Henries v. Searls

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

EDWARD HENRIES,

Petitioner,

v. 23-CV-750-LJV

DECISION & ORDER

JEFFREY SEARLS,

Respondent.

Edward Henries has been detained in the custody of the United States

Department of Homeland Security (“DHS”) since April 2022. Docket Item 1 at ¶ 11. On

July 26, 2023, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241,1

Docket Item 1, and moved for a temporary restraining order (“TRO”) staying his removal

while the Administrative Appeals Office (“AAO”) of the United States Citizenship and

Immigration Services (“USCIS”) considered an appeal of his application for a certificate

of citizenship, Docket Item 2. In brief, Henries argued that the government could not

deport him while his appeal was pending before the AAO. Docket Items 1-2.

In August 2023, the government moved to dismiss the petition, Docket Item 8,

and the parties briefed Henries’s motion for a TRO and the government’s motion to

dismiss, Docket Items 7, 9-11. Then, on October 17 and 18, 2023, the government

informed the Court that the AAO had dismissed Henries’s appeal, Docket Item 12, and

that United States Immigration and Customs Enforcement (“ICE”) intended to remove

1 28 U.S.C. § 2241 “authorizes a district court to grant a writ of habeas corpus

whenever a petitioner is ‘in custody in violation of the laws or treaties of the United

States.’” Wang v. Ashcroft, 320 F.3d 130, 140 (2d Cir. 2003) (quoting 28 U.S.C.

§ 2241(c)(3)).

Henries the following month, Docket Item 14. The government asserted that Henries’s

petition was moot following the dismissal of his appeal, Docket Item 12, but Henries

responded that there still was a live case or controversy, Docket Item 13. The

government then moved to dismiss the complaint on mootness grounds, Docket Item

16, and the parties briefed that issue, Docket Items 16-1, 17, 18.

For the following reasons, Henries’s petition is dismissed and his motion for a

TRO is denied as moot.

FACTUAL AND PROECDURAL BACKGROUND2

Henries is a native of Liberia. Docket Item 1 at ¶ 9; Docket Item 1-1 at 2. He

entered the United States in 1984. Docket Item 1 at ¶ 9; Docket Item 1-1 at 2.

In October 2009, DHS issued a “Notice to Appear,” charging that Henries was

subject to removal from the United States under the Immigration and Nationality Act

(“INA”), 8 U.S.C. §§ 1101-1537. See Docket Item 1-1 at 3. More specifically, DHS

charged that Henries was subject to removal under section 1227(a)(2)(B)(i) for having

been convicted of a controlled-substances offense; section 1227(a)(2)(A)(iii) for having

been convicted of an aggravated felony, namely illicit trafficking in a controlled

substance, see id. § 1101(a)(43)(B); section 1227(a)(2)(A)(iii) for having been convicted

of an aggravated felony, namely a conspiracy to illicitly traffic in a controlled substance,

see id. § 1101(a)(43); and section 1227(a)(2)(A)(ii) for having been convicted of at least

two crimes of moral turpitude at any time after his admission. See Docket Item 1-1 at 1.

2 The following facts are taken from the parties’ filings.

On June 20, 2011, Henries was ordered removed from the United States.

Docket Item 1-1. He appealed that decision, first to the Board of Immigration Appeals

and then the United States Court of Appeals for the Third Circuit, but he was

unsuccessful: The Third Circuit ultimately dismissed Henries’s appeal in May 2012.

See Docket Item 1 at ¶ 10.

On or about April 29, 2022, Henries was released from prison and transferred

into ICE custody. Id. at ¶ 11. A few days later, he filed a Form N-600, i.e., an

Application for Certificate of Citizenship, with USCIS. See id. at ¶ 12; Docket Item 1-3

at 1. In that application, Henries argued that he “acquired United States citizenship at

birth through [his] adoptive mother.” See Docket Item 1 at ¶ 12; Docket Item 1-3 at 1.

