Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Ravidath Lawrence RAGBIR
Petitioner
vs.
Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY.
Respondents

Case No.:
PETITION FOR WRIT OF HABEAS CORPUS

PRELIMINARY STATEMENT Ravidath “Ravi” Lawrence Ragbir (“Petitioner” or “Mr. Ragbir”) is a father, husband, and nationally recognized immigrant rights activist who has been unlawfully detained by Respondents. Mr. Ragbir’s current detention comes over a decade after he was first placed into removal proceedings in 2006, during which time Mr. Ragbir was subjected to nearly two years of detention before being released on an order of supervision in 2008. Since his release, he has complied with the terms of his supervision and pursued his legal avenues for relief from removal. In addition, Mr. Ragbir has become a leader in the immigrant rights community, and the U.S. Department of Homeland Security has provided him with work authorization and four stays of
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removal, the latest of which is valid through January 19, 2018. Despite having already been subject to prolonged detention a decade ago when he was first placed in removal proceedings, and despite his valid release on an order of supervision and valid stay of removal, Mr. Ragbir has now been re-detained without cause or due process. Separated from his U.S. citizen wife and daughter, and the community he has served, Mr. Ragbir brings this action to challenge his unlawful detention and revocation of his stay and order of supervision as a violation of his constitutional, statutory, and regulatory rights.
As described in further detail below, Mr. Ragbir’s re-detention follows a long history of previous prolonged detention followed by an explicit grant of release and subsequent stays of removal. Mr. Ragbir became a lawful permanent resident in 1994, raising his family in the United States. While working as a salesperson for a now-defunct loan company, Mr. Ragbir was accused and convicted of accepting fraudulent loan applications, resulting in his only arrest and conviction in his over twenty years of living in the United States. In May 2006, after completing his criminal sentence for this conviction, Mr. Ragbir was transferred from criminal to immigration custody. After twenty-two months of custodial immigration detention, the U.S. Department of Homeland Security released Mr. Ragbir pursuant to 8 U.S.C. §1231(a)(6) on an order of supervision. Mr. Ragbir’s release from immigration detention as a result of his outstanding equities proved to be only the beginning of a process of institutional and government recognition of his contributions to community, and determinations that no legitimate purpose would be served by Mr. Ragbir’s detention and removal.
Mr. Ragbir is currently the Executive Director of the New Sanctuary Coalition. Since his release from detention, Mr. Ragbir has devoted his life to the dignity and well-being of others, working tirelessly at the intersection of faith and immigrant communities, and gathering support
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from elected officials at all levels of government, faith leaders, immigrant rights activists and hundreds of community members. Accordingly, he has been granted four administrative stays of removal by the U.S. Immigration and Customs Enforcement Field Office in New York, NY, which have allowed him to remain in the United States with his beloved U.S. Citizen wife and daughter. For nearly ten years, Mr. Ragbir has complied with every condition of his release. On January 11, 2018, with his most recent administrative stay of removal still in place, Mr. Ragbir was suddenly and inexplicably detained by ICE.
Mr. Ragbir’s detention is unlawful for five reasons. First, his detention is not authorized by statute. The post-final order removal statute and associated regulations provide for a removal period, or, in the alternative, supervised release and work authorization. The statute and regulations do not provide for re-detention without cause, notice, and an opportunity to be heard. Second, detention based on a revocation of his order of supervision and/or stay of removal violates Mr. Ragbir’s right to due process. Both Mr. Ragbir’s order of supervision and stay of removal create property and liberty interests in which Mr. Ragbir has a due process right. Third, Mr. Ragbir’s detention without a bond hearing violates the statute and the Constitution because it is unconstitutionally prolonged. Fourth, Mr. Ragbir’s detention violates the statute and the Constitution because his removal is not reasonably foreseeable and therefore his continued detention is without justification. And fifth, Mr. Ragbir’s detention violates the statute and the Constitution because the post-order custody review process is constitutionally inadequate.
For any or all of these reasons, this Court should grant Mr. Ragbir’s habeas petition and order the Government to either release Mr. Ragbir on reasonable conditions of supervision or provide him with a constitutionally adequate bond hearing before an impartial adjudicator where the Government bears the burden of establishing that his continued detention is justified.
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PARTIES 1. Petitioner Ravidath “Ravi” Ragbir is a resident of Brooklyn, NY and Executive Director
of the New Sanctuary Coalition of New York City. He is currently being detained under the direction of Respondents. 2. Respondent Jefferson Sessions III is named in his official capacity as the Attorney General of the United States. In this capacity, he is responsible for the administration of the immigration laws as exercised by the Executive Office for Immigration Review, pursuant to INA § 103(g), 8 U.S.C. § 1103(g), routinely transacts business in the Southern District of New York, is legally responsible for administering Petitioner’s removal proceedings and the standards used in those proceedings, and as such is the legal custodian of Petitioner. Respondent Sessions’ address is U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, District of Columbia 20530. 3. Respondent Kirstjen Nielsen is named in her official capacity as the Secretary of Homeland Security in the United States Department of Homeland Security. In this capacity, she is responsible for the administration of the immigration laws pursuant to Section 103(a) of the INA, 8 U.S.C. § 1103(a) (2007); routinely transacts business in the Southern District of New York; supervises Respondents Decker and Mechkowski; is legally responsible for pursuing Petitioner’s detention and removal; and as such is the legal custodian of Petitioner. Respondent Nielsen’s address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District of Columbia 20528. 4. Respondent Thomas Decker is named in his official capacity as the Field Office Director of the New York Field Office for ICE within the United States Department of Homeland Security. In this capacity, he is also responsible for the administration of immigration
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laws and the execution of detention and removal determinations, supervises Respondent Mechkowski, and is legal custodian of Petitioner. Respondent Decker’s address is New York ICE Field Office Director, 26 Federal Plaza, 11th Floor, New York, New York 10278. 5. Respondent Scott Mechkowski is named in his official capacity as the Assistant Field Office Director of the New York Field Office for ICE within the United States Department of Homeland Security. In this capacity, he is responsible for the administration of immigration laws and the execution of detention and removal determinations, and is legal custodian of Petitioner. Respondent Mechkowski’s address is New York ICE Field Office, 26 Federal Plaza, 9th Floor, New York, New York 10278. 6. Respondent Department of Homeland Security (“DHS”) is the federal agency responsible for enforcing Petitioner’s continued detention pending his removal proceedings. DHS’s address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District of Columbia 20528.
JURISDICTION 7. Petitioner is currently detained under the authority of Respondents. On January 11, 2018,
at the time of filing, Petitioner was physically present within the Southern District in Respondents’ custody while he was detained while checking-in with ICE at 26 Federal Plaza, New York, NY. 8. This Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1331, and Article I, § 9, cl. 2 of the United States Constitution; the All Writs Act, 28 U.S.C. § 1651; the Administrative Procedure Act, 5 U.S.C § 701; and for injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Petitioner’s
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current detention as enforced by Respondents constitutes a “severe restraint[] on [Petitioner’s] individual liberty,” such that Petitioner is “in custody in violation of the . . . laws . . . of the United States.” See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973); 28 U.S.C. § 2241(c)(3). 9. Federal district courts have jurisdiction to hear habeas claims by noncitizens challenging the lawfulness or constitutionality of their detention by DHS. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
VENUE 10. The Southern District of New York is the proper venue to resolve Mr. Ragbir’s petition
for a writ of habeas corpus. Mr. Ragbir is from New York City and was apprehended in New York City. Mr. Ragbir is being detained under the authority of Respondents Thomas Decker and Scott Mechkowski, and both share the official address of the ICE Field Office at 26 Federal Plaza, New York, New York, within the Southern District. Most of the substantial events relevant to the present case occurred within the District, including Mr. Ragbir’s receipt of four stays of removal from the ICE Field Office at 26 Federal Plaza and his re-detention while at his place of work in New York, NY. Furthermore, this Petition was filed on January 11, 2018 while Mr. Ragbir was physically present within the Southern District of New York at 26 Federal Plaza, New York, NY 10278.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 11. Petitioner has no administrative remedies to exhaust. The only administrative process
available to Mr. Ragbir is the ability to pursue Post Order Custody Review (“POCR”), which Mr. Ragbir has already pursued three times, leading to his release nine years ago.
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There is no reason to disrupt the 2008 administrative decision to release Mr. Ragbir and there is no other administrative process available to individuals facing re-detention. 12. Moreover, even if there were administrative redress that petitioner could seek, Petitioner need not exhaust his administrative remedies. The detention statute pursuant to which Mr. Ragbir is detained, 8 U.S.C. § 1231(a), has no exhaustion requirement. Exhaustion is required only when Congress specifically mandates it. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). In all other instances, “sound judicial discretion governs.” Id. 13. This Court also should not require Petitioner to exhaust his administrative remedies. First, the Supreme Court has recognized that courts should not require exhaustion where there is an unreasonable or indefinite time-frame for administrative action. Exhaustion is thus not appropriate where plaintiff “may suffer irreparable harm if unable to secure immediate judicial consideration of his claim.” Id. at 147. Petitioner has a constitutionally protected liberty interest in his freedom from government custody. Zadvydas, 533 U.S. at 690. Petitioner’s unlawful indefinite detention constitutes irreparable harm. See SeretseKhama v. Ashcroft, 215 F. Supp.2d 37, 53 (D.D.C. 2002); Hardy v. Fischer, 701 F.Supp. 2d 614, 619 (S.D.N.Y. 2010) (threat of unlawful detention and reimprisonment would constitute quintessential irreparable harm). 14. Second, exhaustion is not required where the Petitioner challenges the constitutionality of the agency procedure itself, “such that the question of the adequacy of the administrative remedy is for all practical purposes identical with the merits of the plaintiff’s lawsuit.” McCarthy, 503 U.S. at 148 (internal brackets omitted). In this case, Petitioner is challenging the constitutionality of any administrative procedures by which Respondents
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review the custody status of immigrants in his situation, including the post-order custody review process. Thus, exhaustion of administrative remedies is not required.
STATEMENT OF FACTS REGARDING MR. RAGBIR AND HIS CURRENT DETENTION
15. Mr. Ragbir is a longtime Lawful Permanent Resident, community leader, and husband and father to U.S. Citizens. Mr. Ragbir has lived in the United States for over two decades and has been a Lawful Permanent Resident since 1994. Ex. 1-C, Mr. Ragbir’s Immigrant Visa and Alien Registration. Mr. Ragbir has a 22-year-old daughter, Deborah Ragbir, who is a graduate of Rutgers University, and he currently lives in Brooklyn, NY, with his wife, Amy Gottlieb, who is the Associate Regional Director for the Northeast Region of the American Friends Service Committee. Ex. 1-D (Birth Certificate of Deborah Ragbir); Ex. 1-E (Marriage Certificate of Petitioner and Amy Gottlieb); Ex. 1-F (Declaration of Amy Gottlieb); Ex. 1-G (Passport of Amy Gottlieb).
16. Mr. Ragbir is the Executive Director of the New Sanctuary Coalition of New York City and sits on the Steering Committee of the New York State Interfaith Network for Immigration Reform. He has also served as the Chair of the Board of Families for Freedom. Declaration of Brittany Castle (hereinafter “Castle Decl.”) at ¶14.
17. Mr. Ragbir’s removal case stems from a single, 17-year old conviction. In the late 1990s, Mr. Ragbir was working for Household Finance Corporation (“HFC”), a now-defunct, national mortgage lender, where he held a low-level sales position. In this role, Mr. Ragbir was primarily a telemarketer and conducted the initial review of mortgage applications, referred applications to the company’s underwriter for independent titling
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verification and appraisals, and met with applicants at loan closings to finalize paperwork. Castle Decl. at ¶4. 18. During the course of his work, Mr. Ragbir was approached by an individual whom he knew as Robert Taylor, a broker. Mr. Taylor submitted a number of loan applications to Mr. Ragbir, who referred them on to his supervisors. Mr. Taylor, whose actual name was Robert Kosch, was arrested for submitting fraudulent loan applications and was indicted for wire fraud and conspiracy to commit wire fraud. Several people involved with the loan applications were also charged, including Mr. Ragbir. Mr. Ragbir took his case to trial but was convicted on November 29, 2000. On September 12, 2001, the district court sentenced Mr. Ragbir to serve 30 months in prison for wire fraud and conspiracy to commit wire fraud, and to pay a large restitution. Ex. 1-H (Judgment of Conviction); see also Castle Decl. at ¶¶ 5-6. 19. Based on this conviction and the sentence imposed, Mr. Ragbir was transferred from criminal custody to ICE custody on May 22, 2006. Ex. 1-K (Post Order Custody Review Worksheets). His immigration court proceedings were limited to a determination of whether his conviction was an “aggravated felony,” a term in the Immigration and Nationality Act that limits one’s eligibility for many forms of relief from deportation. The immigration judge concluded that Mr. Ragbir had been convicted of an aggravated felony, and thus ordered him removed on August 8, 2006 on that basis, without consideration of any of the evidence that his family and community submitted attesting to his good character and strong community ties. Castle Decl. at ¶ 8. His order of removal was affirmed by the Board of Immigration Appeals (“BIA”) on March 14, 2007. Ex. 1-J (BIA Decision, dated March 14, 2007).
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20. Throughout these removal proceedings, Mr. Ragbir was detained in immigration jail and was transferred to Perry County Jail in Union Town, Alabama, despite the fact that his family resided in New Jersey. Ex. 1-I (Notice of Custody Determination); Ex 1-K.
21. While detained in Alabama, on March 23, 2007, Mr. Ragbir filed a pro se motion for a stay of removal and petition for review of his administrative order of removal at the Second Circuit Court of Appeals. See Ragbir v. Holder, 389 F. App’x 80 (2d Cir. 2010), cert. denied, 132 S. Ct. 95 (2011). At the time of filing, Mr. Ragbir was subject to the forbearance policy of the Second Circuit whereby his removal could not be effectuated prior to a final determination on his motion for a stay. Ex. 1-K.
22. Three POCRs of Mr. Ragbir’s detention were conducted in May 2007, July 2007, and January 2008. Ex. 1-K. All three POCRs acknowledged that Mr. Ragbir had come under the forbearance policy of the Second Circuit as a result of his pending petition for review. Ex. 1-L (Decision to Continue Detention). In May 2007 and July 2007, ICE twice issued Mr. Ragbir a “Decision to Continue Detention” based on the imminence of his removal and their characterization of him as a flight risk. Ex. I-L.
23. Mr. Ragbir was then released after his January 2008 POCR some time in February 2008 (exact date unknown). Findings by ICE from Mr. Ragbir’s third POCR state that Mr. Ragbir “did not commit a crime of violence and does not appear to be a flight risk and he is fully aware that he will have to report to ICE custody when required. It is recommended that the subject be released from ICE custody and placed on the ISAP program with strict reporting conditions, pending the outcome of the 2nd Circuit Court of Appeals Decision.” Ex. 1-M. The notice further explained, “[o]nce a travel document is
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obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure.” Id. 24. Immediately after his release and return to the New Jersey-New York metropolitan area, Mr. Ragbir began volunteering for immigrant rights organizations. He quickly became a recognized leader for his activities, first as the Chair of the Board of Families for Freedom, and then later as the Executive Director of the New Sanctuary Coalition and a member of the Steering Committee of the New York State Interfaith Network for Immigration Reform. Castle Decl. at ¶14. He has testified before the New York City Council on detention and deportation policies, met with President Obama’s transition team to share his views on national immigration policy, and spoken at countless conferences and media events. Ex. 1 (2017 Administrative Stay of Removal Application and Index of Accompanying Exhibits). He works tirelessly to organize accompaniment programs where volunteers support those otherwise navigating the immigration system alone. Id. 25. Mr. Ragbir has applied for and been granted work authorization on multiple occasions pursuant to his order of supervision and release. Ex. 1-B (Employment Authorization Documents). 26. During the course of this work, Mr. Ragbir met Amy Gottlieb, who oversees the American Friends Service Committee’s programs in the Northeast United States. Mr. Ragbir had invited Ms. Gottlieb to be interviewed on a radio show he was hosting at the time. They quickly grew close, fell in love, and were married on September 23, 2010 in front of friends and family. Ex. 1-F at ¶¶ 1, 6-8.
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27. Mr. Ragbir did not prevail on his original petition for review at the Second Circuit. See Ragbir v. Holder, 389 F. App’x 80 (2d Cir. 2010), cert. denied, 132 S. Ct. 95 (2011). Subject to his final order of removal, Mr. Ragbir thus sought an administrative stay of removal from the New York Field Office.
28. Because of Mr. Ragbir’s resounding equities—he is supported by members of the U.S. Congress, the New York State Senate, the New York City Council, over forty prominent nonprofit organizations, as well as clergy, community leaders, and hundreds of other community members—Mr. Ragbir was granted his first stay of removal by the ICE Field Office in New York City in December 2011. Ex. 1-P (ICE Letters Granting Stays of Removal); Ex. 1. This stay was renewed in February 2013, March 2014, and January 2016. Ex. 1-P. His most recent stay renewal request was filed on November 16, 2017. Castle Decl. at ¶26.
29. On March 15, 2012, Mr. Ragbir asked the BIA to reconsider, reopen and remand his immigration proceedings to consider adjustment of status because of his marriage to Ms. Gottlieb. On May 15, 2012, the BIA issued a perfunctory opinion, denying his motion on several grounds. Ex. 1-N (BIA Decision, dated May 15, 2012). The BIA instructed Mr. Ragbir to bring his claims to federal district court. Id. at 3 (“The issues involving…the respondent’s convictions are properly subject for a post-conviction motion to the federal criminal court.”); see also Ragbir v. Lynch, 640 F. App’x 105 (2d Cir. 2016). Accordingly, Mr. Ragbir has been pursuing post-conviction relief in the District of New Jersey and a petition for a writ of coram nobis is currently pending. Castle Decl. at ¶24.
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30. On December 7, 2017, Mr. Ragbir asked the DHS Office of Chief Counsel to join a motion to reopen and remand his proceedings; this request is pending review. Castle Decl. at ¶ 27.
31. Mr. Ragbir was recently awarded the 2017 Immigrant Excellence Award by the New York State Association of Black and Puerto Rican Legislators, given to those who show “deep commitment to the enhancement of their community.” Castle Decl. at ¶ 14; see also Ex. 1. He was also awarded the 2017 ChangeMaker Award by South Asian Americans Leading Together (SAALT) for his “tremendous sacrifice, fierce advocacy, and fearless leadership” in the immigrant community. Id.
32. Mr. Ragbir has been subject to various conditions pursuant to his order of supervision over the nine years since his release from Alabama, including electronic monitoring and regular check-ins. He has complied with all such conditions. Ex. 1-O (Proof of Compliance with OSUP); Ex. 1-F at ¶¶ 8, 13, 14. On January 11, 2018, Mr. Ragbir was suddenly and inexplicably detained in the presence of his U.S. Citizen wife, his legal representatives, and clergy in New York, NY.
CLAIMS FOR RELIEF 33. The Government is holding Mr. Ragbir in violation of the Due Process Clause of the U.S.
Constitution, the Immigration and Nationality Act, and federal regulations. The factual allegations listed above are incorporated into each of the causes of actions listed below.
FIRST CAUSE OF ACTION: THE IMMIGRATION AND NATIONALITY ACT DOES NOT AUTHORIZE MR. RAGBIR’S DETENTION BECAUSE HE HAS BEEN RELEASED ON A VALID
ORDER OF SUPERVISION.
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34. Respondents’ presumed basis for redetaining Mr. Ragbir is 8 U.S.C. § 1231, the statute governing detention following a final order of removal (“post-order detention”). However, under the terms of this statute and the governing regulations, Mr. Ragbir’s detention is unlawful.
35. 8 U.S.C. § 1231 authorizes the detention of individuals following a final order of removal only under specifically delineated circumstances. First, 8 U.S.C. § 1231(a)(2) requires the detention of individuals during a 90-day statutory “removal period” during which time the government must secure the individual’s removal. See 8 U.S.C. § 1231(a)(1)(A).
36. Second, if the Government fails to remove the individual during the 90-day removal period, 8 U.S.C. § 1231(a)(6) provides that the Government may detain an individual or release him or her under terms of supervision under paragraph 3 of the subsection. See 8 U.S.C. § 1231(a)(6). (“An alien ordered removed who is [1] inadmissible . . . , [2] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy,] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision in paragraph (3).”). Paragraph (3) provides that an individual who is not removed “shall be subject to supervision” under specific terms, including requirements that he or she appear periodically before an immigration officer, obey any written restrictions, and other conditions. 8 U.S.C. § 1231(a)(3). See also 8 C.F.R. § 241.5 (providing for specific conditions for release—involving but not limited to reporting requirements and travel document acquisition requirements—should an order of supervision be issued).
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37. Furthermore, 8 U.S.C. § 1231(a)(7) provides that work authorization can be issued when the removal of an individual is impossible as a result of travel document related issues or “otherwise impracticable or contrary to the public interest.” See also 8 C.F.R. § 274a.12(c)(18) (same).
38. According to DHS, the 90-day statutory removal period in Mr. Ragbir’s case ran from the date that his final order of removal was affirmed by the BIA on March 14, 2007, to June 29, 2007. After that time, Mr. Ragbir was provided with three post-order custody reviews, pursuant to 8 C.F.R. § 214.4. The first two resulted in decisions rejecting release, but the third, dated January 14, 2008, specifically recommended release because Mr. Ragbir had not committed a crime of violence and had gathered tremendous community support. Ex. 1-K (Post Order Custody Review Worksheets). Mr. Ragbir has been complying with all the conditions of his release and receiving work authorization pursuant to 8 U.S.C. § 1231(a)(7) and 8 C.F.R. § 274a.12(c)(18) since his release in 2008. See Ex. 1-B; see also Ex. 1-O. The grants of work authorization by definition represent a finding by the federal government that Mr. Ragbir’s removal is impracticable and/or contrary to the public interest. 8 U.S.C. § 1231(a)(7); 8 C.F.R. § 274a.12(c)(18).
39. No statute authorizes Mr. Ragbir’s detention at this time, without cause, prior notice, and an opportunity to be heard. Rather, the only statutory provision that applies to him is the statute that provides that noncitizens “shall” be subject to an order of “supervision” as opposed to “detention.” See 8 U.S.C. 1231(a)(6). SECOND CAUSE OF ACTION:
DETENTION PURSUANT TO A REVOCATION OF MR. RAGBIR’S ORDER OF SUPERVISION AND/OR STAY OF REMOVAL IS CONTRARY TO THE STATUTE,
VIOLATES ICE’S OWN REGULATIONS, AND VIOLATES MR. RAGBIR’S CONSTITUTIONAL RIGHTS.
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40. As articulated herein, Mr. Ragbir’s release on an order of supervision is authorized by statute. See 8 U.S.C. §1231(a)(6). The four administrative stays of removal that Mr. Ragbir has been granted are also authorized by statute. See 8 C.F.R. § 241.6. None of the conditions of Mr. Ragbir’s order of supervision or stays of removal have been violated.
41. To the extent the government has revoked Mr. Ragbir’s order of supervision and/or stay of removal without notice or an opportunity to be heard, the government has violated the statute and the applicable regulation, 8 C.F.R. § 241.4(I)(2), by failing to provide Mr. Ragbir with a particularized notice of the reason(s) of the revocation of his release or an opportunity to respond to the allegations contained therein. When the government fails to comply with its own federal regulations, as it did when it revoked Mr. Ragbir’s release in violation of its own procedures, the action should be found invalid. See e.g., Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403-04 (S.D.N.Y. 2004) (granting habeas petition where petitioner was deported fewer than 72 hours after her arrest and regulation mandated a 2hour rule); Rombot v. Souza, No. 17-11577-PBS, 2017 U.S. Dist. LEXIS 185244, at *12 (D. Mass. Nov. 8, 2017) (granting habeas petition where ICE conducted custody status review improperly in violation of 8 C.F.R. § 241.4).
42. The government has further violated its own representations to this Court and other, as well as to Mr. Ragbir in his Release Notification regarding the conditions under which his release could be revoked. See e.g., Leybinsky v. United States Immigration & Customs Enf’t, 2013 U.S. Dist. LEXIS 2966, at *16 (S.D.N.Y. Jan. 8, 2013), vacated, 553 Fed. Appx. 108 (2d Cir. 2014), cert. denied, 135 S. Ct. 279 (2014) (ICE states that, unless travel documents become available, a petitioner can control whether his release from
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detention is revoked by following the terms of his release); Ex. 1-M (Release Notification) (informing Mr. Ragbir that “a violation of one of more of these conditions, or of any local, state or federal law, may result in you being taken back into custody”). 43. To the extent the government has revoked Mr. Ragbir’s order of supervision and/or stay of removal without notice or an opportunity to be heard, the government has also deprived Mr. Ragbir of due process of law. The Due Process clause applies to all persons in the United States, “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Procedural due process constrains governmental decisions that deprive individuals of property or liberty interests within the meaning of the Due Process Clause of the Fifth Amendment. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976); see also Perry v. Sindermann, 408 U.S. 593, 601–03 (1972) (reliance on informal policies and practices may establish a legitimate claim of entitlement to a constitutionally-protected interest). Infringing upon a protected interest triggers a right to a hearing before that right is deprived. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). 44. Mr. Ragbir’s order of supervision and stay of removal create legitimate liberty and property interests. Although the regulatory framework suggests that stays and orders of supervision may be rescinded at the discretion of the government, both create vested liberty and property rights for Mr. Ragbir. First, Mr. Ragbir has a liberty interest in his freedom from physical confinement, which his order of supervision and stay of removal help to secure. See Zadvydas, 533 U.S. at 690. Second, Mr. Ragbir also has a property interest in his order of supervision and stay. Property interests “are created and their dimensions are defined by existing rules or understandings that . . . secure certain benefits
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and that support claims of entitlement to those benefits.” Board of Regents of State Colleges, 408 U.S. at 577. As already demonstrated herein, Mr. Ragbir’s stay and order of supervision generate a protected property interest. In order to seek his four administrative stays of removal, Mr. Ragbir completed a rigorous application process and criminal background check and paid an application fee, with the expectation of validity through at least the grant date of January 19, 2018. Ex. 1-P. Similarly, Mr. Ragbir has complied with the terms of his order of supervision since 2008, a set of procedures that have continuously provided Mr. Ragbir with work authorization since his release. Ex. 1B; Ex. 1-O. 45. To the extent that the government revoked Mr. Ragbir’s order of supervision and/or stay of removal without prior notice or opportunity to be heard, the government has infringed upon Mr. Ragbir’s protected liberty and property interests. Mr. Ragbir should thus be afforded an opportunity to be heard prior to the revocation of his order of supervision and/or administrative stay of removal.
THIRD CAUSE OF ACTION: MR. RAGBIR’S DETENTION IS PRESUMPTIVELY UNCONSTITUTIONAL
BECAUSE HE HAS ALREADY BEEN DETAINED FOR A PROLONGED PERIOD OF TIME
46. Serious constitutional concerns are implicated in this case because Mr. Ragbir’s “freedom from imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). In the “special and narrow nonpunitive circumstances” of immigration detention, due process requires “a special justification . . . [that] outweighs the individual’s constitutionally protected interest in
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avoiding physical restraint.” Id. (internal quotation marks omitted) (internal citations omitted). 47. Moreover, as detention becomes prolonged, the Due Process Clause requires a sufficiently strong justification to outweigh the significant deprivation of liberty, as well as procedural protections. Zadvydas, 533 U.S. at 690–91; Diop v. ICE, 656 F.3d 221, 231 (3d Cir. 2011) (noting the historical antecedents of implementing procedural protections against deprivation of liberty among citizens and noncitizens absent “‘sufficiently strong special justifications’”) (quoting Zadvydas, 533 U.S. at 690); cf. Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2014). The Zadvydas Court was explicit that after six months, detention pursuant to 8 U.S.C. § 1231 would become presumptively unconstitutional, requiring a sufficiently strong justification. 533 U.S. at 701. This requires release, or at a minimum, a bond hearing if a person has been detained for six months. See Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). 48. Mr. Ragbir has been most recently detained since January 11, 2018. However, he is being detained as part of the same removal proceedings and removal order for which he was previously detained. Mr. Ragbir’s previous detention began on May 22, 2006. Ex. 1-I (Notice of Custody Determination). He continued to be detained through and following the issuance of a final order of removal on March 14, 2007. He was released in February 2008. Ex. 1-M; Castle Decl. at ¶ 3. Thus, Mr. Ragbir has already been detained for twenty-two months, fourteen of which were post-final order. This far exceeds the sixmonth time period that the Supreme Court deemed presumptively reasonable in Zadvydas. See Zadvydas, 533 U.S. at 701; see also Lora v. Shanahan, 804 F.3d 601 (2d
19

