# Mbagoyi v. Barr

> District Court, M.D. Pennsylvania · October 24, 2019

URL: https://www.frixlaw.com/law-library/cases/10407863

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 24, 2019
- **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/10407863

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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

2
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

3
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.

4
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

5
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.
6
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.”
9
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.”
10
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

11
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,

12

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

13

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).
14
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...)
15
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10407863. Public record. Not legal advice.