Budiono v. Barr

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HENKY BUDIONO, No. 4:19-CV-01635

Petitioner. (Judge Brann)

v.

WILLIAM BARR,

Respondent.

MEMORANDUM OPINION

OCTOBER 29, 2019

I. BACKGROUND

Henky Budiono, a citizen of Indonesia, was lawfully admitted to the United

States on a travel visa in April 2000.1 In 2002, Budiono filed an application for

asylum and withholding of removal pursuant to the United Nations Convention

Against Torture.2 In 2007, an immigration judge (“IJ”) considered Budiono’s

application and determined that it was frivolous and false; the IJ therefore denied the

application and ordered Budiono removed from the country.3 The Board of

Immigration Appeals (“BIA”) concluded that the IJ failed to sufficiently support his

factual determinations, and therefore remanded the matter so that the IJ could “make

specific findings with respect to the credibility and the merits of [Budiono’s] claim

1 Doc. 10-1 at 3-4.

2 Id. at 4.

for withholding of removal.”4 In 2010, the IJ held a second hearing related to

Budiono’s claim for withholding of removal.5 Budiono did not attend the hearing,

and the IJ therefore held that Budiono had waived his claim for relief from removal,

and again ordered Budiono removed from the country.6

Budiono continued to reside in the United States until he was detained by

federal authorities on July 16, 2019.7 Budiono was then transferred to the Pike

County Correctional Facility, which is located within the Middle District of

Pennsylvania.8 On September 15, 2019, Budiono filed a 28 U.S.C. § 2241 petition

with this Court, along with a request for an emergency temporary restraining order

and stay of removal.9 The Court received the petition on September 20, 2019, and

immediately stayed Budiono’s deportation and directed Respondent to show cause

as to why Budiono’s petition should not be granted.10

In his petition, Budiono first asserts that removing him from the country

without providing sufficient time to file a motion to reopen his removal proceedings

would violate his due process rights.11 Second, Budiono contends that this Court has

4 Id. at 15; see id. at 13-15.

5 Id. at 16.

6 Id.

7 Doc. 1 at 20.

8 Id.

9 Docs. 1, 2.

10 Doc. 6.

jurisdiction over the § 2241 petition because any statute that purports to divest the

Court of jurisdiction to consider a petition for a writ of habeas corpus would violate

the Suspension Clause of the United States Constitution.12 Finally, Budiono argues

that his continued detention without a bond hearing violates his due process rights.13

Respondent in turn asserts that Budiono’s petition should be dismissed and

denied because (1) this Court lacks jurisdiction to consider a challenge to Budiono’s

order of removal, (2) the Suspension Clause is not implicated in these circumstances,

and (3) Budiono is likely to be removed from the country shortly, meaning that any

challenge to his continued detention should be denied.14 For the reasons discussed

below, the Court will dismiss in part and deny in part the petition.

II. DISCUSSION

The dispute between the parties centers around two issues. First, the parties

dispute whether this Court has jurisdiction to consider Budiono’s request to stay

removal proceedings so that he may file a motion to reopen his removal proceeding.

Second, the parties dispute whether Budiono is being unlawfully detained without a

bond hearing. The Court will address these issues in turn.

12 Id. at 23-25.

13 Doc. 2 at 17-18.

A. Jurisdictional Issues

With respect to the jurisdictional dispute, “[f]ederal courts are not courts of

general jurisdiction” and “have only the power that is authorized by Article III of the

Constitution and the statutes enacted by Congress.”15 In that respect, the REAL ID

Act of 2005 “made petitions for review filed with the court of appeals the ‘sole and

exclusive means for judicial review of’ most orders of removal, . . . [and] expressly

eliminated district courts’ habeas jurisdiction over removal orders.”16 “Moreover, a

petition for review filed in the appropriate court of appeals ‘is the sole and exclusive

means for judicial review of any cause or claim under the United Nations Convention

Against Torture and Other Forms of Cruel, Inhuman, or Degrading Treatment or

Punishment . . .’”17 The relevant statute further provides that “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.”18

Here, Budiono primarily challenges the order of removal and its execution by

the Government.19 Thus, on its face, the statutory language referenced above

15 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).

16 Jordon v. Attorney Gen. of U.S., 424 F.3d 320, 326 (3d Cir. 2005) (quoting 8 U.S.C.

§ 1252(a)(5)).