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 20 of 27
Cir. 2014) (holding that even prior to a final order of removal, individuals subject to mandatory detention must receive a bond hearing within six months). 49. The fact that the Government has re-detained Mr. Ragbir following nine years of release only strengthens Mr. Ragbir’s claim of unreasonably prolonged detention. Just as it is well established that detainees cannot run the clock in order to ripen a Zadvydas claim, so too is the government prohibited from arguing that Mr. Ragbir’s time of release and redetention re-started the clock. See Lin v. United States, No. CIV.A. 5:07-CV-26, 2007 WL 951618, at *3 (S.D. Tex. Mar. 28, 2007) (“If a detention of six months is presumably reasonable in order to achieve such ends, it hardly seems to matter under the statute when the government exercises that power.”) 50. Thus, counting the twenty-two months that Mr. Ragbir spent in detention, including the fourteen months of post-final order detention, Mr. Ragbir’s combined immigration detention has far exceeded one year by any measure—well beyond the average length of detention cited in Zadvydas and federal circuit cases governing pre- and/or post-final order detention. Zadvydas v. Davis, 533 U.S. 678 (2001); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2014); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). Pursuant to Zadvydas and this line of cases, Mr. Ragbir’s continued, prolonged detention is thus presumptively unconstitutional. He should therefore be released, or at minimum, is entitled to a bond hearing.
FOURTH CAUSE OF ACTION MR. RAGBIR’S DETENTION BEARS NO REASONABLE RELATIONSHIP TO ANY
LEGITIMATE PURPOSE, AS HIS REMOVAL IS NOT REASONABLY FORESEEABLE.
20

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 21 of 27
51. To comport with due process, detention must bear a reasonable relationship to its two regulatory purposes—to ensure the appearance of noncitizens at future hearings and to prevent danger to the community pending the completion of removal. Zadvydas v. Davis, 533 U.S. at 690–691 (2001); Diop v. ICE, 656 F.3d 221, 233–234 (3d Cir. 2011); Gordon v. Shanahan, No. 15-Civ-261, 2015 WL 1176706 at *10 (S.D.N.Y. Mar. 13, 2015). As previously stated, such a justification for detention is required to be particularly strong once detention is presumptively unconstitutional. See supra at ¶ 45.
52. The detention of Mr. Ragbir nine years after his release is arbitrary on its face. As ICE itself recognized when they released Mr. Ragbir in February 2008, Mr. Ragbir did not commit a crime of violence, nor is he a flight risk. Ex. 1-K. In the interim between Mr. Ragbir’s release in 2008 and his re-detention in 2018, Mr. Ragbir was not arrested or convicted of any crimes. Castle Decl. at ¶ 28. For ten years, Mr. Ragbir has dutifully complied with every condition of his order of supervision. Ex. 1-O. Thus, DHS’s justification for Mr. Ragbir’s current detention cannot be based on any new criminal convictions or non-compliance with his order of supervision. Without any explanation or new basis for why Mr. Ragbir is now subject to detention—when ten years ago, he was released—his continued detention is arbitrary and violates due process. See supra, Second Cause of Action.
53. Nor has the government met its burden of proof that Mr. Ragbir’s removal is reasonably foreseeable as is required by Zadvydas. 533 U.S. at 701. Upon information and belief, Respondents do not and have not obtained a travel document from Trinidad and Tobago, despite Mr. Ragbir’s removal order having been deemed final since 2007. Requests from counsel to see any such document have been denied. In light of Respondents’ failure to
21

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 22 of 27
obtain such a document in a decade, and their failure to produce such a document upon detaining Mr. Ragbir, Respondents have not demonstrated the likelihood that such a travel document could be sought and acquired in the reasonably foreseeable future. 54. Moreover, even if Respondents have travel documents, re-detention would not be authorized. By the terms of Mr. Ragbir’s own release notification and order of supervision, once a travel document is obtained, Mr. Ragbir must “be given an opportunity to prepare for an orderly departure”. Ex. 1-M (Release Notification) Through its sudden arrest of Mr. Ragbir and refusal to respond to attempts by Mr. Ragbir’s counsel to contact the field office prior to the check-in, see Castle Decl. at ¶26, ICE has violated its promise to permit Mr. Ragbir an orderly return. See Rombot v. Souza, No. 1711577-PBS, 2017 U.S. Dist. LEXIS 185244, at *13 (D. Mass. Nov. 8, 2017) (ICE violated the Due Process Clause of the Fifth Amendment when it detained Petitioner without providing him an opportunity to prepare for an orderly departure) 55. An individual such as Mr. Ragbir, who has been detained ten years after his release and has reintegrated into his community, should not be subject to detention without a bond hearing. His detention is presumptively unconstitutional, and the government has failed to rebut that presumption by articulating any legitimate purpose with which Mr. Ragbir’s continued detention comports.
FIFTH CAUSE OF ACTION POST ORDER CUSTODY REVIEW IS CONSTITUTIONALLY INADEQUATE
AND THEREFORE, MR. RAGBIR’S DETENTION WITHOUT A BOND HEARING RAISES SERIOUS CONSTITUTIONAL CONCERNS
22

