Linarez v. Garland

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

LUIS EMILIO CORDIN LINAREZ, : CIVIL NO. 3:24-CV-488

:

Petitioner, : (Judge Saporito)

:

v. :

: (Magistrate Judge Carlson)

MERRICK GARLAND, et al., :

:

Respondents. :

REPORT AND RECOMMENDATION

I. Introduction

In some respects, the instant petition for writ of habeas corpus is a case

searching for a controversy. The petitioner, Luis Emilio Cordin Linarez, who is

currently serving a sentence for drug trafficking at the Federal Correctional

Institution at Allenwood, will complete his sentence on November 7, 2024, and,

thereafter, states that he wishes to immediately return to his native Guatemala. The

government agrees that Linarez should be returned to Guatemala as soon as possible

following his release and towards that end has issued an order for his expedited

removal. Thus, both parties agree that the petitioner must return to Guatemala but

simply disagree as to the manner in which he should be returned.

For his part, the petitioner argues he cannot be subject to expedited removal

because he was paroled into the United States upon his extradition and because the

treaty which governs his extradition allows him to return to Guatemala voluntarily

after completing his sentence. Notwithstanding the petitioner’s thoroughly

researched and briefed position on this issue, in our view, this petition for habeas

corpus falters of a single threshold procedural flaw: it is well settled that district

courts lack subject matter jurisdiction over the review of expedited removal orders.

These clear and specific jurisdictional bars preserve habeas corpus review for only

a small subset of issues relating to individual expedited removal orders, 8 U.S.C. §

1252(e), none of which apply in this case, and strip the district court of jurisdiction

to “to hear any [other] 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.” 8 U.S.C. §

1252(g). For this reason, as explained below, we recommend the Court dismiss this

petition for writ of habeas corpus for lack of subject matter jurisdiction.

II. Factual Background

The pertinent facts can be simply stated: the petitioner, Luis Emilio Cordon

Linarez is a native and citizen of Guatemala. (Doc. 1, ⁋ 2). He was extradited from

Guatemala to the United States on December 15, 2020, to face prosecution for

conspiracy to distribute five kilograms or more of cocaine and is currently serving

his sentence at the Federal Correctional Institution Allenwood (Allenwood). (Id., ⁋⁋

2-5). Linarez was convicted of this drug trafficking offense and was originally

sentenced to 108 months imprisonment, but on January 24, 2024, the trial court

reduced his sentence to 72 months. (Id., ⁋⁋ 5, 9). On August 7, 2023, the Department

of Homeland Security (DHS) issued an expedited order of removal against Linarez.

(Id., ⁋ 7). Linarez alleges that he earned 444 time credits under the First Step Act1

(FSA) prior to the issuance of this expedited removal order, but that Allenwood

refused to apply these credits upon request by the petitioner due to the removal order.

(Id., ⁋⁋ 10-11). The petitioner states that the refusal to apply his FSA credits has

extended his incarceration by one year, with his anticipated release date now being

November 7, 2024. (Id., ⁋ 12).

On March 20, 2024, Linarez filed the instant petition for writ of habeas corpus,

arguing that DHS misapplied the expedited removal statute, 8 U.S.C. § 1225(b), to

his case because he does not fall within the scope of removable noncitizens subject

to expedited removal. (Doc. 1). Specifically, he argues that he is not removable

because he was paroled into the country when he was extradited to the United States.

He also challenges the timing of the expedited removal order, arguing that he could

not be ordered removed in this manner after being physically present in the United

States for more than two years. According to Linarez, the erroneous application of

1 The First Step Act provides that eligible inmates earn FSA Time Credits toward

prerelease custody or early transfer to supervised release for successfully completing

approved Evidence-Based Recidivism Reduction (EBRR) Programs or Productive

Activities (PAs) assigned to each inmate based on the inmate's risk and needs

assessment. FIRST STEP ACT OF 2018, PL 155-391, December 21, 2018, 132 Stat

5194. The Act excludes inmates who are subject to final removal orders from these

sentence credits benefits.

this provision to the petitioner resulted in his prolonged incarceration, due to the

refusal of Allenwood to apply his FSA credits.2 Moreover, although both Linarez

and the government agree he should return to Guatemala, Linarez argues he should

be free to voluntarily return following the completion of his sentence and should not

be subjected to expedited removal.

The government responded to Linarez’s petition on April 12, 2024. (Doc. 10).

