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Bzeih v. Sessions

United States District Court, N.D. Alabama, Southern Division

January 29, 2018

SAFI MOUSTAFA BZEIH, Petitioner,
v.
JEFFERSON B. SESSIONS, III, et al., Respondents. SAFI MOUSTAFA BZEIH, Petitioner,
v.
JEFFERSON B. SESSIONS, III, et al., Respondents.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         These cases are before the court on Petitioner's Petition for Writ of Habeas Corpus (Doc. # 1, No. 2:16-cv-01491-RDP-JHE; Doc. # 1, No. 2:17-cv-01398-RDP) and Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. # 20, No. 2:17-cv-01398-RDP). After this case was transferred to the undersigned, the court issued a Show Cause Order directing Petitioner to explain “why his petition should not be denied due to his failures to cooperate with ICE's removal efforts.” (Doc. # 18 at 2, No. 2:16-cv-01491-RDP-JHE). Petitioner has submitted responses to the Show Cause Order and supplemental evidence. (See Docs. # 19, 20, No. 2:16-cv-01491-RDP-JHE). The court granted Respondents an opportunity to file supplemental arguments and evidence (Doc. # 18 at 2, Case No. 2:16-cv- 01491-RDP-JHE), but they submitted no supplement. After careful review, and for the reasons explained below, the court concludes that the Petitions for Writ of Habeas Corpus (Doc. # 1, No. 2:16-cv-01491-RDP-JHE; Docs. # 1, 20, No. 2:17-cv-01398-RDP) are due to be dismissed in part for lack of jurisdiction and denied in part.

         I. Procedural History and Factual Background

         On July 20, 2015, Petitioner filed a habeas corpus petition in the United States District Court for the Western District of Louisiana pursuant to 28 U.S.C. § 2241(e).[1] (Doc. # 1, Case Number 2:17-cv-01398-RDP). At the time he filed his petition in the Western District of Louisiana, however, Petitioner was incarcerated in the Etowah County Jail in Gadsden, Alabama. (Id. at 2). Therefore, in September 2016, a Magistrate Judge in the Western District of Louisiana transferred this matter to this court under 28 U.S.C. § 1406. (Doc. # 3, No. 2:17-cv-01398-RDP). However, in March 2017, the Department of Justice informed the court that Petitioner was being detained in Jena, Louisiana. (Doc. # 12 at 1, Case Number 2:17-cv-01398-RDP). Accordingly, in May 2017, the court transferred this action back to the Western District of Louisiana. (Doc. # 14, Case Number 2:17-cv-01398-RDP).

         A Magistrate Judge in the Western District of Louisiana ordered Petitioner to file an amended habeas petition.[2] (Doc. # 18, Case Number 2:17-cv-01398-RDP). Petitioner complied and submitted an amended habeas corpus petition. (Doc. # 20, Case Number 2:17-cv-01398-RDP). In his amended June 2017 petition, Petitioner averred that he was detained in Jena, Louisiana. (Id. at 1, 10). Nevertheless, the Magistrate Judge transferred this action back to this court after concluding that the Western District of Louisiana lacked jurisdiction. (Doc. # 22 at 1, Case Number 2:17-cv-01398-RDP). Following the transfer, the court rescinded its May 2017 order transferring the action to the Western District of Louisiana, reopened Case Number 2:16-cv-01491-RDP-JHE, and consolidated these habeas actions. (Doc. # 17, Case Number 2:16-cv-01491-RDP-JHE).

         In his habeas petitions, Petitioner asserts that Respondents have violated his procedural and substantive due process rights by continuing to detain him without a bond. (Doc. # 1 at 3-4, No. 2:16-cv-01491-RDP-JHE). He has claimed that his continued detention violates the Supreme Court's ruling in Zadvydas v. Davis, 533 U.S. 678 (2001). (See Id. at 2). Moreover, he has claimed that he should be granted habeas relief because he has six children in the United States that rely on his financial support, his wife has petitioned for him to receive residency status, he has applied for a U-visa premised on him being a victim of a crime, and he cannot safely return to his country of origin -- Lebanon -- due to his religion. (Doc. # 20 at 6-9, No. 2:17-cv-01398-RDP).

