Chhetri v. Director of Etowah County Detention Center

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE

         This is 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.^[1] (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.

         I. Background

         Petitioner 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).

         At his credible fear assessment interview, Petitioner claimed that Maoist's^[2] 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.^[3](Id. at 5). Petitioner indicated that he did not inform the police of the attack because he was only “a little boy”^[4] 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.).

         The 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).

         On 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 ¶11).

         Petitioner contends that Respondents applied an incorrect legal standard to Petitioner's credible fear application, which caused them to reach an erroneous result.^[5] 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)

         II. Legal Standard

         Federal 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.

         A. Expedited Removal Procedures

         According 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).

         Credible 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 ...