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 23 of 27
56. The administrative custody reviews (“POCR”) to which Mr. Ragbir is entitled under Zadvydas and 8 C.F.R. § 214.4 are constitutionally inadequate. POCR is nothing more than a cursory paper review. The Ninth Circuit has explained that a cursory paper review process falls “far short of the procedural protections afforded in ordinary bond hearings, where aliens may contest the necessity of their detention before an immigration judge and have an opportunity to appeal that determination to the BIA.” Casas-Castrillon v. DHS, 535 F.3d 942, 951 (9th Cir. 2008) (requiring individualized bond hearings because of the constitutional inadequacy of administrative custody review in the pre-final order context); see also Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (extending Casas-Castrillon to the post-final order context).
57. As he did on three occasions during his post-final order detention at the Perry County Jail in Alabama, Mr. Ragbir will receive a cursory paper review under POCR. However, ICE still retains the authority to deny him release based on specious findings that he presents a danger and a flight risk because of his criminal history—an immutable fact for Mr. Ragbir and so many detainees similarly situated. Indeed, in POCR reviews dated May 22, 2006 and July 13, 2007 the “Decision to Continue Detention” determination that Mr. Ragbir received states that the “criminal conviction and the penalty assessed indicate you to be a flight risk” with no explanation whatsoever and no consideration of evidence of rehabilitation. Ex. 1-L (Decision to Continue Detention).
58. Contrastingly, at a bond hearing, Mr. Ragbir would be able to be represented by his counsel, testify on his own behalf, and present witnesses and other evidence before an impartial immigration judge.
23

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 24 of 27

59. Because Mr. Ragbir’s detention has been unaccompanied by the procedural protections that such a significant deprivation of liberty requires under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, his continued detention without a bond hearing is unlawful.
PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully requests that this Court:
1) Assume jurisdiction over this matter; 2) Enjoin Respondents from transferring the Petitioner outside the jurisdiction of
the New York Field Office pending the resolution of this case; 3) Issue a Writ of Habeas Corpus ordering Respondents to release Petitioner
immediately, or, in the alternative, ordering Respondents to provide Mr. Ragbir with a constitutionally adequate, individualized hearing before an impartial adjudicator at which Respondents bear the burden of establishing that Petitioner’s continued detention is justified; 4) Award Petitioner his costs and reasonable attorneys’ fees in this action as provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other statute; and 5) Grant such further relief as the Court deems just and proper.

Dated: New York, NY January 11, 2018

Respectfully submitted,
/s/ Alina Das ALINA DAS, Esq. (AD8805) JESSICA ROFÉ, Esq. Brittany Castle, Legal Intern Jeremy Cutting, Legal Intern
24

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 25 of 27 Immigrant Rights Clinic Washington Square Legal Services, Inc. 245 Sullivan Street, 5th Floor New York, New York 10012 (212) 998-6430 Counsel for Petitioner
25

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 26 of 27

EXHIBIT LIST

EXHIBIT 1

2017 Administrative Stay of Removal Application and Index of Accompanying Exhibits

Administrative Documents

EXHIBIT 1-A

Forms G-28, Notices of Entrance of Appearance

EXHIBIT 1-B

Employment Authorization Documents

Family Documents

EXHIBIT 1-C

Mr. Ragbir’s Immigrant Visa and Alien Registration

EXHIBIT 1-D

Birth Certificate of Deborah Ragbir, Petitioner’s U.S. Citizen Daughter

EXHIBIT 1-E

Marriage Certificate of Petitioner and Amy Gottlieb

EXHIBIT 1-F

Declaration of Amy Gottlieb

EXHIBIT 1-G

U.S. Passport of Amy Gottlieb

Criminal Case Documents

EXHIBIT 1-H

Judgment of Conviction

Immigration Case Documents

EXHIBIT 1-I

Notice of Custody Determination

EXHIBIT 1-J

BIA Decision, dated March 14, 2007

EXHIBIT 1-K

Post Order Custody Review Worksheets

EXHIBIT 1-L

Decision to Continue Detention

EXHIBIT 1-M

Release Notification Under the Intensive Supervision Appearance Program

EXHIBIT 1-N

BIA Decision, dated May 15, 2012

EXHIBIT 1-O

Proof of Compliance With OSUP

Case 1:18-cv-00236-KBF Document 1 Filed 01/11/18 Page 27 of 27

EXHIBIT 1-P EXHIBIT 1-Q

ICE Letters Granting Stays of Removal ICE Letter Denying Stay of Removal

 
 Case 1:18-cv-00236-KBF Document 12 Filed 01/11/18 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Ravidath Lawrence RAGBIR
Petitioner
vs.
Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY.

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2018
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CaseNo.: 1=18-C-V-:l-;~J,·~y-·

PETITIONER'S APPLICATION FOR ORDER TO SHOW CAUSE IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS AND COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
= ~
=

Respondents

-F.
V1
Upon consideration of Petitioner's Application for Issuance of Order to Show Cause 0

pursuant to 28 U.S. C. § 2243, the Petition for Writ of Habeas Corpus and Complaint for

Declaratory and Injunctive Relief pursuant to 28 U.S.C. § 2241; 28 U.S.C. § 1331; Article I,§ 9,

cl. 2 of the United States Constitution; the All Writs Act, 28 U.S.C. § 1651; the Administrative

Procedure Act, 5 U.S.C § 701; and the Declaratory Judgment Act, 28 U.S.C. § 2201; and the

accompanying declarations and exhibits, IT IS HEREBY ORDERED that:

I. Respondents shall file a return on the Order to Show Cause why the Petition for Writ of

Habeas Corpus and Complaint for Declaratory and Injunctive Relief should not be

1,/lt..{t @ granted by .

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Petitioner shall h;p'e an: appal trnrity to file a repij by

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~ This matter shall be heard by this Court on January* ,;tr '-( f..., .

Case 1:18-cv-00236-KBF Document 12 Filed 01/11/18 Page 2 of 2

4. Pending consideration, Respondents ARE HEREBY RESTRAINED from transferring

Petitioner from the jurisdiction of the New York Field Office of the Office of

Enforcement and Removal Operations;

5. Pending consideration, Petitioner's removal from the United States is TEMPORARILY

STAYED;

6. And such other and further relief as the Court may find appropriate;

7. Service of this Order shall be effected by Petitioner on the United States Attorney for the

Southern District ofNew York by ;)) (} 0

arr@on _ _,t/,__1_,_(~~-' 2018

I

and shall constitute good and sufficient service.

IT IS SO ORDERED.
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UNITED STATES DISTRICT mDGE
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 Case 1:18-cv-00236-KBF Document 13 Filed 01/12/18 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Ravidath Lawrence RAGBIR

Petitioner,Case No.:

C

Petitioner

vs.

Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY.
UNITED STATES DISTRICT COURT FOR THE SOUTRHeEspRoNndDenIStsTRICT OF NEW YORK

Case No.: 1:18-cv-236
PETITIONER’S MOTION TO ENFORCE THE COURT’S ORDER OF JANUARY 11, 2018

Plaintiffs file this Motion seeking full enforcement of this Court’s January 11, 2018 order to restrain Respondents from transferring Petitioner Ravidath Ragbir from the jurisdiction of the New York Field Office of the Office of Enforcement and Removal Operations by returning him to the jurisdiction.
Transferring Mr. Ragbir out of the New York region causes him irreparable harm by depriving him of the ability to effectively and confidentially communicate with his counsel, and preventing his family from visiting him in detention. This was the basis for the temporary restraint sought in Petitioner’s application for an order to show cause, which this Court granted. Counsel for Respondents were immediately informed of the Court’s order. However, Respondents’ counsel has informed Petitioner’s counsel that Mr. Ragbir was placed on a plane to

Case 1:18-cv-00236-KBF Document 13 Filed 01/12/18 Page 2 of 3
Miami and is currently being detained in Krome Detention Facility in Florida, and that ICE is “not inclined to return” Mr. Ragbir to this jurisdiction. See Ex. 1; Alina Das Decl. ¶ 6.
On January 11, 2018, Respondents transferred Mr. Ragbir out of the New York region after the undersigned counsel filed a petition for a writ of habeas corpus at approximately 11:15 am with this Court. See Das Decl. at ¶ 4. The petition requested, among other forms of relief, that the Court “[e]njoin Respondents from transferring the Petitioner outside the jurisdiction of the New York Field Office pending the resolution of this case.” See Habeas Petition, 24.
At approximately 1:29 pm the same day, the undersigned counsel notified Respondents’ counsel of its intent to file an application for an order to show cause, including a restraint on transfer from the jurisdiction, later that day. See Das Decl. at ¶ 4. This Court issued the requested order at approximately 4:15 pm, instructing that, “[p]ending consideration, Respondents ARE HEREBY RESTRAINED from transferring Petitioner from the jurisdiction of the New York Field Office of the Office of Enforcement and Removal Operations.” See Order to Show Cause. Undersigned counsel emailed a copy of the order to Respondent’s counsel at approximately 4:21 pm. Id. at ¶ 5.
Notwithstanding Respondent’s knowledge of the request contained in the habeas petition and the issued order to show cause, upon information and belief, Mr. Ragbir was placed on United Airlines flight 1923, which took off at 4:45 pm, nearly three hours after Respondents’ received notice of the impending application. See Ex. 3. Moreover, at approximately 9:41 pm, counsel for Respondents informed counsel for Petitioner that ICE is “not inclined to return” Petitioner to this jurisdiction, despite this Court’s order. Id. at ¶ 6.
Given Respondents’ clear contravention of this Court’s January 11, 2018 order restraining them from removing Petitioner from this jurisdiction, Petitioner requests that this

Case 1:18-cv-00236-KBF Document 13 Filed 01/12/18 Page 3 of 3

Court enforce its order by ordering Respondents to return Petitioner to the jurisdiction of the New York Field Office, which includes facilities in Hudson County, NJ; Bergen County, NJ; and Orange County, NY. See Ex. 2.

Dated: New York, New York January 12, 2018

Respectfully submitted,
/s/ Alina Das ALINA DAS, Esq. (AD8805) JESSICA ROFÉ, Esq. (JR5231) Brittany Castle, Legal Intern Jeremy Cutting, Legal Intern Washington Square Legal Services, Inc. Immigrant Rights Clinic 245 Sullivan St., 5th floor New York, New York 10012 Tel: (212) 998-6430 alina.das@nyu.edu
Counsel for Petitioner

 
 Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
RAVIDATH LAWRENCE RAGBIR, Petitioner,
- against -
JEFFERSON BEAUREGARD SESSIONS III, Respondents.

No. 18 Civ. 236 (KBF) ECF Case

RESPONDENTS’ MEMORANDUM OF LAW IN OPPOSITION TO THE PETITIONER’S MOTION TO ENFORCE THE COURT’S JANUARY 11, 2018 ORDER, AND IN SUPPORT OF THE REPSONDENT’S MOTION TO VACATE PORTIONS OF
THE COURT’S JANUARY 11, 2018 ORDER

BRANDON M. WATERMAN Assistant United States Attorney
– Of Counsel –

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York Attorney for Respondents 86 Chambers Street, Third Floor New York, New York 10007 Tel: (212) 637-2741

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 2 of 9
TABLE OF CONTENTS BACKGROUND .............................................................................................................................1 ARGUMENT
THE COURT SHOULD DENY PETITIONER’S MOTION TO ENFORCE THIS COURT’S ORDER AND VACATE ITS ORDER CONCERNING A STAY OF REMOVAL AND ENJOINING ICE’S ABILITY TO RE-LOCATE PETITIONER ........................................................................2 A. The Court should deny Mr. Ragbir’s request to compel ICE to move Mr.
Ragbir to the New York area, and the Court should vacate its injunction preventing ICE from moving Mr. Ragbir outside of the New York area ................2 1. The government did not act in contravention of this Court’s order,
and the Court should not compel ICE to return Mr. Ragbir to the New York area .............................................................................................2 2. The Court should vacate the portion of the January 11 order enjoining ICE from transferring Mr. Ragbir out of the New York area ...............................................................................................................4 B. The Court should vacate its stay of removal............................................................5
i

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 3 of 9
BACKGROUND The government respectfully submits this memorandum of law in opposition to the petitioner’s motion to enforce the Court’s Order of January 11, 2018, and in support of the government’s motion to vacate that order. Yesterday, on January 11, 2018, U.S. Immigration and Customs Enforcement (“ICE”) arrested the petitioner, Ravidath Lawrence Ragbir (“Mr. Ragbir”). Mr. Ragbir is a native and citizen of Trinidad and Tobago, and he is subject to a final removal order. ICE arrested Mr. Ragbir to execute his final removal order. After he was arrested and taken into ICE custody yesterday morning, Mr. Ragbir filed a habeas petition in this Court and sought an ex parte order to show cause against the government with an expedited briefing schedule, as well as a temporary stay of removal and an injunction to prevent ICE from transferring Mr. Ragbir outside of the New York area. Yesterday afternoon, the Court issued an order staying Mr. Ragbir’s removal and enjoining ICE from transferring Mr. Ragbir out of the jurisdiction. However, by the time the government received notice of the Court’s order, ICE was already in the process of removing Mr. Ragbir, who at that time, was already on a flight bound for Miami, Florida. Upon landing in Miami, ICE placed Mr. Ragbir in detention at an ICE detention facility in Miami, where he remains at this time. As explained herein, the government did not act in “clear contravention” of this Court’s order. ICE arrested Mr. Ragbir yesterday morning for the purpose of executing his outstanding, final removal order. In doing so, Mr. Ragbir was placed on a flight that was scheduled to depart at 4:13 p.m. out of Newark Liberty International Airport. However, an ICE deportation officer witnessed Mr. Ragbir’s flight leave the gate and begin taxiing for takeoff at 4:11 p.m. (several

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 4 of 9
minutes before the Court even entered its order). Thus, Mr. Ragbir’s contention that the government acted in “clear contravention” of this Court’s order is baseless and untrue.
Further, the Court should vacate the portions of its order (1) temporarily staying Mr. Ragbir’s removal, and (2) enjoining ICE from transferring Mr. Ragbir out of the New York area. This Court lacks jurisdiction under the Immigration and Nationality Act (INA) to stay Mr. Ragbir’s removal to enjoin ICE from transferring Mr. Ragbir where it deems appropriate.
ARGUMENT THE COURT SHOULD DENY PETITIONER’S MOTION TO ENFORCE THIS
COURT’S ORDER AND VACATE ITS ORDER CONCERNING A STAY OF REMOVAL AND ENJOINING ICE’S ABILITY TO RE-LOCATE PETITIONER A. The Court should deny Mr. Ragbir’s request to compel ICE to move Mr. Ragbir to
the New York area, and the Court should vacate its injunction preventing ICE from moving Mr. Ragbir outside of the New York area 1. The government did not act in contravention of this Court’s order, and the
Court should not compel ICE to return Mr. Ragbir to the New York area As noted above, the government did not act in contravention of this Court’s order, which was apparently signed at or around 4:15 p.m. yesterday. Before he was even detained, ICE had previously booked flights for Mr. Ragbir’s removal. Those flights were booked on Wednesday, January 10, 2018. Mr. Ragbir was scheduled to fly from Newark airport to Miami airport on United Airlines Flight 1923, which was scheduled to depart at 4:13 p.m. According to an ICE deportation officer who was at the airport, the flight left the gate at 4:11 p.m. This is corroborated by United Airlines’ records. This office received notice of the Court’s order at 4:22 p.m. when it received an email from Mr. Ragbir’s counsel. Thus, Mr. Ragbir’s claim that the government acted in “clear contravention” of this Court’s order is baseless. Moreover, the Court should not compel ICE to return Mr. Ragbir to the New York area. As explained further below, this Court lacks jurisdiction to restrain ICE from moving an alien or
2