17 Toussaint v. Attorney Gen. of U.S., 455 F.3d 409, 412 n.3 (3d Cir. 2006) (quoting 8 U.S.C.

§ 1252(a)(4)).

18 8 U.S.C. § 1252(g).

appears to divest this Court of jurisdiction to consider Budiono’s petition as it relates

to a stay of removal. Nevertheless, the Suspension Clause of the United States

Constitution provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may

require it.”20 Consequently, the Court must determine whether the jurisdiction

stripping provisions of 8 U.S.C. § 1252, as applied to Budiono, violates that clause

of the Constitution.

To determine whether § 1252 violates the Suspense Clause, this Court must

proceed “through the two-step analysis that the Supreme Court announced in

Boumediene v. Bush, 553 U.S. 723 (2008).”21 “[This Court must] first determine

‘whether a given habeas petitioner is prohibited from invoking the Suspension

Clause due to some attribute of the petitioner or to the circumstances surrounding

his arrest or detention.’”22 “Then, if the petitioner is not prohibited from invoking

the Suspension Clause, [this Court must] turn to the question whether the substitute

for habeas is adequate and effective to test the legality of the petitioner’s detention

(or removal).”23

20 U.S. Const. art I, § 9, cl. 2.

21 Osorio-Martinez v. Attorney Gen. United States of Am., 893 F.3d 153, 166 (3d Cir. 2018).

22 Id. (internal quotation marks omitted).

1. Whether Budiono may Invoke the Suspension Clause

As to whether Budiono is prohibited from invoking the Suspension Clause,

the Government sets forth two arguments that the Court may quickly dispose of.

First, the Government contends, in part, that the Suspension Clause is not implicated

because Budiono does not seek true habeas relief, in that he does not seek release

from custody.24 The Government, however, misses the mark as to what may

constitute habeas relief. Although petitioners will often seek release from custody,

“[t]he sole inquiry for habeas jurisdiction is whether granting the petition as to the

claim would necessarily imply a change to the fact, duration, or execution of the

petitioner’s sentence.”25 As this language suggests, discharge from custody is not

the only form of relief that a habeas petitioner may seek; rather, a petitioner may

seek any relief that may alter the fact or execution of his detention. This conclusion

resonates with particular force in the immigration context, where petitioners are

generally confined in the district court to seek relief that would not necessarily imply

a discharge—conditional or otherwise—from custody.26

24 Doc. 10 at 32-35.

25 Velazquez v. Superintendent Fayette SCI, 937 F.3d 151, 157 (3d Cir. 2019).

26 The Government cites to two Supreme Court cases for the notion that injunctive relief is not

authorized in a § 2241 petition, but both are easily distinguished. In Munaf v. Green, 553 U.S.

674 (2008), the Supreme Court noted that habeas relief was inappropriate because petitioners

did not want release from custody but, rather, wished for the Government to shelter them from

prosecution by a foreign sovereign. Id. at 693-94. Here, however, Budiono does ultimately

seek release from federal custody. And in Heikkila v. Barber, 345 U.S. 229 (1953), the

Supreme Court addressed whether an individual may pursue relief from deportation through

means other than a habeas petition, but did not directly address whether a petitioner may seek

For example, in Zadvydas v. Davis, the United States Supreme Court reviewed

recent amendments to Title 8 and determined that, although the amendments stripped

district courts of jurisdiction to consider most immigration decisions in § 2241

proceedings, they did not divest courts of jurisdiction to consider “challenges to post

removal detention.”27 Thus, one of the few areas in which immigration detainees

may seek habeas relief is by seeking an order from a district court directing an IJ to

hold a bond hearing to consider release pending removal from the United States. Of

course, the IJ may ultimately deny bond and, thus, the detainee may remain in

custody despite the relief granted in his § 2241 petition. And in Faruqi v.

