UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Elvecio Pereira Viana

v. Civil No. 18-cv-222-LM Opinion No.

President of the United States of America, et al.

O R D E R

Plaintiff Elvecio Pereira Viana, an alien subject to a

final order of removal, brings a complaint seeking injunctive

relief against various federal agencies and officials to prevent

his removal from the United States. On March 22, 2018, this

court issued an order to show cause why the action should not be

dismissed for lack of subject matter jurisdiction. Viana timely

responded to the court’s order and further explicated his

jurisdictional argument. For the reasons that follow, the court

concludes that it lacks jurisdiction over Viana’s complaint.

Therefore, the complaint is dismissed without prejudice.

STANDARD OF REVIEW

As the court noted in its previous order, “a federal court

has an obligation to inquire sua sponte into its own subject

matter jurisdiction.” McCulloch v. Velez,

(1st

Cir. 2004). The existence of subject matter jurisdiction presents a question of law. See Skwira v. United States,

(1st Cir. 2003). “At the pleading stage . . . an

order [of dismissal for lack of subject matter jurisdiction] is

appropriate only when the facts alleged in the complaint, taken

as true, do not justify the exercise of subject matter

jurisdiction.” Muniz-Rivera v. United States,

(1st Cir. 2003). Nevertheless, “[i]t is the plaintiff's burden

to prove the existence of subject matter jurisdiction.” Aversa

v. United States,

(1st Cir. 1996).

BACKGROUND

The following facts are taken from the complaint, unless

otherwise noted. Viana was born in Brazil and entered the

United States legally in 1990 on a tourist visa. He was granted

work authorization in 1993, which continued through 2008. On

the eve of the expiration of his visa, Viana filed a petition

for asylum, which an immigration judge denied in January 2010.

Through an attorney, Viana appealed the denial. In October

2011, the Board of Immigration Appeals (“BIA”) denied the

appeal. Viana alleges that, although his attorney received a

copy of the BIA’s decision, he never received a copy from either

the BIA or his attorney. Viana did not learn that his appeal

had been denied until late 2017.

2 In November 2017, Viana’s daughter—a United States

citizen—filed a “Petition for Alien Relative” (Form I-130) on

Viana’s behalf. On March 5, 2018, however, Immigration and

Customs Enforcement (“ICE”) summoned Viana to its local office.

ICE served Viana with an “Order of Supervision,” which required

him to “produce airplane tickets on March 15 . . . for his

return to Brazil no later than April 4.” Doc. no. 1 at 5.

On March 19, Viana filed the present complaint. He alleges

that defendants have violated his procedural and substantive due

process rights (Count I), as well as his statutory rights under

the Immigration and Nationality Act (Count II). The basis for

these claims is Viana’s assertion that the “unreasonably

compressed schedule to leave the country” prevents him from

pursuing various avenues for relief from removal. Id. at 3.

Viana indicates that he has begun the process of filing a motion

to reopen with the BIA, based on claims for asylum and under the

Convention Against Torture. He also states that he intends to

research other “amnesty and visa avenues.” Id. at 10. The sole

relief he seeks is an injunction against his removal until he

has had a reasonable opportunity to present his claims for

relief from removal. With his complaint, Viana filed an

“Emergency Motion to Stay,” requesting that the court issue a

3 stay of his impending removal for the reasons set forth in the

complaint.

DISCUSSION

In his complaint, Viana stated that this court had

jurisdiction by virtue of

(federal question

jurisdiction), and

(All Writs Act). In his

memorandum on jurisdiction, however, Viana asserts only

as the basis for this court’s jurisdiction. He

further concedes that he does not challenge the validity of the

removal order itself. Accordingly, the court confines its

analysis to whether the court has jurisdiction, pursuant to

, to consider Viana’s claims and order the

requested relief.

“Federal district courts have original jurisdiction over

what have come to be known as ‘federal question’ cases, that is,

civil actions ‘arising under the Constitution, laws, or treaties

of the United States.’” Viqueira v. First Bank,

(1st Cir. 1998) (quoting

). However,

jurisdiction conferred under this statute “can be precluded by

another, more specific statute.” Pejepscot Indus. Park, Inc. v.

Maine Cent. R. Co.,

, 200 n.3 (1st Cir. 2000). In

this case, the more specific statute at issue is 8 U.S.C.

4 § 1252, which contains numerous provisions limiting or

eliminating the jurisdiction of district courts over immigration

matters.

Dispositive here is

(g). That provision

states that “no court shall have jurisdiction to hear any cause

or claim by . . . any alien arising from the decision or action

by the Attorney General to . . . execute removal orders against

any alien.”

(g) (emphasis added). This

provision applies “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.”

Section 1252(g) is “directed against a

particular evil: attempts to impose judicial constraints upon

[certain categories of] prosecutorial discretion.” Reno v. Am.-

Arab Anti-Discrimination Comm.,

, 485 n.9 (1999).