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 5 of 9
to order ICE to move an alien to a particular location. See infra. Moreover, to the extent that Mr. Ragbir is raising an access to counsel claim, such claim is without merit and does not justify an order compelling ICE to return Mr. Ragbir to the New York area.
“Because immigration proceedings are of a civil rather than criminal nature, aliens in removal proceedings ‘enjoy[ ] no specific right to counsel’ under the Sixth Amendment to the Constitution. Debeatham v. Holder, 602 F.3d 481, 486 (2d Cir. 2010) (quoting Jian Yun Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir. 2005)); see Iavorski v. INS, 232 F.3d 124 (2d Cir. 2000) (discussing 8 U.S.C. § 1362 and due process considerations).
Mr. Ragbir is currently being detained at an ICE detention facility in Miami, Florida— Krome. Contrary to any suggestion by Mr. Ragbir, no access to counsel issue arises from Mr. Ragbir’s detention at that facility. Mr. Ragbir will have access to his counsel while detained at Krome in Miami. We have been informed by ICE that attorneys may visit their clients in person between the hours of 8 a.m. to 10 p.m. on weekdays, and attorneys may call their clients (and clients may call their attorneys) from 6 a.m. to 11 p.m. While general phone conversations are monitored (as they are in the private jails in the New York area), Mr. Ragbir will have the ability to have private conversations with his counsel in a private room where he will be able to speak with his counsel over the phone and also through video-conferencing, and such conversations are not monitored. Thus, any concern that Mr. Ragbir will have any issues with respect to his access to counsel are wholly unfounded. Simply put, Mr. Ragbir cannot show that there are any restrictions on his ability to communicate with his counsel while he is detained at Krome that would be tantamount to a denial of counsel. Thus, the Court should reject any contention that Mr. Ragbir’s access to counsel would be infringed by ICE’s decision to detain Mr. Ragbir in Miami pending the resolution of this matter.
3

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 6 of 9
2. The Court should vacate the portion of the January 11 order enjoining ICE from transferring Mr. Ragbir out of the New York area
This Court lacks jurisdiction over ICE’s discretionary decisions concerning where to detain aliens, and thus lacks jurisdiction to enjoin ICE from transferring Mr. Ragbir outside of the New York area (or to transfer him to a particular location). Decisions to transfer an alien from one location to another are within the discretion of the Attorney General and therefore may not be reviewed or enjoined by the district courts. See 8 U.S.C. § 1231(g)(1) (“The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.”). The INA precludes judicial review over such decisions. See 8 U.S.C. § 1252(a)(2)(B)(ii) (barring district courts from exercising subject matter jurisdiction over “any . . . decision or action of the Attorney General . . . the authority for which is specified under this subchapter [8 U.S.C. §§ 1151 1381] to be in the discretion of the Attorney General . . .”); see also Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999) (holding that “a district court has no jurisdiction to restrain the Attorney General’s power to transfer aliens to appropriate facilities by granting injunctive relief . . . .”); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1256 (4th Cir. 1995) (“The INS necessarily has the authority to determine the location of detention of an alien in deportation proceedings . . . and therefore, to transfer aliens from one detention center to another.”); Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985) (“We are not saying that the petitioner should not have been transported to Florida. That is within the province of the Attorney General to decide.”). Thus, a district court may not exercise jurisdiction over ICE’s decision to detain an alien in a given facility, and may not order ICE to transfer an alien. See, e.g., Salazar v. Dubois, No. 17-cv-2186 (RLE), 2017 WL4045304, at *1 (S.D.N.Y. Sept. 11, 2017) (concluding that the district court “does not have authority to issue an order to change or keep [an alien] at any particular location”); Zheng v. Decker, No. 14-cv-4663 (MHD), 2014 WL
4

Case 1:18-cv-00236-KBF Document 17 Filed 01/12/18 Page 7 of 9
7190993, at *15-16 (S.D.N.Y. Dec. 12, 2014) (denying petitioner’s request that the Court order ICE not to transfer him to another jurisdiction); Avramenkov v. INS, 99 F. Supp. 2d 210, 213 (D. Conn. 2000) (refusing to grant petitioner's request for an injunction to prevent transfer because “Congress has squarely placed the responsibility of determining where aliens are to be detained within the sound discretion of the Attorney General”); accord Vand Dinh, 197 F.3d at 434 (“Because the discretionary decision to transfer aliens from one facility to another and the correlative discretionary decision to grant or deny relief from such a transfer is a ‘decision . . . under this subchapter.’ Judicial review of that decision is expressly barred by § 1252(a)(2)(B)(ii).”).
Accordingly, the Court should vacate its order enjoining ICE from transferring Mr. Ragbir outside of the New York area, and should not require ICE to move him from the Miami area. B. The Court should vacate its stay of removal
“The unique purpose of habeas corpus” is to “release the applicant for the writ from unlawful confinement.” Allen v. McCurry, 449 U.S. 90, 98 n.12 (1980). Mr. Ragbir was arrested only yesterday, and within hours, he was already placed a plane to be removed pursuant to his final order of removal. Mr. Ragbir’s immigration detention lasted only a very brief period of time (several hours), and would have ended early this morning but for the Court’s order granting a temporary stay of removal. Thus, for these reasons and the reasons stated below, this Court should vacate its stay of removal.
Federal law unambiguously strips district courts of jurisdiction to stay or enjoin an alien’s removal. The INA provides that “[e]xcept as provided in [8 U.S.C. § 1252] . . . no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the [Secretary of Homeland Security] to . . . execute removal orders against any
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alien.” 8 U.S.C. § 1252(g). Section 1252(a)(5) further provides that “a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal . . . .” Read together, these provisions “leave no doubt that [a district] court lacks jurisdiction to consider claims that arise from a removal order.” Filippi v. President of U.S., No. 1:17-cv-459, 2017 WL 4675744, at *2 (D.N.H. Oct. 16, 2017); see Puri v. Gonzales, 464 F.3d 1038, 1041 (9th Cir. 2006); see also Tejada v. Cabral, 424 F. Supp. 2d 296, 298 (D. Mass. 2006) (“[T]he REAL ID Act . . . emphatically [] declare[d] that this Court was not in any way to impede orders of removal.”). To the extent that Mr. Ragbir’s habeas petition is an attempt to defeat ICE’s ability to execute his final removal order, Congress has precluded habeas challenges to “a decision or action by the Attorney General to . . . execute removal orders against any alien.” 8 U.S.C. § 1252(g).
“District courts within this Circuit and across the country have routinely held that they lack jurisdiction under § 1252 to grant a stay of removal.” Vasquez v. United States, 2015 WL 4619805, at *3-4 (S.D.N.Y. Aug. 3, 2015) affirmed at 2d Cir. No. 16-2616 (Order Sept. 9, 2015); see also, e.g., Almanzar v. Newland, No. 08 Civ. 8612 (NRB), 2009 WL 3097203, at *2 (S.D.N.Y. Sept. 28, 2009) (“If a district court lacks the jurisdiction to review a removal order, it follows that the court also lacks the power to stay such orders. Numerous district courts have reached that conclusion.”); Scott v. Napolitano, 618 F. Supp. 2d 186, 190-91 (E.D.N.Y. 2009) (the “provisions of § 1252 operate to strip district courts of jurisdiction to stay an order of removal, as well”); Thomas v. Spitzer, No. 05 Civ. 5828 (LTS)(DF), 2008 WL 4360550, at *2 (S.D.N.Y. Sept. 23, 2008) (“The so-called ‘Real ID Act of 2005’ . . . under which the circuit courts were vested with exclusive authority to review orders of removal . . . has been construed to mean that only the circuit court may issue . . . a stay [of removal].”); cf. Delgado v.
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Quarantillo, 643 F.3d 52, 53 (2d Cir. 2011) (per curiam) (holding that “a district court lacks jurisdiction over an indirect challenge to an order of removal”).
The proper forum for Mr. Ragbir to seek a stay of removal is either at the Second Circuit or at the BIA. Indeed, upon information and believe, Mr. Ragbir filed another motion to reopen his proceedings at the BIA yesterday, and that is the proper forum for any such stay application. See 8 C.F.R. §§ 241.6(a)-(b), 1241.6(a)-(b) (once a motion to reopen is filed, the alien may seek a stay of removal from the immigration court).
CONCLUSION For the foregoing reasons, the Court should deny Mr. Rabir’s motion to enforce the Court’s January 11 order, and the Court should grant the government’s motion to vacate the portions of the Court’s January 11 order staying Mr. Ragbir’s removal and enjoining ICE from transferring Mr. Ragbir to other locations outside of the New York area.

Dated: New York, New York January 12, 2018

Respectfully,

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York, Attorney for Respondents

By: /s/ Brandon M. Waterman
BRANDON M. WATERMAN Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Tel. (212) 637-2741 Fax (212) 637-2786 brandon.waterman@usdoj.gov

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 Case 1:18-cv-00236-KBF Document 19 Filed 01/15/18 Page 1 of 28

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Ravidath Lawrence RAGBIR

Petitioner,Case No.:

C

Petitioner

vs.

Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND USNEITCEUDRSITTAYT,ES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
Respondents

Case No.: 1:18-cv-236
PETITIONER’S MEMORANDUM OF LAW IN OPPOSITION TO RESPONDENTS’ MOTION TO VACATE PORTIONS OF THE COURT’S ORDER OF JANUARY 11, 2018

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TABLE OF CONTENTS
INTRODUCTION………………………………………………………………………….. 1
ARGUMENT……………………………………………………………………………….. 3
I. The Government is in Clear Contravention of this Court’s January 11, 2018 Order……………………………………………………………………………... 3
II. This Court has the Inherent Authority to Issue Temporary Orders to Protect Its Jurisdiction and the Petitioner’s Access to the Court in this Case………………. 4 A. This Court has jurisdiction over this case…………………………………… 4 B. This Court has inherent authority to protect its jurisdiction and Mr. Ragbir’s access to the courts through temporary orders………………………………. 6
III. This Court Should Reject the Government’s Motion to Vacate the Court’s Temporary Restraint on Transfer, and Should Order the Government to Return Mr. Ragbir to the New York Region…………………………………………….. 8 A. This Court has jurisdiction to issue a temporary restraint on the Government from moving a petitioner from the region, and to order that petitioner’s return…………………………………………………………………………. 8 B. The Government’s refusal to return Mr. Ragbir to the New York region is causing him irreparable harm…………………………………………………12 1. The Government’s transfer to Mr. Ragbir interferes with his access to counsel. 2. Mr. Ragbir’s transfer is irreparably harming his access to family, clergy, work, and community.
IV. This Court Should Reject the Government’s Motion to Vacate the Court’s Order Temporarily Staying Removal Pending Adjudication of Mr. Ragbir’s Habeas Petition and Complaint…………………………………………………………... 18 A. This Court has both jurisdiction over this case and the inherent authority to issue a stay of removal to protect its jurisdiction……………………………. 19 B. The All Writs Act provides this Court with independent statutory authority to issue a temporary stay of removal………………………………………… 20 C. Contrary to the Government’s arguments, 8 U.S.C. §§ 1252(a)(5) and 1252(g) do not strip this Court of its jurisdiction and authority to issue a temporary stay of removal in this case…………………………………………………... 22 D. Depriving this Court of its authority to issue a temporary stay of removal would violate the Suspension Clause of the Constitution…………………….25

