United States District Court, W.D. Texas, El Paso Division
HORABLE DAVID BRIONES SENIOR UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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