In early 2023, USCIS denied Henries’s application and Henries appealed that decision

to the AAO. Docket Item 1 at ¶ 12; Docket Item 1-4.

On July 26, 2023, Henries learned that “officials at the Buffalo Federal Detention

Facility were attempting to remove [him] from the United States.” Docket Item 1 at ¶ 14.

So later that day, he commenced this action under 28 U.S.C. § 2241 and moved for a

TRO preventing his removal, arguing that he could not be removed while the appeal of

his citizenship application was pending. See Docket Items 1-2.

In his petition, Henries “ask[ed] this Court to review whether ICE has the legal

authority to remove [him] pursuant to a valid removal order without first affording him the

opportunity to have his claims heard by the [AAO].” Docket Item 1 at ¶ 15. He asserted

that he “d[id] not challenge the removal order directly”; rather, he argued that he could

not be deported before the AAO decided the appeal of the denial of his citizenship

application. Id. at ¶¶ 15-18. According to Henries, removing him while the appeal was

pending would violate the Due Process Clause and the Administrative Procedure Act

(“APA”). Id. at ¶¶ 19-22.

The petition included several requests for relief. Id. at 8. Henries asked the

Court to (1) grant his petition and order an “immediate release from custody” or, in the

alternative, “order a constitutionally adequate [bond] hearing,” id.; (2) order the

government “to refrain from transferring [Henries] out of the jurisdiction of the ICE

Buffalo Field Office Director during the pendency of these proceedings and while

[Henries] remains in [] custody,” id.; and (3) order a hearing on Henries’s motion for a

TRO, id., which asked the Court to “enjoin[] ICE from removing [] Henries from the

[United States] and order[] his release from custody during the pendency of the AAO

appeal,” Docket Item 2 at 4.3

The government moved to dismiss Henries’s petition. Docket Item 8. But before

this Court could decide the motion to dismiss, the AAO dismissed Henries’s appeal.

See Docket Item 12. The government then moved to dismiss Henries’s petition as

moot, Docket Item 16, and the parties briefed that motion as noted above.

DISCUSSION

I. MOOTNESS

“Article III of the United States Constitution provides that the judicial power of the

United States extends to certain ‘cases’ and ‘controversies.’” Stagg, P.C. v. U.S. Dep’t

of State, 983 F.3d 589, 601 (2d Cir. 2020). The “uncontroverted core” of Article III’s

3 During a status conference on July 28, 2023, the government “confirmed

[Henries] was not going to be deported imminently” and agreed to provide the Court

with at least five days’ notice in advance of the removal date. Docket Item 6.

cases-and-controversies limitation is “the principle that, at all times, the dispute before

the court must be real and live, not feigned, academic, or conjectural.” Russman v. Bd.

of Educ. of Enlarged City Sch. Dist. of Watervliet, 260 F.3d 114, 118 (2d Cir. 2001). So

“[w]hen the issues in dispute between the parties are no longer ‘live,’ a case becomes

moot and the court . . . loses jurisdiction over the suit, which therefore must be

dismissed.” Lillbask v. Conn. Dep’t of Educ., 397 F.3d 77, 84 (2d Cir. 2005) (internal

citations and quotation marks omitted).

The government contends that Henries’s petition and this action are now moot.

Docket Item 16-1. More specifically, it says that Henries’s “entire case is based on an

allegation that his removal from the United States during pendency of his AAO appeal

would deprive him of due process or rights he believes he has under the APA.” Id. at 2.

Because Henries’s appeal is no longer pending, the government argues, the

controversy he asked this Court to address—whether the government had the authority

to remove him while the appeal was pending—“no longer exists, and this Court lacks

subject matter jurisdiction over this action.” Id. at 2-3; see id. at 4 (“[Henries] sought

relief to avoid a result which can no longer occur—removal from the United States prior

to the adjudication of his appeal to the AAO.”).

