Mbagoyi v. Barr

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CRISTIAN M’BAGOYI, :

Petitioner : CIVIL ACTION NO. 19-1717

v. : (JUDGE MANNION)

WILLIAM P. BARR, et al., :

Respondents :

MEMORANDUM

Petitioner is an undocumented immigrant, who entered into the United

States over nineteen (19) years ago. He has no criminal history. He is a

husband to a United States citizen, a father of four young children and a

working taxpayer employed as a carpenter with the New York Convention

Center Operating Corporation, Jacob K. Javits Convention Center, for over

thirteen (13) years. As exhibited by the sixty-one pages of testimonials

presented with this action, he is cherished in his community as a leader,

friend and mentor. On September 27, 2019, the petitioner was taken into

custody and detained by Immigration and Customs Enforcement (“ICE”)

officers for the purpose of executing his final order of removal. The petitioner

has come to this court seeking a stay of his removal while he exhausts his

right to apply for a waiver to legalize his immigration status and while he

exhausts the process of a motion to reopen his immigration proceedings. In

considering these requests, the court finds that the petitioner is entitled to

relief as to his former request, but that the court lacks jurisdiction to consider

the latter.

By way of relevant background, the petitioner, Cristian M’Bagoyi, is a

native and citizen of Angola, who was admitted into the United States on April

8, 2000, as a B-2 Visitor for Pleasure with authorization to remain in the

United States until October 7, 2000. Shortly after his arrival in the United

States, on April 13, 2000, the Canada Border Service Agency admitted the

petitioner into Canada to allow him to pursue an application for refugee

status. That application was denied on April 23, 2001. On March 5, 2003, the

petitioner was returned to the United States by Canadian immigration

authorities pursuant to a reciprocal agreement between the countries.

On the day he was returned to the United States, the petitioner was

served with a Notice to Appear by the Immigration and Naturalization Service

(“INS”). Although the petitioner filed various applications for relief from

removal, on September 22, 2003, an immigration judge (“IJ”) denied those

applications and ordered the petitioner removed from the United States. The

petitioner appealed the decision of the IJ to the Board of Immigration Appeals

(“BIA”), which dismissed his appeal on January 27, 2004. Based upon ICE’s

inability to secure a travel document for the petitioner’s removal, on March 24,

2004, the petitioner was released from ICE custody on an order of

supervision.

On August 29, 2008, a Petition for Alien Relative (Form I-130) was filed

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with United States Citizenship and Immigration Services (“USCIS”) on the

petitioner’s behalf by his then wife. That petition was granted by USCIS on

April 9, 2009. After approval of the Form I-130 petition, on July 9, 2009, the

petitioner filed a motion to reopen his immigration proceedings with the BIA,

which was denied on September 7, 2010.

On March 15, 2013, the petitioner filed a Petition for Amerasian,

Widow(er), or Special Immigrant (Form I-360) with USCIS. On September 22,

2013, that petition was approved and the petitioner held an I-360 Visa

between then and March 5, 2015, when USCIS revoked the petitioner’s Visa.

Shortly thereafter, on April 27, 2015, the petitioner was arrested by ICE

agents who processed him and served him with a Warning for Failure to

Depart (Form I-229(a)).

On May 6, 2015, the petitioner filed a second motion to reopen his

immigration proceedings and for a stay of removal. The BIA denied the motion

to stay that same day and subsequently denied the motion to reopen on June

9, 2015.

On September 9, 2015, the petitioner filed a petition for writ of habeas

corpus in the United States District Court, District of New Jersey, challenging

his continued detention pending removal. On October 23, 2015, rather than

respond to the petition, ICE released the petitioner from detention under an

order of supervision and the habeas petition was dismissed. Again, the basis

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for the petitioner’s release was ICE’s inability to secure a travel document that

would allow the petitioner’s removal. In the meantime, between May and

September 2015, while the petitioner was apparently still detained in ICE

custody, he was served with additional warnings for failure to depart.

On December 1, 2016, the petitioner’s second wife filed an Form I-130

on his behalf. This petition was approved by USICS on March 19, 2018. After

this approval, the petitioner provides that he and his spouse “began gathering

the requisite documents to apply for a waiver of his removal order.” However,

prior to the petitioner applying for a waiver, on September 19, 2019, the

petitioner’s order of supervision was revoked by ICE based on the issuance

of a travel document, and on September 27, 2019, the petitioner was arrested

and detained by ICE for the purpose of executing his final order of removal.

