UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Abdigani Faisal Hussein

v. Civil No. 18-cv-273-JL Opinion No.

Strafford County Department of Corrections Superintendent Christopher Brackett and U.S. Immigration and Customs Enforcement Boston Field Office Director Chris M. Cronen

MEMORANDUM ORDER

This court’s subject-matter jurisdiction over this action

depends on whether the petitioner has made a colorable claim

that certain provisions of the Real ID Act, see

,

violate the United States Constitution’s Suspension Clause, U.S.

Const. art. I, § 9, cl. 2, by divesting this court of

jurisdiction to hear his habeas petition. The court denies the

respondents’ motion to dismiss the petition. While the court

does not conclude in this preliminary procedural posture that

the Real ID Act’s jurisdiction-divesting provisions violate the

Suspension Clause, the habeas petitioner’s colorable argument to

that effect makes a jurisdiction-based dismissal inappropriate

at this time.

Abdigani Faisal Hussein filed a petition for a writ of

habeas corpus, see

, and complaint for

declaratory and injunctive relief, seeking to stay his removal to his native Somalia until the Board of Immigration Appeals

(BIA) has decided his recently-filed motion to reopen his

removal proceedings, see 8 U.S.C. § 1229a(c)(7). The federal

respondents moved to dismiss Hussein’s petition and complaint,

arguing that this court lacks subject-matter jurisdiction under

. See Fed. R. Civ. P. 12(b)(1).

Although the respondents convincingly argue that § 1252

divests the court of jurisdiction over issues of law and fact

arising from final removal orders such as Hussein’s, the court

retains jurisdiction to adjudicate Hussein’s distinct claim that

§ 1252 impermissibly violates the Suspension Clause as applied

to him under these circumstances. Accordingly, the court denies

the respondents’ motion to dismiss Hussein’s petition.

Applicable legal standard

“Federal courts are courts of limited jurisdiction. They

possess only that power authorized by Constitution and statute.”

United States v. Coloian,

(1st Cir. 2007)

(quoting Kokkonen v. Guardian Life Ins. Co. of Am.,

(1994)) (formatting altered). “Without jurisdiction

the court cannot proceed at all in any cause. Jurisdiction is

power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact

2 and dismissing the cause.” Steel Co. v. Citizens for a Better

Env't,

(1998).

Invoking Federal Rule of Civil Procedure 12(b)(1), the

respondents move to dismiss Hussein’s petition and complaint for

lack of subject-matter jurisdiction. The burden to prove

jurisdiction rests with the petitioner. See Acosta–Ramirez v.

Banco Popular de P.R.,

(1st Cir. 2013). In

resolving a motion to dismiss on those grounds, the court draws

the facts from the petition and complaint, “credit[ing] the

[petitioner’s] well-pled factual allegations and draw[ing] all

reasonable inferences in the [petitioner’s] favor.” Merlonghi

v. United States,

(1st Cir. 2010). In doing so,

the “court may also ‘consider whatever evidence has been

submitted, such as the depositions and exhibits submitted.’”

(quoting Aversa v. United States,

(1st

Cir. 1996)).

Background

The following factual summary takes that approach.

Hussein, a native of Somalia, is a member of the Tunni ethnic

group and a non-practicing Muslim. He fled Somalia in January

1991, after members of the United Somali Congress, a major rebel

organization, shot at him seven times and shot and killed his

mother. After living in Kenya for five years, he entered the

3 United States as a 23-year-old refugee in 1996 and became a

lawful permanent resident in 1997. He has lived and worked in

and around Portland, Maine, since 2001. He married his wife, a

United States citizen, in 2004. They have three children, all

of whom are United States citizens.

