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Diaz Del Cid v. Barr

United States District Court, S.D. Florida, Miami Division

August 9, 2019

WILLIAM BARR, United States Attorney General, et al., Respondents.



         THIS CAUSE came before the Court upon Petitioner's Motion for Emergency Stay of Removal, filed on July 16, 2019. The Court has considered the motion, the response in opposition, the pertinent portions of the record, and being otherwise fully advised in the premises, it is ADJUDGED that the motion is DENIED. The Court ultimately lacks subject matter jurisdiction to entertain the substance of Petitioner's claims. Accordingly, the case is DISMISSED.

         I. BACKGROUND

         Petitioner Jimmy Stuar Diaz Del Cid is a native and citizen of Guatemala. In March 2019, he entered the United States near Hidalgo, Texas without authorization, and, approximately one hour after, was apprehended by Border Patrol. Petitioner was ordered expeditiously removed by the Department of Homeland Security pursuant section 235(b)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1225(b)(1).[1] Before the Department of Homeland Security could remove him, Petitioner expressed a fear of persecution if returned to Guatemala, and was thus referred to a credible fear interview at the Krome Service Processing Center in Miami, Florida.

         On April 25, 2019, an Asylum Officer interviewed Petitioner about his claim of persecution. Four days later, the officer found that Petitioner had not established a fear of credible persecution. On May 1, 2019, the Supervisory Asylum Officer signed the Record of Determination/Credible Fear Worksheet, and Petitioner then requested a review of the determination by an Immigration Judge. The review by the Immigration Judge was not scheduled to take place until May 13, 2019, twelve days after approval of the credible fear determination by the Supervisory Asylum Officer. On May 9, 2019, Petitioner filed a brief with the Executive Office of Immigration Review arguing that, due to the untimeliness of the review hearing, the Immigration Judge would lack jurisdiction to review the credible fear finding. Petitioner wrote that pursuant to 8 U.S.C. § 1225(b)(1)(B)(iii)(III) and 8 C.F.R. § 1003.42(e), the hearing should have been scheduled within seven days of the Supervisory Asylum Officer's approval of the credible fear determination-not twelve days. Petitioner then cited to the relevant statute, which states: "The Immigration Judge shall conclude the review to the maximum extent practicable within 24 hours, but in no case later than 7 days after the date the supervisory asylum officer has approved the asylum officer's negative credible fear determination issued on Form I-869, Record of Negative Credible Fear Finding and Request for Review." 8 C.F.R. § 1003.42(e).

         As scheduled, Petitioner appeared before the Immigration Judge on May 13, 2019, who agreed that the hearing was untimely and that the judge lacked jurisdiction over the proceedings. One day later, the Miami Asylum Office re-dated Petitioner's credible fear worksheet. On May 17, 2019, the Immigration Judge, asserting jurisdiction, conducted a de novo review hearing of Petitioner's negative credible fear determination, and affirmed the determination. On May 24, 2019, Petitioner filed a complaint for injunctive, declaratory, and mandamus relief in this district, which was dismissed that same day for lack of subject matter jurisdiction. One month later, the Board of Immigration Appeals rejected Petitioner's appeal of that decision for lack of authority.

         Now, Petitioner files a petition for writ of habeas corpus in a final effort to argue that the Immigration Judge unlawfully asserted jurisdiction the second time he reviewed the credible fear determination, sixteen days after the Supervisory Asylum Officer originally signed and dated the credible fear worksheet. As a result, Petitioner contends that the order for expedited removal should be vacated and he be granted a new, meaningful opportunity to apply for asylum.

         II. ANALYSIS

         A. This Court Lacks Subject Matter Jurisdiction to Stay Petitioner's Removal

         Petitioner raises four claims in his habeas petition: (1) violation of the Suspension Clause by Congress's enactment of 8 U.S.C. § 1252(e)(2), (2) denial of due process, (3) violation of the Administrative Procedure Act by the Miami Asylum Office, and (4) violation of the Administrative Procedure Act by the Immigration Judge. He seeks interim injunctive relief in the form of a stay of removal, taking issue with the manner in which the Supervisory Asylum Officer re-dated the credible fear worksheet, and in which the negative credible fear finding was reviewed by the Immigration Judge. The Government, in response, argues that the Court lacks subject matter jurisdiction to entertain Petitioner's case, and that, in any event, all of the claims fail on the merits.

         Upon review, the Court agrees with the Government and finds that it lacks jurisdiction to adjudicate the merits of this case. Petitioner, as both parties agree, is the subject of an expedited removal order pursuant to 8 U.S.C. § 1225(b)(1)(A)(i). Relevant here, judicial review of such an order is governed by 8 U.S.C. § 1252. "This statute narrowly circumscribes judicial review for expedited removal orders issued pursuant to § 1225(b)(1)." Castro v. U.S. Dep't of Homeland Sec, 835 F.3d 422, 426 (3d Cir. 2016). The statute provides that, "[notwithstanding any other provision of law ... no court shall have jurisdiction to review... the application of [§ 1225(b)(1)] to individual aliens, including the [credible fear] determination made under [§ 1225(b)(1)(B)]." 8 U.S.C. § 1252(a)(2)(A)(iii). The statute does allow for judicial review of determinations made under section 1225(b)(1), but states that such review "shall be limited to determinations of-(A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under [§ 1225(b)(1)], and (C) whether the petitioner can prove ... that the petitioner is [a lawful permanent resident], has been admitted as a refugee ... or has been granted asylum ...." Id. § 1252(e)(2).

         The Government contends that "[u]nder the limited scope of habeas review granted to this Court by Congress in section 1252(e)(2)(A)-(C), [Petitioner's] habeas should be denied." The Court ultimately agrees that the jurisdiction-stripping provision of section 1252(e)(2) forecloses review of his petition. Petitioner takes issue with the untimely nature of the credible fear review by the Immigration Judge, arguing that the Miami Asylum Office violated his due process rights when, on May 14, 2019, the Supervisory Asylum Officer merely re-dated the Record of Determination/Credible Fear Worksheet instead of holding an entirely new hearing. But, nowhere in section 1252(e)(2) may Petitioner actually appeal such an alleged procedural error. In fact, and as the Government notes, Petitioner admits he is an alien, was ordered removed under section 1225(b)(1), and has made no claim that he is an alien lawfully admitted for permanent residence, has been admitted as a refugee, or has been granted asylum. Accordingly, section 1225(a)(2)(A)(iii) applies to foreclose Petitioner's claims: "no court shall have jurisdiction to review... the application of [section 1225(b)(1)] to individual aliens, including the [credible fear] determination made under [section 1225(b)(1)(B)]." 8 U.S.C. § 1252(a)(2)(A)(iii).

         Moreover, as noted above, section 1252(e)(5) provides that "[i]n determining whether an alien has been ordered removed under section 1225(b)(1) of this title, the court's inquiry shall be limited to whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal." 8 U.S.C. § 1252(e)(5). Petitioner, again, admits he is an alien, and has no documents that demonstrate he is lawfully allowed in the United States. Thus, in accordance with the plain language of the above cited statutes, the Court cannot entertain Petitioner's habeas petition. See Castro, 835 F.3d at 429-34 (holding, in a similar case, that the district court did not err in finding it lacked jurisdiction under sections 1252(e)(2) & (5) to review petitioners' habeas claims with regard to procedural irregularities made in connection with negative credible fear determinations).

         Next, Petitioner argues in count one that the narrow scope of habeas review provided by section 1252(e)(2) is unconstitutional because it violates the Suspension Clause of the United States Constitution. That clause states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." U.S. Const, art. 1, § 9, cl. 2. However, section 1252(e)(2) does not violate the clause in so far as the facts of this case are concerned.[2] As the Third District wrote in Castro, "Congress may . . . deny habeas review in federal court of claims relating to an alien's application for admission to the country, at least as to aliens who have been denied initial entry or who, like Petitioner[], w[as] apprehended very near the border and, essentially, immediately after surreptitious entry into the country." Castro, 835 F.3d at 434. As Castro noted, the Supreme Court "has unequivocally concluded that 'an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.'" Id. at 445 (emphasis added) (quoting Landonv. Plasencia,459 U.S. 21, 32 (1982)). Here, like in Castro, Petitioner was apprehended shortly after unlawfully entering the United States (within an hour), and so is like an alien seeking initial admission. Accordingly, Petitioner has no constitutional rights except those prescribed by Congress. See also Osorio-Martinez v. U.S. ...

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