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INTRODUCTION On January 11, 2018, Petitioner Ravidath Lawrence Ragbir (“Mr. Ragbir”) was suddenly detained by officials from Immigration and Customs Enforcement (“ICE”) in front of his U.S. citizen wife and his legal representative, see Ex. A, Declaration of Alina Das, Esq. at ¶ 27. Mr. Ragbir’s arrest and detention violate his rights under the Due Process Clause of the United States Constitution, the Immigration and Nationality Act (“INA”), and numerous regulations. Although Mr. Ragbir is subject to a final order of removal dating back over a decade, he was released by the government in 2008 under an order of supervision after approximately twenty-two months in immigration detention because of his outstanding equities, which proved to be only the beginning of a process of institutional and government recognition of his contributions to community, and determinations that no legitimate purpose would be served by Mr. Ragbir’s detention and removal. Until January 11, 2018, Mr. Ragbir was living peaceably in the community with his family, serving as Executive Director of New Sanctuary Coalition, an interfaith network that helps immigrants navigate the immigration system. Mr. Ragbir reported regularly to ICE and complied with his conditions of release. After being taken into custody on January 11, 2018, Mr. Ragbir, through undersigned counsel, brought a habeas petition and complaint with this Court in order to vindicate his rights and redress the unlawful revocation of his order of supervision and administrative stay of removal and his unlawful detention. Mr. Ragbir also sought a temporary stay of removal to allow the Court to fully consider the merits of his petition and a temporary restraint from transferring him out of the New York area so that he could maintain access to counsel, family, and community. See Petition for Writ of Habeas Corpus, ECF No. 1.
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At or around 4:15 p.m. the day of Mr. Ragbir’s detention, this Court signed an Order to Show Cause, temporarily staying Petitioner’s removal and enjoining the Government from transferring Petitioner outside of the New York region pendente lite. See Order to Show Cause, ECF No. 11. The Court had full authority to issue this order. At 4:45 p.m., 30 minutes after this Court entered its order and over three hours after the Government was placed on notice that Mr. Ragbir would be filing an Order to Show Cause, United Airlines flight 1923 took off from Newark Liberty International Airport to Miami with Mr. Ragbir on board. See Das Decl. at ¶ 3435. Since January 11th, Mr. Ragbir has been detained at Krome Service Processing Center (“Krome”), approximately 1,300 miles from his U.S. citizen wife and family, his retained counsel who has represented him for a decade, his community, and the District of New Jersey, where he has a pending petition for coram nobis to attack the underlying conviction that serves as the basis for his removal order. Id. This transfer deprives Mr. Ragbir of his constitutional right to due process and his statutory right to counsel of his own choosing, has made it exceptionally difficult for Mr. Ragbir’s attorneys to represent him, and is in contravention of this Court’s order. Mr. Ragbir also faces unwarranted, prolonged detention, as the Government insists on incarcerating him while he fights his immigration case, despite the fact that he has for many years been living in the community, fully complying with an ICE order of supervision.
In lieu of transferring Mr. Ragbir back to the New York region and/or releasing him from detention, the Government has continued to detain him at Krome. The Government further moves to vacate the temporary relief—both the restraint on transfer and the stay of removal— provided in the Court’s order. For the reasons stated in Petitioner’s habeas petition and application for an Order to Show Cause, this Court should compel the Government to transfer
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Petitioner back to the New York region and reject the Government’s motion to vacate both the temporary restraint on transfer and the temporary stay of removal already entered in this case.
ARGUMENT I. The Government is in Clear Contravention of this Court’s January 11, 2018
Order. The Government’s transfer of Mr. Ragbir to Miami, Florida and refusal to fly him back to the New York region thwarts and directly interferes with this Court’s order of January 11, 2018. The Government denies acting in contravention of the Court order temporarily restraining Respondents from transferring Mr. Ragbir outside the New York area. Gov’t Br. at 1. It states, without evidentiary support, that Mr. Ragbir was placed on a plane before the order was signed. Id. However, even assuming this is correct, it is uncontroverted that the Government refuses to bring Mr. Ragbir back to the jurisdiction despite its admitted awareness by January 11, 2018 at 4:22 p.m. of the order, id. at 2, which this Court has not vacated. There are approximately 68 flights from Miami to New York each day, yet Mr. Ragbir has remained far from his family, clergy, community, and legal counsel for the last four days since the order issued. See Ex. F, Miami International Airport Flight Schedules. The Government offers no explanation why its ongoing failure to return Mr. Ragbir to the jurisdiction is not in contravention of the order. The Government’s refusal to comply with a federal court order because it disagrees with its legal basis is unconstitutional and an alarming affront to judicial authority and the rule of law. Maness v. Meyers, 419 U.S. 449, 458 (1975);1 Howat v. Kansas, 258 U.S. 181, 189-90 (1922) (“It is for the court of first instance to determine the question of the validity of the law, and until its
1 Id. (“We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect.”)
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decision is reversed for error by orderly review . . . its orders based on its decision are to be respected, and disobedience of them is contempt of its lawful authority, to be punished.”).
Moreover, the Government does not deny that it was aware as of 1:29 p.m. on January 11, 2018, that Mr. Ragbir would be seeking this relief and that it nonetheless committed the very act—putting Mr. Ragbir on a plane out of this jurisdiction—that Mr. Ragbir argues constitutes an irreparable harm. The Government’s own legal position to the Supreme Court is that such actions may violate ethical obligations. Cf. Hargan v. Garza, No. 17-654, Petition for Writ of Certiorari (S. Ct., filed Nov. 3, 2017) at 26-28 (DOJ petition arguing that disciplinary action should be taken against opposing counsel due to their efforts to effectuate an abortion pursuant to a court order because counsel was aware that the DOJ would be shortly seeking a stay pending appeal).
II. This Court has the Inherent Authority to Issue Temporary Orders to Protect Its Jurisdiction and the Petitioner’s Access to the Court in this Case
In contesting portions of this Court’s January 11, 2018 order on jurisdictional grounds, the Government ignores the distinction between the temporary and permanent forms of relief sought by Mr. Ragbir. At this juncture of the case, the only issue is whether this Court has the power to issue temporary orders (to enjoin transfer and issue a stay) pendente lite. Where there is jurisdiction over the case itself, the Court has the inherent authority to issue temporary orders pendente lite. Such inherent authority stems from this Court’s power to protect both its own jurisdiction and Mr. Ragbir’s access to the courts. Nothing in the INA addresses, let alone strips, this Court of its authority to issue these forms of temporary relief.
A. This Court has jurisdiction over this case. With respect to the permanent relief sought by Mr. Ragbir, this Court has jurisdiction over the underlying petition and complaint in this case under 28 U.S.C. §§ 2241, 1331, 1651, and 2201; the Administrative Procedure Act (“APA”), 5 U.S.C. § 706; and Article I, § 9, cl. 2 of the
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United States Constitution. Mr. Ragbir has raised numerous meritorious claims in the habeas petition and complaint, challenging his unlawful detention, revocation of his administrative stay of removal and order of supervision in violation of statutory, regulatory, and constitutional authorities. See e.g., Farez-Espinoza v. Chertoff, 600 F. Supp. 2d 488, 493 (S.D.N.Y. 2009) (petitioner’s challenge to her continued detention as in violation of the INA and her Due Process rights was “clearly within the habeas jurisdiction of this Court”) (citing Henderson v. I.N.S., 157 F.3d 106 (2d Cir. 1998)). Moreover, the Government stated in its briefing that it planned to deport Mr. Ragbir on the morning of January 12, 2018, admitting to a clear intent to violate yet another regulatory authority, 8 C.F.R. § 241.22, which prohibits deportation less than 72 hours after an individual’s arrest. Gov’t Br. at 5. This admission by the Government only strengthens Mr. Ragbir’s habeas claims. See Fong v. Ashcroft, 317 F. Supp. 2d 398, 402 (S.D.N.Y. 2004) (granting habeas relief and ordering return of Petitioner who was deported in violation of 8 C.F.R. § 241.22’s 72-hour rule, which was specifically enacted to ensure due process protections to individuals facing imminent removal).
The Government has not yet challenged this Court’s jurisdiction over the underlying petition and complaint, although it suggests that it may. See Gov’t Br. at 6 (“To the extent that Mr. Ragbir’s habeas petition is an attempt to defeat ICE’s ability to execute his final removal order, Congress has precluded habeas challenges to ‘a decision or action by the Attorney General to . . . . execute removal orders against any alien.’” (quoting 8 U.S.C. § 1252(g))). Any argument that this Court lacks jurisdiction over the entire petition and complaint would be without merit.
As the Second Circuit has held, there is “a ‘strong presumption in favor of judicial review of administrative action.’” Ruiz v. Mukasey, 552 F.3d 269, 273 (2d Cir. 2009) (citing Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008)). Indeed, the APA provides that “‘[a] person
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suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,’ . . . unless review is precluded by statute or the complained-of decision was committed to agency discretion.” Id. at 273; see also Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008).
Nothing in the INA strips district courts of their jurisdiction to review the legality of someone’s detention. See Demore v. Kim, 538 U.S. 510, 516-17 (2003) (holding that district courts retain habeas authority to review the lawfulness of detention because such review is not review of a discretionary decision). The various jurisdiction-stripping provisions cited by the Government in 8 U.S.C. § 1252 are cabined to review of purely discretionary decisions and are thus inapplicable here. This Court has jurisdiction to review the lawfulness and constitutionality of the Government’s actions in detaining Mr. Ragbir and revoking his administrative stay and order of supervision because the Government does not have discretion to violate its own laws or the Constitution. See Myers & Myers, Inc. v. U.S. Postal Service, 527 F.2d 1252, 1261 (2d Cir. 1975) (“It is, of course, a tautology that a federal official cannot have discretion to behave unconstitutionally or outside the scope of his delegated authority”).
However, to the extent the Government will contest this Court’s jurisdiction over the habeas petition and complaint with respect to Mr. Ragbir’s substantive claims and the permanent relief he seeks, it is beyond dispute that a “federal court always has jurisdiction to determine its own jurisdiction.” Ruiz, 536 U.S. at 628 (quoting United States v. United Mine Workers, 330 U.S. 258, 291 (1947)). Thus, at minimum, this Court retains jurisdiction to determine its jurisdiction, and thus may issue temporary orders pendente lite as required.
B. This Court has inherent authority to protect its jurisdiction and Mr. Ragbir’s access to the courts through temporary orders.
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Having established that this Court has jurisdiction over the case at hand, the only remaining question is whether the Court has the authority to issue temporary orders to restrain transfer and stay removal pendente lite. As explained below, the Court does have this authority— to protect both its jurisdiction as well as Mr. Ragbir’s access to the courts.
First, federal courts have “inherent power” to issue orders necessary to their jurisdiction over a pending case. Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991); see id. at 58 (Scalia, J., dissenting) (“Some elements of that inherent authority are so essential to the [Article III] judicial Power, that they are indefeasible, among which is a court’s ability to enter orders protecting the integrity of its proceedings.”). As such, Article III courts’ inherent powers can be limited by only the clearest statutes or rules. See Califano v. Yamaski, 422 U.S. 682, 705 (1979) (“Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions....”). None of the statutes cited by the Government limit temporary restraints on transfer or temporary stays of removal issued in individual litigation.2
Second, federal courts have inherent authority to protect litigants’ access to the courts. See Bounds v. Smith, 430 U.S. 817, 824 (1977) (holding that the Constitution guarantees litigants “meaningful access to the courts”). This is particularly true in the habeas context. See Johnson v. Avery, 393 U.S. 483, 485 (1969) (“Since the basic purpose of the writ is to enable those unlawfully incarcerated to obtain their freedom, it is fundamental that access of prisoners to the courts for the purpose of presenting their complaints may not be denied or obstructed.”).
2 The only provision in the INA that limits certain forms of injunctive relief is 8 U.S.C. § 1252(f). The Government does not attempt to argue that § 1252(f) bars this Court’s temporary orders, nor could it. Section 1252(f) is broken into two subsections. The first subsection explicitly states that it does not apply to courts’ authority to restrain or enjoin actions against “individual aliens.” 8 U.S.C. § 1252(f)(1); Reno v. AADC, 525 U.S. 471, 481-82 (1999) (stating that subsection (f)(1) “specifies that this ban does not extend to individual cases”). The second subsection refers to courts’ authority to “enjoin . . . removal” and refers only to permanent injunctions of removal, not temporary stays of removal or injunctions of actions other than removal. § 1252(f)(2); Nken v. Holder, 556 U.S. 418, 432 (2009) (holding that § 1252(f)(2) does not apply to temporary stays of removal).
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This Court’s issuance of both a temporary restraint on transfer and a temporary stay of removal pendente lite protects this Court’s jurisdiction and Mr. Ragbir’s access to Court to address his claims. See Points III & IV, infra (discussing harms that these temporary orders prevent). Because the Court has inherent authority to issue these temporary forms of relief, the Government’s jurisdictional arguments are without merit.
III. This Court Should Reject the Government’s Motion to Vacate the Court’s Temporary Restraint on Transfer, and Should Order the Government to Return Mr. Ragbir to the New York Region. A. This Court has jurisdiction to issue a temporary restraint on the Government from moving a petitioner from the region, and to order that petitioner’s return.
This Court has jurisdiction to restrain the Government temporarily from transferring a petitioner from the region and to order that petitioner’s return. As explained above, a temporary restraint on transfer merely protects this Court’s jurisdiction and is part of its inherent powers. See Point II, supra. Nothing in the INA speaks to this Court’s power to issue temporary orders pendente lite. The Government collapses the distinction between temporary and permanent relief by arguing that the Court’s ability to issue and enforce its January 11, 2018 order is barred by 8 U.S.C. § 1252(a)(2)(B)(ii), a provision which has nothing to do with temporary orders related to cases that have an independent basis for jurisdiction. Indeed, courts in this district have routinely issued temporary restraints on the transfer of immigrants from the jurisdiction pending adjudication of their habeas petitions. See, e.g., Abadir v. Shanahan, 11-cv-4041 (NRB); Garcia v. Shanahan, 09 CV 2995 (CM); Monestime v. Reilly, et al., No. 10 CIV 1374 (WHP); Paz Nativi v. Shanahan, No. 1:16-cv-08496 (JPO); Terrones v. Shanahan, No. 1:16-cv-08465 (JPO); Trawally v. Shanahan, No. 11 Civ. 7335 (PGG) (orders to show cause with temporary restraint on transfer, attached at Ex. I).
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Moreover, even if there were no distinction between temporary and permanent orders with respect to transfer decisions, the restraint in this Court’s January 11, 2018 order is not barred by 8 U.S.C. § 1252(a)(2)(B)(ii). The INA bars judicial review of “any . . . decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security[.]” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The Second Circuit has observed that § 1252(a)(2)(B)(ii) strips courts of jurisdiction to review “purely discretionary decisions.” Noble v. Keisler, 505 F.3d 73, 76 (2d Cir. 2007) (emphasis added). Whether a decision or action is discretionary is determined by reference to the terms of the relevant statute. See Bondarenko v. Chertoff, No. 07-MC-00002, 2007 WL 2693642, at *4 (W.D.N.Y. Sept. 11, 2007) (“The key to § 1252(a)(2)(B)(ii) lies in its requirement that the discretion giving rise to the jurisdictional bar must be ‘specified’ by statute.”) (internal quotations omitted). Unless a statute “specifies” that the Attorney General or the Secretary of Homeland Security has been granted discretion, § 1252(a)(2)(B)(ii) does not strip the court of jurisdiction. Spencer Enter., 345 F.3d at 690 (In enacting § 1252(a)(2)(B)(ii), Congress did not intend to withdraw jurisdiction over all discretionary decisions, only those where the INA specifies, “the right or power to act is entirely within his or her judgment or conscience”). To establish that § 1252(a)(2)(B)(ii) bars review of Mr. Ragbir’s transfer, the Government must point to a section of the INA that “specifies” detention placement decisions to be within ICE’s unfettered discretion. No such language exists.
The INA mandates that the “Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.” 8 U.S.C. § 123l(g)(1) (emphasis added). Section 1231(g)(1) makes clear that such decisions on arrangements for detention are not purely discretionary. Such decisions must be “appropriate.” Furthermore, §
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1231(g)(1) mandates a specific act. See United States v. Monsanto, 491 U.S. 600, 607 (1989) (by using the words “shall order” in the statute, “Congress could not have chosen stronger words to express its intent” that the procedure specified in the statute was mandatory); cf. Atsilov v. Gonzales, 468 F.3d 112, 116 (2d Cir. 2006) (where statute used permissive “may” instead of mandatory “shall” in authorizing agency to grant relief, the “ultimate decision whether to grant relief [was] entrusted to the discretion of the [agency]”). Such commanding language precludes the possibility that the section specifies a purely discretionary decision.
This is consistent with the Second Circuit’s recognition of “the ‘strong presumption in favor of judicial review of administrative action.” Sepulveda v. Gonzales, 407 F.3d 59, 62 (2d Cir. 2006) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001), and holding that § 1252(a)(2)(B) does not strip courts of jurisdiction to review nondiscretionary decisions). Because jurisdiction over this case is not prohibited, this Court has jurisdiction to restrain the Government from moving a petitioner from the region, and to order that petitioner’s return. Ruiz, 552 F.3d at 27374 (“To the extent that it is not otherwise prohibited, then, a district court may properly exercise jurisdiction over this case.”).
The cases cited by the Government are thus inapposite. The Government cites to Gandarillas-Zambrana v. Bd. of Immigr. Appeals, 44 F.3d 1251, 1256 (4th Cir. 1995) for the principle that the agency “necessarily has the authority to determine the location of detention of an alien in deportation proceedings [] and therefore, to transfer aliens from one detention center to another.” But the Attorney General’s authority to transfer detainees does not shield those decisions from limitations and review. The only decisions shielded from review are those “specified” by the INA to be within the sole discretion of the agency; Gandarillas-Zambrana does not make such a holding. The Government’s reliance on Van Dinh v. Reno, 197 F.3d 427,
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433 (10th Cir. 1999), Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985), and Avramenkov v. INS, 99 F. Supp. 2d 210 (D. Conn. 2000) suffers from this same defect: while these cases hold that the agency has authority to transfer detainees as “appropriate” (a proposition that Petitioner does not deny), none establish that unfettered discretion is “specified” such that it would divest this Court of jurisdiction. Accordingly, the Attorney General must exercise his authority under section 123l(g)(l) in a manner consistent with Mr. Ragbir’s constitutional and statutory rights.
Moreover, even if this Court were to find that ICE placement decisions are “specified” in the INA as a matter of agency discretion, § 1252(a)(2)(B)(ii) is incapable of barring judicial review of constitutional claims. “[D]ecisions that violate the Constitution cannot be ‘discretionary,’ so claims of constitutional violations are not barred by § 1252(a)(2)(B).” Kwai Fun Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004); see also Salazar v. Dubois, No. 17-cv-2186 (RLE), 2017 WL4045304 at *1 (S.D.N.Y. Sept. 11, 2017) (showing that a transfer would infringe on petitioner’s constitutional rights would be enough to allow the Court to issue an order to change or keep Salazar at any particular location). As discussed below, transferring Mr. Ragbir infringed upon his constitutional rights. See Point III.B, infra. Similarly, reading the statute to bar this Court from issuing a temporary restraint would raise serious constitutional concerns by limiting the Court’s Article III powers. See Point II, supra.
Part and parcel of this authority is the power to bring petitioners back to the jurisdiction from which they should not have been transferred. Because the initial order enjoining transfer pending this litigation was lawful, so too may the Court order the Government to comply with its order. See Orantes-Hernandez v. Meese, 685 F. Supp. 1488, 1509 (C.D. Cal. 1988), aff’d 919 F.2d 549, 565-66 (9th Cir. 1990) (ordering that transferred detainees be returned “to the district in which venue is set sufficiently in advance of any proceeding in order to allow the detainee
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adequate time to consult with counsel”); see also Fong v. Ashcroft, 317 F. Supp. 2d 398, 402 (S.D.N.Y. 2004) (granting habeas relief and ordering return of Petitioner who was deported unlawfully); Zheng v. Decker, No. 14-cv-4663 (MHD), 2014 WL 7190993 at *16 n.31 (S.D.N.Y. Dec. 12, 2014) (refusing to accept the Government’s argument that “an order relating to the location of one’s detention is not a cognizable form of relief in a habeas petition”).
Indeed, such an order would be necessary to prevent the ongoing harms that Mr. Ragbir is suffering. See Point III(B), infra (discussing irreparable harm due to transfer).
B. The Government’s refusal to return Mr. Ragbir to the New York region is causing him irreparable harm.
A party seeking a preliminary injunction must demonstrate, among other factors, irreparable injury absent injunctive relief. See Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d Cir. 2010). An irreparable harm is one that cannot be redressed through a monetary award. JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2d Cir. 1990). As discussed infra, the Government’s transfer of Mr. Ragbir has already caused and will continue to cause Mr. Ragbir irreparable harm by impeding his access to his counsel, family, clergy, and community.
1. The Government’s transfer of Mr. Ragbir interferes with his access to counsel.
The Government argues that Mr. Ragbir has no Sixth Amendment right to counsel in immigration cases, without acknowledging that courts and its own agency have long held that an immigrant’s right to access to counsel is well-recognized under the INA and the Due Process Clause. Gov’t Br. at 3; see 8 U.S.C. § 1362 (“Petitioners have a right to counsel, at no expense to the government, to challenge their removal”); see also Romero v. I.N.S., 399 F.3d 109, 112 (2d Cir. 2005) (recognizing that noncitizens may pursue ineffective assistance of counsel claims
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under the Due Process Clause); Baires v. INS, 856 F.2d 89, 91 n. 2 (9th Cir. 1988) (“We have characterized an alien’s right to counsel as ‘fundamental’”) (internal citations omitted).
The alleged violation of a constitutional right creates a presumption of irreparable injury. Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). This Court has held that prison regulations and practices which “unjustifiably obstruct”, “infringe”, “unreasonably burden”, or “significantly interfere” with access to counsel violates a criminal detainee’s Sixth Amendment right to counsel. Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir. 2001). An immigrant detainee’s right to counsel is protected by the Constitution and infringement thereof constitutes irreparable harm.
To protect detainees’ rights to access counsel of their choosing, courts have repeatedly enjoined immigration officials from transferring detainees where such transfers interfered with established and ongoing attorney-client relationships.3 See Louis v. Meissner, 530 F. Supp. 924, 927 (S.D. Fla. 1981) (finding INS had thwarted detainees’ statutory and regulatory rights to representation in exclusion proceedings by transferring them to remote areas lacking in counsel and interpreters); Rios-Berrios, 776 F.3d at 863 (holding that noncitizen’s transfer, among other issues, deprived him of due process); Orantes-Hernandez, 685 F. Supp. at 1509 (recognizing right to challenge transfer that would interfere with petitioners’ right to counsel and ordering that transferred detainees be returned); Hamama, 261 F. Supp. at 40-41 (holding that ICE’s transfer of detainees “severely disrupt[ed]” their right to counsel, where detention center was located 4
3 The Government’s duty not to obstruct access to courts and counsel also protects detainees’ right of telephonic access to their legal representatives. Johnson by Johnson v. Brelje, 701 F.2d 1201, 1207 (7th Cir.1983); see also Nunez v. Boldin, 537 F. Supp. 578, 582–83 (S.D. Tex. 1982) (“Access to the courts also includes the means to prepare for legal proceedings and to communicate outside the gates of the detention facility.”). That protection extends to cover detainees’ privacy in their communications with their attorneys. Am. Civil Liberties Union Fund of Michigan v. Livingston Cty., 796 F.3d 636, 643 (6th Cir. 2015) (citing Kensu v. Haigh, 87 F.3d 172, 174 (6th Cir. 1996) (A “prisoner's interest in unimpaired, confidential communication with an attorney is an integral component of the judicial process . . .”).
