NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 20-2521 ______

HECTOR G.M., Appellant

v.

WARDEN ELIZABETH DETENTION CENTER; FIELD OFFICE DIRECTOR NEW JERSEY UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; DIRECTOR UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT; SECRETARY UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ATTORNEY GENERAL UNITED STATES OF AMERICA ____________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 2-20-cv-06034) District Judge: Honorable Brian R. Martinotti ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) October 26, 2021 ____________

Before: GREENAWAY, JR., PHIPPS, and COWEN, Circuit Judges.

(Opinion Filed: November 16, 2021) ___________

OPINION * ___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge.

This appeal of a jurisdictional dismissal of an alien’s habeas petition turns on the

role of the writ of habeas corpus in immigration litigation. The petitioner, who was

removed during the pendency of his habeas petition, sought an order for his return to the

United States so he could pursue a motion to reopen immigration proceedings and apply

for a U-visa. But Congress has jurisdictionally excluded habeas petitions as a means of

challenging the execution of removal orders, so we will affirm the judgment of the

District Court dismissing this case on jurisdictional grounds.

I.

Hector García Mendoza, a native and citizen of Mexico, was arrested in Freehold,

New Jersey on March 13, 2020, and charged with two state-law crimes: trespass and

hindering. Although he was released from police custody later that day, his freedom

from confinement was short-lived. As he left the police station, federal agents with

Immigration and Customs Enforcement arrested him and transported him to the Elizabeth

Detention Center.

While García Mendoza was detained there, the Department of Homeland Security

commenced removal proceedings against him. As part of those proceedings, García

Mendoza twice appeared pro se before an Immigration Judge, accompanied by a court-

appointed interpreter. At the first hearing, the Immigration Judge offered García

Mendoza more time to find an attorney. Although García Mendoza accepted that offer,

he did not retain an attorney before his second hearing, and he again appeared pro se.

2 The Immigration Judge considered García Mendoza’s testimony regarding past

mistreatment but ultimately determined that he should be removed.

As part of the resolution of those proceedings, García Mendoza waived his right to

file an administrative appeal with the Board of Immigration Appeals. Without pursuing

such an administrative appeal, García Mendoza could not petition in federal court for

review of his removal order. See

(a)(5) (limiting the jurisdiction of

federal courts over orders of removal to only challenges brought through “a petition for

review filed with an appropriate court of appeals” notwithstanding any statutes providing

jurisdiction for habeas review); Nasrallah v. Barr,

(2020) (“The

REAL ID Act [codified as amended at

] clarified that final orders of

removal may not be reviewed in district courts, even via habeas corpus, and may be

reviewed only in the courts of appeals.”).

Although he did not administratively appeal, García Mendoza did not give up. He

later retained counsel and commenced litigation on two fronts.

First, he filed a class action lawsuit as a named plaintiff in the District of New

Jersey on May 15, 2020, to challenge the conditions of confinement at the Elizabeth

Detention Center and to seek release. See Aganan v. Rodriguez, No. 20-cv-5922 (D.N.J.

filed May 15, 2020). The government promptly responded to that litigation through a

letter to the District Court, with a copy to García Mendoza’s counsel, which stated that

“ICE expects to effect [García Mendoza’s] removal in the immediate future.” Ex. B to

Pet. for Writ of Habeas Corpus, Letter Regarding Imminent Deportation of Pet’r, ECF

No. 20 (JA 44).

3 Second, shortly after receiving that letter, on May 19, 2020, García Mendoza filed

a separate habeas petition in the District of New Jersey. In that case, he alleged that his

removal would unlawfully interfere with his ability to avoid deportation by moving to

administratively reopen his immigration proceedings and by applying for a U-visa, which

victims of certain crimes may receive. On that premise, he claimed violations of the Due

Process Clause of the U.S. Constitution, the Immigration and Nationality Act, the

Administrative Procedure Act, and the Convention Against Torture. To remedy those

alleged violations, García Mendoza sought an order preventing his removal.

Because his removal was imminent, García Mendoza the same day filed an

application for a temporary restraining order in his habeas case. But by that time, ICE

had begun executing the removal order. And as his counsel learned only hours after

filing the application, García Mendoza was on a flight to Texas. Yet later that day,

through an emergency conference call, the District Court held a hearing and orally

entered a temporary restraining order, which enjoined García Mendoza’s removal and

ordered ICE to prevent him from crossing the border into Mexico. In so doing, the

District Court was quite conscious of the timing, recognizing that “it may be impractical

or impossible to actually . . . stop the deportation” and stating that the court would “draw

no negative inference if it can’t be done logistically.” Tr. of Oral Arg. 9:21–10:1,

May 19, 2020, ECF No. 20 (JA 209–10). That was prescient: approximately one hour

after the order, García Mendoza reentered Mexico.

A week later, the District Court held a telephone conference on the merits of

García Mendoza’s habeas petition. During that hearing, counsel for García Mendoza

4 sought an order for García Mendoza’s return to the United States. Through such an

order, counsel contended, García Mendoza could reopen his immigration proceedings and

apply for a U-visa, while also avoiding physical attack in Mexico, which he feared. In

opposing that petition, the government argued that the District Court lacked jurisdiction

over the entire suit and therefore had no authority to issue the temporary restraining

order.

