Teran Rivera v. Searls

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK 5 SIATES DISTRICS

AC FILED COP

= □□

ROBERTO CARLOS TERAN RIVERA, APR 22 2021

Petit . yee LOewenGuit od

etitioner, STERN arate ot

Vv. 21-CV-402 (JLS)

JEFFREY SEARLS, et al.,

Respondents.

DECISION AND ORDER

Petitioner Roberto Carlos Teran Rivera, a native and citizen of Nicaragua,

commenced this habeas corpus proceeding under 28 U.S.C. § 2241 on March 18,

2021. Dkt. 1. Teran Rivera also moved for a temporary restraining order and

expedited consideration of that motion. Dkts. 3, 4.

Teran Rivera seeks an order from this Court requiring Respondents either to

release him so that he can “immediately seek lawful admission to Canada” or to

transport him to Canadian border. Dkt. 1, at 30. In the alternative, Teran Rivera

seeks a temporary stay of his removal to Nicaragua until this action is decided—

with the caveat, however, that the stay have no effect on Respondents’ ability to

remove him to Canada. Id.

For the following reasons, Teran Rivera’s petition is dismissed for lack of

subject matter jurisdiction. His emergency motions are denied as moot.

BACKGROUND

I. Factual Background

Teran Rivera is a citizen of Nicaragua who entered the United States without

inspection. Dkt. 19, at 2 | 3. Teran Rivera has been removed twice from the United

States. See id. at 2-3 J] 5-6 (apprehended in Arizona on June 21, 2011 and

removed to Mexico pursuant to a final order of removal on July 20, 2011); id. at 3 7]

7-9 (encountered in Texas on April 4, 2019 and removed to Nicaragua on May 2,

2019 through the reinstatement of his prior removal order).

Teran Rivera was again detained on January 6, 2021, while attempting to

enter Canada from the United States. Dkt. 19, at 3 § 10; Dkt. 1, at 5 9 4-5. He

advised the Department of Homeland Security (“DHS”) that he entered the United

States about one month earlier. Dkt. 19, at 2 § 3; Dkt. 19-2, at 10. According to

Respondents, when Teran Rivera was encountered, he provided a fabricated name

and claimed to be a citizen of Mexico. Dkt. 19, at 2 | 4; Dkt. 19-2, at 10.

Teran Rivera states that he entered Canada through Roxham Road in

Champlain, New York. Dkt. 1, at 11 § 23. He was “apprehended by Canadian law

enforcement officials and transported within Canada to the official port-of-entry.”

Id. The Canada Border Services Agency “commenced processing his application to

enter Canada, collected his biometric and biographic information, and issued him a

Canadian immigration identification number.” Id. The Canada Border Services

Agency then “drove [him] back to the United States and delivered him” to DHS

agents. Id. at 12, § 26. He ultimately was transferred to the Buffalo Federal

Detention Facility, where he remains detained. Id. at 9 § 16; id. at 12 § 26. He □□

subject to removal through the reinstatement of his prior removal order. Id. at 10 4

21; Dkt. 19-1, at 3 § 14; Dkt. 19-2, at 2, 3; Dkt. 19-3, at 6. Teran Rivera states that

his wife resides in Canada. Dkt. 1, at 11 | 22; Dkt. 19-2, at 10.

II. Procedural History and Teran Rivera’s Claims

Teran Rivera filed this petition on March 18, 2021. Dkt. 1. He asks this

Court to require Respondents to transport him to Canada or to release him so that

he may seek admission to Canada. Id. at 30. He also seeks a stay of his removal

pending this Court’s review, except that he asks the Court to allow Respondents to

remove him to Canada, only, notwithstanding any stay. Id. Teran Rivera’s “core

claim is that he never should have been forced inside the United States in the first

place, when he had a lawful right to enter Canada, and thereafter should not have

been detained (ostensibly for the purposes of deportation) when he wished to

immediately self-deport.” Id. at 26 | 59.

Respondents indicate that Teran Rivera will be removed to Nicaragua on

April 29, 2021. Dkt. 20. Teran Rivera argues that substantive due process requires

his “release (and facilitation of immediate self-deportation to Canada),” and that

substantive and procedural due process require his transfer to the Canadian border.

Dkt. 1, at 29 64. He asserts that Respondents’ actions ignore the January 20,

2021 DHS Memorandum, see id. at 30 | 72, and that he is entitled to relief under

the Safe Third Country Agreement (“STCA”), see id. at 5 § 4; id. at 12-13 27-28.

