United States District Court, N.D. Alabama, Middle Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
an action on a Petition for Writ of Habeas Corpus, brought
pursuant to 28 U.S.C. § 2241, and a Motion for Emergency
Stay of Relief. (Docs. # 1, 6). In both Motions,
Petitioner challenges the legality of his continued detention
by federal immigration authorities pending his removal from
the United States under the Immigration and Nationality Act,
8 U.S.C. § 1101 et seq. (See Doc. #
6). First, Petitioner contends the Asylum Office deprived him
“of a meaningful right to apply for asylum and other
forms of relief, in violation of 8 U.S.C. § 1225(b)(1),
its implementing regulations, and the United States
Convention against Torture … Pub. L. No. 105-277, div.
G, Title XXII, § 2242, 112 Stat. 261 (1998).”
(Doc. # 1 at 4). Second, Petitioner contends the
Respondents' have violated his Due Process rights and
that the habeas corpus review process provided by 8 U.S.C.
§ 1252(e)(2) “is limited so as effectively to
suspend the Writ of Habeas Corpus as applied to [him].”
(Id. at 5-6). After careful consideration, the court
concludes Petitioner's Motion (Doc. #6) is due to be
denied for lack of subject-matter jurisdiction.
is a citizen and native of Nepal, who fled his home country
on June 29, 2018. (Doc. # 10-3 at 5). On January 23, 2019,
Petitioner was observed by United States Customs and Border
Protection unlawfully entering the United States. (Doc. #
10-1 at ¶5). When apprehended, Petitioner admitted his
entry into the United States was unlawful but requested
asylum because he expressed fear of returning to Nepal.
(Id.) Because Petitioner claimed he was fearful of
returning to his native country, ICE referred
Petitioner's case to an asylum officer for a
“credible fear” assessment. (Doc. # 10-3 at 5).
credible fear assessment interview, Petitioner claimed that
Maoist's had threatened and beaten him in the past
for his failure to comply with their demands. (Id.).
Specifically, Petitioner claims that on April 13, 2018 he was
beaten by Maoist's with wooden logs and
boots.(Id. at 5). Petitioner indicated
that he did not inform the police of the attack because he
was only “a little boy” and the Maoist's said
they would kill him and his entire family. (Id. at
6). Petitioner also stated that the police did not help his
uncle when he reported similar threats. (Id.).
asylum officer determined that Petitioner did not have a
credible fear of persecution or torture pursuant to 8 C.F.R.
§ 208.30, because “there is no significant
possibility that [Petitioner] could establish in a full
hearing that the entity that harmed [him] . . . is an agent
of the government or an entity the government was/is unable
or unwilling to control.” (Doc. # 10-2 at 2). Thus, the
asylum officer issued Petitioner a Record of Negative
Credible Fear Finding. (Id.). The asylum
officer's decision was reviewed and approved by a senior
asylum officer. (Id. at 9).
February 13, 2019, Petitioner requested review of the asylum
officer's decision, and the supervisor's subsequent
affirmation, by an immigration judge (“IJ”).
(Id. at 1-2). On March 11, 2019, Petitioner appeared
before an IJ in Jena, Louisiana to contest the decision of
the asylum officer. (Id.) On de novo review, the IJ
affirmed the asylum officer's determinaxtion and returned
Petitioner to the Department of Homeland Security
(“DHS”) and Immigration and Customs Enforcement
(“ICE”) for removal. (Id.). However,
Petitioner has continually refused to complete an application
for travel, which has delayed his removal. (Doc. # 10-1 at
¶11). He is currently being held at the Etowah County
Detention Center in Gadsden, Alabama. (Doc. # 10-1 at
contends that Respondents applied an incorrect legal standard
to Petitioner's credible fear application, which caused
them to reach an erroneous result. Further, Petitioner argues
the credible fear screening process violated 8 U.S.C. §
1225(b)(1) by “not providing him with a meaningful
opportunity to establish his claims or challenge the
[Respondent's] denial of his asylum claim, failing to
comply with the applicable statutory and regulatory
requirements, and in not providing him with a reasoned
explanation for his decision.” (Doc. # 6 at 5)
courts are courts of limited jurisdiction, and it is
“exclusively the power of Congress to restrict the
jurisdiction of federal courts to adjudicate certain types of
cases.” Garcia v. Martin, 379 F.Supp.3d 1301,
1304 (S.D. Fla. Nov. 14, 2018) (citing Keene Corp. v.
U.S., 508 U.S. 200, 207 (1993)) (“Congress has the
constitutional authority to define the jurisdiction of the
lower federal courts … and, once the lines are drawn
‘limits upon federal jurisdiction … must be
neither disregarded nor evaded”). At the heart of this
case are the statutory and regulatory provisions of the
expedited removal process. Therefore, the court will first
provide a brief overview of the provisions which govern the
framework for expedited removal (“ER”). Second,
the court will discuss the Congressional restrictions on
judicial review of final removal orders under ER.
Expedited Removal Procedures
to 8 U.S.C. § 1225(b)(1), and its companion regulations,
two classes of aliens are subject to expedited removal if an
immigration officer determines they are inadmissible due to
misrepresentation or lack of immigration papers: (1) aliens
“arriving in the United States, ” and (2) aliens
“encountered within 14 days of entry without inspection
and within 100 air miles of any U.S. international land
border.” 8 U.S.C. § 1225(b)(1)(A)(i) & (iii).
If an alien falls into one of these two classes, and
indicates to the immigration officer that he fears
persecution or torture if returned to his native country, the
officer “shall refer the alien for an interview by an
asylum officer” to determine if she “has a
credible fear of persecution [or torture].” 8 U.S.C.
§§ 1225(b)(1)(A)(ii), 1225(b)(1)(B)(ii); 8 C.F.R.
§ 208.30(d). The asylum officer will interview the
alien, consider relevant facts, and determine whether the
alien has a credible fear. 8 U.S.C. § 1225(b)(1)(A)-(B);
see 8 C.F.R. § 208.30(d)-(e).
fear is defined as “a significant possibility, taking
into account the credibility of the statements made by the
alien in support of the alien's claim and such other
facts as are known to the officer, that the alien could
establish eligibility for asylum under section 1158 of this
title.” 8 U.S.C. § 1225(b)(1)(B)(v); see
also 8 C.F.R. § 208.30(e)(3) (“An alien will
be found to have a credible fear of torture if the alien
shows that there is a ...