Sylvain v. Garland

TES DISTR

EE SN FILED Le.

UNITED STATES DISTRICT COURT SEP 91 2021

WESTERN DISTRICT OF NEW YORK

TS _ S_OTTOCT Wate LOFWENGUIE BX

STERN DISTRICT OS

COLBY SYLVAIN,

Plaintiff,

V. 21-cv-1023 (JLS)

MERRICK B. GARLAND, in his official

capacity as Attorney General, of the

United States,

ALEJANDRO MAYORKAS, in his

official capacity as Secretary, U.S.

Department of Homeland Security

JEAN KING, in her official capacity as

director of the Executive Office Of

Immigration Review,

DAVID H. WETMORE, in his official

capacity as chairman of the Board Of

Immigration Appeals,

THOMAS E. FEELEY, in his official

capacity as Field Office Director,

Buffalo Field Office, U.S. Immigration

& Customs Enforcement,

Defendants.

DECISION

Colby Sylvain filed a Complaint, Dkt. 1, and a Motion for Temporary

Restraining Order (“TRO”), Dkt. 2, on September 15, 2021. Defendants filed their

Amended Motion to Dismiss two days later. Dkt. 10. The Court held oral argument

on the motions on Monday, September 20, 2021, and announced its decision to grant

Defendants’ motion to dismiss for lack of jurisdiction, with a written decision to

follow.

Sylvain is a Haitian national currently detained by Immigration and

Customs Enforcement and facing removal to Haiti today. Sylvain filed a motion to

reopen his removal proceedings and a motion to stay his removal with the Board of

Immigration Appeals (“BIA”) on September 9, 2021. On September 14, 2021, the

BIA denied Sylvain’s motion to stay his removal. The motion to reopen remains

pending. Sylvain then filed in this Court seeking to compel the BIA to adjudicate

his motion to reopen, and to stay his removal pending such adjudication.

Defendants argue that Sylvain’s claims must be dismissed because they are

indirect challenges to removal orders, over which district courts lack subject matter

jurisdiction. The Court has dealt with a similar situation in two recent cases. See

Hassan v. Feeley, No. 21-CV-82 (JLS), 2021 WL 395546 (W.D.NLY. Feb. 4, 2021);

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

In those cases, the petitioners asked this Court to, among other things, stay

removal orders issued against them pending the BIA’s adjudication of their

respective motions to reopen their removal proceedings. The Court determined that

these claims were indirect challenges to removal orders, which can only be filed in

the Court of Appeals pursuant to 8 U.S.C. § 1252(a)(5), and Delgado v. Quarantillo,

643 F.3d 52 (2d Cir. 2011) (affirming the district court’s dismissal of a mandamus

action to compel adjudication on the merits of an I-212 application denied on

procedural grounds because it was an indirect challenge to an order of removal and

barred under Section 1252(a)(5)). Thus, in both cases, the Court lacked subject

matter jurisdiction to grant such relief.

Like the plaintiffs in Hassan and Ahmed, Sylvain seeks a stay of his removal

pending adjudication of his motion to reopen. However, he styles his case as one

seeking a writ of mandamus and a request for relief under the Administrative

Procedure Act (“APA”). Sylvain argues that this distinction is enough to establish

jurisdiction in this Court. He relies on Patel v. Barr, No. CV 20-3856, 2020 WL

4700636 (E.D. Pa. Aug. 13, 2020), to argue that he is not challenging his order of

removal, but merely the BIA’s supposed refusal to adjudicate his motion to reopen.

This, he asserts, is not barred by Section 1252. Defendants disagree, arguing that

the jurisdiction-stripping provisions of Section 1252 apply, and that numerous

courts have rejected similar attempts to avoid those provisions.

The Court lacks subject matter jurisdiction over Sylvain’s claims. In addition

to Section 1252(a)(5), 8 U.S.C § 1252(g) divests all federal courts of jurisdiction over

claims “arising from the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders.” In Reno v. American-

Arab Anti-Discrimination Committee, the Supreme Court concluded the purpose of

this provision is to protect the discretion granted to the Executive branch with

respect to removal proceedings. 525 U.S. 471, 486 (1999).

Several courts have interpreted this provision to apply to challenges to the

Attorney General’s refusal to take an action—including in the context of motions to

reopen removal proceedings. See, e.g., Bhatti v. Bd. of Immigr. Appeals, 328 F.3d

912, 914-15 (7th Cir. 2003) (“[Petitioner] may not avoid the § 1252(g) bar by the

simple expedient of recharacterizing a claim as one challenging a refusal to act.”);

Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002) (“A request for a

stay of removal arises from the Attorney General’s decision. . . to execute a removal

order. This is so whether the [plaintiff]s seek a stay of removal pending

administrative reconsideration[.]”) (internal quotations omitted); Gomez-Chavez v.

Perryman, 308 F.3d 796, 800 (7th Cir. 2002) (“‘The[] strict limitations [of Section

1252(g)] apply not only to the Attorney General’s positive actions, but also to his

refusals to take action. An alien attempting to achieve judicial review of such

discretionary measures may not avoid the § 1252(g) bar by the simple expedient of

recharacterizing a claim as one challenging a refusal to act”) (internal citations

omitted); Alvidres-Reyes v. Reno, 180 F.3d 199 (5th Cir. 1999) (under Section

1252(g), federal courts lack subject matter jurisdiction to hear plaintiffs’ challenge

of the Attorney General’s refusal to initiate proceedings, adjudicate plaintiffs

deportable, and consider their applications for suspension of deportation); Mendez v.

Johnson, 101 F. App’x 18, 20 (6th Cir. 2004) (rejecting plaintiffs contention that his

request to compel the INS to adjudicate his I-485 application was merely a

challenge to the Attorney General’s refusal to consider his application because his

request “actually constitutes a request for judicial review of the Attorney General’s

discretionary decisions relating to the adjudication of [his removal] case—an

impermissible request under 8 U.S.C. § 1252(g).”); S. L. V. v. Rosen, No. SA-21-CV-

0017-JKP, 2021 WL 243442, at *4 (W.D. Tex. Jan. 25, 2021) (plaintiffs’ claims

seeking to compel agency officials to act on their motions to reopen and to stay their

removal pending adjudication of their motions dismissed for a lack of subject matter

jurisdiction because “[p]laintiffs seek review of their removal orders regardless of

the characterization of their claims.”).

Here, Sylvain is attempting to circumvent the jurisdictional bars of Section

1252 by styling his case as seeking a writ of mandamus, with an APA claim. The

caselaw above resolves this issue. No jurisdiction exists. In the Court’s judgment,

Patel is an outlier that, moreover, addresses a uniquely long delay.

CONCLUSION

For the reasons stated above, Defendants’ Amended Motion to Dismiss is

GRANTED. Plaintiffs case is dismissed with prejudice. The Clerk of Court shall

close this case.

Dated: September 21, 2021

Buffalo, New York ype

□□

JOHNL, SINATRA, JR. a

UNIT STATES DISTRICT JUDG.