That same day, the petitioner filed a third motion to reopen his immigration

proceedings and a request for stay of removal. To date, there is no indication

that the BIA has acted upon the petitioner’s third motion to reopen or his

motion to say removal. Additionally, the petitioner attempted to file an

Application for Permission to Re-apply for Admission into the United States

after Deportation or Removal (Form I-212) in both the Department of

Homeland Security’s (“DHS”) New York field office and its Philadelphia field

office. The petitioner contends, however, that neither office would accept the

application for waiver.

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On October 2, 2019, the petitioner filed the instant petition for writ of

habeas corpus and complaint for declaratory and injunctive relief. (Doc. 1).

That same day, the court enjoined and prohibited the respondents from

removing or causing the removal from the United States of the petitioner and

stayed any removal until further order of court. (Doc. 3). The respondents

were further enjoined and prohibited from transferring or causing the transfer

of the petitioner from the jurisdiction of this court while these proceedings are

pending and until further order of court. Finally, the respondents were directed

to show cause why the habeas petition should not be granted and the

petitioner should not be released from custody. A determination as to whether

a hearing on the petition would be scheduled was deferred pending briefing

by the respondents. On October 7, 2019, the respondents filed their response

to the show cause order. (Doc. 6). Upon review, the court finds that a decision

on the pending petition can be made on the record before the court without

a hearing.

The petitioner brings this petition pursuant to the provisions of 28 U.S.C.

§2241; the All Writs Act, 28 U.S.C. §1651; the Immigration and Nationality Act

(“INA”), the Administrative Procedure Act (“APA”), 5 U.S.C. §701; and Article

I, Section 9, Clause 2 of the United States Constitution (the “Suspension

Clause”). The petitioner asserts that his current detention constitutes a severe

restraint on his individual liberty such that he is in custody in violation of the

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Constitution or laws of the United States. He further asserts that his arrest,

detention and removal violate, and would violate, the INA, the APA and the

Constitution’s due process guarantees. As a result, the petitioner requests

that this court stay his removal from the United States until he exhausts his

right to seek a provisional unlawful presence waiver. He further requests that

the court stay his removal from the United States until he fully exhausts the

process of a motion to reopen his immigration proceedings. Finally, the

petitioner seeks an order for his immediate release from custody.

The petitioner is not the first to bring a habeas action and request

injunctive relief requesting the right to pursue the provisional waiver process.

Other courts have recently had the opportunity to consider such matters. In

one of the most recent cases, the background of the provisional waiver

process and the process itself have been summarized,

An alien “who has been ordered removed” is inadmissible for

re-entry to the United States for five, ten, or twenty years from the

date of departure or removal, depending on whether the alien is

removed upon arrival, is removed after arrival, has already been

removed once before, or has been convicted of an aggravated

felony.1 8 U.S.C. §1182(a)(9)(A)(i-ii); 8 C.F.R. §212.2(a). An alien

who remains “inadmissible” is ineligible to receive a visa to be

admitted to the United States as a lawful permanent resident. 8

U.S.C. §1182(a). This inadmissibility may be waived by the

Secretary of Homeland Security’s consent to reapply for

admission, 8 U.S.C. §1182(a)(9)(A)(iii), but the waiver application

process can take well over a year, 78 Fed. Reg. 536-01, 536

(Jan. 3, 2013). Prior to 2013, an alien who wanted to seek lawful

permanent resident status and apply for this waiver of

admissibility was required to first depart from the United States.

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Id.

In 2013, recognizing that undocumented immediate family

members of citizens who were living in the United States were

choosing to forego applying for visas rather than be separated

from their families for at least a year, and potentially longer, the

Department of Homeland Security (“DHS”) promulgated a rule “to

allow certain immediate relatives of U.S. Citizens who are

physically present in the United States to request provisional

unlawful presence waivers prior to departing from the United

States for consular processing of their immigrant visa

applications.” Id. (“[MJany immediate relatives who may qualify for

an immigrant visa are reluctant to proceed abroad to seek an

immigrant visa.”). The rule was expressly promulgated to

“significantly reduce the time that U.S. citizens are separated from

their immediate relatives,” Id., and to “encourage immediate

relatives who are unlawfully present to initiate actions to obtain an

immigrant visa to become [lawful permanent residents],” Id. at

567. In 2016, DHS promulgated another rule extending eligibility

for these provisional unlawful presence waivers to aliens with final

removal orders. 81 Fed. Reg. 50244.