On June 27, 2024, the petitioner filed a motion to expedite consideration of this

petition and, on July 29, 2024, this Court, Saporito, C.M.J., presided over oral

arguments. (Doc. 24). The Court then ordered supplemental briefing on the issues,

ordering the parties to submit conclusions of law and supporting briefs by August

12, 2024. (Doc. 21). The Court now has the benefit of multiple rounds of briefing by

the parties, (Docs. 1, 10, 13, 25, 28, 29, 30), as well as the transcript of the oral

argument. Despite the impressive and expansive arguments on the merits made by

both sides, we find that our review of this petition is constrained by insurmountable

2 The government argues that the Federal Bureau of Prisons (BOP) properly deemed

Linarez ineligible for application of his FSA credits because prisoners subject to a

final order of removal are ineligible to have time credits applied under Subsection

3632(d)(4)(E) of Title 18. The government also argues that Linarez failed to exhaust

his administrative remedies by failing to follow the appropriate BOP procedure to

challenge the refusal to apply these credits. Although we need not address the

exhaustion issue in detail since we find we do not have jurisdiction over the

expedited removal order, we simply note that Linarez challenges the removal order

itself, not the BOP’s application of the governing FSA statute. Thus, we are skeptical

that any grievance filed with BOP would have adequately addressed this issue.

jurisdictional issues. Thus, we recommend the Court dismiss this petition for lack of

subject matter jurisdiction.

II. Discussion

A. This Court Lacks Jurisdiction to Review the Claims Alleged in

Linarez’s Petition.

Linarez asks the Court to find that ICE improperly placed him in expedited

removal proceedings pursuant to 8 U.S.C. § 1225(b) despite him not meeting the

criteria for expedited removal. This contention necessarily invites the Court to

address the ultimate merits of any expedited removal order. The petitioner, as the

party asserting jurisdiction, bears the burden of proving jurisdiction exists. Nuveen

Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown,

P.C., 692 F.3d 283, 293 (3d Cir. 2012). Linarez has asked this Court to review his

challenge using a petition for habeas corpus, but, at the outset, we note that a district

court’s jurisdiction over immigration matters is limited in this context. As the

Supreme Court has pointed out, “[h]abeas is at its core a remedy for unlawful

executive detention and . . . [c]laims so far outside the core of habeas may not be

pursued through habeas.” Dep't of Homeland Sec. v. Thuraissigiam, 591 U.S. 103,

119, 140 S. Ct. 1959, 1970–71, 207 L. Ed. 2d 427 (2020) (citing Munaf v. Geren,

553 U.S. 674 (2008); Skinner v. Switzer, 562 U.S. 521, 535, n. 13, 131 S.Ct. 1289,

179 L.Ed.2d 233 (2011)) (internal quotation omitted).

Indeed, the intent of Congress is clear that judicial review of removal orders

is extremely limited. The Third Circuit has aptly summarized the statutory

framework which governs our review in this case:

Section 1252 of Title 8 defines the scope of judicial review for all orders

of removal. This statute narrowly circumscribes judicial review for

expedited removal orders issued pursuant to § 1225(b)(1). It provides

that “no court shall have jurisdiction to review ... the application of [§

1225(b)(1)] to individual aliens, including the [credible fear]

determination made under [§ 1225(b)(1)(B) ].” 8 U.S.C. §

1252(a)(2)(A)(iii). Moreover, except as provided in § 1252(e), the

statute strips courts of jurisdiction to review: (1) “any individual

determination or to entertain any other cause or claim arising from or

relating to the implementation or operation of an [expedited removal]

order”; (2) “a decision by the Attorney General to invoke” the expedited

removal regime; and (3) the “procedures and policies adopted by the

Attorney General to implement the provisions of [§ 1225(b)(1) ].” Id. §

1252(a)(2)(A)(i), (ii) & (iv). Thus, the statute makes abundantly clear

that whatever jurisdiction courts have to review issues relating to

expedited removal orders arises under § 1252(e).

Section 1252(e), for its part, preserves judicial review for only a small

subset of issues relating to individual expedited removal orders:

Judicial review of any determination made under [§

1225(b)(1) ] is available in habeas corpus proceedings, but

shall be limited to determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed under [§

1225(b)(1) ], and

(C) whether the petitioner can prove ... that the petitioner

is [a lawful permanent resident], has been admitted as a

refugee ... or has been granted asylum ....

Id. § 1252(e)(2). In reviewing a determination under subpart (B)

above—i.e., in deciding “whether the petitioner was ordered removed

under [§ 1225(b)(1) ]”—“the court's inquiry shall be limited to whether

such an order in fact was issued and whether it relates to the petitioner.

There shall be no review of whether the alien is actually admissible or

entitled to any relief from removal.” Id. § 1252(e)(5).