The government is correct in one respect: The petition’s focus—the request for

an order preventing the government from removing Henries while his appeal to the AAO

was pending, see Docket Item 1 at 8—is necessarily moot now that Henries’s appeal

has been dismissed.4 But Henries also asked this Court to order his release or,

4 For that reason, Henries’s motion for a TRO, which sought an order staying his

removal during the pendency of the appeal, see Docket Item 2, is denied as moot.

alternatively, a “constitutionally adequate [bond] hearing” to “justif[y]” his continued

detention.5 See id.; see also Docket Item 17 at 2. That request is not moot.

Henries’s continued detention thus presents a “real, live” issue. See Russman,

260 F.3d at 118; see also Flores-Torres v. Mukasey, 548 F.3d 708, 712 (9th Cir. 2008)

(noting that the “the government’s position that an individual who asserts a non-frivolous

claim of citizenship can be detained during immigration proceedings . . . without habeas

review” presented “serious questions”). And the Court now turns to that issue.

II. THE HABEAS PETITION

Henries says that he should be released because he is a United States citizen

and because he is entitled to a hearing. See Docket Item 17; see also Docket Item 1 at

8. Both arguments lack merit.

A. Request for Release Based on Citizenship Claim

To begin, the Court lacks jurisdiction to consider any argument that Henries must

be released because he is a United States citizen.

The Real ID Act of 2005, 8 U.S.C. § 1252, strips district courts of jurisdiction to

review a final order of deportation. See De Ping Wang v. Dep’t of Homeland Sec., 484

5 The government argues that this Court should not find a live case or

controversy based on Henries’s request for immediate release because the petition

sought Henries’s release only during the pendency of his appeal. Docket Item 18 at 2-

3; see id. (arguing that Henries’s request for release following the dismissal of his

appeal is “essentially an attempt to amend the [p]etition”). There may be some merit to

that argument: When viewed together, the petition and the motion for a TRO certainly

suggest that the request for release contemplated that relief in the context of the then-

pending AAO appeal. See generally Docket Items 1-2. Nevertheless, the Court broadly

construes the petition to request immediate release regardless of the status of Henries’s

appeal. See Docket Item 1 at 8; Docket Item 17 at 4.

F.3d 615, 615-16 (2d Cir. 2007). That jurisdictional bar prevents a district court from

reviewing either a direct or an indirect challenge to an order of removal. See, e.g.,

Delgado v. Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (finding that section 1252

stripped the district court of jurisdiction to hear an action seeking adjudication of an I-

212 application for permission to reapply for admission because it was an indirect

challenge to an order of removal).

Here, Henries is subject to a final order of removal. His citizenship claim

indirectly challenges that order. See Gordon v. Herron, 2009 WL 909640, at *3

(W.D.N.Y. Mar. 31, 2009) (noting that the district court “can consider only issues

surrounding [the petitioner’s] continued detention and should not address his derivative

citizenship contentions” (emphasis omitted)); cf. Ramos Funez v. Sessions, 2019 WL

4451484, at *9 (W.D.N.Y. Sept. 17, 2019) (finding that section 1252 was not a

jurisdictional bar where no final order of removal had been issued because the

petitioner “cannot, as a practical matter, challenge a non-existent final order of

removal”); Flores-Torres, 548 F.3d at 711 (holding that district court had jurisdiction to

hear action asserting citizenship claim because the action challenged the petitioner’s

detention “prior to the issuance” of a final order of removal); Lopez v. Doe, 2023 WL

4418604, at *2, *4-5 (E.D. Va. July 10, 2023) (finding that section 1252 did not bar

district court review of petitioner’s citizenship claim because petitioner was “not subject

to a final order of removal”). And Henries’s argument that the APA provides an

independent basis of jurisdiction, Docket Item 17 at 5, is squarely foreclosed by Second

Circuit precedent. See Delgado, 643 F.3d at 55-56 (rejecting plaintiff’s attempt to

“evade the restrictions of section 1252(a)(5) by styling her challenge” regarding

adjustment of her immigration status as a mandamus action or an action arising under

the APA).

