Candra v. Cronen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_____________________________________

)

BOBBY CANDRA, ZHAFIRAH CANDRA, )

ALBERT CANDRA, and MUHAMMAD CANDRA, )

)

Petitioners/Plaintiffs, )

)

v. ) Civil Action

) No. 18-10823-PBS

CHRIS M. CRONEN, TIMOTHY STEVENS, )

and KIRSTJEN M. NIELSEN, )

)

Respondents/Defendants. )

_____________________________________)

MEMORANDUM AND ORDER

February 21, 2019

Saris, C.J.

INTRODUCTION

Plaintiffs Bobby Candra, an Indonesian national, and his

three U.S. citizen children bring this action against a number

of government officials to challenge U.S. Immigration and

Customs Enforcement (“ICE”)’s denial of Candra’s most recent

application for an administrative stay of removal. Candra brings

a petition for a writ of habeas corpus alleging that ICE’s

denial of his stay application and attempt to remove him violate

due process. The Candra Children bring an action under the

Administrative Procedure Act (“APA”) alleging that the denial

was an abuse of discretion and a violation of their own Fifth

Amendment due process rights. The Government has moved to

dismiss for lack of subject matter jurisdiction and failure to

state a claim under Federal Rules of Civil Procedure 12(b)(1)

and 12(b)(6).

After hearing, the Government’s motion to dismiss (Docket

No. 25) is ALLOWED without prejudice.

FACTUAL BACKGROUND

I. The Parties

Candra, an Indonesian national, has lived and worked in the

United States since 2000. He resides with his wife and children

in Somersworth, New Hampshire. For almost seven years, he has

worked as a machine operator and maintenance technician for

Natural Rocks Ice Company in Eliot, Maine. He is an active

member of his community and participates in activities at his

children’s schools.

The Candra Children, a daughter and two sons, are all U.S.

citizens born in New Hampshire. Candra’s daughter, Zhafirah, 15,

attends Somersworth High School and Career Training Center. She

plans to matriculate in college and hopes to become an

environmental engineer. Candra’s older son, Albert, 14, attends

Somersworth Middle School. Candra’s younger son, Muhammad, is

six years old. None of the three children speaks, reads, or

writes Indonesian.

Candra describes his family as “moderate” Muslims. If he is

deported and his family follows him to Indonesia, he believes

that his children will face discrimination by religious and

anti-American extremists. He also believes that Indonesian law

will require his children to eventually choose between their

Indonesian and U.S. citizenships. He is particularly concerned

about Zhafirah’s future in Indonesia because she will have to

wear a hijab and will not receive the mental health care she

needs.

Defendants are two local officials from ICE and the U.S.

Secretary of Homeland Security, who oversees ICE.

II. Candra’s Immigration History

Candra entered the United States in August 2000 on a B-1

nonimmigrant visitor visa valid for three months. He overstayed

his visa and was ordered removed on May 22, 2006. He did not

leave the United States, and ICE never removed him.

In May 2013, ICE placed Candra under an order of

supervision requiring him to report monthly to the ICE office in

Manchester, New Hampshire. Two months later, he applied to ICE

for a one-year administrative stay of removal, which ICE

granted. He sought and received a similar one-year stay each

year from 2014 to 2016.

In January 2017, Candra applied for another stay of

removal. ICE denied his application on February 8, 2017. He

reapplied on September 13, 2017 and was again denied. ICE’s

denials came on form letters without any factual basis or

reasoning. Instead, the letters stated simply that ICE

“carefully reviewed [his] file, as well as the factors addressed

in the Application for a Stay of Deportation or Removal,” and

“determined that the grant of such discretionary relief [was]

not sufficiently warranted.” Docket No. 3, Exs. P-Q. Plaintiffs

allege that ICE did not in fact engage in any analysis of

Candra’s circumstances and instead has a blanket policy of

denying stay applications.1

Later that month, Candra asked the Board of Immigration

Appeals (“BIA”) to reopen his removal proceedings so that he

could seek relief from his removal order. The BIA denied the

motion to reopen on February 27, 2018. Candra’s then-counsel did

not inform him that his motion had been denied until more than

thirty days had passed. As a consequence, Candra missed the

deadline for seeking review of the BIA’s denial of his motion to

reopen in the First Circuit. On April 27, 2018, Candra asked the

BIA to reissue its decision to allow him an opportunity to file

1 Soon after Candra received the September letter, he and

fifty other Indonesian nationals brought suit seeking to stay

their removals to permit them to file motions to reopen their

removal proceedings. See Devitri v. Cronen, 289 F. Supp. 3d 287,

289-90 (D. Mass. 2018), appeal dismissed as moot, No. 18-1281

(1st Cir. Feb. 6, 2019). Candra withdrew from that lawsuit in

January 2018 because most of the plaintiffs were Christian and

their claims were based on the persecution of Christians in

Indonesia by religious fundamentalists. See id. at 289 n.2.