In 2003, Hussein was convicted under

(a)(1)

of possession with intent to distribute khat, a plant which

contains cathinone, a Schedule I controlled substance, rendering

him subject to removal. See

(a)(2)(A)(iii). His

conviction was affirmed on appeal. He then petitioned for

asylum, withholding of removal, and withholding under the

Convention Against Torture (CAT). An immigration judge denied

those petitions in August 2006, and the Board of Immigration

Appeals (BIA) and Third Circuit Court of Appeals in turn

affirmed that decision. Hussein v. Attorney General of the

United States,

(3d Cir. 2008). Hussein

was not removed at the time. Instead, he was granted an order

of supervision, which allowed him to remain in the United States

as long as he complied with certain requirements, including

periodic “check-ins.” See

.

Following a change in national immigration enforcement

policy, United States Immigration and Customs Enforcement (ICE)

sought to deport Hussein in late 2017. In March 2018, he was

detained by ICE in Portland, and then transferred from the

4 Cumberland County Jail in Portland to the Strafford County House

of Corrections in Dover, New Hampshire, in preparation for

removal.

On March 28, 2018, while in custody, Hussein filed a motion

to reopen his removal proceedings with the BIA, see 8 U.S.C.

§ 1229a(c)(7), seeking deferral of removal to Somalia under the

CAT because, he contends, the country conditions in Somalia have

changed since his hearing before an immigration law judge in

2006. To qualify under the CAT, he must show that “it is more

likely than not that [he] would be tortured if removed to”

Somalia.

(C)(2). Specifically, he contends

that al-Shabaab, a fundamentalist group allied with Al-Quaeda

and that came to power beginning in late 2006 (after that

hearing), would torture and/or kill him because: (1) al-Shabaab

targets people with extensive Western backgrounds, which Hussein

has, having lived in the United States since 1996; (2) it

targets non-practicing Muslims, which Hussein is; (3) al-

Shabaab’s leadership are members of the Hawiye ethnic group,

other members of which targeted and killed other members of

Hussein’s family in 1991; (4) his father helped prosecute the

father of al-Shabaab’s current spokesman; and (5) his family

owns property in Mogadishu now occupied by members of the Hawiye

ethnic group, such that his return will cause them to feel

threatened.

5 A week later, on April 4, 2018, Hussein filed a petition

for a writ of habeas corpus and a complaint for declaratory and

injunctive relief in this court.1 At the same time, he moved for

a temporary restraining order, see Fed. R. Civ. P. 65,

preventing ICE from removing him until the BIA ruled on his

motion to reopen.2 The court initially granted a 14-day

temporary restraining order.3 It did not renew that temporary

restraining order when it expired, having been informed by the

United States Attorney’s Office during a hearing that its order

had the effect of delaying the BIA’s consideration of Hussein’s

emergency motion to stay his removal.4

Analysis

A. The Real ID Act’s jurisdiction-divesting provisions

“A federal district court may not consider a claim for

relief unless Congress has given the court jurisdiction to act.”

1 Document no. 1. 2 Document no. 2. 3 Document no. 3. 4 See Order (doc. no. 15). The court may have misunderstood the respondents’ counsel’s representations on this issue during the hearing. At a later hearing on their motion to dismiss, the respondents’ counsel explained that it was actually Magistrate Judge Johnstone’s previous order requiring respondents to “provide this court with at least 48 hours advance notice of any scheduled removal of Petitioner . . . .”, see Order (doc. no. 6) at 2, that had this dilatory effect. See infra Part III.C. at n.6.

6 Filippi v. President of United States,

(Barbadoro, J.) (citing Finley v. United States,

,

547–548 (1989)). A federal district court generally has

jurisdiction over “all civil actions arising under the

Constitution, laws, or treaties of the United States,”

, and petitions for writs of habeas corpus,

(a). Such jurisdiction can, however, “be precluded by

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

Maine Cent. R. Co.,

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

Three provisions of the Real ID Act,

, work

together to do just that, divesting this court of jurisdiction

over claims arising from a removal order.

First, the Real ID Act divested all courts of “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 Act,” except as otherwise provided in

§ 1252.

