# Henries v. Searls

> District Court, W.D. New York · November 9, 2023

URL: https://www.frixlaw.com/law-library/cases/10366626

## Case

- **Court:** District Court, W.D. New York
- **Decided:** November 9, 2023
- **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/10366626

## How later opinions describe it (automated extraction)

- 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
- 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
- explaining that section 1231 governs detention of noncitizens “facing deportation”
- 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
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10366626. Public record. Not legal advice.