         Richard Brooks, an assistant field office director for Immigration and Customs Enforcement (“ICE”), has averred that the immigration courts issued a final order of removal against Petitioner in 2012. (Doc. # 9-1 at 1-2, No. 2:17-cv-01398-RDP). In August 2012, ICE submitted a travel document request to the Lebanese embassy. (Id. at 3). In October 2012, a post-removal-order custody review was held, and ICE decided to continue Petitioner's detention. (Id.). In December 2012, ICE received a travel document for Petitioner, but Petitioner refused to board a flight to Lebanon in January 2013. (Id.). In August 2013, ICE obtained another travel document for Petitioner from Lebanon. (Id.). In September 2013, Petitioner applied for a stay of removal, and he received a six-month stay of removal in light of his pending U-visa application. (Id.). In March 2014 and June 2014, Petitioner applied for and received additional three-month stays of removal. (Id. at 4). When Petitioner's U-visa application was denied, he filed a petition for review with the Ninth Circuit, which granted him a temporary stay of removal. (Id.). The Ninth Circuit transferred the petition for review to the Eleventh Circuit, and, in February 2015, the Eleventh Circuit dismissed that petition for review. (Id.).

         According to Brooks, in March 2015, Petitioner refused to re-apply for a travel document. (Id.). And, in April 2015, Petitioner filed a motion for a bond hearing with the Board of Immigration Appeals, which was dismissed. (Id. at 4-5). In August 2015, Petitioner filed a petition for review from that denial of bond with the Eleventh Circuit; the Eleventh Circuit dismissed the petition for review in September 2015. (Id. at 5). In November 2015, Petitioner again applied for a U-visa. (Id.). In December 2015, Petitioner applied for and received a six-month stay of removal. (Id.). An ICE officer informed Petitioner in December 2015 that he would remain in ICE custody until he made “reasonable efforts to comply with the order of removal.” (Id. at 5, 13). The ICE officer warned Petitioner that he could be criminally prosecuted for willful failure or refusal to apply for travel documents. (Id. at 13). Along with the notice, ICE provided Petitioner a list of actions that he needed to complete within thirty days. (Id. at 12). In January 2016, an ICE officer presented Petitioner with another notice of his failure to apply for a travel document as required. (Id. at 5, 11).

         In April 2016, an ICE officer provided Petitioner a list of actions he needed to take within thirty days in order to apply for a travel document. (Id. at 10). Thereafter, Petitioner filed a petition for review with the Second Circuit, which the Second Circuit dismissed. (Id. at 6). Brooks has averred that the Lebanese consulate sent forms to ICE that Petitioner must sign and fingerprint in order to receive a travel document. (Id.). But, in February 2017, Petitioner refused to complete the application. (Id.). That same month, an ICE official sent Petitioner another notice of his failure to comply and explained that Petitioner would remain in custody due to his non-compliance. (Id. at 8).

         II. Analysis

         For the reasons explained below, the court concludes that Petitioner's habeas action is due to be dismissed in part for lack of jurisdiction and denied in part.

         A. The Court Lacks Jurisdiction to Consider Petitioner's Challenges to His Final Order of Removal

         In his amended habeas petition, Petitioner presents several reasons why he should not be deported, including a need to financially support his children and his fear of returning to Lebanon due to his religion. (Doc. # 20 at 6-9, No. 2:17-cv-01398-RDP). However, it is clear that these claims seek to challenge the final order of removal that has been entered against Petitioner. And, this court lacks jurisdiction to review the final order of removal because orders of removal are reviewed by the circuit courts of appeals. See 8 U.S.C. § 1252(a)(5). Therefore, Petitioner's challenges to the final order of removal in these consolidated actions are due to be dismissed without prejudice for lack of jurisdiction.[3]

         B. Petitioner is Not Entitled to Relief ...


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