(g). It then invested exclusive

jurisdiction “for judicial review of an order of removal” in the

Courts of Appeals.

§ 1252(a)(5). Both of these provisions

operate “[n]otwithstanding any other provision of law (statutory

or nonstatutory), including [

] or any other

habeas corpus provision . . . .”

(a)(5),

1252(g).

7 Finally, the Real ID act requires a “final order,” issued

under § 1252, as a prerequisite for any “[j]udicial review of

all questions of law and fact, including interpretation and

application of constitutional and statutory provisions, arising

from any action taken or proceeding brought to remove an alien

from the United States . . . .” Id. § 1252(b)(9). This

circuit’s Court of Appeals acknowledges that this section “was

designed to consolidate and channel review of all legal and

factual questions that arise from the removal of an alien into

the administrative process, with judicial review of those

decisions vested exclusively in the courts of appeals.” Aguilar

v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland

Sec.,

(1st Cir. 2007).

These three provisions together “channel[ ] federal court

jurisdiction over ‘such questions of law and fact’ to the courts

of appeals and explicitly bars all other methods of judicial

review, including habeas.”

(quoting

(b)(9)).

The statute allows as exceptions only “claims that are

independent of, or wholly collateral to, the removal process.

Among others, claims that cannot effectively be handled through

the available administrative process fall within that purview.”

Id. at 11. As explained below, while Hussein’s claims do not

fall into that category, his constitutional challenge to § 1252

does.

8 B. Jurisdiction over Hussein’s claims

Hussein asks the court to prevent ICE from executing his

existing removal order until the BIA has either granted or

denied his motion to reopen removal proceedings. He brings

three claims in an effort to achieve this end. As explained

below, all three arise from “action[s] taken or proceeding[s]

brought to remove him from the United States,”

(b)(9), and, more specifically, from the removal order

that he asks this court to stay.

First, Hussein seeks relief under the Immigration and

Naturalization Act’s (INA) prohibition of removal to a country

where “the alien’s life or freedom would be threatened . . .

because of [his] race, religion, nationality, membership in a

particular social group, or political opinion.”

(b)(3)(A). He contends, as discussed above, that his life

or freedom would be threatened on one or more of those bases if

he returned to Somalia. This claim arises directly from the

removal order because Hussein alleges that the INA is violated

only if the removal order is executed. See Filippi,

.

Second, Hussein contends that removal before adjudication

of his motion to reopen violates his procedural due process

rights. See U.S. Const. amend. V (“No personal shall . . . be

deprived of life, liberty, or property, without due process of

9 law . . . .”). Specifically, he invokes his right to file one

motion to reopen his proceedings, see 8 U.S.C. § 1229a(c)(7)

(“An alien may file one motion to reopen proceedings under this

section.”); Mata v. Lynch,

(2015) (a non-

citizen with a final removal order in place “has a statutory

right to file a motion to reopen his removal proceedings.”), and

his concomitant interest in avoiding deportation to a place

where he is at risk of persecution, torture, or death. His

removal before adjudication of that motion would “constitute a

withdrawal of such motion,”

(d),

1003.23(b)(1), which, he alleges, would deprive him of his right

to adjudication of his motion. This claim likewise arises from

Hussein’s removal order. He possesses a right to reopen his

removal proceedings solely because of that order, see 8 U.S.C.

§ 1229a, and contends that this right would be abridged were he

removed before the BIA decides his motion. See Filippi,

. 5-6.

Finally, Hussein challenges his detention as unlawful as

violating his due process rights because it lacks a reasonable

relationship to the government’s purpose. “[D]ue process

requires that the nature and duration of commitment bear some

reasonable relation to the purpose for which the individual is

committed.” Jackson v. Indiana,

(1972); see

also Zadvydas v. Davis,

(2001) (applying

10 Jackson’s reasoning to an alien’s detention before removal).

Like his other claims, this one arises directly from his removal

order because he challenges his detention under that order.

