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Alam v. Nielsen

United States District Court, S.D. Texas, Houston Division

May 9, 2018

SYED MUEED ALAM, Petitioner,
v.
KRISTJEN NIELSEN, et al., Respondents.

          MEMORANDUM & ORDER

          KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE

         The story of immigration in American life, it has been said, is a “complicated history of inclusion and exclusion.” Villas at Parkside Partners v. City of Farmers Branch, Tex., 726 F.3d 524, 526 (5th Cir. 2013) (Higginson, J.). At times to further inclusion, at other times to further exclusion, the federal government “has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. U.S., 567 U.S. 387, 394 (2012). Even with that power's breadth, acts of exclusion have “unfolded according to law, but also contrary to law.” Villas at Parkside Partners, 726 F.3d at 526. This case arises from the government's use of its power to exclude Petitioner Syed Mueed Alam from the United States. Alam contends that the government has acted contrary to law. This Court must decide whether that is so.

         A father of three who overstayed his visa nearly two decades ago so his daughter could obtain health care, Alam is now in the custody of U.S. Immigration and Customs Enforcement (ICE). His petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenges that custody as a violation of federal regulations, 8 C.F.R. pt. 241, and a deprivation of due process. (Doc. No. 1.) Respondents--officials, departments, and contractors of the federal government--have moved to dismiss Alam's petition, challenging this Court's jurisdiction over its subject matter. (Doc. No. 10.) In recognition of the jurisdictional question's complexity, the Court has thus far stayed the removal of Alam. (Doc. No. 9, 14.) In the interim, amici have added to the parties' briefing on the jurisdictional question, advancing a theory distinct from Alam's. (Doc. No. 20.)

         Respondents have offered no justification for taking this man from his family and his home after so many years of harmless presence here, and the Court can think of none. It is to this Court's regret, therefore, that Alam's petition fails. It fails not for this Court's lack of subject-matter jurisdiction to consider his regulatory claims, but because those regulations furnish no protection to a person in his unfortunate position. In furtherance of exclusion, Congress has laid out a short and straight path by which the Executive may remove people whose presence here violates the law. The Executive has adopted regulations to serve that purpose, the lawfulness of which Alam does not challenge. A court's role “is not to assess the optimal immigration policies for our country.” City of Chicago v. Sessions, --- F.3d ---, 2018 WL 1868327, at *1 (7th Cir. Apr. 19, 2018). In carrying out its role, a court must abide the separation of powers, “one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government.” Id. Sometimes the separation of powers counsels judicial action. See Id. Here, however, it counsels the opposite. This Court is not “compelled to find the government's action in this case fair or just.” Cf. Ortiz v. Sessions, 857 F.3d 966, 967 (9th Cir. 2018) (Reinhardt, J., concurring). But it is compelled to find it lawful.

         Grateful for the efforts of the parties and amici, mindful of the momentous stakes, but cognizant of its role in our system of government, the Court must grant Respondents' Motion to Dismiss.

         I

         Alam, a native and citizen of Pakistan, was born there in 1965. (Doc. No. 1 at 3.) He brought his family to the U.S. in July 2000 on tourist visas so that one of his daughters could obtain medical care that was unavailable in Pakistan for “a life threatening condition.” (Id.) Letters from American and Pakistani doctors attest to her condition's hazards and to the availability of treatment here but not there. (Doc. No. 1-1 at 26-35.)

         Alam's visa permitted him to be here only six months. (Doc. No. 8-2 at 1.) In March 2003, the government initiated proceedings against Alam for overstaying his visa. (Id.) Alam sought asylum, withholding of removal, and relief under the Convention Against Torture, [1] but an Immigration Judge rejected his application. (Doc. No. 1 at 4.) In May 2004, the judge permitted Alam to depart voluntarily, but instead, he remained in the U.S., appealing his case to the Board of Immigration Appeals. (Doc. No. 8-2 at 1-2.) The Board dismissed his appeal in 2005, and the Fifth Circuit dismissed his petition for review in August 2006. (Doc. No. 1 at 4.) ICE then took Alam into custody that November. (Id.) The next month, however, Alam was released under an Order of Supervision. (Id.) The Order, dated December 28, 2006, permitted Alam to be “at large” in the U.S., provided that he reported when ordered and complied with other conditions. (Doc. No. 1-2 at 34.) Alam supplies that Order as an exhibit, and it bears many stamps showing that he reported as required over the intervening years. (Id. at 35.)

         For a decade afterward, ICE stayed Alam's removal, one or two years at a time. He obtained his first stay, via a letter dated August 2007, from the ICE field office director. (Doc. No. 1-1 at 37.) Relying on 8 C.F.R. § 241.6, the ICE official cited the medical needs of Alam's daughter as the justification. (Id.) Alam also provides letters dated September 2015 and December 2016, granting one-year stays for the same reason. (Id. at 40-41.) In the interim, Alam and his family lived peacefully in the Houston area. (Doc. No. 1-1 at 12.) Alam worked and paid taxes. His other daughter married a U.S. citizen, became one herself, and produced a U.S. citizen grandchild. His two other children--the daughter in need of medical care and a son--received protection under Deferred Action for Childhood Arrivals (DACA). (Id.)

         In December 2017, Alam again applied for a stay of removal (Doc. No. 1-2 at 7), but the government departed from its previous course. In a letter dated January 29, 2018, the ICE field office director, Patrick Contreras, recounted the history of Alam's case and the justifications for prior stays, but without explanation, Contreras concluded that a stay was “not warranted at this time.” (Doc. No. 1-1 at 79-80.)

         Alam had last reported to ICE in August 2017 and was told then to come back in August 2018. (Doc. No. 1-2 at 145.) But after his stay of removal was discontinued, he received a letter instructing him to appear on March 2, 2018.[2] (Id. at 147.) When Alam appeared on March 2, ICE “verbally cancelled” the Order of Supervision under which he had been living and took him into custody. (Doc. No. 8-2 at 2.) His counsel filed the pending habeas petition that same day. (Doc. No. 1.)

         As Alam was pursuing renewal of the stay, he was also working to obtain an adjustment of his status. (Doc. No. 1 at 4.) His U.S. citizen daughter had filed a visa petition on his behalf, which was approved on February 2, 2018. (Id.) On this basis, Alam returned to the Board and filed a motion to reopen his case, on which the Board had last ruled more than a decade earlier. (Doc. No. 1-1 at 5.) Alam's motion, filed on February 9, sought an emergency stay of removal and invoked the Board's authority to reopen proceedings sua sponte “in unique situations where it would serve the interest of justice.” (Id. at 7.) The Board denied his request for an emergency stay on March 19; his motion remains pending before the Board. (Doc. No. 17 at 9.)

         II

         Alam's petition relies on the regulations that govern ICE's authority to revoke orders of supervision and return immigrants to detention. (Doc. No. 1 at 6.) Alam cites 8 C.F.R. § 241.13, which “establishes special review procedures for those aliens who are subject to a final order of removal and are detained … [but] where the alien has provided good reason to believe there is no significant likelihood of removal … in the reasonably foreseeable ...


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