a petition for review with the First Circuit. It is not clear

whether the BIA has ruled on this request.

All the while, Candra has been regularly reporting to ICE.

Compl. ¶ 33. During an early April 2018 visit, ICE attached an

ankle bracelet to him and ordered him to report back on April 13

with proof of a plane ticket to leave the United States on or

before May 3, 2018. Id. Candra purchased a plane ticket and

reported to ICE as required on April 13. Compl. ¶ 34.

III. Plaintiffs’ Lawsuit

Plaintiffs filed suit on April 27, 2018. The complaint

pleads two causes of action challenging ICE’s September 2017

denial of Candra’s application for a stay of removal. In Count

I, Candra brings a petition for a writ of habeas corpus alleging

that, after ICE granted him four prior stays of removal, ICE’s

denial of his latest stay application and subsequent attempt to

remove him violate his Fifth Amendment due process rights.

Specifically, he alleges that the agency did not consider the

unique circumstances of his situation or give him a chance to

challenge his removal. In Count II, the Candra Children bring a

claim under the APA arguing that ICE’s denial of the stay

application was arbitrary and capricious and an abuse of

discretion and violated their due process rights by forcing them

to leave the United States when their father is removed.2

Plaintiffs ask the Court to stay Candra’s removal until the

BIA rules on his latest motion to reopen and he exhausts his

administrative and judicial challenges to removal. They also

request an injunction vacating ICE’s denial of his stay

application and requiring ICE to grant any future stay

applications unless it makes findings based on the evidence

before it to support its exercise of discretion to deny the

stay.

After an emergency hearing, the Court issued an order

staying Candra’s removal pending further adjudication of these

claims. Plaintiffs also moved for a preliminary injunction and

stay of Candra’s removal. The Government moved to dismiss the

complaint under Rule 12(b)(1) for lack of subject matter

jurisdiction and Rule 12(b)(6) for failure to state a claim.

2 In the complaint and their briefs, Plaintiffs suggest that

the Candra Children are under habeas “custody” because of their

de facto deportation. They never fully develop this argument,

and it is without merit because they are not in custody. See

Jones v. Cunningham, 371 U.S. 236, 243 (1963) (requiring that

the government “significantly restrain [the individual’s]

liberty to do those things which in this country free men are

entitled to do” to qualify as in “custody” for the purposes of

habeas corpus).

DISCUSSION

I. Subject Matter Jurisdiction

A. Legal Standard

To survive a motion to dismiss under Rule 12(b)(1), the

plaintiff has the burden of establishing that subject matter

jurisdiction exists. See Calderón–Serra v. Wilmington Tr. Co.,

715 F.3d 14, 17 (1st Cir. 2013). “When a district court

considers a Rule 12(b)(1) motion, it must credit the plaintiff's

well-pled factual allegations and draw all reasonable inferences

in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d

50, 54 (1st Cir. 2010).

B. Jurisdictional Provisions of the Immigration and

Nationality Act

The Government points to three provisions of the

Immigration and Nationality Act (“INA”) that it argues deprive

this Court of subject matter jurisdiction to adjudicate one or

both of Plaintiffs’ claims. The First Circuit has emphasized

that “interpreting [these] jurisdiction limiting

provisions . . . requires a close textual reading and that

restrictions on jurisdiction should conform tightly to the

precise language chosen by Congress.” Prado v. Reno, 198 F.3d

286, 290 (1st Cir. 1999).

First, under 8 U.S.C. § 1252(g),

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.

This provision strips all courts of jurisdiction to hear claims

that fall within its ambit. See Aguilar v. U.S. Immigration &

Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 11 &

n.2 (1st Cir. 2007). But it applies only to claims challenging

decisions or actions made in commencing proceedings,

adjudicating cases, and executing removal orders, the three

discretionary stages of the removal process specifically listed

in the statute. See Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471, 482, 486-87 (1999).