Department of Homeland Security, the United States Court of Appeals for the Ninth

Circuit reiterated its stance that, although Title 8 generally divested district courts of

jurisdiction to review removal orders and prohibits courts from “enjoin[ing] the

removal of any alien pursuant to a final order of removal,” those statutes do not

prohibit courts from considering § 2241 petitions that seek “interim injunctive

relief” that would prevent a petitioner’s immediate removal from the country

pending further immigration proceedings.28

petitioners may seek injunctive relief through a § 2241 petition. See, e.g., Bonneau v. Salazar,

754 F. App’x 624, 624 (9th Cir. 2019); Boling-Bey v. U.S. Parole Comm’n, 559 F.3d 1149,

1151 n.1 (10th Cir. 1009); Sean B. v. McAleenan, No. 19-cv-10529, 2019 WL 4165309 at *10-

11 (D.N.J. Sept. 3, 2019). But see Hamama v. Adducci, 912 F.3d 869, 875-76 (6th Cir. 2018)

(rejecting contention that stay of removal to file motion to reopen removal proceeding falls

within the core of habeas relief).

27 533 U.S. 678, 687-88 (2001).

Here, Budiono seeks two forms of relief. First, Budiono asserts that his

continued detention violates his due process rights and, thus, seeks relief under

Zadvydas.29 This, of course, clearly falls within the core of habeas proceedings, as

defined by the Supreme Court. Second, Budiono seeks injunctive relief prohibiting

his removal from the country so that he may file a petition to reopen his removal

proceedings—and thereafter demonstrate to an IJ that he would be subject to

persecution or torture if returned to Indonesia.30 If the Court granted the requested

relief, it carries with it the concomitant possibility that Budiono would be released

from custody and permitted to stay within the United States. Although perhaps on

the periphery of appropriate habeas relief, the Court concludes that such relief falls

within the scope of a proper § 2241 petition.31

Second, citing Qureshi v. Admin. Appeals Office (AAO) of U.S. Citizenship &

Immigration Servs. (USCIS), 408 F. App’x 611 (3d Cir. 2010), and other cases, the

Government contends that Budiono may not pursue relief through a § 2241 petition

because he “has already had an opportunity to obtain judicial review of his final

order of removal.”32 However, Qureshi addressed the second prong of the

Suspension Clause inquiry—whether Congress has created adequate substitute

29 Doc. 2 at 17-18.

30 Id. at 16-17.

31 C.f. Sean B., 2019 WL 4165309 at *14-15 (granting motion for stay of removal in § 2241

proceeding); Sukwanputra v. Barr, No. 19-cv-3965, 2019 WL 4546933 (E.D. Pa. Sept. 19,

2019) (same).

procedures for habeas petitions—and did not address whether the petitioner was

precluded from filing a habeas petition.33 More fundamentally, however, Budiono

has not yet had the opportunity—an opportunity to which he is guaranteed by

statute34—to seek reopening of his case based on significantly changed

circumstances that may render his removal improper. Thus, he has not obtained the

full judicial review to which he is entitled.

Turning then to the basic inquiry of whether Budiono is prohibited from

invoking the Suspension Clause, the Court concludes that he is not. The Supreme

Court has set forth three relevant factors to evaluate whether a petitioner is prohibited

from invoking the Suspension Clause: “(1) the citizenship and status of the detainee

and the adequacy of the process through which that status determination was made;

(2) the nature of the sites where apprehension and then detention took place; and (3)

the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.”35

As to the first factor, although Budiono is not a citizen, it is apparent that he

has “develop[ed] the ties that go with permanent residence [such that] his

constitutional status [has] change[d]” and he is now entitled to all relevant

33 Qureshi, 408 F. App’x at 614-15. The Government further contends that Budiono does not

have a due process right to seek discretionary reopening of his proceedings. (Doc. 10 at 24-

25). Regardless of whether this proposition is accurate, it is not disputed that Budiono has a

statutory right to file a motion to reopen and have that motion decided by the BIA. See 8

U.S.C. § 1229a(c)(7). Budiono therefore has—at a minimum—a due process right to file his

motion to open with the BIA.

34 8 U.S.C. § 1229a(c)(7).

constitutional protections.36 Budiono arrived in the United States voluntarily, has

lived here for nearly two decades, has maintained steady employment during that

time, has been an active and regular member of his church, and has a young daughter

who is a United States citizen.37 These connections are sufficient to establish

Budiono within the “class of persons who are part of a national community or who

have otherwise developed sufficient connection with this country to be considered

part of that community.”38

With regard to the second factor, Budiono was apprehended, and is detained

in, the United States.39 Finally, “there [are no] serious practical obstacles to

permitting habeas corpus proceedings besides the kind of ‘incremental expenditure

of resources’ that the Supreme Court deemed not dispositive to the question of

granting the writ.”40 Budiono meets all three factors set forth by the Supreme Court

in Boumediene, and, consequently, he is entitled to all relevant constitutional

protections, including those provided by the Suspension Clause.

