UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Saveth Veth, Plaintiff

v. Case No. 18-cv-1139-SM Opinion No.

Matt Whitaker, Acting Attorney General; Kirstjen Nielsen, Secretary of the Dept. of Homeland Security; Christopher Brackett, Superintendent of Strafford Correctional Facility; Todd Thurlow, Assistant Field Office Director; and Ronald D. Vitiello, Acting Director of ICE for the Washington, D.C. Headquarters, Defendants

O R D E R

Saveth Veth brings this habeas corpus petition, seeking a

stay of his imminent deportation from the United States. See

. Because this court lacks jurisdiction to

entertain Veth’s petition, the petition, as well as his request

for emergency injunctive relief, must necessarily be denied.

Background

In 1983, Veth and his parents left a Cambodian refugee camp

located in Thailand and came to the United States as refugees.

At the time, Veth was eight years old. He is currently 43. In 2009, Veth was convicted in a Massachusetts state court

of an aggravated felony (indecent assault and battery on a child

under the age of 14). He pled guilty to the charge and was

convicted. The circumstances were apparently unusual and as a

result he received a light sentence of five years probation, and

he was ordered to undergo alcohol treatment and counseling. In

2011, based upon that felony conviction, ICE arrested Veth,

issued a Notice to Appear, and began removal proceedings in the

Boston Immigration Court. Veth appeared at his hearing, did not

seek any relief from removal, and did not express any fear of

returning to Cambodia. He accepted the order of removal and

waived his appellate rights. Approximately five months later,

however, ICE released Veth from custody, because Cambodia

refused to provide the necessary travel documents to effect his

removal.

Six and one-half years later (and three months before he

filed his habeas petition in this court), in September of 2018,

ICE again arrested Veth, after the Cambodian government agreed

to interview him and determine whether to issue travel

documents. Veth was originally detained in Massachusetts and

subsequently moved to New Hampshire, where he was being held

when he filed this petition on Monday, December 10, 2018. The

following day, Tuesday, December 11, 2018, the magistrate judge

2 entered an order directing service of Veth’s habeas petition

upon the United States Attorney for the District of New

Hampshire and the other named defendants. That order directed

defendants to file a responsive pleading within seven days and

provide the court “with at least 48 hours advance notice of any

scheduled removal or transfer of Veth out of this court’s

jurisdiction.” But, before receiving that order, the government

had already transferred Veth to Louisiana and then to Texas.

There is also some suggestion that Veth will be moved again -

this time to either California or Hawaii. His deportation is

imminent: yesterday, the government gave notice that it intends

to remove Veth from the United States in three days (i.e., on

Monday, December 17, 2018).

On the afternoon of Tuesday, December 11, 2018, the court

(Barbadoro, J.) conducted a telephonic hearing with counsel for

Veth and the government. During that hearing, the court

identified two potential jurisdictional issues. First, given

the fact that Veth is no longer in this district, the court

questioned whether the “primary custodian” rule divested it of

jurisdiction. Second, the court questioned whether it had

jurisdiction over Veth’s petition given the jurisdiction

stripping provisions of

. The court afforded

Veth’s counsel 24 hours within which to file a memorandum

3 addressing those issues. Counsel for the government was given

the opportunity to respond within 24 hours thereafter. Those

memoranda have now been filed.

Discussion

I. Veth’s Claims.

Veth does not (yet, anyway) challenge his final order of

removal. Indeed, he concedes that, based upon his state court

felony conviction, he is subject to deportation. What he seeks

from this court is a stay of his physical removal so he may have

the time necessary to challenge that underlying state court

conviction, arguing that his plea of guilty was plainly

improvident and subject to vacation. Specifically, he claims to

have received constitutionally deficient legal representation in

the state court proceeding because counsel neglected to fully

inform him of the immigration consequences of his guilty plea.

That, says Veth, amounted to a violation of his Sixth Amendment

rights, as well as his rights under the Massachusetts

Declaration of Rights, and likely renders his plea improvident

and invalid. See Padilla v. Kentucky,

(2010);

Commonwealth v. Sylvain,

(2013); Commonwealth v.

DeJesus,

(2014).