Section 1252(e) also provides jurisdiction to the district court for the

District of Columbia to review “[c]hallenges [to the] validity of the

[expedited removal] system.” Id. § 1252(e)(3)(A). Such systemic

challenges include challenges to the constitutionality of any provision

of the expedited removal statute or its implementing regulations, as well

as challenges claiming that a given regulation is inconsistent with law.

See id. § 1252(e)(3)(A)(i) & (ii). Nevertheless, systemic challenges

must be brought within sixty days after implementation of the

challenged statute or regulation. Id. § 1252(e)(3)(B); see also Am.

Immigration Lawyers Ass'n v. Reno, 18 F.Supp.2d 38, 47 (D.D.C.

1998), aff'd, 199 F.3d 1352 (D.C. Cir. 2000) (holding that “the 60–day

requirement is jurisdictional rather than a traditional limitations

period”)

Castro v. United States Dep't of Homeland Sec., 835 F.3d 422, 426–27 (3d Cir.

2016).

Indeed, the Third Circuit addressed this precise issue in determining whether

a district court had jurisdiction to review the issuance of an expedited removal order

in Castro,3 where it reviewed a district court’s holding that it lacked subject matter

3 We acknowledge that the immigration status of the petitioners in Castro was

distinct from Linarez’s in that they were recent arrivals ordered expeditiously

removed after being apprehended within close proximity to the border shortly after

their illegal crossing and the court found they “clearly [fell] within the class of aliens

to whom the expedited removal statute applies.” 835 F.3d at 427-28. The noncitizens

in Castro were challenging the soundness of DHS’s negative credible fear

determinations. Id. at 428. Nonetheless, the court’s jurisdictional analysis in Castro

is equally applicable here.

to review the soundness of credible fear interviews conducted by DHS in the

petitioners’ expedited removal proceedings. The Third Circuit confirmed that:

§ 1252 makes abundantly clear that if jurisdiction exists to review any

claim related to an expedited removal order, it exists only under

subsection (e) of the statute. See 8 U.S.C. § 1252(a)(2)(A). And under

subsection (e), unless the petitioner wishes to challenge the “validity of

the system” as a whole rather than as applied to her, the district courts'

jurisdiction is limited to three narrow issues. See id. § 1252(e)(2) & (3).

Castro v. United States Dep't of Homeland Sec., 835 F.3d 422, 430 (3d Cir. 2016).

These issues, as defined by §1252(e) are whether the petitioner is an alien, whether

the petitioner was ordered removed, and whether the petitioner can prove he is a

lawful permanent resident, refugee, or asylee. Id.

The petitioner does not ask this Court to review any of these issues. Rather,

the petitioner argues that § 1252(e), which limits our review to these narrow,

carefully defined, issues, simply does not apply in this case because the Attorney

General does not have the authority to issue an expedited removal order against him.

However, as Castro makes clear, the only authority we possess to review any claim

related to an expedited removal order exists under this statute.

Moreover, to the extent that Linarez asks the Court to find that he was not

subject to expedited removal because he was paroled into the country and is,

therefore, not inadmissible, it is well-settled that, in determining whether there is a

valid expedited removal order, “ the court's inquiry shall be limited to whether such

an order in fact was issued and whether it relates to the petitioner,” and “[t]here shall

be no review of whether the alien is actually admissible.” Id. at 427.4

Having found that Linarez’s claim is not one of the narrowly defined issues

over which the habeas corpus provision of the statute provides district court review,

our ability to review this petition is further constrained by the explicit instruction of

§ 1252(g), which states:

Except as provided in this section and notwithstanding any other

provision of law (statutory or nonstatutory), including section 2241 of

Title 28, or any other habeas corpus provision, and sections 1361 and

1651 of such title, 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.

8 U.S.C. § 1252(g).

Linarez argues that § 1252(g) does not bar us from reviewing this petition

because he is not challenging any discretionary action, but that this is a legal question

of statutory interpretation in that he challenges whether INA § 235(b)(1) should have

been applied to him. However, in our view, the Attorney General’s discretionary

decision to place Linarez in expedited removal proceedings is precisely the action

this statute refers to when it states: “no court shall have jurisdiction to hear any cause

4 Linarez’s argument that the Suspension Clause guarantees habeas corpus review in

this case also fails, since the Supreme Court has held that neither the INA, the

Suspension Clause, nor the Due Process Clause of the United States Constitution

afford a noncitizen the right to substantive judicial review of an expedited removal

order. See Dep’t of Homeland Sec. v. Thuraissigiam, 591 U.S. 103 (2020).