He also argues that Respondents’ decision to “force” him into the United States and

“prevent his self-deportation to Canada offends the Suspension Clause” of the

Constitution. Jd. at 25.

The Court ordered the parties to address this Court’s subject matter

jurisdiction. Dkt. 8. On March 26, 2021, Respondents moved to dismiss for lack of

subject matter jurisdiction. Dkts. 12, 13. Teran Rivera opposed the motion on April

7, 2021. Dkt. 16. Respondents replied (Dkt. 19), and Teran Rivera filed a surreply

(Dkt. 24).

On March 18, 2021, Teran Rivera also moved for a temporary restraining

order and to expedite consideration of that motion. Dkts. 3, 4. On March 22, 2021,

based upon a status report from Teran Rivera, the Court held those emergency

motions in abeyance pending its determination on subject matter jurisdiction. Dkt.

11. Because the Court now dismisses Teran Rivera’s petition for lack of subject

matter jurisdiction, those emergency motions are denied as moot.

DISCUSSION

I. Jurisdiction

As a threshold matter, this Court must determine whether it has jurisdiction

over this action. Respondents argue for dismissal on the basis that 8 U.S.C. §

1252(a)(5), 8 U.S.C. § 1252(b)(9), and 8 U.S.C. § 1252(g) strip this Court of

jurisdiction to stay Teran Rivera’s removal and to review his challenge to

ICE/DHS’s discretionary authority to execute orders of removal. See Dkt. 12, at 1-5;

see generally Dkt. 13.

Teran Rivera argues that he does not challenge Respondents’ “discretionary

decision to choose to execute removal of a removable individual.” Dkt. 1, at 16 37.

Rather, he purports to challenge first Respondents’ “decision to force [him] into the

interior of the United States, and subsequently the manner in which any discretion

they may have is being executed.” Id. He argues that these claims fall “squarely

within this Court’s subject matter jurisdiction.” Jd.

Teran Rivera argues that 8 U.S.C. § 1252(g) bars neither his challenge to

“ICE’s decision to force [him] into the United States in the first place” nor his

challenge to “the manner in which ICE exercises such discretion thereafter.” Id. at

18 § 41. Teran Rivera also argues that 8 U.S.C. § 1252(a)(5) or (b)(9), “which strip

federal courts of jurisdiction to review challenges to an order of removal[,] do not

apply in this case” because his petition neither challenges the validity “of any

administrative order of removal” nor Respondents’ “discretionary authority to

decide to execute removal against a removable alien.” Id. at 24 54-55. Rather,

Teran Rivera asserts that his challenge is constitutional in nature. Id. at 24 { 55.

In addition, Teran Rivera argues that Respondents’ interpretation of 8 U.S.C.

§ 1252(a)(5), 8 U.S.C. § 1252(b)(9), and 8 U.S.C. § 1252(g) would violate the

Constitution’s Suspension Clause. He argues that he has a right to habeas relief

under the Suspension Clause, as well as under the Due Process Clause of the Fifth

Amendment, notwithstanding the statutory jurisdiction-stripping provisions. See

Dkt. 1, at 25-28 | 57-64; see also Dkt. 16, at 17-18; Dkt. 24, at 15.

The REAL ID Act of 2005 mandates that judicial review of all

administratively final orders of removal take place exclusively in the courts of

appeals: “[nJotwithstanding any other provision of the law (statutory or

nonstatutory) ... 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.”

8 U.S.C. § 1252(a)(5). This provision “clearly preclude[s] [a] district court’s

entertaining of a direct challenge to a removal order.” Delgado v. Quarantillo, 648

F.3d 52, 55 (2d Cir. 2011). In Delgado, the Second Circuit held that prohibition

“applies equally to preclude . . . an indirect challenge” to a removal order. Id.

Whether a suit against immigration authorities is a challenge to a removal order

will “turn on the substance of relief that a plaintiff is seeking.” Jd. (holding, in

mandamus action to compel an adjudication on the merits of her I-212 application,

that the relief the petitioner sought was an indirect challenge to an order of

removal).

Also relevant to this Court’s habeas jurisdiction is 8 U.S.C. § 1252(g), which

provides that, “[nlotwithstanding any other provision of law (statutory or

nonstatutory), including any ... habeas corpus provision . . . 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” (emphasis added).