Second, 8 U.S.C. § 1252(b)(9) states that:

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 subchapter

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 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.

As a “judicial channeling provision,” § 1252(b)(9) “was designed

to consolidate and channel review of all legal and factual

questions that arise from the removal of an alien into the

administrative process, with judicial review of those decisions

vested exclusively in the courts of appeals.” Aguilar, 510 F.3d

at 9, 11. The provision does not bar district courts from

hearing “claims that are independent of, or wholly collateral

to, the removal process.” Id. at 11. In determining whether

§ 1252(b)(9) bars a specific claim, courts consider if the alien

can raise the claim during the administrative process and then

at the court of appeals and how frequently the claim is raised.

Id. at 13-14.

Finally, 8 U.S.C. § 1252(a)(2)(B)(ii) strips courts of

jurisdiction over any “decision or action . . . the authority

for which is specified under this subchapter to be in the

discretion of the Attorney General or the Secretary of Homeland

Security, other than the granting of” asylum. This provision

bars judicial review of decisions made discretionary by statute,

but not those made discretionary by agency regulation. Kucana v.

Holder, 558 U.S. 233, 236, 251 (2010) (reaffirming “the

presumption favoring judicial review of administrative action”).

C. Analysis

1. Count I: Candra’s Habeas Petition

In Count I, Candra brings a petition for writ of habeas

corpus challenging ICE’s denial of his stay application and its

attempt to remove him on due process grounds. Section 1252(g)

strips courts of jurisdiction over an alien’s challenge to a

denial of a stay application because the stay “is a component of

the decision to execute a [removal] order.” Moussa v. Jenifer,

389 F.3d 550, 554 (6th Cir. 2004); see also Sharif ex rel.

Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002) (relying

on similar reasoning to conclude that § 1252(g) barred the

district court from staying the aliens’ removal pending further

administrative review); Mapoy v. Carroll, 185 F.3d 224, 228 (4th

Cir. 1999) (same for review of the denial of a motion for a stay

of deportation by the BIA). The decision to stay removal is part

and parcel of the administrative process of executing a removal

order: A decision not to grant a stay of removal is in effect a

decision to execute a removal order, and vice versa. The denial

of a stay application fits cleanly within the category of

decisions that § 1252(g) bars courts from second-guessing.

Candra’s attempt to frame his claim in due process language

does not change this result. Section 1252(g) bars “any cause or

claim” that arises from executing a removal order. 8 U.S.C.

§ 1252(g) (emphasis added). It applies to constitutional as well

as statutory claims. See Silva v. United States, 866 F.3d 938,

941 (8th Cir. 2017); Elgharib v. Napolitano, 600 F.3d 597, 605

(6th Cir. 2010); see also Am.-Arab Anti-Discrimination Comm.,

525 U.S. at 487-92 (holding that § 1252(g) deprived the district

court of jurisdiction over claims that certain aliens were

unconstitutionally targeted for deportation because of their

affiliation with a political unpopular group).

Candra argues in his preliminary injunction briefing that

applying § 1252(g) to bar his claim violates the Suspension

Clause. In opposing the Government’s motion to dismiss and at

the hearing, the plaintiffs appear to have abandoned this

argument. In any event, the case does not raise Suspension

Clause concerns.

Congress may provide adequate substitutes for habeas corpus

without offending the Suspension Clause. See I.N.S. v. St. Cyr,

533 U.S. 289, 314 n.38 (2001). Courts generally “have rejected

Suspension Clause challenges [to jurisdiction-stripping

provisions of the INA] on the ground that a motion to reopen

plus a petition for review in the court of appeals would be an

adequate substitute for habeas corpus.” Devitri v. Cronen, 289

F. Supp. 3d 287, 293 (D. Mass. 2018), appeal dismissed as moot,

No. 18-1281 (1st Cir. Feb. 6, 2019). The BIA ruled on and

rejected Candra’s motion to reopen, and, although he did not

seek review of the BIA’s ruling in the First Circuit within the

prescribed time limit, review was available to him.3 Cf. Sharif,

280 F.3d at 788 (noting that, if the aliens had a due process

3 Candra mentions the fact that his chance to appeal to the

First Circuit should not count because his lawyer did not tell

him about the BIA decision, but he never fleshes out this

argument.

argument concerning faulty notice in connection with their

removal proceedings, they should have challenged it through the

agency and to the court of appeals). The availability of

judicial review in this case distinguishes it from Devitri,

where this Court held that the application of § 1252(g) to bar

claims by aliens seeking to file motions to reopen their

immigration proceedings with the BIA would violate the

Suspension Clause because the aliens claiming persecution would

be deported before receiving decisions on those motions. See 289

F. Supp. 3d at 293-94. Count I is therefore dismissed for lack

of subject matter jurisdiction.