36 Osorio-Martinez, 893 F.3d at 168 (emphasis and internal quotation marks omitted).

37 Doc. 1 at 9, 12, 19.

38 United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). See United States v. Meza-

Rodriguez, 798 F.3d 664, 670-71 (7th Cir. 2015) (concluding that individual had formed

substantial connections to the United States where he arrived voluntarily, resided in the country

for approximately 20 years, attended public school and worked in the country, and had formed

close relationships with family members and acquaintances). See also Ibrahim v. Dep’t of

Homeland Sec., 669 F.3d 983, 996-97 (9th Cir. 2012); Martinez-Aguero v. Gonzalez, 459 F.3d

618, 625 (5th Cir. 2006).

39 Doc. 1 at 20.

2. Whether Adequate Alternatives to a Habeas Petition Exist

The Court thus turns to the question of whether Congress has provided an

adequate and effective substitute to test the legality of Budiono’s removal from the

country. The Government argues that Congress has provided an effective substitute,

as Budiono may file a petition to reopen his removal proceedings, appeal any

decision to the BIA, and then appeal any decision to the relevant court of appeals.41

Although Budiono asserts that he would be unable to effectively prepare his motion

to reopen if he were removed from the country, the Government contends that (1)

the personal inability to use a remedy is irrelevant, (2) immigration courts have

authority to stay removal pending consideration of a motion to reopen, and (3) the

United States Court of Appeals for the Third Circuit may grant a stay of removal.42

The Court agrees that, as applied to Budiono, Congress has provided adequate and

effective substitutes to a writ of habeas corpus.43

First, as the Government correctly notes, Budiono may file a motion for a stay

of removal with the BIA, which may then stay Budiono’s removal pending

41 Doc. 10 at 35-40.

42 Id. at 36-40.

43 Despite agreeing with the Government’s proposed outcome, the Court rejects the assertion that

“‘it is the inefficacy of the remedy, not the personal inability to use it, that is determinative.’”

(Doc. 10 at 36) (quoting Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002)). The

Third Circuit has made clear that the Boumediene analysis is an “as applied” analysis, meaning

that courts must thoroughly examine the petitioner’s individual circumstances to determine

whether a statute—although generally constitutional—is nevertheless unconstitutional as

applied to the petitioner. Osorio-Martinez, 893 F.3d at 178. This necessarily includes an

analysis of Budiono’s personal ability to access adequate substitutes to a writ of habeas corpus,

adjudication of his motion to reopen.44 If such a motion is denied, Budiono may, of

course, appeal that decision to the Third Circuit. Moreover, the Third Circuit has,

in at least one prior instance, stayed an order of removal before the BIA ruled on a

motion to reopen and a motion for an emergency stay of removal.45 These

procedures provide adequate protection to Budiono, as he has alternative methods

of avoiding removal pending the filing of a motion to reopen his removal

proceedings.

Second, even if removed, the Third Circuit has held that individuals such as

Budiono may pursue a motion to reopen from abroad.46 Although Budiono cites

what appear to be legitimate concerns for the safety of Christians in Indonesia,47

there is no indication in the current record that Budiono cannot effectively litigate

his motion to reopen from Indonesia. This differentiates Budiono’s case from others

where courts have found that threats to a petitioner render him unable to “effectively

litigate an immigration appeal in the BIA or the Court of Appeals.”48

44 See BIA Practice Manual § 6.4(d)(i) (noting that “[a]n emergency stay request may be

submitted only when an alien is in physical custody and is facing imminent removal” and the

BIA “may [then] rule immediately on an ‘emergency’ stay request”).

45 Khan v. Attorney Gen. of U.S., 691 F.3d 488, 492 (3d Cir. 2012).

46 Prestol Espinal v. Attorney Gen. of U.S., 653 F.3d 213, 224 (3d Cir. 2011). Cf. Nken v. Holder,

556 U.S. 418, 435 (2009) (holding that “Aliens who are removed may continue to pursue their

petitions for review, and those who prevail can be afforded effective relief by facilitation of

their return, along with restoration of the immigration status they had upon removal”).