After considering those arguments, the District Court dismissed García Mendoza’s

habeas petition. The District Court concluded that it lacked jurisdiction over the habeas

petition pursuant to

(b)(9). That subsection channels challenges to “all

questions of law and fact . . . arising from any action taken or proceeding to remove an

alien from the United States” into a petition for review of a final order of removal. See

(b)(9); E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec.,

(3d Cir. 2020) (explaining that § 1252(b)(9) funnels “most claims that even relate to

removal” into a petition for review of a final removal order in accordance with subsection

(a)(5)). The District Court further reasoned that even if it had jurisdiction initially,

García Mendoza’s removal mooted the habeas action because he was no longer detained.

García Mendoza timely appealed that final decision, bringing this case within the

appellate jurisdiction of this Court. See

. In addition to the arguments

raised before the District Court, the government now defends the District Court’s

judgment on another basis. It argues that, under the jurisdiction stripping provision in

(g), no federal court has jurisdiction over García Mendoza’s habeas

petition.

5 II.

Because García Mendoza is no longer detained, the subsection (g) argument is the

most natural starting point for the analysis. Through that subsection, Congress generally

stripped federal courts of jurisdiction over challenges to the execution of removal

orders. See

(g). Although subsection (g) contains clear language

repealing habeas jurisdiction as a means of challenging the execution of removal orders,

it also has an exception:

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.

(g) (emphasis added). In construing the statute, this Circuit has

interpreted that exception to permit challenges to the execution of removal orders, but

only through petitions for review of an order of removal:

If an alien challenges one of those discrete actions, [to commence proceedings, adjudicate cases, or execute removal orders against any alien,] § 1252(g) funnels jurisdiction over that challenge into a petition for review in a single court of appeals.

Tazu v. Att’y Gen.,

(3d Cir. 2020). In that same case, this Circuit held

that challenges to the execution of removal orders include attacks on the timing of the

execution of the removal order. See

(explaining that “the discretion to decide

whether to execute a removal order includes the discretion to decide when to do it”).

Under those principles, the jurisdictional viability of García Mendoza’s habeas

petition collapses. García Mendoza did not challenge the execution of his removal

6 through a petition for review of a final order of removal, as he could have. Instead, he

sought to pursue that challenge through a habeas petition. But by enacting subsection (g),

Congress stripped away that alternative, and federal courts lack jurisdiction over García

Mendoza’s habeas petition.

III.

García Mendoza offers three counterarguments to avoid jurisdictional dismissal,

but none succeed.

First, García Mendoza tries to sidestep subsection (g) by contending that ICE

lacked the authority to remove him after the District Court issued a temporary restraining

order. But subsection (g) applies not just to appellate courts; it also strips jurisdiction

from district courts. And in the District Court, García Mendoza brought a challenge to

the execution of his removal order: he wanted to enjoin his removal to allow him more

time to reopen his immigration proceedings and to apply for a U-visa. Because

subsection (g) deprives federal courts of jurisdiction over such challenges, the District

Court lacked jurisdiction to issue the temporary restraining order. Thus, that order did

not prevent ICE from removing García Mendoza.

Second, García Mendoza argues that the Suspension Clause prevents

subsection (g) from stripping jurisdiction over his habeas petition. See generally U.S.

Const. art. I, § 9, cl. 2 (“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.”). But Congress does not suspend the writ of habeas corpus when it provides an

adequate and effective substitute “to test the legality of a person’s detention.” Swain v.

7 Pressley,

(1977). A petition for review of a final order of removal is

such an adequate and effective alternative. See Kolkevich v. Att’y Gen.,

(3d Cir. 2007). That option was available to García Mendoza, but he did not pursue

it. It is his own decision, not a legislative act of Congress, that leaves García Mendoza

without a present means of disputing the execution of his removal order. For that reason,

his Suspension Clause argument fails. See Verde-Rodriguez v. Att’y Gen.,

(3d Cir. 2013).

Finally, García Mendoza argues that his due process challenge salvages federal

court jurisdiction over his habeas petition. He contends that he may proceed under

federal question jurisdiction, see

, because he brings that constitutional

claim. But he misconstrues the scope of subsection (g). It strips not only jurisdiction

pursuant to the habeas statutes but also all other grants of jurisdiction not within its

exception. See

(g). And that exception applies only to grants of

jurisdiction codified in

, which does not include federal question

jurisdiction. See, e.g.,

§ 1252(a)(5), (g). Thus, the presence of a separate federal

question does not exempt García Mendoza’s habeas petition from subsection (g). See

Tazu,

(holding that due process challenges to removal are not immune to

the provisions of § 1252(g)). To the extent that García Mendoza had any cognizable due

process challenge to his removal procedures, he could have raised it in a petition for

review, see

(a)(2)(D), but he waived that right.

8 ***

For these reasons, we will affirm the District Court’s judgment dismissing this

case for lack of subject matter jurisdiction.

9