2. Count II: Candra Children’s Claim

In Count II, the Candra Children challenge the denial of

their father’s application for a stay of removal. They argue

both that ICE denied their father’s application in violation of

the regulation governing administrative stays of removal and

that ICE’s denial violated their substantive and procedural due

process rights.

The Government contends that three jurisdictional

provisions in the INA require dismissal of this claim. The

Government first points to § 1252(g), but the provision by its

plain language applies only to claims brought “by or on behalf

of any alien.” 8 U.S.C. § 1252(g). Count II is not brought by or

on behalf of Candra, but by the Candra Children, who are U.S.

citizens. They allege that they have distinct rights and that

the denial of their father’s stay application harms them

separately. Keeping with the First Circuit’s admonition to read

the INA’s jurisdictional bars narrowly, see Prado, 198 F.3d at

290, the Court holds that § 1252(g) does not bar it from hearing

the Candra Children’s APA and constitutional claims, see Hamdi

ex rel. Hamdi v. Napolitano, 620 F.3d 615, 621-23 (6th Cir.

2010) (involving a similar claim brought by the U.S. citizen

minor child of an alien ordered removed).

Nor does § 1252(b)(9) require dismissal of Count II.

Section 1252(b)(9) is a “judicial channeling provision, not a

claim-barring one.” Aguilar, 510 F.3d at 11. It does not cover

“claims that cannot effectively be handled through the available

administrative process.” Id. Although the First Circuit has not

ruled, other circuits have split on whether § 1252(b)(9) bars

this Court from adjudicating the Candra Children’s claims.

Compare Hamdi, 620 F.3d at 626-27 (holding that § 1252(b)(9) did

not bar a child’s claim that his mother’s removal would violate

his constitutional rights), with Duron v. Johnson, 898 F.3d 644,

647 (5th Cir. 2018) (reaching the opposite conclusion regarding

two children’s claim that their constitutional right to family

association was violated by their father’s removal). While the

legal issue is complex, the Government has not explained how the

Candra Children could assert their separate rights under the

Constitution or APA in their father’s removal proceedings. These

claims fall outside the administrative process that § 1252(b)(9)

aims to protect from piecemeal litigation. See Aguilar, 510 F.3d

at 10. Accordingly, I find Hamdi’s conclusion persuasive.

Finally, because ICE’s discretion to grant stays of removal

comes from a regulation, not a statute, see 8 C.F.R. § 241.6,

§ 1252(a)(2)(B)(ii) also does not preclude judicial review of

Count II, see Kucana, 558 U.S. at 236.

Having addressed the INA’s jurisdictional bars, the Court

concludes that it has subject matter jurisdiction over the

constitutional claims of the Candra Children in Count II. 28

U.S.C. § 1331 grants district courts “original jurisdiction of

all civil actions arising under the Constitution, laws, or

treaties of the United States.” In their constitutional claims,

the Candra Children allege that ICE’s denial of their father’s

stay application violated their procedural and substantive due

process rights. This claim arises from the Constitution and thus

fits within this grant of federal question jurisdiction. See

Hamdi, 620 F.3d at 624 (holding that the district court had

federal question jurisdiction to hear a child’s claim that DHS

violated his constitutional rights by issuing an order of

removal against his mother).

Whether the Court has jurisdiction over the Candra

Children’s claim that ICE violated its own regulations in

denying their father’s stay application is a far more complex

question. The Candra Children argue that the Court has

jurisdiction via § 1331 and the APA. See Conservation Law

Found. v. Busey, 79 F.3d 1250, 1261 (1st Cir. 1996) (“While the

APA does not provide an independent source of subject matter

jurisdiction, it does provide a federal right of action where

subject matter jurisdiction exists under 28 U.S.C.