Because all of Hussein’s claims arise from a final removal

order issued, but not executed, over ten years ago, this court

would lack jurisdiction to hear them under § 1252. As a result,

Hussein attacks the constitutionality of this jurisdictional bar

as it applies to him. As discussed below, the court retains

jurisdiction to prevent the constitutionally impermissible

deprivation of Hussein’s recognized due process right to a

motion to reopen his removal proceedings where post-removal

adjudication of that motion would be effectively unavailable to

him, constituting an impermissible as-applied suspension of

habeas corpus.

C. Adequacy of the administrative process under the Suspension Clause

Hussein argues that the Real ID Act’s provisions divesting

the district court of jurisdiction to hear his claims violate

the United States Constitution’s Suspension Clause as applied to

him. That clause, an enumerated limitation on Congressional

power, provides: “The 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.” U.S. Const. art. I,

§ 9, cl. 2.

11 Though Congress may not suspend the Great Writ except as

provided, it may “without raising any constitutional questions,

provide an adequate substitute through the courts of appeals.”

I.N.S. v. St. Cyr,

, 314 n.38 (2001). “[T]he

substitution of a collateral remedy which is neither inadequate

nor ineffective to test the legality of a person’s detention

does not constitute a suspension of the writ of habeas corpus.”

Swain v. Pressley,

(1977).

Section 1252 channels “review of all legal and factual

questions that arise from the removal of an alien” into the

BIA’s administrative process. Aguilar,

. Under

that process, a petitioner subject to a final removal order

files a motion to reopen his removal proceedings with the BIA.

8 U.S.C. § 1229a(c)(7). Filing the motion does not

automatically stay removal.

(f). A petitioner

who is in custody may also, concurrently, move for an emergency

stay of removal. See BIA Practice Manual §§ 6.4(b), 6.4(d)(i).

Counsel for both parties represented that the BIA’s Emergency

Stay Unit will not act on a motion for an emergency stay until

the petitioner’s removal is “imminent.” Id. § 6.4(d)(1).

Counsel for the respondents also represented that Hussein’s

removal will not become “imminent” until ICE has obtained the

12 necessary deportation documentation.5 It is unclear how the

Emergency Stay Unit learns about an “imminent” removal --

whether from ICE itself, from a petitioner’s counsel, or through

some other channel.

Under normal circumstances, removal does not bar a

petitioner from filing a post-removal motion to reopen removal

proceedings from outside the United States. See Santana v.

Holder,

(1st Cir. 2013) (“[T]he postdeparture

bar [

(d)] cannot be used to abrogate a

noncitizen’s statutory right to file a motion to reopen.”).

Thus, the administrative proceedings -- and specifically the

ability to file a motion to reopen after being removed --

typically constitutes “a constitutionally adequate substitute

for a habeas corpus challenge to a removal order in most cases.”6

5 The court has only counsel’s representations to rely on for that information; the respondents offered no affidavit, handbook, or regulation detailing the administrative process in connection with their motion. It previously declined to renew or extend the temporary restraining order in light of counsel’s previous representation that that order had the practical effect of preventing the BIA from evaluating Hussein’s emergency motion to stay removal. See Order (doc. no. 15). At oral argument, respondents’ counsel further represented that, despite the absence of a TRO, the BIA will not address the emergency stay motion due to this court’s previous order requiring 48 hours’ notice before petitioner’s removal. See Order (Johnstone, M.J.) (doc. no. 6) at 2. 6 Hussein is detained and thus in “custody” for habeas purposes.

(c).

13 Higgins v. Strafford Cty. Dep’t of Corr.,

(Barbadoro, J.) (citing Luna v. Holder,

(2d Cir.

2011)); see also Devitri v. Cronen,

(D.

Mass. 2018) (Saris, J.) (collecting cases from the Eighth,

Ninth, and Eleventh Courts of Appeals).

Several courts have recently concluded that the motion to

reopen process is not, however, an adequate substitute under a

specific set of circumstances similar to Hussein’s. Sied v.