The process requires first filling out a Form 1-130, which

establishes a qualifying relationship to a U.S. citizen. 78 Fed.

Reg. 536-01 at 547-48. After the Form I-130 is approved, the

individual must file a Form 1-212, which requests a waiver of

inadmissibility and, pursuant to 8 C.F.R. §212.2(j), can be

conditionally approved while the individual remains in the United

States. 78 Fed. Reg. 536-01 at 547-48. Once the 1-212 is

conditionally approved, the individual must complete Form I-601A,

an application for a provisional unlawful presence waiver. Id.; see

also 8 C.F.R. §212.7(e)(4)(iv). Once the waiver is approved, the

individual departs from the United States to obtain the immigrant

visa, executing the prior removal order. See 8 U.S.C. §1101(g).

Wanrong Lin v. Nielsen, 377 F. Supp. 3d 556, 560-61 (D. Md. 2019).

This is the provisional unlawful presence waiver process the petitioner

seeks to pursue, but claims he is being denied the right to do so through his

detention and imminent removal. Therefore, the petitioner is seeking a stay

of his removal and an order releasing him from custody from this court while

he proceeds through this waiver process. However, before considering the

petitioner's claims and whether he is entitled to the relief he seeks, the court

must first address the respondents’ argument that this court lacks jurisdiction

pursuant to 8 U.S.C. §1252.

Again, the issue of whether §1252 strips a district court of jurisdiction

where a petitioner seeks a stay of removal and an order releasing him from

custody until he exhausts the process of obtaining a provisional unlawful

presence waiver has been addressed before, with the considering courts

splitting on the issue. In carefully considering the cases discussing the issue,

this court agrees with those courts which have found that §1252 does not strip

the district court of jurisdiction over such matters. See e.g., De Jesus Martinez

v. Nielsen, 341 F.Supp.3d 400 (D.N.J. 2018); Villavicencio Calderon v.

sessions, 330 F.Supp.3d 944 (S.D.N.Y. 2018). See also You, Xiu Qing v.

Nielsen, 321 F.Supp.3d 451 (S.D.N.Y. 2018). In each of these cases, the

reviewing district court found that §1252 does not strip a district court of

jurisdiction under these circumstances. In so finding, the courts recognized

that §1252 strips federal court jurisdiction over “any cause or claim by or on

behalf of an 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.” 8 U.S.C. §1252(g).1 It was argued that

a request for stay of removal pending exhaustion of the waiver process

interfered with the execution of a removal order. However, the courts in the

foregoing cases found that the challenge raised by the petitioners in those

cases was not to ICE’s prosecutorial discretion in executing removal orders,

but to the legal authority of ICE to exercise such discretion when the subject

of the removal order also has a right to seek relief made available by the

DHS, the specific purpose of which was to allow families to stay together in

the United States during the process. See De Jesus Martinez, 341 F.Supp.3d

at 406 (quoting Villavicencio Calderon, 330 F.Supp.3d at 954; You, Xiu Qing,

321 F.Supp.3d at 456-58). Like each of the petitioners in the foregoing

matters, the petitioner here is not challenging ICE’s prosecutorial discretion

to execute its removal order against him, but is seeking a review of its

authority to detain and remove him before he has the opportunity to complete

the provisional waiver process which he began when he filed his Form I-130.

In fact, the petitioner does not challenge the validity of his removal order at all

in this action, and he concedes that the waiver process may not end favorably

1Section 1252(g) provides, in relevant part, “[e]xcept as provided in this

section and nothwithstanding any other provision of law (statutory or

nonstatutory), . . . 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.”

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for him and, if it does not, this will ultimately result in his removal. However,

the petitioner argues that he has a right to proceed with the waiver process

that has been created to allow an otherwise eligible individual who is an

immediate relative of a United States citizen, and who lives in the United

States with a final order of removal, to pursue the process of obtaining the

required waiver, while in the United States. This court agrees that, since the

petitioner is not challenging the execution of his removal order, but only the

legal authority to detain and attempt to remove him before he finishes the

provisional waiver process, §1252(g) does not strip the court of jurisdiction

over this matter.