This Court does not have subject matter jurisdiction to address Teran

Rivera’s request for a stay of his removal. Dkt. 1, at 30. This Court concludes, as

have numerous courts in this Circuit and others, that Section 1252 deprives district

courts of jurisdiction over requests to stay orders of removal.! See Hassan, 2021 WL

395546, at *3 (dismissing petition that sought either a stay of removal or an order

directing petitioner's removal to Canada for lack of subject matter jurisdiction);

Ahmed v. Barr, No. 20-CV-395 (JLS), 2020 WL 2395694, at *2 (W.D.N.Y. May 12,

2020) (dismissing petition that sought a stay of removal for lack of subject matter

jurisdiction); Scott v. Napolitano, 618 F. Supp. 2d 186, 191 (E.D.N.Y. 2009) (“[T]hese

provisions of § 1252 operate to strip district courts of jurisdiction to stay an order of

removal, as well.”); Al-Garidi v. Holder, No. 09-CV-6160L, 2009 WL 1439216, at *1

(W.D.N.Y. May 15, 2009) (“This Court and other district courts throughout the

country have routinely held that because district courts have no jurisdiction to

review final orders of removal, they have no jurisdiction to review requests for stays

of removal.”) (collecting cases); Ashqar v. Hott, No. 1:19-cv-716, 2019 WL 2712276,

at *4 (E.D. Va. June 5, 2019) (Section 1252(g) barred jurisdiction because

petitioner's motion to stay removal pending adjudication of his motion to reopen

sought review of the execution of a removal order). But see You, Xiu Qing v.

1 Section 1252(g) also strips the Court of jurisdiction to review Teran Rivera’s

Administrative Procedure Act claims. See Dkt. 1, at 16-17 38-39; see also

Hassan v. Feeley, No. 21-cv-82 (JLS), 2021 WL 395546, at *3 n.2 (W.D.N_Y. Feb. 4,

2021); E.F.L. v. Prim, 986 F.3d 959, 965 (7th Cir. 2021) (“The APA is inapplicable

because § 1252(g) precludes judicial review and because DHS’s decision to execute

[petitioner’s] removal order is discretionary.”) (citations omitted).

Nielsen, 321 F. Supp. 3d 451, 458 n.5, 460 (S.D.N.Y. 2018) (granting petitioner a

stay of removal and rejecting various arguments that Section 1252 strips the court

of jurisdiction in light of Jennings and its rejection of “broad readings” of the

statute’s jurisdiction-stripping provisions).

Teran Rivera also asks the Court to declare that he not be removed to any

country except for Canada. Sections 1252(a)(5) and (g) deprive the Court of

jurisdiction over this request for relief, which “threaten[s] the execution of the

removal order and challenge[s] ICE’s discretionary decision to remove him to

[Nicaragua]” pursuant to 8 C.F.R. § 1240.12(d). See Bumu v. Barr, No. 6:20-CV-

06742-EAW, 2020 WL 6465433, at *1, *3 (W.D.N.Y. Nov. 3, 2020). Because his

request would prevent the implementation of his removal order, it falls beyond the

Court’s jurisdiction. See Hassan, 2021 WL 395546, at *4 (concluding the court

lacked jurisdiction to direct that the petitioner not be removed to any country except

for Canada); Bumu, 2020 WL 6465433, at *1, *3 (concluding the court lacked

jurisdiction to stay the petitioner’s removal to Mali where the petitioner argued that

he was from Sierra Leonne and his removal to Mali would violate his constitutional

rights); Tonfack v. Att’y Gen. U.S., 580 F. App’x 79, 81 (3d Cir. 2014) (affirming

district court's determination that it lacked jurisdiction over Section 2241 petition

and rejecting petitioner’s argument that his petition, in which he argued that

“Cameroon is not a proper country of removal,” was “independent of his removal

order”).

Section 1252 also strips this Court of subject matter jurisdiction to review

Teran Rivera’s argument that Respondents “acted unlawfully” by detaining him

when Canadian authorities “turned [him] over to U.S. authorities.” See Dkt. 1, at 5

{ 4 (arguing that “at the moment he was turned over to U.S. authorities, [he] had

the immediate lawful right to seek admission back into Canada... .”); see also

Danglar v. Hassel, No. 19-14948-D, 2020 U.S. App. LEXIS 9500, at *1-3 (11th Cir.