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hours drive from counsel, legal calls were limited to 15 minutes, and detainees were unable to make free calls to pro bono counsel).
In this case, with respect to both in-person and telephonic communication with counsel, Mr. Ragbir is already suffering irreparable harm. The Immigrant Rights Clinic has represented Mr. Ragbir since 2008. Das Decl. at ¶ 3. In addition to this lawsuit, counsel for Mr. Ragbir represents Mr. Ragbir on several open legal matters, including a petition for a writ of coram nobis in the District of New Jersey challenging the conviction that is the basis of his removal order; a motion to reopen his removal proceedings with the Board of Immigration Appeals; and a pardon application. See id. at ¶ 12. Each of these legal matters requires counsel to be able to communicate confidentially and promptly with Mr. Ragbir. See id. at ¶ 16. Each of these matters relies heavily on voluminous documentary evidence and testimony of Mr. Ragbir regarding his 2001 conviction; counsel must be able to review this highly technical documentation with Mr. Ragbir through in person visits and discuss these matters confidentially.
The Government claims that there are no access to counsel issues with holding Mr. Ragbir in Krome, first because “attorneys may visit their clients in person.” As the Government is aware, Mr. Ragbir is represented by a law school clinic, pro bono. Das. Decl. at ¶ 6. As the Government is also aware, Mr. Ragbir’s primary supervising attorney is not able to fly because she is in her third trimester of pregnancy. Id. at ¶ 45. Even if other members of his legal team are able to go to Miami to speak with him, the time and expense of travel is prohibitive to the prompt communication required for the legal challenges Mr. Ragbir is pursuing, particularly given the pace of the Government’s efforts to remove Mr. Ragbir.
The Government also states “attorneys may call their clients (and clients may call their attorneys) from 6 a.m. to 11 p.m.” and that while calls are monitored, there is access to a “private
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room” for unmonitored calls and video-conferencing. Gov’t Br. at 3. As an initial matter, attorneys do not have the ability to call their clients at Krome. See Gov’t Decl. of Pedro Cresente, III (noting only that detainees can call their attorneys); Das Decl. at ¶ 44, 46, 51; Ex. B, Declaration of Sui Chung, Esq. at ¶ 14 (confirming that there is no way to make a private call to a detainee). While a client may call their attorney, these calls are costly, monitored, and recorded, and are made from a phone located in the main living areas of the facilities, making them neither private nor confidential. See Chung Decl. at ¶ 18.
These difficulties are immediately apparent in the instant case, even over the last few days. On January 11, 2018, Counsel requested information from ICE about Mr. Ragbir’s whereabouts, but received no response. See Das Decl. Counsel was only informed by Government’s counsel of Mr. Ragbir’s location at 9:41 p.m., when the information appeared on an online locator system. Id. at ¶ 40. At that point, there was no way to contact Mr. Ragbir, nor was there any way for him to call family or counsel, since phone calls from people detained can be made only after someone is aware of the person’s location and can put money into their phone accounts. Id. at ¶ 44.
After counsel was informed of Mr. Ragbir’s location, Mr. Ragbir’s family put money into his phone account. Das Decl. at ¶ 42. Due to the length of his processing, he was only permitted to call out at 6:15 a.m. on Friday, January 12, 2018, when he called his wife, Amy Gottlieb. Id. He then called counsel at approximately 9 a.m. Id. Both of these calls were recorded and monitored. Id. Shortly thereafter, ICE agents placed Mr. Ragbir in a van to be taken to the airport, preventing Mr. Ragbir from making further phone calls. Id. at ¶ 43. Mr. Ragbir asked whether he was being returned to New York or if he was being deported, and officers refused to answer. Id. After the van left the facility, it turned back twice, and Mr. Ragbir was eventually
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returned to Krome, where he was re-processed. Id. He was afforded phone access again sometimes after 6 p.m. that Friday, when he called his wife. Id. He stated he also asked for a legal call but was told that such requests must be approved by a supervisory ICE agent who was not available at that time. Id.
While all of this was happening, counsel for Mr. Ragbir attempted to reach ICE officers both at the New York Field Office and at Krome to arrange a legal call with Mr. Ragbir. Each person she spoke with confirmed that there was no mechanism for her to call Mr. Ragbir directly and that counsel should come in person to have unmonitored access to Mr. Ragbir. Id. at ¶ 44. Only after concerted advocacy did an ICE officer say he would see what could be done to arrange a legal call. Id. at ¶ 52. At approximately 7:40 p.m., a supervisory ICE officer at Krome called counsel for Mr. Ragbir and said given the “special nature” of the case he would try to arrange a legal call that night. Id. He noted that there is a single private room for all of the several hundred people held at Krome to speak confidentially with a lawyer by phone, but that people in detention need to make a special request, which must be approved by a supervisor, to use that room, given the fact that an ICE officer must arrange to escort the person to that room and stand outside and watch the person make the call, and then escort him back. Id.
At approximately 8:30 p.m., Mr. Ragbir called his counsel, indicating that he was taken to a room where he was told he was given an unmonitored line and told he could speak to his attorney for 10 minutes. Id. The call was cut off at 10 minutes despite counsel expressing a desire to speak in more depth about certain confidential legal issues. Id; see also Chung Decl. at ¶ 18 (confirming that it is impossible to have more than a short phone conversation with clients).
This “access” is patently insufficient to prepare Mr. Ragbir for his legal proceedings. As discussed supra, counsel must be able to meet with Mr. Ragbir in person to collect and sign
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documents and communicate confidentially. If Mr. Ragbir were detained in one of the facilities located within the jurisdiction of the New York City ERO Field Office, these limitations would be greatly diminished. Two of the three detention facilities in the area are accessible by car and public transportation; the third is accessible by a reasonable car ride. Das Decl. at ¶ 36. Counsel would be able to visit in person with Mr. Ragbir as frequently as necessary and meet in a private room to discuss his case.
2. Mr. Ragbir’s transfer is irreparably harming his access to family, clergy, work, and community. Mr. Ragbir’s transfer also causes irreparable harm by detaining him far from his family, clergy, work and community. See Jimenez v. Napolitano, No. C-12-03558 RMW, 2012 WL 3144026, at *7 (N.D. Cal. Aug. 1, 2012) (granting stay of removal and finding that irreparable harm in the form of, inter alia, separation from family members, is probable); Borjas-Calix v. Sessions, No. CV-16-685-TUC-DCB, 2017 WL 1491629, at *3 (D. Ariz. Apr. 26, 2017) (granting motion to enjoin government from re-detaining plaintiff and finding that if re-detained, plaintiff would experience irreparable harm, including “separation from family and loss of employment”). Mr. Ragbir’s wife, Amy Gottlieb, was born and raised in Brooklyn, NY, and works at a Quaker nonprofit organization. To visit her husband this Sunday, January 14, 2018, during the one time block permitted for family visits to Mr. Ragbir, Ms. Gottlieb had to pay $721 for a flight and hotel room, only to see him for one hour during a restricted morning time block, during which time she had to speak to him via a phone, separated by plexiglass. See Ex. E, Receipts for Flight and Hotel; Ex. D, Krome Detention Facility Visitation Policies. Ms. Gottlieb cannot afford to regularly fly from New York to Florida to visit with her husband, particularly
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given the restrictive family visitation policies at Krome Detention Facility,4 nor can Mr.
Ragbir’s extended family, clergy, and colleagues.5 Das Decl. at ¶ 54-55.
The New York ICE Field Office has jurisdiction over three detention facilities in the New
York region, where Mr. Ragbir’s family, counsel, clergy, and community could regularly visit
Mr. Ragbir in person, ensuring that his access to counsel and legal representation as well as his
access to family and community is preserved.6
IV. This Court Should Reject the Government’s Motion to Vacate the Court’s Order Temporarily Staying Removal Pending Adjudication of Mr. Ragbir’s Habeas Petition and Complaint.
As the Supreme Court held in Nken v Holder, “[a]n [noncitizen] seeking a stay of
removal . . . does not ask for a coercive order against the Government, but rather for the
temporary setting aside of the source of the Government's authority to remove.” 556 U.S. 418,
419 (2009). By ignoring Nken and relying on § 1252(g), the Government misstates the nature of
federal court authority to issue a stay, which is grounded in its inherent authority to issue
temporary stays to protect its jurisdiction, as well as 28 USC § 1651, the All Writs Act. Section
4 Family visits are limited at Krome to one day per week based on the detainee’s last name, with each visit limited to one hour. Ex. D, Krome Detention Facility Policies. In contrast, at Hudson County Correctional Facility and Orange County Correctional Facility, the primary ICE detention facilities in the New York City jurisdiction, families are permitted to visit five days per week should they wish. Ex. G, Visitation Policies of NYC Facilities 5 Mr. Ragbir’s transfer also causes irreparable harm because his sudden detention, combined with the out-of-state transfer within hours of arrest, prohibits him from being able to communicate with his co-workers and transition the leadership of his nonprofit organization, the New Sanctuary Coalition of New York City (NSC). Mr. Ragbir is the Executive Director of a nonprofit organization with five staff members and approximately 1,000 volunteers, which provides outreach services to immigrant communities. Das Decl. ¶ 54 Mr. Ragbir is responsible for the organization’s funding, reporting, and work with elected officials and faith leaders. Id. Upon information and belief, the organization has already missed a funding reporting deadline due to Mr. Ragbir’s detention far from his staff. Id. Mr. Ragbir’s return to the New York area would allow his staff to visit him to discuss their work, and allow his organization to best continue serving the community in the event of Mr. Ragbir’s continued detention or removal. 6As detailed in Petitioner’s Memorandum of Law, ECF No. 11, all other factors support the Court’s issuance of a temporary restraint. Mr. Ragbir has shown a likelihood of success on the merits of his habeas petition, satisfying the remaining requirements for a temporary restraining order. Id. Returning Mr. Ragbir to this jurisdiction would be a minor cost to the Government, which by its own admission frequently moves people throughout the country as it desires. Particularly given the extensive irreparable harm, the balance weighs greatly in favor of a temporary restraint on transfer and return to the New York region.
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1252(g) does not strip the Court of this authority, and if it were to do so, it would raise serious constitutional concerns under the Suspension Clause.
A. This Court has both jurisdiction over this case and the inherent authority to issue a stay of removal to protect its jurisdiction.
. As noted in Point II, supra, this Court has jurisdiction over Mr. Ragbir’s habeas petition and complaint to this Court, and both the authority and duty to protect its ability to review these matters. This is particularly vital in the habeas context. The Supreme Court has instructed: “It must never be forgotten that the writ of habeas corpus is a precious safeguard of personal liberty and there is no higher duty than to maintain it unimpaired.” Bowen v. Johnston, 306 U.S. 19, 26 (1939). The federal district courts are “generally the first responders when rights guaranteed by the Constitution require protection.” Hamama v. Adducci, 258 F. Supp. 3d 828, 829 (E.D. Mich. 2017) (internal quotations omitted) (granting temporary stay of removal). A temporary stay of removal is necessary to protect the jurisdiction of this Court to fully and fairly consider the merits of Mr. Ragbir’s petition and the vindication of his legal rights.7
Contrary to the Government’s arguments, this Court has inherent authority to issue a temporary stay pending its consideration of the petition and complaint, see Point II, supra, as well as independent authority under 28 U.S.C. § 1651, see Point IV(B), infra. Recognizing such, multiple Courts have issued temporary stays of removal in order to provide the Court with the requisite time to consider the underlying relief sought. See Hamama v. Adducci, 261 F. Supp. 3d 820 (E.D. Mich. 2017) (ordering a 90+ day stay of removal pending consideration of habeas
7 The Government implies that Mr. Ragbir’s habeas petition would have been moot because he would have been released from detention (i.e., deported) the morning of January 12, 2018 were it not for this Court’s order to temporarily stay his removal. The implied equivalence between release from detention within the United States, where Mr. Ragbir would be permitted to remain with his family while he pursues his pending legal matters, and deportation where Mr. Ragbir would be separated from his family and permanently barred from returning to the U.S., is absurd. Further, it fails to account for three of the five causes of action raised in Mr. Ragbir’s habeas petition, which challenge the unlawful act of detention, not solely the duration of Mr. Ragbir’s detention.
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challenge to re-detention, finding a stay necessary to ensure ability to pursue legal challenges to removal); Ibrahim v. Acosta, No. 17-cv-24574-GAYLES (S.D. Fla. Dec. 19, 2017) (ordering a stay of removal pending consideration of habeas challenge, as well as provision of reasonable access to counsel); Devitri v. Cronen, No. 17-11842-PBS (D. Mass. Sept. 26, 2017) (ordering a stay of removal in order to maintain status quo pending consideration of habeas challenge to removal); Neth v. Marin, No. SACV 17-01898-CJC(GJSx) (C.D. Ca. Dec. 14, 2017) (ordering a stay of removal pending consideration of habeas challenge to re-detention, noting that a stay was necessary given the speed with which the Government intended to remove Petitioners); Sied v. Duke, 17-cv-06785-LB, 2017 WL 6316821 (N.D. Ca. Dec. 11, 2017) (ordering a stay of removal pending consideration of habeas challenging removal, to allow time for Petitioner to file a motion to reopen and noting that counsel had not yet been able to visit with Petition in detention); Darweesh v. Trump, 17-cv-480 (AMD) (E.D.N.Y. Jan. 28, 2017) (ordering a stay of removal pending consideration of habeas petition challenging removal and detention); Kabenga v. Holder, 76 F. Supp. 3d 480, 486 (S.D.N.Y. 2015) (ordering a stay of removal pending consideration of habeas challenge to validity of underlying removal order); Jimenez v. Napolitano, C-12-03558 (RMW), 2012 WL 3144026 (N.D. Ca. 2012) (ordering a stay of removal pending consideration of habeas petition).
B. The All Writs Act provides this Court with independent statutory authority to issue a temporary stay of removal.
This Court is also independently bestowed with authority to issue a temporary stay of removal by the All Writs Act, which allows federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). The All Writs Act does not enlarge or expand the jurisdiction of the district court but instead confers ancillary authority where jurisdiction is otherwise present and
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already lodged in the court. This ancillary authority allows courts to enter orders necessary to safeguard their jurisdiction, when that jurisdiction has another basis. See, e.g., Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41 (1985) (describing Act as filling the interstices of federal judicial power when those gaps threaten to thwart the otherwise proper exercise of federal courts jurisdiction); Dennis v. I.N.S., No. 01-279, 2002 WL 295100, at *3 (D. Conn. Feb. 19, 2002) (same). In this case, the Court has subject-matter jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 2241, 1331, 1651, and 2201; the APA, 5 U.S.C. § 706; and Article I, § 9, cl. 2 of the United States Constitution.
As such, this Court has the authority under the All Writs Act to issue a temporary stay in connection with its subject-matter jurisdiction over the underlying claims, in order to aid in its ability to review the Petition validly before it. As the Supreme Court stated in Nken v. Holder, an “appellate court’s power to hold an order in abeyance while it assesses the legality of the order” is “‘inherent’” and stems from the All Writs Act. 556 U.S. at 426. The Court further explained that the “power to grant a stay pending review. . . [is] part of a court’s ‘traditional equipment for the administration of justice.’” Id. at 427 (quoting Scripps-Howard Radio, Inc. v. F.C.C., 316 U.S. 4, 9-10 (1942)). As such, this Court had jurisdiction to grant Mr. Ragbir’s motion for stay of removal under both its inherent authority and the authority conferred by the All Writs Act, a “‘power as old as the judicial system of the nation.’” Id. (quoting Scripps-Howard at 17). Given the Government’s clear intention to remove Mr. Ragbir from the United States as soon as possible, see Gov’t Br. at 5, the Court’s order on January 11, 2018 granting a temporary stay of removal was an appropriate and authorized use of a temporary stay of removal in order to protect its ability to review the constitutional and legal questions around his detention, which validly bestow jurisdiction on this Court.
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C. Contrary to the Government’s arguments, 8 U.S.C. §§ 1252(a)(5) and 1252(g) do not strip this Court of its jurisdiction and authority to issue a temporary stay of removal in this case.
This Court’s authority to issue a temporary stay of removal in Mr. Ragbir’s case is unaffected by 8 U.S.C. § 1252(g) and 8 U.S.C. § 1252(a)(5). Section 1252(g) addresses the Court’s jurisdiction to hear any cause or claim arising from the decision by the Attorney General “to execute removal orders.” Section 1252(a)(5) addresses federal court jurisdiction to review the entry or issuance of an order of removal. Neither of these legal questions is at issue in the instant case, nor do these provisions of the INA affect the Court’s inherent authority and authority under 8 U.S.C. § 1651 to grant a temporary stay of removal.
The limitations on judicial review of an Attorney General’s decision to “commence proceedings, adjudicate cases, or execute removal orders”, section 1252(g), only limit district courts from reviewing these three types of decisions, and cannot be read as expansively as Respondents suggest. Indeed, Respondents argue for the precise broad application that is rejected in the Supreme Court’s holding in Reno v. American-Arab Anti-Discrimination Committee. 525 U.S. 471, 482 (1999) (“It is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings . . . . We are aware of no other instance in the United States Code in which language such as this has been used to impose a general jurisdictional limitation.”). Mr. Ragbir’s habeas petition challenges the constitutional, statutory, and regulatory violations that occurred in conjunction with his detention on January 11, 2018. Pet’n at ¶¶ 33-59. As he does not challenge the ultimate decision to execute his removal order, this case is not governed by 8 U.S.C. § 1252(g). Nor is this case governed by 8 U.S.C. § 1252(a)(5) since Mr. Ragbir does not challenge the underlying order of removal, but rather the lawfulness and constitutionality of his detention.
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Further, §1252(g) must be read together with § 1252(f)(2), as interpreted by the Supreme Court in Nken. Nken v. Holder, 556 U.S. 418 (2009). § 1252(f)(2) limits the ability of lower courts to “enjoin or restrain” operation of certain INA provisions. In Nken, the petitioner sought a stay of removal while he petitioned the Fourth Circuit to reopen his immigration case. While the Government argued that § 1252(f)(2) required a strenuous evidentiary showing to obtain a stay, the Supreme Court agreed with Nken that the “traditional stay factors,” described in Part IV(E), infra, governed his case. The Court reasoned that § 1252(f)(2) was not “reasonably understood to be directed at stays” because the text of § 1252(f)(2) could not overcome the presumption that traditional stay factors govern for stay requests. Id. at 432. In this case, the Government seeks to overcome the same presumption through its reading of § 1252(g). They do so by suggesting a reading of the statute that would bar virtually any motion seeking a stay, even when the request does not arise from a one of the discrete decisions or acts by the Attorney General as required by § 1252(g). But here too, the Government “has not overcome the ‘presumption favoring the retention of long-established and familiar principles.’” Id. (quoting Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952)). Just as the Nken court determined that the stricter standard in §1252 must be set aside for the “traditional stay factors,” this Court should not be deprived of its customary power to grant a stay in Mr. Ragbir’s case. Id. at 436. As explained in Part IV(B), supra, the established rule is that courts retain jurisdiction over a stay request when there is an independent basis of jurisdiction.8 See e.g., Jimenez v. Napolitano, C-
8 The cases cited by Respondents are inapposite as most of the cases cited were decided before the Supreme Court decided Nken, which clarified that courts are not stripped of their power to issue temporary stays of removal. The only cases cited that are after Nken, Velasquez v. United States, 2015 WL 4619805 (S.D.N.Y. Aug. 3, 2015) and Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011), do not touch on the issue before this Court in the instant case. As the court in Velasquez noted, “whether the court has jurisdiction will turn on the substance of the relief that a plaintiff is seeking.” 2015 WL 4619805, at *3. In Delgado, the Petitioner sought mandamus relief in the form of an affirmative immigration benefit that the court held was a collateral attack on the validity of her removal order and, as such, was barred by § 1252(g). Mr. Ragbir’s petition is not a collateral attack on his removal order, but rather a challenge to the lawfulness of his arrest and detention.
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12-03558 (RMW), 2012 WL 3144026 (N.D. Ca. 2012) (“where the stay of removal is interim relief to allow the court itself to adjudicate a permissible underlying claim, . . . § 1252(g) does not deprive it of jurisdiction”(citing Dhillon v. Mayorkas, 2012 WL 1338132 (N.D. Cal. 2010)).
Respondent’s claim that the stay granted by this Court is barred by § 1252(g) similarly misunderstands the proper scope of § 1252(g) and its relationship to 8 U.S.C. § 1651. By its own title and language, § 1252(g) is addressed exclusively to limiting jurisdiction. Because Congress intended § 1252(g) to bar suits filed in district court whose sole purpose was to stay or enjoin removal proceedings, see, e.g., Reno, 525 U.S. at 485 (suit in district court to enjoin removal proceedings), the plain text of § 1252(g) speaks only of jurisdiction. It is well settled that the All Writs Act confers ancillary authority, not jurisdiction, in aid of jurisdiction conferred elsewhere.9 The difference between jurisdiction and ancillary authority is at the heart of All Writs Act jurisprudence. See, e.g., Penn. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 41-42 (1985). Because the All Writs Act is not itself jurisdictional, a jurisdiction-stripping provision like § 1252(g) is irrelevant to the authority that the All Writs Act provides. As such, section 1252(g) does not divest this Court of its authority under the All Writs Act.10 See e.g., Fuller v. INS, 144 F.Supp.2d 72, 83 (D. Conn. 2000) (relying on All Writs Act to ordering return when immigrant had been removed in violation of a stay); Dennis v. INS, 2002 WL 295100 at *3 n. 3 (ordering return when immigrant had been removed after improper in absentia order); see also Michael v. INS, 48 F.3d 657 (2d Cir. 1995) (All Writs Act authorizes an appellate court to grant a stay pending its eventual review of a removal order).
9 See 14A Wright & Miller, Federal Practice and Procedure § 3691 (3d ed. 2010) (All Writs Act is “not a base of jurisdiction”); United States v. Denedo, 129 S. Ct. 2213, 2222 (2009) (recognizing that “[t]he authority to issue a writ under the All Writs Act is not a font of jurisdiction,” nor is it “a source of subject-matter jurisdiction”). 10 The Government does not address or contest Mr. Ragbir’s arguments that the balance of factors weighs in favor of a stay grant in this case, and this Court already issued its order for a temporary stay of removal on the basis of Petitioner’s arguments. See Memorandum of Law at §§ I to IV, ECF No. 11.
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D. Depriving this Court of its authority to issue a temporary stay of removal would violate the Suspension Clause of the Constitution.
The Government’s reading of § 1252 would violate Article I, § 9, cl. 2 of the United States Constitution (the “Suspension Clause”) as applied in the instant case. The Supreme Court has explained that “the Framers viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” Boumediene v. Bush, 553 U.S. 723, 739 (2008). As such, the Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. The Suspension Clause applies in deportation cases. I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001).
In the instant case, the Respondent’s interpretation of § 1252 violates the Suspension Clause because there is no substitute collateral remedy that is both adequate and effective in protecting Mr. Ragbir’s ability to vindicate his legal rights related to his detention. Boumediene v. Bush, 553 U.S. 723, 733 (2008). Respondents urge that the proper forum for seeking a stay of removal is the Court of Appeals and the Board of Immigration Appeals. Gov’t Br. at 7. However, neither of those courts is able to review Mr. Ragbir’s challenges to the constitutionality and lawfulness of his detention—jurisdiction over those matters rests with this Court in the first instance. Thus only this Court can protect its jurisdiction over thos specific claims and Mr. Ragbir’s access to the Court through a temporary stay pending adjudication of this case. . Since Mr. Ragbir’s will be unable to access the Writ of Habeas Corpus absent a temporary stay of removal, and there is no adequate substitute, the Court should find that a temporary stay of removal is permitted in order to avoid violation of the Suspension Clause. See e.g., Hamama v. Adducci, 258 F. Supp. 3d 828, 829 (E.D. Mich. 2017) (holding that the Court had jurisdiction to grant a stay of removal in order to preserve the fundamental right of habeas corpus).
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Dated: New York, New York January 15, 2018

