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Vargas v. United States Department of Homeland Security

United States District Court, W.D. Louisiana, Alexandria Division

March 10, 2017

DANIELA VARGAS
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET AL.

          PEREZ-MONTES MAGISTRATE JUDGE.

          MEMORANDUM ORDER FOR TRANSFER OF PETITION FOR REVIEW

          DEE D. DRELL CHIEF DISTRICT JUDGE.

         I. Background

         Before the Court is a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2241 by Daniela Vargas ("Vargas"). Vargas also filed a "Notice of Intent to Issue a Final Administrative Removal Order" and a "Final Removal Order" (Doc. 2-18). Vargas, a native and citizen of Argentina, has been in the custody of the United States Department of Homeland Security, U.S. Immigration and Customs Enforcement ("ICE") since March 1, 2017. Vargas alleges that she arrived in the United States under the Visa Waiver Program in 2001, when she was seven years old, and has twice been granted deferred action on removal under the Deferred Action for Childhood Arrivals ("DACA") program, in 2012 and 2014. Vargas failed to reapply timely for deferred action under DACA in 2016.

         Vargas alleges she reapplied for deferred action in February 2017. Her DACA application is still pending. Vargas also alleges that an application for a "U" nonimmigrant visa[1] was filed on her behalf in 2014, which is also still pending.

         Vargas's brother and father were arrested by ICE in February 2017. During their arrest, Vargas told the ICE agents that she had been granted deferred action. The agents left with Vargas's father and brother, but later returned with a search warrant. Vargas claims the agents forcibly entered the house and conducted a search, but did not arrest her, stating she was being given a "hall pass."

         On March 1, 2017, Vargas made statements to the media concerning the arrests. Shortly after that press conference, Vargas was arrested and detained by ICE. Vargas alleges that an ICE official told her she will be summarily removed from the United States without a hearing, because she waived her right to contest removal when she was admitted in 2001 pursuant to the Visa Waiver Program.[2]

         Vargas filed an "Emergency Motion for Stay of Removal" (Doc. 2). Vargas also seeks: (1) a release from detention, ' (2) a copy of all of Vargas's immigration records[3], ' (3) rescission of the "Final Administrative Removal Order"; (4) a judgment declaring Vargas is being detained in violation of the First and Fifth Amendments to the United States Constitution and the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. § 1001, et seq.; and (5) an award of costs and attorney fees. Vargas alleges and shows (Doc. 2-18) that she is subject to a final administrative order of removal.

         II. Jurisdictional Analysis

         On May 11, 2005, the REAL ID Act of 2005 was enacted as part of the Emergency Supplemental Appropriations Act for Defense, The Global War on Terror, and Tsunami Relief, 2005, P.L. 109-13, 119 Stat 231. The REAL ID Act deprives the district courts of habeas jurisdiction to review orders of removal, 8 U.S.C. § 1252(a)(5), as added by § 106(a)(1)(B) of the REAL ID Act, Pub. L. 109-13, and further directs that habeas cases "challenging a final administrative order of removal" be transferred to the courts of appeals to be treated as petitions for judicial review, REAL ID Act, § 106(c). See Hernandez v. Gonzales, 424 F.3d 42, 42-43 (1st Cir. 2005); see also Hernandez-Castillo v. Moore. 436 F.3d 516, 518 (5th Cir.2006), cert, den., 549 U.S. 810 (2006) ("The Act explicitly forecloses habeas review of removal orders and provides that a petition for review is the sole and exclusive means of judicial review for all removal orders except those issued pursuant to 8 U.S.C. § 1225(b)(1)."); Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 735 (5th Cir. 2005), cert, den., 546 U.S. 1106 (2006) ("[T]he REAL ID Act has divested federal courts of jurisdiction over § 2241 petitions attacking removal orders, effective immediately and retroactively.").

         However, as indicated in the legislative history of the REAL ID Act, those provisions were not intended to "preclude habeas review over challenges to detention that are independent of challenges to removal orders." See Hernandez, 424 F.3d at 42-43 (citing H.R. Cong. Rep. No. 109-72, 2873 (May 3, 2005)); see also Baez v. Bureau of Immigration & Customs Enf t, 150 Fed.Appx. 311, 312 (5th Cir. 2005) ("Section 106(a) of the [REAL ID] Act does not, however, preclude habeas review of challenges to detention that are independent of challenges to removal orders".). Where an action has been improvidently filed in a court lacking subject matter jurisdiction, want of jurisdiction may be cured, in the interest of justice, by transfer of the action to the court in which the action should have been brought. See 28 U.S.C. § 1631; Berrunr Garcia v. Comfort. 390 F.3d 1158 (10th Cir. 2004).[4]

         Vargas raises five issues in her habeas petition.

         First, Vargas alleges she is being denied the opportunity to challenge her continued detention because she allegedly waived her right to contest her removal when she was admitted pursuant to the Visa Waiver Program.[5] The right to challenge detention pending removal is independent of the right to challenge a final order of removal. See Baez, 150 Fed.Appx. at 312. Although this Court has subject matter jurisdiction to consider Vargas's pre-removal detention, this Court does not have jurisdiction to consider Vargas's challenge to her removal order concerning her admission pursuant to the Visa Waiver Program. See Kim v. Obama, 2012 WL 10862140 (W.D. Tex. 2012); Maioa v. Watson. 2008 WL 2852416, *1 (N.D. Tex. 2008); Formusoh v. Gonzales. 2007 WL 465305 (N.D. Tex. 2007). That jurisdiction lies with the United States Court of Appeals for the Fifth Circuit.

         Second, Vargas contends she is being denied due process because of her imminent removal through a summary procedure. Again, this Court does not have subject matter jurisdiction to consider any issues pertaining directly to Vargas's removal order. See ...


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