Mar. 26, 2020) (concluding that the district court did not err in dismissing

petitioner’s Section 2241 petition where he argued, in part, that his detention and

removal order were unconstitutional because he had been illegally seized). As

Teran Rivera acknowledges, Respondents’ “decision to bring him into the United

States” is “the factual predicate to the order of removal being enforceable.” Dkt. 1,

at 22, | 49. Thus, Respondents’ decisions “to take [Teran Rivera] into custody and

to detain [him] pending [his] removal proceedings were closely connected to the

decision to commence removal proceedings.” See Cho v. United States, No. 5:13-CV-

153 (MTT), 2016 WL 1611476, at *7 (M.D. Ga. Apr. 21, 2016), Accordingly, Teran

Rivera's claim that he was unlawfully brought into the United States falls outside of

this Court’s jurisdiction. See id. (dismissing alien’s claims that that she was “falsely

arrested when she was taken into ICE custody” for lack of subject matter

jurisdiction based upon Section 1252(g)).

Teran Rivera also argues that “the challenged governmental actions which

have culminated in [his] detention” implicate the STCA. Dkt. 16, at 4; see also Dkt.

1, at 5 4; id. at 12-13 J 27-28. He purports to have rights under the STCA that

allow him to self-deport to Canada. Dkt. 16, at 5. This Court lacks jurisdiction over

such a claim, as well. See Bansci v. Nielsen, 321 F. Supp. 3d 729, 736 (W.D. Tex.

2018) (dismissing petition for lack of subject matter jurisdiction where petitioners

sought to have their removal orders vacated on the basis that they did not receive a

credible fear interview based upon a “procedurally flawed” STCA screening

interview).

Respondents argue that Teran Rivera’s challenge to his removal order as

violative of the STCA can be brought only in a petition for review to the Second

Circuit. Dkt. 19-3, at 8-9. The Court agrees. See 8 U.S.C. § 1252(a)(5); see also

Anekwu v. Barr, 806 F. App’x 317, 318 (5th Cir. 2020) (“appellate review of

determinations about the [STCA] is limited” but “extends to pure questions of law”);

Lopez-Jaime v. Adducci, No. 2:19-CV-11010-TGB, 2019 WL 2325677, at *2 (E.D.

Mich. May 31, 2019) (“The courts of appeals have jurisdiction to review questions of

law arising from the reinstatement of a removal order, in the same way that it has

jurisdiction to review the removal order itself.”).

The January 20, 2021 DHS Memorandum does not alter the Court’s

jurisdiction in this case. For the reasons explained above, the Court lacks

jurisdiction to review the January 20, 2021 DHS Memorandum as applied to Teran

Rivera. See Hassan, 2021 WL 395546, at *4n.3. Teran Rivera’s request to provide

further briefing on the matter is denied. Dkt. 1, at 28 ] 66.

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II. Suspension Clause

The conclusion that Section 1252 strips district courts of jurisdiction does not

end the analysis. Teran Rivera asserts an additional, constitutional claim:

specifically, if 8 U.S.C. § 1252 is interpreted to preclude jurisdiction over this type of

habeas petition, then the statute results in an unconstitutional suspension of the

writ of habeas corpus. See Dkt. 1, at 25 57-64; Dkt. 16, at 15.

The Suspension Clause provides that, “[t]he Privilege of the Writ of Habeas

Corpus shall not be suspended, unless in cases of rebellion or invasion the public

safety may require it.” U.S. Const. art. I, § 9, cl. 2. In arguing that the Suspension

Clause is implicated, Teran Rivera claims that he “wishes only to be released.” Dkt.

1, at 28 4 64. His proposed relief, in reality, is not so narrow. He wants to be

released to Canada, specifically; he asks to be transported to the Canadian border.

Alternatively, he asks for release into the United States with the “proviso that if

[he] does not immediately self-deport [to Canada], his civil immigration detention

would become unlawful.” Id. at 27 § 61 (emphasis omitted). Regardless of how he

styles his request for “release,” the relief he seeks is clear: release to Canada, only—

not unqualified release into the United States, and not removal to Nicaragua. See,

e.g., Dep’t of Homeland Sec. v. Thuraissigiam, ___ U.S. ___, 140 S. Ct. 1959, 1970

(2020).

Accordingly, Teran Rivera’s case does not implicate the Suspension Clause

because the relief he seeks falls outside of the scope of the traditional habeas

remedy of release. See generally Thuraissigiam, 140 8S. Ct. 1959; see also Hassan,

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2021 WL 395546, at *4 (concluding that the Suspension Clause was inapplicable

because petitioner’s request for removal to a certain country fell outside of the scope

of traditional habeas relief); Prim, 986 F.3d at 965 (“[T]he Suspension Clause is

inapplicable because [petitioner’s] habeas petition does not contest the lawfulness of

restraint or seek to secure release from custody; it instead vies for her right to

remain in the United States or to obtain administrative review potentially leading

to that result.”) (citations, quotations, and alterations omitted). Because Teran