Respectfully submitted,
/s/ Alina Das ALINA DAS, Esq. (AD8805) JESSICA ROFÉ, Esq. (JR5231) Brittany Castle, Legal Intern Jeremy Cutting, Legal Intern Washington Square Legal Services, Inc. Immigrant Rights Clinic 245 Sullivan St., 5th floor New York, New York 10012 Tel: (212) 998-6430 alina.das@nyu.edu
Counsel for Petitioner

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 Case 1:18-cv-00236-KBF Document 20 Filed 01/16/18 Page 1 of 6

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
RAVIDATH LAWRENCE RAGBIR, Petitioner,
- against -
JEFFERSON BEAUREGARD SESSIONS III, Respondents.

No. 18 Civ. 236 (KBF) ECF Case

RESPONDENTS’ REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION TO VACATE PORTIONS OF THE
COURT’S ORDER TO SHOW CAUSE

BRANDON M. WATERMAN Assistant United States Attorney
– Of Counsel –

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York Attorney for Respondents 86 Chambers Street, Third Floor New York, New York 10007 Tel: (212) 637-2741

Case 1:18-cv-00236-KBF Document 20 Filed 01/16/18 Page 2 of 6
BACKGROUND For the reasons stated in the government’s earlier-filed brief (ECF No. 17), and the reasons stated below, the government respectfully requests that the Court deny Mr. Ragbir’s motion to compel ICE to return him to the New York area, and vacate the portions of its Order to Show Cause dated January 11, 2018, (1) temporarily staying Mr. Ragbir’s removal, and (2) enjoining ICE from transferring Mr. Ragbir out of the New York area.
ARGUMENT A. The government did not act in contravention of this Court’s order, and the Court
should not compel ICE to return Mr. Ragbir to the New York area As explained it is earlier-filed brief, the government did not act in contravention of this Court’s order. Mr. Ragbir states that this Court signed the order enjoining ICE from transferring Mr. Ragbir outside the jurisdiction at or around 4:15 p.m. on January 11, 2018. According to United Airlines’ website, UA Flight 1923 departed the gate at Newark Airport at 4:11 p.m. See Ex. A (UA page).1 This Office received notice of the Court’s order at 4:22 p.m., and we forwarded the order to ICE within approximately 10 minutes. After receiving the Court’s order, ICE made the decision to detain Mr. Ragbir in Miami and, consistent with the Court’s order that Mr. Ragbir not be removed, did not place him on a connecting flight to Trinidad and Tobago. Thus, Mr. Ragbir’s claims that the government acted in clear contravention of the Court’s order are without merit,2 and for the reasons explained in the government’s earlier-filed brief, the
1 The FlightAware website, on which Mr. Ragbir relies, indicates that the flight departed the gate at 4:35 p.m. Ragbir Motion, Ex. 3 (ECF 13-5). At the very least, there is disagreement among the websites concerning the departure time of the flight.
2 Mr. Ragbir cites the Solicitor General’s petition for certiorari in Hargan v. Garza, No. 17-654 (Pet’r Br. at 4) in support of his argument, but that situation is not analogous. In the Hargan petition, the government brought to the Supreme Court’s attention “what appear[ed] to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.” Cert. Pet. at 26 (available at www.justice.gov/osg).

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Court should not compel ICE to return Mr. Ragbir to the New York area. B. The Court lacked jurisdiction to grant Mr. Ragbir injunctive relief
Mr. Ragbir argues that this Court has the inherent authority to temporarily enjoin ICE from executing a final removal order and from transferring aliens to detention facilities that it deems appropriate. To the contrary, the jurisdiction of the lower federal courts is presumptively limited. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Sheldon v. Sill, 49 U.S. 441, 448 (1850) (“Congress, having the power to establish the courts, must define their respective jurisdictions.”). They “possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen, 511 U.S. at 377 (internal citations omitted); Sheldon, 49 U.S. at 449 (“Courts created by statute can have no jurisdiction but such as the statute confers.”). And while “[c]ourts invested with the judicial power of the United States have certain inherent authority to protect their proceedings and judgments in the course of discharging their traditional responsibilities,” “[i]n many instances the inherent powers of the courts may be controlled or overridden by statute or rule.” Degen v. United States, 517 U.S. 820, 823 (1996) (citing, inter alia, Carlisle v. United States, 517 U.S. 416, 426 (1996); Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1962)). Moreover, “[p]rinciples of deference counsel restraint in resorting to inherent power, and require its use to be a reasonable response to the problems and needs that provoke it.” Id. (internal citations omitted). That is, “[a] court’s inherent power is limited by the necessity giving rise to its exercise.” Id. at 829.
Here, as explained in the government’s earlier-filed brief, Congress has specifically cabined this Court’s authority by statute to grant stays of removal or enjoin ICE from transferring aliens to certain detention facilities.
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1. Places of detention Decisions to transfer an alien from one location to another are within the discretion of the Attorney General and therefore may not be reviewed or enjoined by the district courts. See 8 U.S.C. § 1231(g)(1) (“The Attorney General shall arrange for appropriate places of detention for aliens detained pending removal or a decision on removal.”). Congress, through the INA, has explicitly limited district courts from exercising jurisdiction over matters that fall within the Attorney General’s discretion. See 8 U.S.C. § 1252(a)(2)(B)(ii) (barring district courts from exercising subject matter jurisdiction over “any . . . decision or action of the Attorney General . . . the authority for which is specified under this subchapter [8 U.S.C. §§ 1151 1381] to be in the discretion of the Attorney General . . .”). Courts have consistently found that the Attorney General’s decision over where to house a detainee is within the Attorney General’s discretion. See, e.g., Gov’t Br. at 4-5 (citing cases). Accordingly, the Court should vacate its order enjoining ICE from transferring Mr. Ragbir outside of the New York area, and should not require ICE to move him from the Miami area. 2. Stays of removal Similarly, Congress unambiguously stripped district courts of jurisdiction to stay or enjoin an alien’s removal. See 8 U.S.C. § 1252(g); Vasquez v. United States, No. 15-cv-3946 (JGK), 2015 WL 4619805, at *3-4 (S.D.N.Y. Aug. 3, 2015), affirmed at 2d Cir. No. 16-2616 (Order Sept. 9, 2015) (“District courts within this Circuit and across the country have routinely held that they lack jurisdiction under § 1252 to grant a stay of removal.”). In his habeas petition, Mr. Ragbir seeks to challenge his detention as unlawful, but his detention is pursuant to a valid, final removal order. By seeking a stay of removal from this Court to prevent ICE from executing a lawful removal order, Mr. Ragbir is circumventing the provisions of the REAL ID Act and effectively mounting an attack on the enforceability of his removal order, which is clearly
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prohibited by law. Mr. Ragbir has exhausted his challenges to his removal order, and on January 11, 2018,
he filed a second motion to reopen with the Board of Immigration Appeals, along with a stay motion. Pet’r Br. at 14; Das Decl. (ECF No. 19-1) ¶ 12. The administrative process is the appropriate forum for Mr. Ragbir to seek a stay of removal and to challenge the enforceability and validity of his removal order.3 See 8 C.F.R. §§ 241.6(a)-(b), 1241.6(a)-(b) (once a motion to reopen is filed, the alien may seek a stay of removal from the immigration court). Thus, even if the Court retains the inherent authority to stay Mr. Ragbir’s removal—which it does not— principles of deference counsel restraint in the Court resorting to inherent power given that Mr. Ragbir already has received a temporary stay of removal from another court, and he is also pursuing the same relief in the Board of Immigration Appeals (the appropriate forum). See Degen, 517 U.S. at 823, 829.
Accordingly, the Court should vacate its order staying Mr. Ragbir’s removal. C. ICE did not violate a removal regulation
Ragbir suggests that ICE “admit[ed] to a clear intent to violate yet another regulatory authority, 8 C.F.R. § 241.22, which prohibits deportation less than 72 hours after an individual’s arrest.” Pet’r Br. at 5. That regulation does not apply to Mr. Ragbir. Section 241.22 is found in subpart B to part 241, and that section is limited to the execution of final orders resulting from exclusion proceedings commenced prior to April 1, 1997. See 8 C.F.R. § 241.20. Mr. Ragbir’s
3 On Thursday, January 11, 2018, Mr. Ragbir also sought a stay of removal from the U.S. District Court for the District of New Jersey (“DNJ”)—the court in which Mr. Ragbir’s coram nobis proceedings are pending—and the Honorable Michael McNulty granted a temporary stay of removal pending his consideration of Ragbir’s motion for a stay of removal. See Exhibit B (DNJ Order).
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removal proceedings commenced in 2006. In any event, Mr. Ragbir was not removed within 72 hours of his detention.
CONCLUSION For the foregoing reasons, the Court should deny Mr. Ragbir’s motion to enforce the Court’s January 11 order, and the Court should grant the government’s motion to vacate the portions of the Court’s January 11 order staying Mr. Ragbir’s removal and enjoining ICE from transferring Mr. Ragbir to other locations outside of the New York area.