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.” In an effort to avoid this second

jurisdictional bar to the exercise of habeas corpus jurisdiction over the merits of his

expedited removal claims, the petitioner has pointed us to caselaw which

demonstrates that § 1252(g) does not necessarily bar district court review of all

issues in a deportation case. However, none of the exceptions to § 1252(g)’s

jurisdictional bar convinces us that the action Linarez attempt to challenge falls

outside the scope of § 1252(g).

For example, in Reno, the Supreme Court held that § 1252(g):

[A]pplies only to three discrete actions that the Attorney General may

take: her “decision or action” to “commence proceedings, adjudicate

cases, or execute removal orders.” (Emphasis added.) There are of

course many other decisions or actions that may be part of the

deportation process—such as the decisions to open an investigation, to

surveil the suspected violator, to reschedule the deportation hearing, to

include various provisions in the final order that is the product of the

adjudication, and to refuse reconsideration of that order.

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482, 119 S. Ct. 936,

943, 142 L. Ed. 2d 940 (1999). However, the Supreme Court in Reno found that the

petitioners, who claimed they had been targeted for deportation because of their

affiliation with a politically unpopular group, challenged the Attorney General’s

decision to “commence proceedings” against them, an action that fell squarely

within the application of § 1252(g). Id. at 945. Similarly, here, the decision of the

government to place Linarez in expedited removal proceedings is clearly a decision

to “commence proceedings” against him. Thus, although the petitioner is correct that

§ 1252(g) does not in a sweeping manner bar judicial review in all actions relating

to the deportation process, the specific action in this case—the commencement of

removal proceedings—fits squarely within the types of actions which we are barred

from reviewing under this section.

Simply put, a petition for habeas corpus in the district court is not the

appropriate avenue to pursue the relief sought by the petitioner in this case. Despite

Linarez’s attempts to remove his claim from the purview of the specific and clearly

defined jurisdiction stripping immigration statutes enacted by Congress, at base, he

asks this Court to review DHS’s decision to commence expedited removal

proceedings against him. This we may not do.5 Indeed, while we acknowledge the

petitioner’s urgency in seeking a prompt resolution of this matter prior to his release,

5 The parties have spilled much ink on the merits of whether Linarez is in fact subject

to expedited removal under 8 U.S.C. § 1225(b). Although we do not reach the issue

which falls beyond our jurisdiction, we note the claim seems itself seems legally and

factually dubious. At bottom, Linarez insists that the INA should be construed to

provide that a criminal noncitizen indicted in the United States who was brought

against his will through legal compulsion to the United States by extradition as a

matter of law must be released to voluntarily depart this country. It strains credulity

to read the INA as reflecting a Congressional intent to confer this type of highly

favorable status upon extradited criminal noncitizens. Indeed, as the government

points out, it appears Congress intended to remedy this counterintuitive proposition

through statute, specifically INA § 235(a)(1) which deems such noncitizens

“applicants for admission.” (Doc. 10, at 13-17).

something that may be rare in the immigration system, the resolution he seeks in this

case, the vacating or reconsideration of his expedited removal order, is an action that

rests beyond our jurisdiction. As the Supreme Court has noted, “[d]epartment

officials and immigration judges may reopen cases or reconsider decisions, see 8

C.F.R. §§ 103.5(a)(1), (5), and 1003.23(b)(1), and the Executive always has

discretion not to remove.” Thuraissigiam, 591 U.S. 103, 140 n.28 (citing 8 C.F.R.

§§ 103.5(a)(1), (5), and 1003.23(b)(1); Reno, 525 U.S. at 483–484). Accordingly,

we recommend the Court dismiss the petition for habeas corpus for lack of subject

matter jurisdiction.

III. Recommendation

For the foregoing reasons, IT IS RECOMMENDED that the district court

DISMISS the petition.

The parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings,

recommendations or report addressing a motion or matter described in

28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the

disposition of a prisoner case or a habeas corpus petition within fourteen

(14) days after being served with a copy thereof. Such party shall file

with the clerk of court, and serve on the magistrate judge and all parties,

written objections which shall specifically identify the portions of the

proposed findings, recommendations or report to which objection is

made and the basis for such objections. The briefing requirements set

forth in Local Rule 72.2 shall apply. A judge shall make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made and may accept,

reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge. The judge, however, need conduct a new

hearing only in his or her discretion or where required by law, and may

consider the record developed before the magistrate judge, making his or

her own determination on the basis of that record. The judge may also

receive further evidence, recall witnesses, or recommit the matter to the

magistrate judge with instructions.

Submitted this 24th day of September 2024.

/S/Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge