Oceguera v. Albence

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOSE OCEGUERA, : 1:20-cv-1235

:

Petitioner, : Hon. John E. Jones III

:

v. :

:

MATTHEW T. ALBENCE, Acting Director :

of Immigration and Customs Enforcement, :

et al., :

:

Respondents. :

MEMORANDUM AND ORDER

July 29, 2020

As the parties to this matter are aware, on July 17, 2020, we issued a

Temporary Restraining Order (“TRO”) enjoining the Respondents from deporting

the Petitioner Jose Oceguera for a period of fourteen (14) days from the date of the

TRO. (Doc. 6). We ordered and have received expedited briefing from the parties

on the Petitioner’s request to turn the TRO into a preliminary injunction. (Docs.

10 and 11). This matter is therefore ripe for our review. For the reasons that

follow, we shall deny Petitioner’s request for a preliminary injunction and permit

the TRO to expire.

I. STANDARD OF REVIEW

It is well-established that “[a] plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest.” Apple Inc. v.

Samsung Electronics Co., 695 F.3d 1370, 1373–74 (Fed. Cir.

2012) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct.

365 (2008)).

The Supreme Court has emphasized that “a preliminary injunction is an

extraordinary and drastic remedy, one that should not be granted unless the

movant, by a clear showing, carries the burden of persuasion.” Mazurek v.

Armstrong, 520 U.S. 968, 972 (1997); Apotex Inc. v. U.S. Food and Drug Admin.,

508 F.Supp.2d 78, 82 (D.D.C. 2007) (“Because interim injunctive relief is an

extraordinary form of judicial relief, courts should grant such relief sparingly.”).

“Awarding preliminary relief, therefore, is only appropriate ‘upon a clear showing

that the plaintiff is entitled to such relief.’” Groupe SEC USA, Inc. v. Euro–Pro

Operating LLC, 774 F.3d 192, 197 (3d Cir. 2014) (quoting Winter, 555 U.S. at 22).

With these touchstones in mind, we turn to an analysis of the Petitioner’s

request for a preliminary injunction.

II. DISCUSSION

Our assessment must begin with our consideration of Petitioner’s likelihood

of success on the merits. Integral to this analysis is a review of the factual and

procedural underpinnings of this case.

Petitioner and the U-Visa Program

Petitioner Jose Oceguera (“Petitioner” or “Oceguera”) is a national and

citizen of Mexico who had been previously convicted of an aggravated felony.

Prior to his conviction, Oceguera was a lawful permanent resident of the United

States. (Doc. 1, ¶¶ 41 and 42). He is currently being held in the custody of

Immigration and Customs Enforcement (“ICE”) at the Clinton County Correctional

Facility in McElhattan, Pennsylvania, located in the Middle District of

Pennsylvania. A final order of removal has been entered against Oceguera and he

is due to be deported imminently.1

On June 30, 2020, Petitioner filed an application for a U-Visa with the

United Sates Citizenship & Immigration Services (“USCIS”). Pursuant to 8 U.S.C.

§ 1101(a)(15)(U), individuals who are victims of certain crimes – including sexual

assault, domestic violence and stalking – can apply for a U-Visa if they have

“suffered substantial physical and mental abuse as a result of having been a victim

of [such] criminal activity,” and are helpful or likely to be helpful to law

enforcement in the investigation or prosecution of the crime. Id. After at least 3

1 Within his request for a TRO, which was filed in the late afternoon hours of Friday, July 17,

2020, Oceguera alleged that he had been advised by ICE officials that he was going to be

deported to Mexico the following Monday. Given this exigency, we entered the TRO as

requested to preserve the status quo so that we could carefully consider merits the Petitioner’s

claims under measured circumstances.

years of physical presence in the United States, a U-Visa holder may apply for

permanent residence status. See 8 U.S.C. § 1255(m).

Congress has limited the number of U-Visas that may be issued in any fiscal

year to 10,000 (not including spouses or children securing legal status derivatively

of the principal petitioner). See id. § 1184(p)(2)(A). Applicants who have been

approved but have not yet received visas “due solely to the cap” are placed on a

“waiting list.” 8 C.F.R. § 214.14(d)(2). While on the waiting list, applicants

receive “deferred action or parole” protecting them from removal, and the

applicant and qualifying family members may receive work authorization. Id.

Congress has authorized the Secretary of Homeland Security to grant “an

administrative stay of a final order of removal” to allow U-Visa applicants to

remain in the United States pending approval of their application, if the Secretary

determines that the application “sets forth a prima facie case for approval.” 8

U.S.C. § 1227(d)(1). To be sure, while the USCIS has “sole jurisdiction over all

petitions for [U-Visas]” 8 C.F.R. § 214.14(c), only ICE is responsible for granting

administrative stays of removal to U-Visa applicants subject to final orders of

removal. See id. § 241.6.

To summarize, our Petitioner has a pending application for a U-Visa that has

not yet been approved by the USCIS and he is subject to a final order of removal.

Director of Homeland Security

ICE is led by a single Director, appointed by the President with the advice

and consent of the Senate. See 6 U.S.C. § 113(a)(1)(G). However, ICE last had a

Senate-confirmed Director in January of 2017. Pursuant to DHS Delegation

Number 00106, issued by then-DHS Secretary Jeh Johnson on December 15, 2016,

the Deputy Director of ICE is first in the order of succession in the event of a

vacancy in the position of Director of ICE, and is authorized to “exercise the

powers and perform the functions and duties” of that office until the vacancy is

filled. See DHS Delegation Number 00106. (Doc. 10, Ex. 6).

Respondent Matthew T. Albence was selected as Deputy Director of ICE on

April 27, 2019. From July 7, 2019 to August 1, 2019, he served as the Acting

Director of ICE. (Doc. 10, Ex. 7). Since August 2, 2019, he has remained the

Deputy Director of ICE.

Guidance on the Issuance of Administrative Stays of Removal for U-Visa

Applicants

Prior to the events at issue in this case, then-Acting Director of ICE David J.

Venturella issued a memorandum to ICE Field Office Directors (“FOD”) setting out

guidance for the adjudication of stay requests filed by U-Visa applicants subject to

final orders of removal. (Doc. 10, Ex. 5). That guidance provided that, upon

receiving a stay request, a local Detention and Removal Operations office “must . .

. request a prima facie determination from USCIS [].” (Doc. 10, Ex. 5, p. 2). If

USCIS determined that the applicant had prima facie eligibility for a U-Visa, the

guidance sated that “[t]he FOD should view a Stay request favorably, unless serious

adverse factors exist.” Id. Adverse factors could include “national security

concerns,” “evidence [of] significant criminal history,” and “any significant public

safety concerns.” Id. Favorable factors could include humanitarian concerns. Id.

The guidance also instructed the “FOD [to] use his or her discretion in making any

determination about whether to remove an alien who has a pending U-Visa petition

and has exhibited no adverse factors.” Id. If the FOD found that serious adverse

factors existed and was inclined to deny the request for a stay, the guidance required

the FOD to provide a summary of the case to Detention and Removal Operations

headquarters for further review. Id.

On August 2, 2019, Respondent Albence issued ICE Directive 11005.2: Stay

of Removal Requests and Removal Proceedings Involving U Nonimmigrant Status

(U Visa) Petitioners (hereinafter “the Directive”). (Doc. 10, Ex. 6). The Directive

was signed by Respondent Albence as “Acting Director,” although is term as Acting

Director had expired the previous day. The Directive stated that “ICE will no longer

request prima facie determinations nor expedited adjudications from USCIS,” and

instructed FODs to “consider the totality of the circumstances, any favorable or

adverse factors (including the extent and nature of any criminal history), and any

federal interest(s) implicated” in determining whether to grant a stay. (Doc. 10, Ex.

6 at § 5.2.2).