Nielson, No. 17-cv-06785,

, at *31-67 (N.D. Cal.

Mar. 2, 2018); Devitri,

; Ibrahim v. Acosta,

No. 17-cv-24574,

, at *5-6 (S.D. Fla. Jan. 26,

2018); Hamama v. Adducci,

(E.D.

Mich. 2017). Specifically, the motion to reopen process may not

constitute an adequate substitute where the petitioner (1) could

be removed before the motion is adjudicated, and (2) has a

credible fear of persecution or torture in the country of

removal, such that he may not have an opportunity to file or

have adjudicated a post-removal motion to reopen. The

respondents agreed at oral argument that, where a post-removal

motion to reopen is foreclosed as a practical matter due to a

showing of a real threat to the petitioner’s life, the

14 petitioner has demonstrated an as-applied violation of the

Suspension Clause.7

Under the facts of this case, Hussein has raised a

colorable argument that the administrative motion to reopen

process does not adequately substitute for a habeas corpus

challenge. Like petitioners in Devitri and Hamama, Hussein has

raised a colorable argument that, if he is removed to Somalia,

his life and freedom would be threatened before the BIA

adjudicates his motion to reopen. He has submitted evidence

that he is a member of a religious group (non-practicing

Muslims) that have been targeted by al-Shabaab, a recognized

terrorist group in power in Somalia. He has further submitted

evidence that al-Shabaab has targeted Somalians who have spent

significant time in the United States, which Hussein has, and

Hussein’s own family.8

He has also demonstrated that ICE could remove him before

the BIA resolves his motion to reopen proceedings. While

7 Hearing Tr. (doc. no. 17) at 49 (“It is an as applied suspension clause violation if there is a showing of real threat to your life.”), 54 (confirming the same). 8 At oral argument, the respondents dismissed this evidence on the grounds that Hussein’s claims that he fears persecution were addressed through his withholding of removal petition in 2006. That ignores the very basis of Hussein’s motion to reopen -- his argument that country conditions have changed since 2006 through at least al-Shabaab’s appearance and rise to power.

15 Hussein has filed an emergency motion to stay his removal with

the BIA, the court lacks objectively verifiable information on

the procedures surrounding the timing of that motion’s

resolution. Counsel have represented that the BIA’s Emergency

Stay Unit will only act on Hussein’s motion once it has been

informed that Hussein’s removal is “imminent.” As discussed

supra, it appears to rely on either ICE or petitioner’s counsel

to voluntarily inform it of the imminence of a petitioner’s

removal. Absent such information, it appears that a petitioner

like Hussein may be removed before even his motion for an

emergency stay is adjudicated.9

Hussein also faces the possibility of removal prior to

adjudication of his motion to reopen if his emergency motion to

stay removal is considered, but denied. In that event, the

Court of Appeals would lack jurisdiction to afford Hussein

relief. As counsel for both parties agreed at oral argument,10 a

9 This possibility is not so far-fetched in this case where ICE, despite receiving notice that Hussein was represented by counsel, met privately with him (without counsel present) and asked him to sign an affidavit to the effect that he wished to be removed to Somalia as soon as possible. Respondents’ counsel’s response -- that the visit was routine and more benign than represented by the petitioner, and that, in any event, “ICE is way too busy to engage things like that” -- cuts in petitioner’s favor on this point. See Hearing Tr. (doc. no. 17) at 57-58. 10Hearing Tr. (doc. no. 17) at 23, 61. At oral argument, respondents represented that the First Circuit Court of Appeals dismissed the petitioner’s appeal in Filippi v. President of the

16 denial of Hussein’s motion for an emergency stay would not

constitute a final order, a necessary prerequisite to that

court’s jurisdiction. See Gando–Coello v. I.N.S.,

(1st Cir. 1988) (BIA’s denial of stay pending disposition of

motion to reopen is not a final administrative order reviewable

by Court of Appeals). His removal would operate to withdraw his

motion to reopen, thus preventing him from obtaining the benefit

of a ruling on the motion he has already filed.

