# Candra v. Cronen

> District Court, D. Massachusetts · February 21, 2019

URL: https://www.frixlaw.com/law-library/cases/10197450

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** February 21, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197450

## How later opinions describe it (automated extraction)

- noting that, regardless of how plaintiffs frame their argument, seeking to “halt a final order of removal . . . strips this Court of jurisdiction”
- recognizing that Din “did not produce a definitive answer” to this question
- 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
- 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

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197450. Public record. Not legal advice.