

C.A. NO. 12-12347-DPW

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

Date: December 27, 2012

MEMORANDUM AND ORDER

For the reasons set forth below, the Court denies the petition for writ of habeas corpus and grants respondents' request to vacate ex parte stay and for dismissal of the petition.

BACKGROUND

On December 18, 2012, Petitioner Vladimir Li, through counsel, filed an Emergency Petition for Writ of Habeas Corpus and a Complaint for Declaratory and Injunctive Relief. See Docket No. 1. Petitioner brings this habeas action pursuant to 28 U.S.C. § 2241 and seeks declaratory and injunctive relief pursuant to 5 U.S.C. § 701 (the Administrative Procedures Act); 8 U.S.C. § 1101 (the Immigration and Nationality Act); 28 U.S.C. § 2201 (the Declaratory Judgment Act) and 28 U.S.C. § 1651 (the All Writs Act). Id. Petitioner seeks (1) release from custody, (2) an order enjoining the government from removing him from the United States, and (3) an order for the government to join in petitioner's efforts to reopen removal proceedings to permit him to seek adjustment of status to permanent resident. Id.

Petitioner is a citizen of Uzbekistan who is now detained at

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the Bristol County House or Correction.¹ Id. at ¶¶ 2, 7. Li lawfully entered the United States in 2002 and overstayed his visa. Id. at ¶¶ 13-14. In 2006, his request for asylum and withholding of deportation was denied and he was ordered deported from the United States. Id. His appeal to the Board of Immigration Appeals ("BIA") was denied on March 22, 2012. Li's Application for Stay (Form I-246) was rejected on August 29, 2012. Id. at ¶¶ 17-18. Li's wife filed an N-400 application for naturalization, id. at ¶ 20, and Li intends to become the beneficiary of an approved I-130 Immigrant Relative petition filed by U.S. citizen daughter,² which will provide him with an immediately available immigrant visa. Id. at ¶ 21.

By Endorsed Order dated December 18, 2012, Judge Saris entered an endorsed order staying Li's removal for ten days or until the undersigned has the opportunity to review the petition. See Docket No. 5, Endorsed Order (Saris, D.J.).

Now before this Court is the Respondents's Opposition to Plaintiff's Request for Stay and Their Request to Vacate Ex Parte Stay and For Dismissal of the Petition. See Docket No. 7. The Government correctly notes that this action is subject to dismissal for lack of subject matter jurisdiction.

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DISCUSSION

I Habeas Claim

To the extent Li seeks habeas relief pursuant to 28 U.S.C. § 2241, this Court is without jurisdiction. In the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302 (2005), Congress amended the statutes providing for review of removal orders to severely circumscribe this Court's subject matter jurisdiction. See 8 U.S.C. § 1252(a), (b)(9) and (g). By way of those amendments, Congress stripped this court of jurisdiction to entertain challenges to the validity of removal orders, whether direct or vicarious, providing that the courts of appeals shall have exclusive jurisdiction over such claims.

Moreover, Congress has explicitly amended 8 U.S.C. § 1252(b)(9), to preclude subject matter jurisdiction predicated upon 28 U.S.C. § 2241.

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 title 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, United States Code, 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.

8 U.S.C. § 1252(b)(9). See also Aguilar v. ICE, 510 F.3d 1, 9 (1st Cir. 2007) ("As its text makes manifest, that proviso was designed to consolidate and channel review of all legal and factual questions that arise from the removal of an alien into

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the administrative process, with judicial review of those decisions vested exclusively in the courts of appeals."); Ishak v. Gonzales, 422 F.3d 22, 29 (1st Cir. 2005) ("The plain language of these [REAL ID Act] amendments, in effect, strips the district...