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Shah v. Director, Jackson Parish Correctonal Center

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

September 6, 2019





         On September 5, 2019, after the close of business, Petitioner Binod Shah (“Shah”) filed a “Petition for Writ of Habeas Corpus with Emergency Order to Show Cause Within Three Days Pursuant to 28 U.S.C. § 2241, et seq.” [Doc. No. 1] and a Motion for Emergency Stay of Removal [Doc. No. 2]. Shah named as Respondents the Director of the Jackson Parish Correctional Center; Immigration & Customs Enforcement, Detention and Removal Operations; Thomas Homan, Director, Immigration and Customs Enforcement; Kevin McAleenan, Acting Secretary of Department of Home Land Security; and William P. Barr, U.S. Attorney General.

         According to his Petition, Shah is a male native and citizen of Nepal. Shah asserts that he is a member of the Nepali Student Union and that he has been threatened and persecuted for the membership and supporting the Nepali Congress Party against the Maoist Communist Party. He further asserts that Maoists threatened and beat him for not complying with their demands. He left Nepal on an unspecified date and came to the United States. Since his departure, he asserts that Maoists have looked for him, inquired with his mother, and left a threatening letter asking for a donation and declaring his family to be the enemy.

         Again, on an unspecified date, after arriving in the United States, Shah sought asylum. He states that he presented testimony to support his asylum claim, but that the Asylum Office determined that he did not have a “credible fear” of persecution and placed Shah in expedited removal proceedings. He is being held at the Jackson Parish Correctional Center.

         In his Petition and Motion, Shah seeks habeas relief in the form of (1) a determination that Respondents did not follow the correct legal procedures and applied an incorrect legal standard in finding that he had not demonstrated credible fear; (2) an order finding that Respondents' lack of credible fear finding is without any basis in fact or law allowing him to proceed with his asylum application; (3) an order requiring Respondents to provide an explanation of their decision; (4) an order of interim release pending a final decision an any appeal of such decision; (5) costs and attorneys' fees; and (6) any other and further relief that is fit and proper. Alternatively, Shah seeks a show cause order issued to Defendants to respond in three (3) days why the relief he seeks should not be granted.

         In support of his Petition and Emergency Motion, Shah cites Article I, § 9, clause 2, and the Fifth Amendment of the United States Constitution; 28 U.S.C. §§ 2241 and 2412; Section 236(c) of the Immigration and Nationality Act, as amended 8 U.S.C. § 1101, et seq.; and 8 C.F.R. § 1103.19(h)(2)(i). He contends that his Due Process rights under the Fifth Amendment have been violated by the lack of meaningful credible fear procedures and that the habeas corpus review provided by 8 U.S.C.§ 1252(e)(2) does not permit meaningful opportunity for review or challenge of a credible fear determination, further violating his Due Process rights. Additionally, Shah contends that the Suspension Clause entitles him a meaningful opportunity to demonstrate that he is being held under an erroneous interpretation or application of the law.

         “‘Federal courts are courts of limited jurisdiction,' possessing ‘only that power authorized by Constitution and statute.'” Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Because federal courts are “‘duty-bound to examine the basis of subject matter jurisdiction sua sponte, '” this Court must determine if it has jurisdiction to hear Shah's claims. Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir.2008) (quoting Union Planters Bank Nat. Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004))

         The 2005 REAL ID Act “divested federal [district] courts of jurisdiction over § 2241 [habeas] petitions attacking removal orders.” Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005). Under the Act, “a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means of judicial review of an order of removal entered or issued under any provision of [Chapter 12].” 8 U.S.C.A. § 1252(a)(5). “[T]he terms ‘judicial review' and ‘jurisdiction to review' include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision.” Id. These provisions generally bar district courts from reviewing removal orders, even via a petition for habeas corpus.

         However, pursuant to section 1252(e), judicial review is still available in the district courts for certain challenges related to expedited removal orders issued under § 1225(b)(1). See 8 U.S.C. § 1252(a) (“Judicial review of a final order of removal (other than an order of removal without a hearing pursuant to section 1225(b)(1) of this title) is governed only by chapter 158 of Title 28, except as provided in subsection (b) of this section [governing petitions for review by the court of appeals]. . ..”) (emphasis added); see also Solis-de Patino v. Pitts, 823 F.Supp.2d 457, 459 (W.D. Tex. 2011). The limitations on judicial review of § 1225(b)(1) expedited removal orders contained in § 1252(e) apply and provide as follows:

(1) Limitations on Relief
Without regard to the nature of the action or claim and without regard to the identity of the party or parties bringing the action, no court may--
(A) enter declaratory, injunctive, or other equitable relief in any action pertaining to an order to exclude an alien in accordance with section 1225(b)(1) of this title except as specifically authorized in ...

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