§ 1331 . . . .”). However, in Ardestani v. I.N.S., the Supreme

Court stated that “immigration proceedings . . . are not

governed by the APA.” 502 U.S. 129, 133, 139 (1991) (holding

that an alien who prevails in removal proceedings is not

entitled to attorney’s fees and costs under the Equal Access to

Justice Act because the adjudicatory provisions of the APA do

not govern removal proceedings).

Circuit courts have interpreted Ardestani to foreclose only

application of the adjudicatory provisions of the APA to removal

proceedings. See, e.g., Smriko v. Ashcroft, 387 F.3d 279, 291 &

n.7 (3d Cir. 2004) (involving a challenge to immigration

streamlining provisions). Under this interpretation, judicial

review under the APA is still available for certain agency

decisions not committed to agency discretion in the immigration

context outside the confines of removal proceedings. See id.;

Howell v. I.N.S., 72 F.3d 288, 293 (2d Cir. 1995); see also

Dhakal v. Sessions, 895 F.3d 532, 538 (7th Cir. 2018)

(recognizing the district court’s jurisdiction under the APA and

§ 1331 to hear a challenge to a denial of an affirmative

application for asylum). But see Moreno v. Bureau of Citizenship

& Immigration Servs., 185 F. App’x 688, 689 (9th Cir. 2006)

(unpublished) (declining to engage in APA review of USCIS’s

refusal to grant an application for a replacement alien

registration card).

In Hamdi, the Sixth Circuit interpreted Ardestani to bar

jurisdiction under the APA and § 1331 over a U.S. citizen

child’s constitutional claims seeking to cancel his parent’s

removal order. 620 F.3d at 623-24. Here, the Candra Children do

not directly challenge their father’s removal order but instead

ICE’s denial of their father’s application for a stay of

removal. A decision on a stay application is made after a

removal order becomes final and occurs outside of formal removal

proceedings. See 8 C.F.R. § 241.6(a). Because seeking to stay

Candra’s removal order is effectively delaying or cancelling his

removal order, under Hamdi the Candra Children’s APA claim is

likely within the jurisdictional bar to the extent it seeks an

injunction or stay. Furthermore, the Government makes a strong

argument that ICE’s decisions on stay applications are

“committed to agency discretion by law” and therefore

unreviewable under the APA. 5 U.S.C. § 701(a)(2).

The Candra Children are also seeking a declaration that ICE

has instituted a new policy of denying all stay applications in

contravention of its own regulations requiring consideration of

multiple factors without going through the required rulemaking

process. See Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199,

1206 (2015) (noting that agencies must “use the same procedures

when they amend or repeal a rule as they used to issue the rule

in the first instance”). The Court likely has jurisdiction to

examine a challenge to the agency’s decision to revoke a rule

without going through the regular rule-making procedures. See

Smriko, 387 F.3d at 291 & n.7.

The Court need not decide these difficult jurisdictional

questions. The First Circuit has authorized courts to bypass

complex questions concerning statutory jurisdiction in the

immigration context where “precedent clearly adumbrates the

results on the merits.” Royal Siam Corp. v. Chertoff, 484 F.3d

139, 144 (1st Cir. 2007). As discussed below, the Candra

Children fail to state a claim because the Court cannot stay

their father’s removal. The Court therefore assumes without

deciding that it has jurisdiction over the Candra Children’s

APA-based claim.

II. Failure to State a Claim

The Government also argues that Count II should be

dismissed under Rule 12(b)(6). In analyzing whether a complaint

states a claim sufficient to satisfy Rule 12(b)(6), the Court

must set aside any statements that are conclusory and examine

only the pleader’s factual allegations. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009). “When there are well-pleaded factual

allegations, a court should assume their veracity and then

determine whether they plausibly give rise to an entitlement to

relief.” Id. “A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. at 678.

A complaint fails to state a claim if the court cannot

grant the remedy the plaintiff seeks to redress the violation of

his rights. See Armstrong v. Jefferson Smurfit Corp., 30 F.3d

11, 12-13 (1st Cir. 1994) (affirming a Rule 12(b)(6) dismissal

of a complaint claiming breach of fiduciary duty under ERISA

because ERISA did not permit the court to award the remedy the

plaintiffs sought); cf. Lake Country Estates, Inc. v. Tahoe

Reg’l Planning Agency, 440 U.S. 391, 398 (1979) (noting that an

argument concerning “the existence of a remedy for the alleged

violation of [the plaintiff’s] federal rights” raises a cause-

of-action problem).