Viana’s claims appear to fall well within the ambit of

§ 1252(g). He challenges the manner in which immigration

authorities decided to execute his removal order, arguing that

it prevents him from seeking potential avenues for relief from

removal. His claims are dependent on and grounded in that

decision, and thus are reasonably understood to “arise from”

that decision. See Ma v. Holder,

(N.D. Cal. 2012) (interpreting “arising from” in § 1252(g) to

5 include claims that are “connected directly and immediately to a

decision or action . . . to execute a removal order” (internal

quotation marks omitted)).1 And Viana’s requested relief, a stay

from removal, would necessarily impose a judicial constraint on

immigration authorities’ decision to execute the removal order,

contrary to the purpose of § 1252(g). See Reno,

n.9; Jusufi v. Chertoff, No. 07-15450,

, at *3

(E.D. Mich. Dec. 28, 2007); Aziz v. Chadbourne, No. 07-11806,

, at *1 (D. Mass. Oct. 15, 2007).

Many district courts have likewise held that the

jurisdictional bar imposed by § 1252(g) extends to claims where

the alien challenges the timeframe in which authorities seek to

remove him, as well as to the specific relief of a stay from

removal. See, e.g., Ibrahim v. Acosta, No. 17-cv-24574,

, at *4-5 (S.D. Fla. Jan. 26, 2018); Devitri v. Cronen,

1 The court finds additional support for its reading in Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec.,

(1st Cir. 2007). There, the First Circuit interpreted

(b)(9), which channels review of all questions of law and fact “arising from any action taken or proceeding brought to remove an alien from the United States” into an administrative process subject to review by the courts of appeals. Aguilar,

(emphasis added). The First Circuit read the phrase “arising from” to “exclude claims that are independent of, or wholly collateral to, the removal process.”

. Similarly, because Viana’s claims are not independent of or collateral to the decision to execute the removal order, they arise from that decision for purposes of § 1252(g).

6 No. 17-11842,

, at *3-5 (D. Mass. Nov. 27, 2017);

Hamama v. Adducci,

(E.D. Mich.

2017); Diaz-Amezcua v. Johnson, No. C14-1313,

, at

*3 (W.D. Wash. Jan. 30, 2015); Ma,

;

Nken v. Chertoff,

(D.D.C. 2008).

But see Chhoeun v. Marin, No. SACV 17-01898,

, at

*8-9 (C.D. Cal. Jan. 25, 2018).2

Viana responds that § 1252(g) should not be interpreted to

eliminate jurisdiction to review claims grounded in the right to

due process. In support, he cites Enwonwu v. Chertoff,

(D. Mass. 2005). In Enwonwu, an alien brought a

habeas corpus petition alleging, among other things, that his

order of removal violated his substantive due process rights.

See Enwonwu,

. The district court rejected

the government’s argument that § 1252(g) barred the petition.

Id. at 66. It cited Carranza v. INS,

(1st Cir.

2002), for the proposition that § 1252(g) does not eliminate

district courts’ “subject matter jurisdiction over habeas

2 Importantly, some courts retained jurisdiction over such claims on the theory that, as applied, § 1252(g) was unconstitutional. See Devitri,

, at *4-7 (concluding that, under the circumstances, § 1252(g) violated the Suspension Clause of the U.S. Constitution); see also Ibrahim,

, at *5-6; Hamama,

. Because Viana makes no such argument, the court need not address the question.

7 petitions brought by aliens facing removal to the extent that

those petitions are based on colorable claims . . . that an

alien's . . . constitutional rights have been violated.”

Enwonwu,

(quoting Carranza,

).

The court finds Carranza, and therefore Enwonwu,

distinguishable. Carranza concerned the court’s jurisdiction

over a constitutional claim in the context of a habeas petition,

not a constitutional claim brought under

. See

Carranza,

. Viana does not bring a habeas

petition. In any case, the Carranza court’s interpretation was

based on a prior version of § 1252(g), which was subsequently

amended to extend to habeas petitions. See Hamama,

(noting that the 2005 amendments added language which

expressly withdrew habeas jurisdiction “for any claims excluded

by § 1252(g)”).

More to the point, the court disagrees that § 1252(g) does

not extend to due process claims generally. The provision

itself contains no such limitation: it covers “any cause or

claim” within its ambit,

(g), which includes

constitutional claims, see, e.g., Hamama,

(concluding that § 1252(g) applied to claim that removal

prior to administrative hearing violated due process); cf. Reno,

8

(concluding that § 1252(g) barred selective-

enforcement claim under First Amendment). Accordingly, the

court has no jurisdiction to review Viana’s claims or order the

requested relief, and his complaint must therefore be dismissed.

See

(g).

CONCLUSION

For the foregoing reasons, Viana’s complaint (doc. no. 1)

is dismissed without prejudice, and his emergency motion for a

stay (doc. no. 2) is denied as moot.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 2, 2018

cc: Counsel of Record

9