Julce v. Nielsen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

JULVIO JULCE, )

)

Petitioner, ) Civil Action No.

) 18-10163-FDS

v. )

)

YOLANDA SMITH, )

)

Respondent. )

__________________________________________)

MEMORANDUM AND ORDER

SAYLOR, J.

This is an immigration case. Petitioner Julvio Julce is a Haitian citizen who is subject to

a final order of removal from the United States. He seeks an injunction from this Court

preventing his transfer out of Massachusetts until his case is resolved; a stay of removal; and a

writ of habeas corpus ordering his immediate release.

Julce became a lawful permanent resident of the United States in 1993. In 2004, he was

convicted of two drug offenses under Massachusetts law. On the basis of those convictions, the

government initiated removal proceedings against him. The Board of Immigration of Appeals

affirmed the removal order in 2007, and his petition for review was denied by the First Circuit in

2008. Except for a three-week period in late 2007, he has resided in the United States

continuously since 1993.

In October 2017, Julce was informed that he would be removed from the United States.

He then filed this habeas petition pursuant to 28 U.S.C. § 2241. The petition raises claims under

the Due Process Clause of the Fifth Amendment and United Nations Convention Against

Torture, and counsel has also invoked the Suspension Clause of the Constitution. In substance,

Julce contends that he suffers from Crohn’s disease, and that the Haitian government “routinely

incarcerates” deportees with criminal records and subjects them to “abhorrent, unsanitary

conditions.” He seeks to block his removal pending a further opportunity to litigate his claims.

Julce is a sympathetic figure in several respects. He suffers from a debilitating disease;

he has resided in the United States for nearly 25 years; and he is about to be removed to the

poorest country in the hemisphere. But virtually all illegal immigrants are sympathetic figures,

at least to some degree. Virtually all came here to escape poverty, crime, and injustice. Most

have family members here; some have children who are citizens. And virtually all will be worse

off after removal, some dramatically so.

The question presented is not whether Julce will suffer a grave hardship if he is removed,

but who gets to decide whether his removal is appropriate. By law, the power to establish

immigration controls, and to establish a process for resolving immigration disputes, rests with

Congress, subject only to the restraints of the Constitution. Congress has created a statutory

procedure that does not include a role for the district courts; indeed, Congress has expressly

stripped district courts of jurisdiction to hear such disputes. The only power that this Court has is

to ascertain whether any aspect of the process to which petitioner has been subjected violates the

Constitution. For the reasons set forth below, it plainly does not. Accordingly, the petition will

be dismissed.

I. Background

A. Factual Background

Julvio Julce is a citizen of Haiti. (Pet. ¶ 1). He is currently 38 years old and suffers from

Crohn’s disease. (Pet. ¶¶ 1, 8). He entered the United States as a lawful permanent resident on

August 23, 1993. Julce v. Mukasey, 530 F.3d 30, 32 (1st Cir. 2008) (summarizing Julce’s

immigration history). On May 14, 2003, he pleaded guilty in Massachusetts state court to one

count of possession with intent to distribute a Class D substance (marijuana) and one count of

possession of marijuana in a school zone, and received a two-year sentence. Id.

Because of those convictions, U.S. Immigrations and Customs Enforcement initiated

removal proceedings against Julce on May 25, 2004. Id. ICE stated that he was removable

because he had been convicted of an aggravated felony and because he violated a law relating to

a controlled substance. Id. (citations omitted). He contested his removability, arguing that he

was eligible for discretionary cancellation of removal because his conviction for possession with

intent to distribute did not qualify as an “aggravated felony.” Id. The Immigration Judge

rejected his application for cancellation of removal on January 30, 2007. Id. The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision on August 2, 2007. Id.

Julce then petitioned the First Circuit for review of the BIA’s decision. Id. at 33. The

First Circuit initially denied the petition without prejudice on September 5, 2007, for failure to

provide an argument showing any likelihood of success. (Resp. Ex. A at 4). The following

month, on October 12, 2007, the government filed a notice of intent to remove Julce on or after

October 24, 2007. (Id.). Within a week, an attorney entered an appearance on behalf of Julce,

and on October 22, 2007, he filed a renewed application for stay of removal. (Id.). The First

Circuit granted a stay, but stated that the grant was “without prejudice to the [government] filing

a response to the renewed motion and moving to lift the stay.” (Id.).

Despite the stay, ICE’s Enforcement and Removal Operations (“ERO”) improperly

removed Julce from the United States to Haiti in late November 2007. (Pet. ¶ 7). Upon arriving

in Port-au-Prince, he fell ill and was hospitalized due to complications from Crohn’s disease.

(Pet. ¶ 9).

On December 11, 2007, ICE granted Julce a 90-day parole back into the United States on

humanitarian grounds. (Pet. ¶ 10; Docket No. 15). He appears to have reentered the United

States on December 18, 2007. (Docket No. 15). After the 90-day period expired, he remained in

the United States on an order of supervision. (Pet. ¶¶ 11-12). ICE has not authorized additional

parole after the initial 90-day period expired in March 2008. (Greenbaum Decl. ¶ 5). On June

20, 2008, the First Circuit ruled on the merits of his petition, and denied his request for review of

the BIA’s denial of his application for cancellation of removal. Julce, 530 F.3d at 36.1

Over the past decade, Julce’s medical situation has worsened and he has developed a

chronic rheumatoid condition along with gastrointestinal issues associated with Crohn’s disease.

(Pet. ¶ 13). On October 19, 2017, an ERO officer informed him that he would have to obtain an

airline ticket to depart the United States by December 21, 2017. (Pet. ¶ 15). In addition, he

would have to provide proof of the airline ticket by November 21, 2017. (Id.). On November

21, 2017, he reported to the ERO officer with a plane ticket to Haiti scheduled for December 21,

2017. (Pet. ¶ 16). However, he also requested an administrative stay of removal because of his

illness and asked to speak with an asylum officer to give a “reasonable fear” statement. (Pet. ¶¶

17, 20). ERO denied the request for a stay because he had not yet obtained a passport. (Pet. ¶

18).

On December 19, 2017, Julce surrendered himself to ERO. He has since been detained at

the Plymouth County Correctional Facility. (Pet. ¶¶ 22-23). On January 22, 2018, ERO

determined that Julce could not be seen by an asylum officer because he was being removed

1 The First Circuit held that Julce’s conviction of possession with intent to distribute marijuana qualified as

an “aggravated felony.” Julce, 530 F.3d at 35. The Supreme Court has subsequently abrogated that holding in

Moncrieffe v. Holder, 569 U.S. 184 (2013).

pursuant to his original 2007 order of removal. (Pet. ¶ 26). Had ERO sought to reinstate an

order of removal, a referral to an asylum officer would have been appropriate. (Pet. ¶ 27).

On January 26, 2018, ERO indicated to Julce that he would be transferred to the Suffolk

County House of Correction. (Pet. ¶ 32). The petition alleges that ERO anticipates transferring

him to the Oakdale Detention Center in Louisiana, which is an ICE deportation staging facility.

(Pet. ¶ 33). On February 26, 2018, the government gave notice that it intends to transfer Julce to

a detention center in New Hampshire for purposes of arranging his removal to Haiti within 72

hours. (Docket No. 20).

B. Procedural Background

Julce filed the present petition on January 26, 2018. The petition alleges due-process

violations arising out of the failure to reinstate his order of removal and denial of an asylum

officer referral. (Pet. ¶¶ 51-53). The petition seeks three forms of relief. First, it asks that the

Court “enjoin Respondents from transferring Petitioner outside the jurisdiction of this Court

pending resolution of the case.” (Pet. at 11). Second, it requests a “Stay of Removal to prevent

ICE from deporting [Petitioner] while the instant matter is pending [] to prevent irreparable

harm.” (Id.). Third, it requests a “Writ of Habeas Corpus ordering Respondents to release

Petitioner immediately.” (Id.).

On January 27, 2018, the Court dismissed all named respondents except for Yolanda

Smith, the Superintendent of the Suffolk County House of Correction. (Docket No. 6). A status

conference was held on January 30, 2018, where the Court directed the parties to submit briefs

concerning the existence of subject-matter jurisdiction to consider the petition. (Docket No. 10).

A hearing on this matter was held on February 22, 2018.

II. Analysis

A. The REAL ID Act Bars this Court from Exercising Jurisdiction

In 2005, Congress passed the REAL ID Act, which stripped federal district courts of

jurisdiction to review aliens’ challenges to their final orders of removal. See Ishak v. Gonzales,

422 F.3d 22, 27-28 (1st Cir. 2005) (“[T]he REAL ID Act [ ], in the plainest of language, deprives

the district courts of jurisdiction in removal cases.”); 8 U.S.C. § 1252(a)(5). The statute

provides:

Except as provided in this section and notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241 of Title 28, or any other habeas

corpus provision, and sections 1361 and 1651 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 chapter.

Id. § 1252(g).2

Congress has provided a statutory process to handle immigration disputes that takes place

entirely in immigration courts and the BIA, subject to judicial review by courts of appeals.

Petitioners must first exhaust “all administrative remedies available to the alien as of right”

through the immigration courts and BIA. Id. § 1252(d)(1). The immigration courts and BIA can

reopen removal proceedings on the basis of “new facts,” 8 C.F.R. §§ 1003.2(c), 1003.23(b)(3),

and grant stays of removal, id. §§ 1003.2(f), 1003.23(b)(1)(v). Judicial review comes in the form

of a “petition for review” filed with the circuit courts of appeal. See 8 U.S.C. § 1252(a)(5) (“[A]

petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive

means for judicial review of an order of removal . . . except as provided in subsection (e).”).

Petitioner contends that he has a right to plead a case for relief under the Convention

2 The statute refers to the Attorney General, but immigration enforcement is done largely through the

Department of Homeland Security.

Against Torture. (Pet’r Brief at 7). However, section 1252 also provides that “a petition for

review with an appropriate court of appeals . . . shall be the sole and exclusive means for judicial

review of any . . . claim under the United Nations Convention Against Torture.” 8 U.S.C. §

1252(a)(4). And, even then, a petitioner must have first exhausted all administrative remedies

pursuant to section 1252(d)(1). Accordingly, it is clear that this Court does not have jurisdiction

to stay petitioner’s final removal order.

B. The Suspension Clause Is Not Violated

Petitioner’s principal argument appears to be that the jurisdictional bar set forth in section

1252 cannot apply to his case because he is without an “adequate and effective alternative[ ] to

habeas corpus relief” in violation of the Suspension Clause. (Pet’r Brief at 6).3 He contends that

he cannot file a motion to reopen his removal proceedings because he was removed in 2007 and

two regulations bar him from filing such a motion. (Id. at 5) (citing 8 C.F.R. §§ 1003.2(d),

1003.23(b)).

That argument is without merit. Notwithstanding the fact that petitioner’s 2007 removal

was improper (and quickly remedied), the First Circuit invalidated the two regulations in

question in Santana v. Holder, 731 F.3d 50 (1st Cir. 2013). Therefore, since 2013, no statute or

regulation prevented petitioner from filing a motion to reopen. He has had approximately four-

and-a-half years to file a motion raising the claims he has raised here.4 Therefore, there are

“adequate and effective alternatives to habeas corpus” such that the Suspension Clause is not

offended. Devitri v. Cronen, 2017 WL 5707528, at *5 (D. Mass. Nov. 27, 2017).

3 The Suspension Clause provides 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. I, § 9,

cl. 2.

4 This includes any claim for ineffective assistance of counsel, which petitioner raised for the first time at

the February 22, 2018 hearing.

Moreover, Devitri, on which petitioner heavily relies, is readily distinguishable. In that

case, 51 Indonesian Christians sought stays of their removal through habeas petitions. Id. at *1.

Judge Saris found that subject-matter jurisdiction existed for the limited purpose of ensuring that

there were “adequate and effective alternatives to habeas corpus relief.” Id. at *5. However,

Judge Saris’s opinion was premised on two facts: (1) that there were changed country conditions

to warrant the filing of a new claim for fear of persecution, and (2) that an administrative stay

pending a motion to reopen was unavailable to the petitioners because they had not yet been

detained by ICE. Id. at *5-7.