The Candra Children raise a plausible argument that ICE

violated the regulation governing administrative stays of

removal. 8 C.F.R. § 241.6(a) requires ICE to consider the

“factors listed in 8 C.F.R. 212.5 and section 241(c) of the” INA

in determining whether to grant a stay of removal. The letter

from ICE granting Candra a stay of removal in 2013 refers to his

U.S. citizen children, Zhafirah’s medical condition, his

community ties, and his lack of criminal history. By contrast,

the letters Candra received denying his two latest stay

applications state only that ICE “carefully reviewed [his] file,

as well as the factors addressed in the Application for a Stay

of Deportation or Removal.” Docket No. 3, Exs. P-Q. With no

evidence in the record of changed circumstances, the ipse dixit

change in position without apparent examination of the factors

or explanation of the about-face supports a reasonable inference

that the agency did not consider any of the factors. See

Haoud v. Ashcroft, 350 F.3d 201, 207 (1st Cir. 2003) (“An agency

cannot merely flit serendipitously from case to case, like a bee

buzzing from flower to flower, making up the rules as it goes

along.” (quoting Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996))).

The Candra Children also have a plausible procedural due

process claim. In Kerry v. Din, the Supreme Court failed to

reach a majority decision on whether a U.S. citizen has

procedural due process rights in the adjudication of an alien

spouse’s visa petition based on a liberty interest in living

with him in the United States. See 135 S. Ct. 2128, 2131, 2139,

2142 (2015); see also Ali v. United States, 849 F.3d 510, 515

n.3 (1st Cir. 2017) (recognizing that Din “did not produce a

definitive answer” to this question). The Candra Children may

have a corresponding liberty interest in living with their

father in the United States, which they argue they were deprived

of in violation of their procedural due process rights. This is

far from clear, however, because the First Circuit has ruled

that children do not have a substantive due process right to

challenge an otherwise valid deportation. See Payne-Barahona v.

Gonzáles, 474 F.3d 1, 2-3 (1st Cir. 2007) (holding pre-Din in

the context of a substantive due process claim that, in the

absence of “conscience shocking” activity, “a parent’s otherwise

valid deportation does not violate a child’s constitutional

right”).

Even if ICE acted unlawfully or unconstitutionally by

failing to follow its own regulations or revoking the regulation

without going through proper administrative procedures, the

Court cannot grant the remedy the Candra Children seek. See

Hamdi, 620 F.3d at 627-29. They ask the Court to stay their

father’s removal or vacate the denial of his stay application,

at least while ICE provides a more detailed decision on his

application. 8 U.S.C. § 1252(b)(9) channels “review of all legal

and factual questions that arise from the removal of an alien

into the administrative process, with judicial review of those

decisions vested exclusively in the courts of appeals.” Aguilar,

510 F.3d at 9. While this provision does not strip the Court of

jurisdiction to adjudicate claims involving the Candra

Children’s distinct constitutional rights, it does prevent the

Court from staying their father’s removal order. Hamdi, 620 F.3d

at 628-29. This Court simply does not have the jurisdiction to

interfere with the execution of a removal order. Tejada v.

Cabral, 424 F. Supp. 2d 296, 298 (D. Mass. 2006); see also Ma v.

Holder, 860 F. Supp. 2d 1048, 1061 (N.D. Cal. 2012) (noting

that, regardless of how plaintiffs frame their argument, seeking

to “halt a final order of removal . . . strips this Court of

jurisdiction”).

It is possible that declaratory relief challenging ICE’s

alleged policy of not following its own regulations remains

available even if the Court is stripped of jurisdiction to bar

or stay a removal. Because the Court cannot provide the remedy

the Candra Children seek, Count II is dismissed for failure to

state a claim.

ORDER

For the foregoing reasons, the Government’s motion to

dismiss (Docket No. 25) is ALLOWED without prejudice to amending

the complaint within 60 days to seek alternative relief. The

Court stays Candra’s removal during this time period so that an

amendment or appeal can be filed. Plaintiffs’ motions for a

temporary restraining order (Docket No. 2) and preliminary

injunction (Docket No. 8) are DENIED as moot.

SO ORDERED.

/s/ PATTI B. SARIS

Patti B. Saris

Chief U.S. District Judge