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Valle v. U.S. Department of Homeland Security

United States District Court, N.D. Texas, Dallas Division

December 27, 2019

RENE FLORES VALLE, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants.

          MEMORANDUM ORDER AND OPINION

          SAM A. LINDSAY UNITED STATES DISTRICT JUDGE

         Before the court is Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction (“Motion”) (Doc. 6), filed September 26, 2019. On October 8, 2019, United Stated Magistrate Judge David L. Horan entered the Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”) (Doc. 13), recommending that the court dismiss this action without prejudice for lack of subject matter jurisdiction. For the reasons that follow, the court determines that the findings and conclusions of the Magistrate Judge are correct, accepts them as those of the court, and dismisses without prejudice this action.

         I. Background

         Plaintiffs challenge and seek judicial review of the policy of the Department of Homeland Security Policy (the “DHS Policy”) that “it [will] no longer produce detained immigrants to immigration court to attend their removal proceedings in person[.] Instead, removal proceedings for detained immigrants would be conducted exclusively over [video teleconference (“VTC”)].” The Magistrate Judge determined that the court does not have jurisdiction over this action because Plaintiffs seek judicial review of “part of the process by which removability is determined, ” and pursuant to 8 U.S.C. § 1252(b)(9), such judicial review is beyond the jurisdiction of this court. The Magistrate Judge further determined that Plaintiffs' challenge to the exclusive use of VTC in removal proceedings remains available under § 1252(b)(9)'s channeling rule.

         On October 22, 2019, Plaintiffs filed their Objections to Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Objections”) (Doc. 14). In their Objections, Plaintiffs' main contention is that the Magistrate Judge “mischaracterized the agency action as an ‘action' that ‘arises from' their removal proceedings” where their challenge to the DHS Policy is actually “independent of, and collateral to” their removal proceedings. Pls.' Obj. 2. Additionally, Plaintiffs assert that their challenge is beyond the scope of claims barred under § 1252(b)(9), and “due to their inability to raise their claim efficaciously within the administrative proceedings, their claim is exempt from the exhaustion requirement under § 1252(d)(1).” Id. Thus, according to Plaintiffs, this court is the appropriate forum to challenge the DHS Policy. Plaintiffs further assert that the Magistrate Judge failed to consider other bases upon which this court may have jurisdiction, which include jurisdiction conferred under 28 U.S.C. §§ 1331, 1361, 1651(a), 2201(a), 2241(c), and 5 U.S.C. § 702. These objections also stem from the Magistrate Judge's alleged mischaracterization of this action as one arising from removal proceedings.

         On November 5, 2019, Defendants filed their response to Plaintiffs' Objections and asserted that the Magistrate Judge's Report was correct in the determination that this action arises from removal proceedings, and, thus, the court lacks jurisdiction to entertain this action. Specifically, they assert that Congress has established a judicial review framework for removal proceedings under 8 U.S.C. § 1252(a)(5) & (b)(9), which permits Plaintiffs to challenge the use of VTC by filing a petition for review in the appropriate court of appeals once the Board of Immigration Appeals (“BIA”) issues a final order. They further assert that the Fifth Circuit has considered the use of VTC in removal proceedings “in the context of petitions for review of decisions of the [BIA].” Id. Thus, according to Defendants, the court should accept the Magistrate Judge's recommendation to dismiss this action because Plaintiffs have failed to establish that the court has jurisdiction over their claims.

         II. Discussion

         A. Whether This Action “Arises From” a Removal Proceeding

         Plaintiffs first objection is that the Magistrate Judge mischaracterized this agency action as one “arising from” removal proceedings as used in 8 U.S.C. § 1252(b)(9). Section 1252(b)(9) provides:

Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.

         Plaintiffs assert that “their suit challenges a DHS [P]olicy and practice that is in no way related to their removability determination and only remotely connected to their removal proceedings, in accordance with the plain language of [§ 1252(b)(9)].” Pls.' Obj. 3. They further contend that this provision does not “sweep within its scope claims with only a remote or attenuated connection to the removal of an alien, ” thus excluding Plaintiffs' action from its limitations. Id. (quoting Duron v. Johnson, 898 F.3d 644, 647 (5th Cir. 2018)) (internal quotation marks omitted).

         In support of this proposition, Plaintiffs suggest that what constitutes a removal proceeding stems from the language in 8 U.S.C. § 1229a. Specifically, they allege that this “statutory text does not establish that the agency action challenged here ‘arises from' removal proceedings, ” and states:

The relevant sections under § 1229a provide that, “[a]n immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien, ” and that “a proceeding under [§ 1229a] shall be the sole and exclusive procedure for determining whether an alien [is admissible or removeable] from the United States.” Id. at § 1229a(a)(1)-(3) (emphasis added). Notably, the statute states that, “[n]othing in this section shall affect proceedings conducted pursuant to [8 U.S.C. § 1228 - the procedure for expedited removal proceedings].” Id. at § 1229a(a)(3). Furthermore in regards to the “conduct of proceeding, ” the statute vests exclusive authority with the immigration judge to “administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses, ” “issue subpoenas for the attendance of witnesses and presentation of evidence, ” and “sanction by civil money penalty any action (or inaction) in contempt of the judge's proper exercise of authority under this chapter.” Id. at § 1229a(b)(1).

Pls.' Obj. 4. Accordingly, Plaintiffs assert that the Magistrate Judge's characterization that their challenge to the DHS Policy arises from removal proceedings ignores the fact that Plaintiffs' challenge to the Policy is premised on the notion that it strips the immigration judges of their ...


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