Section 1252 therefore precludes this Court from considering the argument that

Henries’s detention is unlawful because he is a United States citizen.

B. Right to Release Under 8 U.S.C. § 1231

To the extent Henries argues that his detention has become unconstitutionally

prolonged, that argument also fails.

The government correctly notes that Henries “is detained pursuant to 8 U.S.C.

§ 1231.” Docket Item 16-1 at 4-5 n.2; see Hechavarria v. Sessions, 891 F.3d 49, 54-55

(2d Cir. 2018) (explaining that section 1231 governs detention of noncitizens “facing

deportation”). Henries does not explicitly dispute that he is held under that section,

despite his contention that he is a United States citizen. See Docket Item 17.

Under section 1231, it is “presumptively reasonable” for the government to detain

a noncitizen for up to six months. Zadvydas v. Davis, 533 U.S. 678, 701 (2001). But

after the six-month period has expired, if a noncitizen shows “good reason to believe

that there is no significant likelihood of removal in the reasonably foreseeable future,”

then the burden shifts to the government to rebut that evidence. Id. If the government

cannot meet that burden, the noncitizen must be released. Id. at 699 (“[O]nce removal

is no longer reasonably foreseeable, continued detention is no longer authorized by

statute.”).

As the government noted in its first motion to dismiss, Henries “has not

addressed the length of his detention or the likelihood of his removability.” Docket Item

8-1 at 4. In response to the first motion to dismiss, Henries only asserted that execution

of the removal order while his AAO appeal was pending would violate his rights, Docket

Item 10 at 3-11—an argument that is moot now that the appeal has been dismissed.

Moreover, Henries has not shown that his removal is not reasonably foreseeable.

On the contrary, the government has informed the Court that ICE intends to remove

Henries sometime this month. Docket Item 14. Because Henries has not demonstrated

that there is good reason to believe his removal is not reasonably foreseeable, see

Zadvydas, 533 U.S. at 701; see Docket Items 1-2, 9-10, 13, 17, he is not entitled to

relief based on the length of his detention.

C. Section 1503

Next, the parties debate the impact of 8 U.S.C. § 1503, Docket Item 17 at 2-4;

Docket Item 18 at 2-4, which provides:

If any person who is within the United States claims a right or privilege as

a national of the United States and is denied such right or privilege by any

department or independent agency, or official thereof, upon the ground that

he is not a national of the United States, such person may institute an action

. . . for a judgment declaring him to be a national of the United States, except

that no such action may be instituted in any case if the issue of such

person’s status as a national of the United States (1) arose by reason of, or

in connection with[,] any removal proceeding under the provisions of this

chapter or any other act, or (2) is in issue in any such removal proceeding.

8 U.S.C. § 1503; see Ramos Funez, 2019 WL 4451484, at *5 (noting that if “the AAO

affirms USCIS’s denial [of an appeal of a Form N-600,” the individual claiming

citizenship “will be deemed to have exhausted his administrative remedies and may file

an action for a declaratory judgment in a United States district court under 8 U.S.C. §

1503(a)”).

The government has suggested that Henries can pursue his citizenship claim

through an action under section 1503.6 See Docket Item 8-1 at 4-5 n.2. Henries says

that he intends to file a section 1503 action “forthwith,”7 Docket Item 17 at 2 n.1, but he

also says that section 1503 cannot provide the relief he seeks here. More specifically,

Henries argues that because he cannot challenge his detention through an action under

section 1503, this Court cannot dismiss the petition challenging his detention.8 Id. at 2-

6. So, Henries says, his petition seeks “relief from final agency action from which there

is no adequate remedy in a court.” Id. at 2, 5-6.

Henries seems to present his section 1503 argument as an additional basis on

which to find a live case or controversy. See Docket Item 17 at 4 (arguing that because

Henries cannot pursue an unlawful detention claim through a section 1503 action, his

6 Henries may not pursue an action under section 1503 “if the issue of [his] status

. . . arose by reason of . . . any removal proceeding” or if it “is in issue in any such

removal proceeding.” 8 U.S.C. § 1503. So it is unclear whether he can assert a claim

under section 1503.