Further, to the extent that the respondents argue that jurisdiction is

barred by §§1252(a)(5)2 and (b)(9)3, which strip federal courts of jurisdiction

to review “direct” or “indirect” challenges to an order of removal, the Third

2Section 1252(a)(5) provides, in relevant part, “Notwithstanding any

other provision of 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.”

3Section 1252(b)(9) provides, in relevant part, “With respect to review

of a final order of removal under subsection (a)(1), . . . [j]udicial 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 . . . to review such an order or such questions of law or fact.”

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Circuit has held that “only challenges that directly implicate the order of

removal” are reserved to the circuit courts. See Nnadika v. Attorney Gen. Of

U.S., 484 F.3d 626, 632-33 (3d Cir. 2007) (district court retains jurisdiction

where non-citizen is not challenging the administrative removal order). Here,

again, the court finds that the petitioner is not directly or indirectly challenging

the validity of the order of removal against him. This is demonstrated by the

fact that, even if the court grants the petitioner the relief he seeks and allows

him to stay in the United States to complete the waiver process, the

petitioner’s order of removal will remain untouched and, in fact, whether or not

the petitioner gets a favorable ruling on his application for waiver, ultimately,

he will need to leave the United States at the end of the process. Accordingly,

because the petitioner is not bringing a challenge to his removal order, the

court finds that §§1252(a)(5) and (b)(9) do not operate to strip this court of

jurisdiction over the petitioner’s request relating to the waiver process. Cf.

Achbani v. Roman, 2017 WL 4227649 (D.Conn. Sept. 22, 2017) (Finding that

the plaintiff was claiming a right to remain in the United States, the court held

that it lacked jurisdiction under the reasoning of Delgado v. Quarantillo, 643

F.3d 52 (2d Cir. 2011)).

At this juncture, the court should note that, to the extent that the

petitioner seeks a stay of his removal until he exhausts his remedies with

respect to his motion to reopen his immigration proceedings, that would be a

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direct challenge to his removal order and the court does not have jurisdiction

over that aspect of the petitioner’s filing under §1252. See e.g., Sharif v.

Ashcroft, 280 F.3d 786, 787-88 (7th Cir. 2002) (holding that under §1252, the

district court lacked jurisdiction to issue a writ of habeas corpus that would

stay the execution of a removal order pending the BIA’s consideration of

petitioners’ motion to reopen). Therefore, the court will not consider the

petitioner's claims to this extent.

Having determined that this court has jurisdiction to consider the

petitioner's request for relief relating to his right to pursue the waiver process,

the court must determine whether the petitioner is, in fact, entitled to the

injunctive relief he seeks. In determining whether to grant injunctive relief,

courts within the Third Circuit consider the following factors: (1) whether the

movant has shown a reasonable probability of success on the merits; (2)

whether the movant will be irreparably injured by denial of the relief; (3)

whether granting preliminary relief will result in even greater harm to the

nonmoving party; and (4) whether granting the preliminary relief will be in the

public interest. Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006). See also

United States v. Bell, 414 F.3d 474, 478 n.4 (3d Cir. 2005) (citing ACLU of

N.J. v. Black Horse Pike Reg'l Bd. of Educ., 84 F.3d 1471, 1477 n.2 (3d Cir.

1996) (en banc)).

While each factor need not be established beyond a reasonable doubt,

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they must combine to show the immediate necessity of injunctive relief. Stilp

v. Contino, 629 F.Supp.2d 449, 457 (M.D. Pa. 2009) (citing Swartzwelder v.

McNeilly, 297 F.3d 228, 234 (3d Cir. 2002)). While the moving party must

produce evidence sufficient to convince the court that all four factors favor

injunctive relief and the court must endeavor to balance all four factors, “[a]

failure to show a likelinood of success or a failure to demonstrate irreparable

injury must necessarily result in the denial of a preliminary injunction.” Jones

v. Taylor, 2013 WL 1899852 (M.D. Pa. May 7, 2013) (quoting In re Arthur

Treacher’s Franchise Litig., 689 F.2d 1137, 1143 (3d Cir. 1982)).