By contrast, petitioner here appears to fail to raise “new facts” that would justify a motion

to reopen as required in 8 C.F.R. §§ 1003.2(c), 1003.23(b)(3). His brief contends that he would

be subject to torture in Haiti because the government “routinely incarcerates criminal deportees

and subjects these deportees to abhorrent, unsanitary conditions.” (Pet’r Brief at 2). But that

claim is not new; similar arguments have been raised (and rejected) for at least a decade. See

Bernadin v. Ashcroft, 105 Fed. Appx. 281, 283 (1st Cir. 2004) (“The possibility that the

respondent may suffer under [] poor prison conditions is not sufficient to substantiate a finding

that the Haitian government acquiesces in the ‘torture’ of criminal deportees who are detained.”).

Furthermore, and in any event, petitioner is currently in ICE custody. As noted above, he

is free to file a motion to reopen and request an administrative stay from the BIA pending the

adjudication of such a motion. Therefore, Devitri is inapposite, and the Court lacks subject-

matter jurisdiction to interfere in petitioner’s removal.

C. Other Forms of Relief Sought Are Inappropriate

In his brief, petitioner states that the Department of Homeland Security “unlawfully and

arbitrarily revoked” his parole. (Pet’r Brief at 3). While respondent concedes that this Court

“may have jurisdiction to review the basis for [petitioner’s] detention,” (Resp. Brief at 11), it is

clear that petitioner’s argument is without merit. When he re-entered the United States on

December 18, 2007, petitioner was granted parole for 90 days. (Pet. ¶ 10; Docket No. 15).

Contrary to petitioner’s suggestion, the government never extended his parole. (Greenbaum

Decl. ¶ 5). To the contrary, it “automatically terminated without written notice,” 8 C.F.R. §

212.5(e)(1)(ii).5 Because petitioner’s parole was never renewed, he was not entitled to the

written notice of revocation of parole provided for in 8 C.F.R. § 212.5(e)(2).6 Once parole

expired, his legal status reverted to an alien subject to a final order of removal with a pending

petition for review before the First Circuit. See id. ICE could then detain him or release him on

an order of supervision, subject to future execution of the final order of removal. See 8 U.S.C. §

1231(a)(3) (providing for supervision after expiration of 90-day period); id. § 1231(a)(6)

(granting ICE discretion to provide for release and supervision). ICE elected to release him on

an order of supervision, and its conduct was fully compliant with applicable statutes and

regulations.

To the extent that petitioner challenges the length of his detention, that claim must also

fail. The Supreme Court has stated that when an alien has been detained for more than six

5 The relevant regulation, 8 C.F.R. § 212.5(e)(1), states as follows:

Parole shall be automatically terminated without written notice (i) upon the departure from the

United States of the alien, or, (ii) if not departed, at the expiration of the time for which parole was

authorized, and in the latter case the alien shall be processed in accordance with paragraph (e)(2)

of this section except that no written notice shall be required.

6 The same regulation goes on to state:

In cases not covered by paragraph (e)(1) of this section, upon accomplishment of the purpose for

which parole was authorized or when in the opinion of one of the officials listed in paragraph (a)

of this section, neither humanitarian reasons nor public benefit warrants the continued presence of

the alien in the United States, parole shall be terminated upon written notice to the alien and he or

she shall be restored to the status that he or she had at the time of parole.

8 C.F.R. § 212.5(e)(2)(i).

months pursuant to 8 U.S.C. § 1213(a)(6), and the alien has shown that “there is no significant

likelihood of removal in the reasonably foreseeable future, the Government must respond with

evidence sufficient to rebut that showing.” Zadvydas v. Davis, 533 U.S. 678, 701 (2001).

However, it is undisputed that petitioner has been detained only since December 19, 2017, when

he was taken into ICE custody. (Pet. ¶ 22). Because only three months have elapsed, a claim

under Zadvydas is premature at best.

III. Conclusion

For the foregoing reasons, this Court finds that it does not have subject-matter

jurisdiction over the petition, and the action will be dismissed.

So Ordered.

/s/ F. Dennis Saylor

F. Dennis Saylor IV

Dated: February 27, 2018 United States District Judge