47 See Doc. 1-5.

For example, in Sean B. v. McAleenan, the petitioner had testified against a

violent drug trafficking organization in Jamaica.49 After he provided testimony

against that organization, he had been directly threatened, “his sister’s house was

burned down, the house of his children’s mother was bombed, six of his cousins

ha[d] been murdered, and his father was forced to flee the country.”50 Collectively,

this indicated to the district court that the petitioner would be forced into “hiding,

and under a threat of death,” which would preclude effective litigation of his

immigration case.51

In Compere v. Nielsen, the petitioner faced a significant prospect that—upon

being removed from the United States—he would be detained by the police or placed

in temporary housing.52 Additionally, the petitioner could not speak the local

language and faced a significant security threat due to his familial relations.53

Collectively, this convinced the court that the petitioner would effectively be unable

to pursue his motion to reopen.54 Similarly, in Ibrahim v. Acosta, petitioners faced

a significant risk of harm if returned to Somalia, where Al-Shabaab’s terror

campaign had resulted in hundreds of deaths.55 Petitioners had previously been

49 Id.

50 Id.

51 Id.

52 358 F. Supp. 3d 170, 181-82 (D.N.H. 2019).

53 Id. at 182.

54 Id.

subjected to an aborted deportation attempt, which resulted in “extraordinary public

attention . . . [that] placed them in increased danger of being targeted by Al-Shabaab”

due to the petitioners’ perceived western ties.56 These threats prevented petitioners

from being able to effectively seek the reopening of their immigration cases.57

In contrast, here there is no indication of a specific threat to Budiono. There

is no indication that Budiono must hide away in his home, unable to leave, contact

the outside world, or travel freely. There is no indication that he cannot

communicate with his fellow Indonesians, or that he does not have a support network

in Indonesia that would be able to assist him in pursuing his motion to reopen. In

short, there is simply no indication that Budiono cannot effectively pursue a motion

to reopen from Indonesia. Because Budiono has adequate and effective alternatives

to a writ of habeas corpus, as applied here, the Court holds that the jurisdiction

stripping provisions of Title 8 do not violate the Suspension Clause. Consequently,

the Court lacks jurisdiction to stay Budiono’s removal.

B. Challenge to Continued Detention

Lastly, Budiono asserts that his continued detention pending removal violates

his due process rights.58 The Government responds that Budiono’s continued

56 Id. at *3.

57 Id. at *6.

detention is lawful because he has been in custody for fewer than six months, and

his removal is likely in the reasonably foreseeable future.59

Budiono is detained pursuant to 8 U.S.C. § 1231, which provides for detention

“during” and “beyond” the “removal period.”60 The removal period begins on the

latest of (i) the date the order of removal becomes administratively final; (ii) if the

removal order is judicially reviewed and if a court orders a stay of the individual’s

removal, the date of the court’s final order; and (iii) if the individual is detained or

confined (except under an immigration process), the date he is released from

detention or confinement.61

Detentions authorized by § 1231(a) are governed by the structure set forth in

Zadvydas, where the Supreme Court held that the Government may not detain an

individual who has been ordered removed for a period longer than “reasonably

necessary to bring about that alien’s removal.”62 Nevertheless, the Supreme Court

established a “presumptively reasonable” six-month removal period.63 After the

expiration of the six-month period, the petitioner must provide “good reason to

believe that there is no significant likelihood of removal in the reasonably

foreseeable future,” in which case “the Government must respond with evidence

59 Doc. 10 at 40-42.

60 8 U.S.C. §§ 1231(a)(2), (a)(6).

61 8 U.S.C. § 1231(a)(1)(B).

62 533 U.S. at 689.

sufficient to rebut that showing.”64 If the Government fails to rebut that showing, a

bond hearing may be required.

Here, Budiono’s removal period began to run on June 16, 2019, the date that

he was placed in federal custody.65 Thus, approximately four months have run since

Budiono was placed in federal custody, and the presumptively reasonable period of

detention has not lapsed. Moreover, Budiono has not provided good reason to

believe that his removal is not imminent. Budiono is therefore not entitled to relief

under Zadvydas and, to the extent he challenges his continued detention while

awaiting removal from the country, his § 2241 petition will be denied.

III. CONCLUSION

For the foregoing reasons, Budiono’s 28 U.S.C. § 2241 petition will be

dismissed in part and denied in part. As a necessary corollary, the Court will lift the

stay that it entered on September 20, 2019, that enjoined Budiono’s removal from

the United States.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge

64 Id.