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Hassan v. Decker

United States District Court, W.D. Texas, El Paso Division

August 20, 2019

MOHAMMED HASSAN, Plaintiff,
v.
THOMAS DECKER, New York Field Office Director, et al., Respondents.

          MEMORANDUM OPINION

          HORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE

         On this day, the Court considered the United States of America's ("the Government") "Motion to Dismiss" ("Motion"), filed in the above-captioned case on February 23, 2018. Mot., ECF No. 12-1. Therein, the Government asks the Court to dismiss Petitioner Mohammed Monir Hassan's ("Mr. Hassan") claims for lack of subject matter jurisdiction. Id. On March 7, 2018, Mr. Hassan filed his Response. Resp., ECF No. 24. On March 13, 2018, the Government filed its Reply. Reply, ECF No. 25. By a short order, on March 20, 2018, the Court granted the Government's Motion. Order, ECF No. 27. The Court will now explain the reasons for its decision.

         BACKGROUND

         This is an immigration case involving a Petition for Writ of Habeas Corpus. Mr. Hassan, a citizen of Bangladesh, first entered the United States on or about December 13, 1992 by presenting a fraudulent passport. Mot. 2, ECF No. 12-1; Mot. Ex. A, ECF No. 12-3. Within a few months, on March 3, 1993, Mr. Hassan filed an application for asylum ("1-589") with the United States Immigration and Naturalization Service ("INS"), now the Department of Homeland Security. Mot. 2, ECF No. 12-1; Mot. Ex. B, ECF No. 12-3; Pet'r's Am. Pet. 2, ECF No. 23. INS then referred Mr. Hassan's application to the immigration court for adjudication and, on August 21, 1997, issued him a Notice to Appear charging him pursuant to the Immigration and Nationality Act's ("INA") Section 237(a)(1)(A) (inadmissible at time of entry). Mot. 2, ECF No. 12-1; Mot. Ex. C, ECF No. 12-3; Pet'r's Am. Pet. 2, ECF No. 23.

         On February 21, 1998, Mr. Hassan renewed his 1-589 before the immigration court. Mot. 2, ECF No. 12-1; Mot. Ex. D, ECF No. 12-3. A hearing on the merits of his 1-589 was held on February 17, 2000. Mot. 2, ECF No. 12-1. That same day, the immigration court denied his application for relief and ordered him removed to Bangladesh. Id.; Mot. Ex. E, ECF No. 12-3; Pet'r's Am. Pet. 2, ECF No. 23. Subsequently, Mr. Hassan filed a Notice of Appeal with the Board of Immigration Appeals ("BIA") on March 17, 2000. Mot. 2, ECF No. 12-1. The BIA ultimately dismissed his appeal on February 11, 2003. Id.; Mot. Ex. F, ECF No. 12-3; Pet'r's Am. Pet. 2, ECF No. 23.

         On March 12, 2003, Mr. Hassan filed a Petition for Review with the United States Court of Appeals for the Second Circuit ("Second Circuit"), arguing that the BIA and the immigration court had failed to consider the merits of his claim. Mot. 2, ECF No. 12-1; Mot. Ex. D, ECF No. 12-3. Further, Mr. Hassan filed a Motion to Reopen with the BIA on May 9, 2003, alleging ineffective assistance of counsel. Mot. 3, ECF No. 12-1. The BIA denied Mr. Hassan's Motion to Reopen on October 26, 2004. Id.; Mot. Ex. H, ECF No. 12-3. The Second Circuit granted Mr. Hassan's Petition for Review on March 3, 2006. Mot. 3, ECF No. 12-1; Pet'r's Am. Pet. 2, ECF No. 23. The Second Circuit ultimately remanded the record to the BIA, which issued a decision on March 19, 2007 and remanded the case back to the immigration court. Mot. 3, ECF No. 12-1; Mot. Ex. I, ECF No. 12-3; Pet'r's Am. Pet. 2, ECF No. 23.

         On July 11, 2007, Mr. Hassan filed a third 1-589 before an immigration judge. Mot. 3, ECF No. 12-1; Mot. Ex. J, ECF No. 12-3. On December 4, 2007, following a hearing on the merits, Mr. Hassan's application for relief was denied and the immigration court ordered him removed to Bangladesh. Mot. 3, ECF No. 12-1; Mot. Ex. K, EOF No. 12-3. On December 26, 2007, Mr. Hassan filed an appeal with the BIA regarding the immigration court's decision to remove him, but the BIA dismissed his appeal on September 14, 2009. Mot. 3, ECF No. 12-1; Mot. Ex. L, ECF No. 12-3.

         On September 8, 2011, the Immigration and Customs Enforcement ("ICE") Fugitive Operations Team found Mr. Hassan but, due to a forbearance policy that was in place in the Second Circuit, Mr. Hassan was released under an order of supervision subject to reporting requirements. Mot. 3, ECF No. 12-1; Mot. Ex. N, ECF No. 12-3.

         On July 24, 2014, Mr. Hassan filed another Motion to Reopen and request for a stay of removal with the BIA, which was denied on December 14, 2017. Mot. 4, ECF No. 12-1; Ex. O, ECF No. 12-3.

         On December 11, 2017, Mr. Hassan's oldest United States citizen child filed an Alien Relative Application for Mr. Hassan so that he could become a permanent legal resident. Mot. 4, ECF No. 12-1. That petition is still pending before the United States Citizenship and Immigration Service. Mot. 4, ECF No. 12-1; Mot. Ex. E, ECF No. 12-3.

         On January 2, 2018, the government of Bangladesh issued Mr. Hassan a travel document for the purpose of removal. Mot. 4, ECF No. 12-2; Mot. Ex. P, ECF No. 12-3. Mr. Hassan was scheduled to depart the United States on February 12, 2018 on a charter flight from El Paso, Texas ("El Paso") to Bangladesh. Mot. 4, ECF No. 12-1. On February 8, 2018, the ICE Office of Enforcement and Removal Operations transferred Mr. Hassan to the West Texas Detention Facility in Sierra Blanca, Texas in anticipation of his scheduled departure flight. Id.

         On the day of his departure, Mr. Hassan boarded a plarje in El Paso with a final destination to Bangladesh. Id. However, as a last-minute resort to halt his removal, Mr. Hassan filed a Petition for Writ of Habeas Corpus ("Petition") and Request for a Temporary Restraining Order ("TRO") in this Court. Id. That same day, United States District Judge Philip R. Martinez granted the TRO, enjoining ICE from removing Mr. Hassan to Bangladesh during the pendency of the Petition. Order, ECF No. 3. Mr. Hassan was housed in the El Paso Service Processing Center. Mot. 5, ECF No. 12-1.

         On February 23, 2018, the Government filed the instant Motion, arguing that INA bars this Court from exercising jurisdiction over Mr. Hassan's claims because they attack the execution of the final removal orders entered against him.[1] Mot. 7-9, ECF No. 12-1. According to the Government, INA eliminates district court jurisdiction in favor of federal appellate court jurisdiction in these cases. Id. The ...


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