On June 29, 2020, Oceguera filed an Application for Stay of Removal with

ICE, referencing his U-Visa application that was filed the next day. On July 7, 2020,

ICE denied Petitioner’s stay application. Implicit in the Petitioner’s argument is that

his stay application would have been granted under the previous guidance issued by

Acting Director Venturella and that the denial of his stay request was due to the

Directive issued by Respondent Albence.

Petitioner’s Claims and Arguments

Petitioner contends that Respondent Albence was improperly serving as the

Acting Director of ICE when he issued the Directive, in violation of the Federal

Vacancies Reform Act, 5 U.S.C. §§ 3345 et seq. (“FVRA”), the Appointments

Clause of the Constitution, U.S. Const. art II, § 2, cl. 2, and the DHS enabling statute,

6 U.S.C. § 113. He further alleges that Albence’s issuance of the Directive was ultra

vires and in violation of the Administrative Procedures Act, 5 U.S.C. § 701 et seq.

because Albence was improperly serving as the Acting Director of ICE when the

Directive was issued. In his prayer for relief, Petitioner seeks a declaration that

Respondent Albence’s issuance of the Directive was invalid and void. Petitioner

further requests that the Court enjoin the implementation of the Directive. Finally,

and important to our analysis, Petitioner requests that we enjoin his deportation

during the pendency of this litigation and “thereafter in the event the Court finds in

his favor.” (Doc. 1, Prayer for Relief).

Likelihood of Success on the Merits

While cast as matter brought to address violations of, inter alia, the FVRA

and the APA, the Petitioner’s ultimate goal, as set forth in the final portion of his

prayer for relief, is to prevent and stop his deportation. However, regardless of the

merits of his statutory and constitutional claims, this Court lacks subject matter

jurisdiction to review or alter his final order of removal.

The REAL ID Act of 2005, codified at Section 1252 of Title 8 of the United

States Code, specifically strips federal district courts of subject-matter jurisdiction

over clams attacking the federal government’s decision to enforce a final removal

order. See 8 U.S.C. § 1252(a)(5)(“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 Act . . .”); see also Jordon v. Attorney Gen. of U.S., 424 F.3d 320, 326 (3d Cir.

2005). Thus, pursuant to this statute, jurisdiction to review removal orders and

related matters resides exclusively with the Courts of Appeals. Therefore, this Court

lacks jurisdiction to enjoin Petitioner’s removal order.

Because this Court lacks the subject matter jurisdiction to grant the Petitioner

with the ultimate relief he seeks, Petitioner clearly has not demonstrated a likelihood

of success on the merits. Since Petitioner has failed to carry his burden on this

threshold question, we need not address the other factors attendant to a preliminary

injunction analysis. Accordingly, we shall deny Oceguera’s Motion for Preliminary

Injunction.2

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Motion for Preliminary Injunction filed by Petitioner Jose

Oceguera (Doc. 2) is DENIED.

2. The Temporary Restraining Order (Doc. 6) issued on July 17, 2020

shall be permitted to expire on July 31, 2020.

3. By or before August 31, 2020, Petitioner shall show cause why this

matter should not be dismissed for lack of subject matter jurisdiction.

s/ John E. Jones III

John E. Jones III, Chief Judge

United States District Court

Middle District of Pennsylvania

2 While we pass no judgment on the merits of Petitioner’s statutory or constitutional claims, we

note editorially that we also lack jurisdiction to “hear any cause or claim by or on behalf of any

alien arising out of the decision or action by the Attorney General to . . . execute removal orders

against any alien.” 8 U.S.C. § 1252(g). This statute has been interpreted to include denials of

stays of removal, and courts have rejected claims brought under the APA that challenge ICE’s

denial of a stay of removal. See Garcia v. Dep’t of Homeland Security, 2019 U.S. Dist. LEXIS

222683 *9-10 (N.D. Ill. Dec. 30, 2019). Moreover, even if this Court were to find that Albence’s

Directive was issued inappropriately, we harbor considerable doubts that we have the power to

reinstitute the prior guidance that Petitioner finds more favorable. Additionally, under no set of

circumstances can we direct ICE to issue a stay to Petitioner pending his U-Visa application.