With respect to the first factor, the court finds that the petitioner has

demonstrated a likelinood of success on the merits. The petitioner's action is

based, in part, on the APA, which authorizes a court to “hold unlawful and set

aside agency action, findings, and conclusions found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with the

law.” 5 U.S.C. §706(2)(A). “[R]ules promulgated by a federal agency that

regulate the rights and interests of others are controlling upon the agency,”

and a failure to follow those rules without justification is arbitrary, capricious

and an abuse of discretion. Leslie v. Att'y Gen. of U.S., 611 F.3d 171, 175 (3d

Cir. 2010).

Here, DHS has created a process for individuals like the petitioner to

use to apply for a waiver. Failing to allow the petitioner the right to seek such

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a waiver without justification constitutes a lack of regard for the regulations

that DHS has created. Respondents’ attempt to remove the petitioner while

he engages in that process is arbitrary, capricious and an abuse of discretion,

and violates the petitioner’s rights under the APA.4 Therefore, this factor

weighs in his favor.

Considering the second factor, there is little doubt that the petitioner and

his family will be irreparably harmed if the petitioner is removed before he can

complete the waiver process. See Padilla v. Kentucky, 559 U.S. 356, 365

(2010) (“We have long recognized that deportation is a particularly severe

‘penalty[.]”) (citation omitted). The petitioner would be returned to Angola, a

country he has not lived in for over nineteen (19) years. As discussed above,

the petitioner does not have a criminal record. He is a hard working, tax-

paying individual, who is the sole support for his wife and four children. To

remove the petitioner before he has the opportunity to complete the waiver

process, a process created to allow families to stay together while seeking

such relief, would cause irreparable harm to both the petitioner and his family.

As for the third factor, this also weighs in favor of the petitioner. Any

harm to the government caused by temporarily staying the petitioner’s

removal is outweighed by the harm the petitioner and his family would incur

4On this basis, the court need not reach the petitioner’s Fifth

Amendment claim. See e.g., Torres v. U.S. Dep’t of Homeland Sec., 2017 WL

4340385, at *6 (S.D.Cal Sept. 29, 2017).

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if the petitioner were indefinitely separated from his family by way of removal

before completion of the waiver process.

Finally, granting the petitioner this limited form of relief is in the public

interest. Allowing the petitioner a stay of removal pending his completion of

the provisional waiver process would require DHS to follow its own rules and

regulations and would bar any arbitrary and capricious action toward

undocumented immigrants such as the petitioner.

As the above factors for injunctive relief collectively weigh in favor of the

petitioner, the court finds that the petitioner has the right to a stay of removal

while he completes the waiver process. Under United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260 (1954), a government agency is not free to

disregard its own regulations, and when the government creates a regulatory

process for seeking relief, that process creates “a right to seek relief” even if

there is no “right to the relief itself.” De Jesus Martinez, 341 F.Supp.3d at 409

(citing Arevalo v. Ashcroft, 344 F.3d 1, 15 (1st Cir. 2003)). Here, DHS’s

regulations create the right to seek the provisional waiver even if there is no

right to the waiver itself. Therefore, the petitioner has a right to complete the

provisional waiver process and for a stay of removal while he does so.5

5The court notes that the petitioner’s Form I-130 was approved on

March 19, 2018. The petitioner contends that he and his wife were in the

process of gathering the requisite documents to proceed with the waiver

process when his order of supervision was revoked and he was arrested on

(continued...)

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In Zadvydas v. Davis, 533 U.S. 678 (2001), the Court found that

detention is generally permitted to exceed the 90 days authorized by the

Immigration and Nationality Act (“INA”) for a “period reasonably necessary to

secure removal.” Id. at 699-700. However, when removal is no longer

“reasonably foreseeable,” continued detention is not permitted by the INA. Id.

Here, in light of this decision, the petitioner’s removal is no longer reasonably

foreseeable and his continued detention would be unreasonable. Therefore,

the court will direct that the petitioner be released from custody pending the

completion of the provisional waiver process.

In light of the foregoing, an appropriate order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

Date: October 24, 2019

19-1717-01.wpd

5(...continued)

September 27, 2019, some eighteen (18) months later. Neither party has

provided that there is a time frame within which the petitioner was required to

file his Form I-212 after the approval of the Form I-130. Eighteen (18) months

seems more than an adequate amount of time to proceed with the process.

The petitioner is therefore advised that, as he has already had eighteen (18)

months to gather his materials in order to proceed with the waiver process,

he should act expeditiously in the filing of such upon his release.

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