7 Henries has not filed a section 1503 action in the more than six weeks since the

AAO dismissed his appeal.

8 In support of that argument, Henries cites Axon Enterprise, Inc. v. FTC, 143 S.

Ct. 890 (2023), in which he says the Supreme Court “opined that an allegation of

unconstitutional agency authority in the form of ICE’s detention of an American citizen[]

is a ‘here-and-now’ injury that must be heard in the District Court ‘because otherwise,

any review of such constitutional claims would come too late to be meaningful.’” Docket

Item 17 at 5. That is a mischaracterization of Axon, which was not about immigration or

United States citizenship at all: Axon addressed whether district courts have jurisdiction

to hear suits challenging the constitutionality of enforcement actions by the SEC and

FTC. 143 S. Ct. at 897. But the Court understands that Henries likely was attempting

to use Axon to support his argument that the district court has authority to review

allegedly unconstitutional agency action. See Lopez, 2023 WL 4418604, at *10 (noting

that “the Axon Court emphasized that the plaintiff’s claims could be heard in district

court because otherwise, any review of such ‘constitutional claims would come too late

to be meaningful’” (quoting Axon, 143 S. Ct. at 904)).

request for immediate release presents “an existing controversy”); id. at 5 (arguing that

because “there is no other adequate remedy” to address the government’s allegedly

illegal detention of Henries, the petition “is not moot” (citation omitted)). The

government, on the other hand, treats section 1503 as another reason that this Court

should not consider Henries’s citizenship claim. See Docket Item 18 at 2-4 (arguing

that an action under section 1503 is part of one of two permissible routes through which

an individual may pursue a claim that he is a United States citizen, and that Henries

cannot “litigate his citizenship claim in this Court”).

Neither argument impacts the outcome of this case. The Court already has

determined that this action is not moot, supra at 4-6, so it need not address Henries’s

claim that section 1503 affects the mootness analysis. Likewise, this Court already has

determined that it lacks jurisdiction to order Henries’s release based on his citizenship

claim, supra at 6-8, so it need not consider whether section 1503 provides additional

support for the government’s argument on that point.

For those reasons, section 1503 does not change the Court’s analysis of

Henries’s petition.

D. Suspension Clause

Finally, Henries asserts that dismissal of his petition would violate the

Suspension Clause because there is no “adequate and effective” substitute for habeas

relief here. Docket Item 17 at 5-6 (quoting Boumediene v. Bush, 553 U.S. 723 (2008)).

But as the government notes, Henries “has two adequate substitutes for habeas corpus

relief: the filing of an N-600 and the relevant appellate review, and a filing of a motion to

reopen and then a [p]etition for [r]eview before a circuit court, if necessary.” Docket

Item 18 at 7; see id. at 3, 5-6. Dismissal of the petition therefore does not violate the

Suspension Clause. See Luna v. Holder, 637 F.3d 85, 93 (2d Cir. 2011) (“[T]he

substitution of a collateral remedy which is neither inadequate nor ineffective to test the

legality of a person’s detention does not constitute a suspension of the writ of habeas

corpus.” (citation omitted)).

ORDER

In light of the above, IT IS HEREBY

ORDERED that the government’s first motion to dismiss, Docket Item 8, is

GRANTED and Henries’s petition, Docket Item 1, is DISMISSED; and it is further

ORDERED that Henries’s motion for a temporary restraining order, Docket Item

2, and the government’s second motion to dismiss, Docket Item 16, are DENIED as

moot; and it is further

ORDERED that the Clerk of the Court shall close this case.

SO ORDERED.

Dated: November 9, 2023

Buffalo, New York

/s/ Lawrence J. Vilardo

LAWRENCE J. VILARDO

UNITED STATES DISTRICT JUDGE