Rivera does not seek habeas release, the Court need not consider whether any

adequate alternatives for habeas corpus relief exist as applied to him.2 See

2 Even if Teran Rivera were seeking traditional habeas release, requiring this Court

to address whether an adequate substitute for habeas relief existed, the Court is

doubtful that Teran Rivera has met his burden of showing that no such adequate

substitute exists. Teran Rivera appears to have adequate substitute processes

available to him. For example, courts have concluded that “Congress’s petition-for-

review process’ to a circuit court of appeals provides an adequate substitute for

habeas review. See Hamama v. Adducci, 912 F.3d 869, 876 (6th Cir. 2018); see also

Barros Anguisaca v. Decker, 393 F. Supp. 3d 344, 352 (S.D.N.Y. 2019) (“[E]ven if the

process leading to [petitioner’s] removal were fatally deficient, he has not shown, on

the facts here, that the administrative remedies available to him, including,

ultimately, a petition for review before the Second Circuit, are an inadequate or

ineffective substitute for habeas review.”); Andoh v. Barr, No. 19 Civ. 8016 (PAE),

2019 WL 4511628, at *4 (S.D.N.Y. Sept. 18, 2019) (rejecting petitioner’s Suspension

Clause argument because “[t]he federal courts of appeal, whose jurisdiction over

removal claims has not been statutorily eliminated, supply an adequate substitute

forum in which to seek relief’ and review of direct and indirect challenges to an

order of removal). Moreover, motions to reopen immigration proceedings before the

Board of Immigration Appeals also provide “an adequate and effective mechanism

of judicial review.” Bumu, 2020 WL 6465433, at *2. Noteworthy here is

Respondents’ argument that any decision by Teran Rivera to “cut off his ability to

assert a legal challenge does not amount to a legal violation.” See Dkt. 19-3, at 9

(arguing that, although an immigration judge has jurisdiction to review whether the

STCA applies to an alien, see Anekwu, 806 F. App’x at 318 (citing 8 C.F.R. §

1240.11(g)(1)), Teran Rivera waived that option when he declined an immigration

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Hamama, 912 F.3d at 875-76 (concluding that Section 1252(g)’s jurisdictional

limitations did not violate the Suspension Clause for two “independent” reasons—

namely, that petitioners did not seek habeas relief and that an “adequate

alternative to an action in habeas’ existed as applied to them).

In his later briefing, Teran Rivera adds the argument that the Due Process

Clause of the Fifth Amendment supplies jurisdiction. Dkt. 16, at 18; Dkt. 24, at 15-

17. The Court disagrees. Sections 1252(a)(2)(A) and (e)(2) preclude federal question

jurisdiction under 21 U.S.C. § 1331. See Quintero-Prieto v. Barr, No. CV-20-01168-

PHX-DLR (DMF), 2020 WL 6216949, at *6 (D. Ariz. Sept. 29, 2020), report and

recommendation adopted, 2020 WL 6203521, at *1 (D. Ariz. Oct. 22, 2020) (denying

and dismissing petition where, in part, the court concluded that the Due Process

Clause of the Fifth Amendment did not supply subject matter jurisdiction); see also

Patchak v. Zinke, __ U.S. ___, 188 S. Ct. 897, 905 (2018) (holding that a different

jurisdiction-stripping statute that “applie[d] ‘[n]otwithstanding any other provision

of law[]’ includ[es] the general grant of federal-question jurisdiction, 28 U.S.C. §

1331”)). Nor can Teran Rivera create jurisdiction by “re-packag[ing]” his request to

limit Respondents’ authority to enforce his removal order as a constitutional claim.

See, e.g., Negrete v. Holder, 567 F.3d 419, 422 (9th Cir. 2009).

The Court recognizes that Teran Rivera’s alleged plight is sympathetic on a

human level. Under the Constitution and applicable statute, and subject to the

judge’s review of the decision that he did not have a reasonable fear of persecution

or torture).

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circuit courts’ power to decide petitions for review, the political branches of

government—not this Court—have authority to address such concerns.

CONCLUSION

For the reasons stated above, the Court dismisses this action for lack of

subject matter jurisdiction. Respondents’ motion to dismiss (Dkts. 12, 13) is

granted. Teran Rivera’s emergency motions (Dkts. 3, 4) are dismissed as moot. The

Clerk of Court shall close this case.

SO ORDERED.

Dated: April 22, 2021

Buffalo, New York

J L. SINATRAYIR.

NITED STATES ICT JUDGE

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