(d), 1003.23(b)(1). Even assuming that Hussein’s right

to file one such motion under 8 U.S.C. § 1229a(c)(7) would not

be exhausted by the withdrawal of his already-filed motion to

reopen,11 a threat of torture or death would operate to prevent

him from refiling from his country of removal -- even assuming

that he would not already have exhausted his right to one motion

to reopen.

United States, No. 17-2203 (1st Cir. filed Dec. 8, 2017), for lack of jurisdiction absent a final BIA order. See Hearing Tr. (doc. no. 17) at 40. That court had previously dismissed Filippi’s petition for review of a “written entry” by ICE “on his Order of Supervision” directing him to depart the United States for lack of a final order. Filippi v. Session, No. 17- 2083 (1st Cir. filed Oct. 31, 2017). It has not, however, dismissed Filippi’s appeal of Judge Barbadoro’s order, Filippi,

, dismissing his action in this court. 11It is unclear to the court whether that withdrawal would be without prejudice to refiling after departure or whether a refiled, post-departure motion would constitute a second (and thus possibly precluded) motion. The parties have offered no authority either way on this issue.

17 In arguing that the motion to reopen process suffices as an

alternative to habeas relief in Hussein’s case, the respondents

take the positions that (1) the court is not allowed to consider

the facts in this case at all in determining its jurisdiction,

and (2) the facts in this case distinguish Hussein’s petition

from those of the petitioners in Sied, Devitri, Ibrahim, and

Hamama. These assertions strike the court as (at least

superficially) inconsistent. That observation aside, as to the

respondents’ first point, in light of the respondents’

concession that foreclosure of post-removal motion to reopen

proceedings amounts to a violation of the Suspension Clause,12

the court necessarily must consider whether Hussein has

sufficiently alleged -- or could demonstrate -- that his post-

removal proceedings would be foreclosed.

And as to the second, the respondents attempted to

distinguish Devitri and Hamama on the basis that the petitioners

in those cases had not yet filed motions to reopen their removal

proceedings with the BIA, whereas Hussein has filed his motion.

While true that the Devitri and Hamama petitioners had not yet

filed their motions to reopen at the time they filed their

etitions, those courts focused their analysis on the

petitioners’ opportunity to have those motions adjudicated, not

12 Hearing Tr. (doc. no. 17) at 49, 54.

18 merely filed. Devitri,

; Hamama,

. Nor did those courts conclude that they

would lose jurisdiction once those motions were filed.

Finally, the respondents counter these cases with Judge

Barbadoro’s recent decision in Higgins,

.13 In that

case, however, Judge Barbadoro concluded that the petitioner

lacked a credible claim that he would face persecution or

torture in Jamaica. Id. at 4-5. Absent such a claim, the

motion to reopen process afforded Higgins an adequate substitute

for habeas proceedings. Id. Here, as discussed supra, Hussein

has raised a claim of persecution and torture in Somalia.

Conclusion

The court does not, at this juncture, conclude that the

circumstances that Hussein faces amount to a violation of the

Suspension Clause. Nor does it conclude, at this initial stage,

that he does in fact face a fear of persecution, torture, or

death should he return to Somalia. It holds merely that Hussein

has raised a colorable claim that the jurisdiction-divesting

provisions of § 1252 violate the Suspension Clause as applied to

him, and that this court has jurisdiction to resolve that

question.

13 Mem. in Supp. of Mot. to Dismiss (doc. no. 7-1) at 11.

19 Accordingly, the respondents’ motion to dismiss Hussein’s

petition and complaint14 is DENIED.

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: May 16, 2018

cc: Mark J. Devine, Esq. Benjamin J. Wahrer, Esq. Twain Asher Braden, Esq. Terry L. Ollila, AUSA

14 Document no. 7.

20