4 At this juncture, federal habeas relief is unavailable -

Veth cannot challenge his state court conviction under

. His sole avenue of relief appears to lie with a

petition in the Massachusetts court of conviction seeking to

vacate his prior felony conviction. Then, if successful, he

might petition the Board of Immigration Appeals to reopen his

case. Because federal relief under section 2254 is unavailable

to him, Veth seeks habeas relief under section 2241, asserting

that this court has jurisdiction to enter an order - of

indefinite duration - to stay his removal while he attempts,

first, to vacate his state felony conviction and, second, to

reopen his immigration proceedings and obtain relief from his

order of removal.

II. Jurisdiction over Veth’s Habeas Petition.

Neither party thinks that, standing alone, ICE’s transfer

of Veth out of this jurisdiction divests this court of

jurisdiction under the “immediate custodian” rule. The court is

inclined to agree. See Rumsfeld v. Padilla,

, 440-

41 (2004) (citing Ex Parte Endo,

(1944)).

But, even assuming the court has not been divested of

jurisdiction solely by virtue of Veth’s removal to another

state, it is plain that Congress has stripped this court of

jurisdiction to entertain Veth’s petition for habeas relief

5 under

. See

(b)(9) and 1252(g).

See also Aguilar v. U.S. Immigration & Customs Enf’t Div. of

Dep’t of Homeland Sec.,

(1st Cir. 2007).

But, says Veth, his rights under the Suspension Clause will

be violated if the court denies his requested habeas relief.

See generally Hussein v. Brackett, No. 18-cv-273-JL,

,

(D.N.H. May 5, 2018). And, citing Devitri

v. Cronen,

(D. Mass. 2018), he asserts that

the remedies available to him under the BIA’s process for

adjudicating motions to reopen and motions to stay are not

adequate administrative alternatives to habeas relief. The

circumstances giving rise to this case are, however, materially

distinct from those in Devitri. In Devitri, petitioners made a

colorable, non-frivolous claim that they would be subjected to

torture and/or persecution if returned to their country of

origin (Indonesia) because of their Christian faith. Veth makes

no such claim.

Moreover, the petitioners in Devitri plausibly alleged that

they were subject to removal before they had sufficient time to

file a motion to reopen their immigration proceedings. Thus,

they argued that habeas relief was the only adequate and

effective means by which to challenge their imminent

6 deportation. Veth, on the other hand, has been subject to a

removal order since 2011. And, he has had more than seven years

to challenge the underlying basis for that removal order - his

state felony conviction - through direct appeal or other avenues

of collateral attack. He did not do so. That Veth has not

timely availed himself of available alternatives to habeas

relief does not compel the conclusion that those alternatives

are inadequate or ineffective. Indeed, while there is no

indication that he has yet done so, it appears that Veth could

still file a motion to reopen with the immigration court,

setting forth the arguments he advances here, along with an

emergency motion to stay his imminent deportation while he

endeavors to vacate his state felony conviction.

And, finally, there is no suggestion in the record that

Veth will be precluded from pursuing his efforts to vacate his

state felony conviction and then availing himself of the BIA’s

motion to reopen process if he is removed. Consequently, the

court cannot conclude, under applicable law, that the motion to

reopen process will provide Veth with an inadequate substitute

for habeas corpus relief. See generally Higgins v. Strafford

County Dept. of Corrs., No. 18-cv-147-PB,

at *2,

(D.N.H. Mar. 3, 2018) (“The fatal flaw in

[petitioner’s] argument is that he bases it on the incorrect

7 assumption that he will lose his right to file a motion to

reopen if he is removed before he can file his motion.”). See

also Luna v. Holder,

(2d Cir. 2011) (holding

that the BIA’s regulation purporting to preclude removed persons

from filing a motion to reopen - known as the “post-departure

bar” - cannot be applied categorically to prevent the filing of

such motions after removal).

Conclusion

For the foregoing reasons, as well as those set forth in

the government’s memorandum (document no. 6), this court lacks

jurisdiction to consider Veth’s petition for habeas corpus

relief under

. And, as applied to the facts of

this case, the jurisdiction stripping provisions of

do not violate Veth’s rights under the Suspension Clause.

Veth has had, and he retains, adequate administrative means by

which to present his claims to the BIA through a motion to

reopen (provided, of course, that he is first able to vacate his

underlying state court felony conviction).

Veth’s Petition for Habeas Corpus Relief Pursuant to

(document no. 1) is dismissed for lack of

jurisdiction and his Motion for Temporary Restraining Order

(document no. 2), is necessarily denied. The Clerk of Court

8 shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 14, 2018

cc: Louis S. Haskell, Esq. Michael T. McCormack, AUSA

9