Camarena v. Director, Immigration and Customs Enforcement

UMNIITDEDDL ES TDAISTTERSI DCITS OTRFI FCLTO CROIDUAR T

TAMPA DIVISION

KEILA ROSA CAMARENA,

Petitioner,

v. Case No. 8:19-cv-01954-T-60AAS

DIRECTOR, ERO TAMPA FIELD

OFFICE, IMMIGRATION AND

CUSTOMS ENFORCEMENT (ICE);

ACTING SECRETARY, U.S.

DEPARTMENT OF HOMELAND

SECURITY (DHS),

Respondents/Defendants.

________________________________/

ORDER DENYING PETITIONER’S “VERIFIED

PETITION FOR WRIT OF HABEAS CORPUS, APA

JUDICIAL REVIEW, AND DECLARATORY RELIEF”

This matter is before the Court on Petitioner’s “Verified Petition for Writ of

Habeas Corpus, APA Judicial Review, and Declaratory Relief” (Doc. #1), filed by

counsel on August 7, 2019. On August 9, 2019, the Court entered an Order denying

the request for a temporary restraining order and ordered the Government to respond

to the allegations of the “Verified Petition for Writ of Habeas Corpus, APA Judicial

Review, and Declaratory Relief,” which the Court construed as a motion for

preliminary injunction. (Doc. # 6). On August 21, 2019, the Government filed its

response. (Doc. # 10). On August 23, 2019, Petitioner filed her reply.1 (Doc. # 12).

After reviewing the petition, response, reply, court file, and the record, the Court finds

as follows:

1 Petitioner requests that the Court accept her reply that she characterizes as filed out of time. Because

BACKGROUND

On July 31, 2019, Petitioner initially filed an action seeking identical or

substantially similar relief in the United States District Court for the Southern

District of Florida. See (Doc. # 1-4). On August 2, 2019, the district judge entered an

order finding that the case belonged in the Middle District of Florida because

Petitioner was presently confined by means of ankle monitor to Tampa, Florida. In

order to afford Petitioner time to refile her claims in the proper court before the

alleged deadline for removal, the district judge issued a temporary restraining order

for fourteen (14) days, staying the removal order until August 16, 2019.

Petitioner filed the instant petition on August 7, 2019, initiating this action

against Defendants Director, ERO Tampa Field Office, Immigration and Customs

Enforcement (ICE) and Acting Secretary of the Department of Homeland Security

(DHS). (Doc. ## 1, 2, and 3). Petitioner alleges that she is subject to a final order of

removal, and that she has been informed by ICE that she and her husband are

required to depart from the United States to enforce their outstanding removal orders

before August 8, 2019.2 Petitioner alleges that her forced removal to the Dominican

Republic prior to the denial of Forms ETA A-19003-58275, I-140, and I-601A would

violate her regulatory, statutory, and due process rights, in addition to violating the

Administrative Procedures Act. Petitioner seeks to enjoin Defendants from executing

the outstanding removal order against her prior to the denial of her Forms I-140, or I-

601A.

ANALYSIS

The Government argues that this Court does not have jurisdiction to review the

final removal order. Petitioner appears to agree that this Court has no jurisdiction to

review the removal order itself, but instead contends that the Court may issue a stay

so that she may complete the provisional waiver process.

Although Petitioner styles her motion as a habeas petition, she is not actually

challenging the legality of her confinement. See Preiser v. Rodriguez, 411 U.S. 475

(1973) (explaining that the purpose of a writ of habeas corpus is to secure the release

of an individual from illegal custody). What Petitioner requests, practically speaking,

is to enjoin Defendants from removing her before she is able to complete the

provisional waiver process. This relief sounds more like a request for a preliminary

injunction and should be treated as such.

The Court lacks subject matter jurisdiction to review Petitioner’s claims because

she is attacking the execution of her final removal order. See 8 U.S.C. § 1252(a)(5)

(providing that “a petition for review filed with an appropriate court of appeals in

accordance with this section shall be the sole and exclusive means for judicial review

of an order of removal entered or issued under any provision of this chapter”); Cheng

Ke Chen v. Holder, 783 F. Supp. 2d 1183, 1186 (N.D. Ala. 2011) (“[P]etitioner’s request

for a stay of removal and for a temporary restraining order against the respondents to

prevent his removal are requests that need to be made to the appropriate court of

appeals, in this instance the Eleventh Circuit Court of Appeals.”).

Petitioner points to two non-binding, out-of-circuit cases – which are currently

pending on appeal – to argue that her removal should be stayed while she applies for a

provisional waiver. In these cases, the courts ruled that § 1252 did not preclude

subject matter jurisdiction because the petitioners were not challenging the validity of

the removal order but instead were challenging ICE’s legal authority to remove the

petitioners before they could proceed through the lawful permanent resident

application process. See Calderon v. Sessions, 330 F. Supp. 3d 944 (S.D.N.Y. 2018); De

Jesus Martinez v. Nielsen, 341 F. Supp. 3d 400 (D.N.J. 2018). However, “thatis....

not the law of this Circuit. And federal law is clear: Congress did not intend for

district courts to review removal orders.” Majano Garcia v. Martin, 379 F. Supp. 3d

1301, 13807 (S.D. Fla. 2018). Petitioner cannot rely on the provisional waiver process

to circumvent removal. Id.

Consequently, the Court finds that it lacks subject matter jurisdiction to review

Petitioner’s claims. This Order does not preclude Petitioner from seeking relief in the

immigration courts and before the Board of Immigration Appeals, if appropriate.

Petitioner may also seek judicial review regarding her final removal order with the

appropriate appellate court, if she may do so in good faith.

DONE and ORDERED in Chambers, in Tampa, Florida this 285 day of

August, 2019.

“TOMBARBER.——«—

UNITED STATES DISTRICT JUDGE

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