Dated: New York, New York January 16, 2018

Respectfully,

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York, Attorney for Respondents

By: /s/ Brandon M. Waterman
BRANDON M. WATERMAN Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10007 Tel. (212) 637-2741 Fax (212) 637-2786 brandon.waterman@usdoj.gov

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 Case 1:18-cv-00236-KBF Document 21 Filed 01/17/18 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Ravidath Lawrence RAGBIR
Petitioner
vs.
Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY.
Respondents

Case No.: 1:18-cv-000236-KBF
AMENDED PETITION FOR WRIT OF HABEAS CORPUS

PRELIMINARY STATEMENT Ravidath “Ravi” Lawrence Ragbir (“Petitioner” or “Mr. Ragbir”) is a father, husband, and nationally recognized immigrant rights activist who has been unlawfully detained by Respondents. Mr. Ragbir’s current detention comes over a decade after he was first placed into removal proceedings in 2006, during which time Mr. Ragbir was subjected to nearly two years of detention before being released on an order of supervision in 2008. Since his release, he has complied with the terms of his supervision and pursued his legal avenues for relief from removal. In addition, Mr. Ragbir has become a leader in the immigrant rights community, and the U.S. Department of Homeland Security has provided him with work authorization and four stays of
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removal, the latest of which is valid through January 19, 2018. Despite having already been subject to prolonged detention a decade ago when he was first placed in removal proceedings, and despite his valid release on an order of supervision and valid stay of removal, Mr. Ragbir has now been re-detained without cause or due process. Separated from his U.S. citizen wife and daughter, and the community he has served, Mr. Ragbir brings this action to challenge his unlawful detention and revocation of his stay and order of supervision as a violation of his constitutional, statutory, and regulatory rights.
As described in further detail below, Mr. Ragbir’s re-detention follows a long history of previous prolonged detention followed by an explicit grant of release and subsequent stays of removal. Mr. Ragbir became a lawful permanent resident in 1994, raising his family in the United States. While working as a salesperson for a now-defunct loan company, Mr. Ragbir was accused and convicted of accepting fraudulent loan applications, resulting in his only arrest and conviction in his over twenty years of living in the United States. In May 2006, after completing his criminal sentence for this conviction, Mr. Ragbir was transferred from criminal to immigration custody. After twenty-two months of custodial immigration detention, the U.S. Department of Homeland Security released Mr. Ragbir pursuant to 8 U.S.C. §1231(a)(6) on an order of supervision. Mr. Ragbir’s release from immigration detention as a result of his outstanding equities proved to be only the beginning of a process of institutional and government recognition of his contributions to community, and determinations that no legitimate purpose would be served by Mr. Ragbir’s detention and removal.
Mr. Ragbir is currently the Executive Director of the New Sanctuary Coalition. Since his release from detention, Mr. Ragbir has devoted his life to the dignity and well-being of others, working tirelessly at the intersection of faith and immigrant communities, and gathering support
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from elected officials at all levels of government, faith leaders, immigrant rights activists and hundreds of community members. Accordingly, he has been granted four administrative stays of removal by the U.S. Immigration and Customs Enforcement Field Office in New York, NY, which have allowed him to remain in the United States with his beloved U.S. Citizen wife and daughter. For nearly ten years, Mr. Ragbir has complied with every condition of his release. On January 11, 2018, with his most recent administrative stay of removal still in place, Mr. Ragbir was suddenly and inexplicably detained by ICE.
Mr. Ragbir’s detention is unlawful for five reasons. First, his detention is not authorized by statute. The post-final order removal statute and associated regulations provide for a removal period, or, in the alternative, supervised release and work authorization. The statute and regulations do not provide for re-detention without cause, notice, and an opportunity to be heard. Second, detention based on a revocation of his order of supervision and/or stay of removal violates Mr. Ragbir’s right to due process. Both Mr. Ragbir’s order of supervision and stay of removal create property and liberty interests in which Mr. Ragbir has a due process right. Third, Mr. Ragbir’s detention without a bond hearing violates the statute and the Constitution because it is unconstitutionally prolonged. Fourth, Mr. Ragbir’s detention violates the statute and the Constitution because his removal is not reasonably foreseeable and therefore his continued detention is without justification. And fifth, Mr. Ragbir’s detention violates the statute and the Constitution because the post-order custody review process is constitutionally inadequate.
For any or all of these reasons, this Court should grant Mr. Ragbir’s habeas petition and order the Government to either release Mr. Ragbir on reasonable conditions of supervision or provide him with a constitutionally adequate bond hearing before an impartial adjudicator where the Government bears the burden of establishing that his continued detention is justified.
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PARTIES 1. Petitioner Ravidath “Ravi” Ragbir is a resident of Brooklyn, NY and Executive Director
of the New Sanctuary Coalition of New York City. He is currently being detained under the direction of Respondents. 2. Respondent Jefferson Sessions III is named in his official capacity as the Attorney General of the United States. In this capacity, he is responsible for the administration of the immigration laws as exercised by the Executive Office for Immigration Review, pursuant to INA § 103(g), 8 U.S.C. § 1103(g), routinely transacts business in the Southern District of New York, is legally responsible for administering Petitioner’s removal proceedings and the standards used in those proceedings, and as such is the legal custodian of Petitioner. Respondent Sessions’ address is U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, District of Columbia 20530. 3. Respondent Kirstjen Nielsen is named in her official capacity as the Secretary of Homeland Security in the United States Department of Homeland Security. In this capacity, she is responsible for the administration of the immigration laws pursuant to Section 103(a) of the INA, 8 U.S.C. § 1103(a) (2007); routinely transacts business in the Southern District of New York; supervises Respondents Decker and Mechkowski; is legally responsible for pursuing Petitioner’s detention and removal; and as such is the legal custodian of Petitioner. Respondent Nielsen’s address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District of Columbia 20528. 4. Respondent Thomas Decker is named in his official capacity as the Field Office Director of the New York Field Office for ICE within the United States Department of Homeland Security. In this capacity, he is also responsible for the administration of immigration
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laws and the execution of detention and removal determinations, supervises Respondent Mechkowski, and is legal custodian of Petitioner. Respondent Decker’s address is New York ICE Field Office Director, 26 Federal Plaza, 11th Floor, New York, New York 10278. 5. Respondent Scott Mechkowski is named in his official capacity as the Assistant Field Office Director of the New York Field Office for ICE within the United States Department of Homeland Security. In this capacity, he is responsible for the administration of immigration laws and the execution of detention and removal determinations, and is legal custodian of Petitioner. Respondent Mechkowski’s address is New York ICE Field Office, 26 Federal Plaza, 9th Floor, New York, New York 10278. 6. Respondent Department of Homeland Security (“DHS”) is the federal agency responsible for enforcing Petitioner’s continued detention pending his removal proceedings. DHS’s address is U.S. Department of Homeland Security, 800 K Street, N.W. #1000, Washington, District of Columbia 20528.
JURISDICTION 7. Petitioner is currently detained under the authority of Respondents. On January 11, 2018,
at the time of filing, Petitioner was physically present within the Southern District in Respondents’ custody while he was detained while checking-in with ICE at 26 Federal Plaza, New York, NY. 8. This Court has subject matter jurisdiction over this Petition pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 1331, and Article I, § 9, cl. 2 of the United States Constitution; the All Writs Act, 28 U.S.C. § 1651; the Administrative Procedure Act, 5 U.S.C § 701; and for injunctive relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201. Petitioner’s
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current detention as enforced by Respondents constitutes a “severe restraint[] on [Petitioner’s] individual liberty,” such that Petitioner is “in custody in violation of the . . . laws . . . of the United States.” See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973); 28 U.S.C. § 2241(c)(3). 9. Federal district courts have jurisdiction to hear habeas claims by noncitizens challenging the lawfulness or constitutionality of their detention by DHS. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
VENUE 10. The Southern District of New York is the proper venue to resolve Mr. Ragbir’s petition
for a writ of habeas corpus. Mr. Ragbir is from New York City and was apprehended in New York City. Mr. Ragbir is being detained under the authority of Respondents Thomas Decker and Scott Mechkowski, and both share the official address of the ICE Field Office at 26 Federal Plaza, New York, New York, within the Southern District. Most of the substantial events relevant to the present case occurred within the District, including Mr. Ragbir’s receipt of four stays of removal from the ICE Field Office at 26 Federal Plaza and his re-detention while at his place of work in New York, NY. Furthermore, this Petition was filed on January 11, 2018 while Mr. Ragbir was physically present within the Southern District of New York at 26 Federal Plaza, New York, NY 10278.
EXHAUSTION OF ADMINISTRATIVE REMEDIES 11. Petitioner has no administrative remedies to exhaust. The only administrative process
available to Mr. Ragbir is the ability to pursue Post Order Custody Review (“POCR”), which Mr. Ragbir has already pursued three times, leading to his release nine years ago.
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There is no reason to disrupt the 2008 administrative decision to release Mr. Ragbir and there is no other administrative process available to individuals facing re-detention. 12. Moreover, even if there were administrative redress that petitioner could seek, Petitioner need not exhaust his administrative remedies. The detention statute pursuant to which Mr. Ragbir is detained, 8 U.S.C. § 1231(a), has no exhaustion requirement. Exhaustion is required only when Congress specifically mandates it. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). In all other instances, “sound judicial discretion governs.” Id. 13. This Court also should not require Petitioner to exhaust his administrative remedies. First, the Supreme Court has recognized that courts should not require exhaustion where there is an unreasonable or indefinite time-frame for administrative action. Exhaustion is thus not appropriate where plaintiff “may suffer irreparable harm if unable to secure immediate judicial consideration of his claim.” Id. at 147. Petitioner has a constitutionally protected liberty interest in his freedom from government custody. Zadvydas, 533 U.S. at 690. Petitioner’s unlawful indefinite detention constitutes irreparable harm. See SeretseKhama v. Ashcroft, 215 F. Supp.2d 37, 53 (D.D.C. 2002); Hardy v. Fischer, 701 F.Supp. 2d 614, 619 (S.D.N.Y. 2010) (threat of unlawful detention and reimprisonment would constitute quintessential irreparable harm). 14. Second, exhaustion is not required where the Petitioner challenges the constitutionality of the agency procedure itself, “such that the question of the adequacy of the administrative remedy is for all practical purposes identical with the merits of the plaintiff’s lawsuit.” McCarthy, 503 U.S. at 148 (internal brackets omitted). In this case, Petitioner is challenging the constitutionality of any administrative procedures by which Respondents
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review the custody status of immigrants in his situation, including the post-order custody review process. Thus, exhaustion of administrative remedies is not required.
STATEMENT OF FACTS REGARDING MR. RAGBIR AND HIS CURRENT DETENTION
15. Mr. Ragbir is a longtime Lawful Permanent Resident, community leader, and husband and father to U.S. Citizens. Mr. Ragbir has lived in the United States for over two decades and has been a Lawful Permanent Resident since 1994. Ex. 1-C, Mr. Ragbir’s Immigrant Visa and Alien Registration. Mr. Ragbir has a 22-year-old daughter, Deborah Ragbir, who is a graduate of Rutgers University, and he currently lives in Brooklyn, NY, with his wife, Amy Gottlieb, who is the Associate Regional Director for the Northeast Region of the American Friends Service Committee. Ex. 1-D (Birth Certificate of Deborah Ragbir); Ex. 1-E (Marriage Certificate of Petitioner and Amy Gottlieb); Ex. 1-F (Declaration of Amy Gottlieb); Ex. 1-G (Passport of Amy Gottlieb).
16. Mr. Ragbir is the Executive Director of the New Sanctuary Coalition of New York City and sits on the Steering Committee of the New York State Interfaith Network for Immigration Reform. He has also served as the Chair of the Board of Families for Freedom. Declaration of Brittany Castle (hereinafter “Castle Decl.”) at ¶14.
17. Mr. Ragbir’s removal case stems from a single, 17-year old conviction. In the late 1990s, Mr. Ragbir was working for Household Finance Corporation (“HFC”), a now-defunct, national mortgage lender, where he held a low-level sales position. In this role, Mr. Ragbir was primarily a telemarketer and conducted the initial review of mortgage applications, referred applications to the company’s underwriter for independent titling
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verification and appraisals, and met with applicants at loan closings to finalize paperwork. Castle Decl. at ¶4. 18. During the course of his work, Mr. Ragbir was approached by an individual whom he knew as Robert Taylor, a broker. Mr. Taylor submitted a number of loan applications to Mr. Ragbir, who referred them on to his supervisors. Mr. Taylor, whose actual name was Robert Kosch, was arrested for submitting fraudulent loan applications and was indicted for wire fraud and conspiracy to commit wire fraud. Several people involved with the loan applications were also charged, including Mr. Ragbir. Mr. Ragbir took his case to trial but was convicted on November 29, 2000. On September 12, 2001, the district court sentenced Mr. Ragbir to serve 30 months in prison for wire fraud and conspiracy to commit wire fraud, and to pay a large restitution. Ex. 1-H (Judgment of Conviction); see also Castle Decl. at ¶¶ 5-6. 19. Based on this conviction and the sentence imposed, Mr. Ragbir was transferred from criminal custody to ICE custody on May 22, 2006. Ex. 1-K (Post Order Custody Review Worksheets). His immigration court proceedings were limited to a determination of whether his conviction was an “aggravated felony,” a term in the Immigration and Nationality Act that limits one’s eligibility for many forms of relief from deportation. The immigration judge concluded that Mr. Ragbir had been convicted of an aggravated felony, and thus ordered him removed on August 8, 2006 on that basis, without consideration of any of the evidence that his family and community submitted attesting to his good character and strong community ties. Castle Decl. at ¶ 8. His order of removal was affirmed by the Board of Immigration Appeals (“BIA”) on March 14, 2007. Ex. 1-J (BIA Decision, dated March 14, 2007).
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20. Throughout these removal proceedings, Mr. Ragbir was detained in immigration jail and was transferred to Perry County Jail in Union Town, Alabama, despite the fact that his family resided in New Jersey. Ex. 1-I (Notice of Custody Determination); Ex 1-K.
21. While detained in Alabama, on March 23, 2007, Mr. Ragbir filed a pro se motion for a stay of removal and petition for review of his administrative order of removal at the Second Circuit Court of Appeals. See Ragbir v. Holder, 389 F. App’x 80 (2d Cir. 2010), cert. denied, 132 S. Ct. 95 (2011). At the time of filing, Mr. Ragbir was subject to the forbearance policy of the Second Circuit whereby his removal could not be effectuated prior to a final determination on his motion for a stay. Ex. 1-K.
22. Three POCRs of Mr. Ragbir’s detention were conducted in May 2007, July 2007, and January 2008. Ex. 1-K. All three POCRs acknowledged that Mr. Ragbir had come under the forbearance policy of the Second Circuit as a result of his pending petition for review. Ex. 1-L (Decision to Continue Detention). In May 2007 and July 2007, ICE twice issued Mr. Ragbir a “Decision to Continue Detention” based on the imminence of his removal and their characterization of him as a flight risk. Ex. I-L.
23. Mr. Ragbir was then released after his January 2008 POCR some time in February 2008 (exact date unknown). Findings by ICE from Mr. Ragbir’s third POCR state that Mr. Ragbir “did not commit a crime of violence and does not appear to be a flight risk and he is fully aware that he will have to report to ICE custody when required. It is recommended that the subject be released from ICE custody and placed on the ISAP program with strict reporting conditions, pending the outcome of the 2nd Circuit Court of Appeals Decision.” Ex. 1-M. The notice further explained, “[o]nce a travel document is
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obtained, you will be required to surrender to ICE for removal. You will, at that time, be given an opportunity to prepare for an orderly departure.” Id. 24. Immediately after his release and return to the New Jersey-New York metropolitan area, Mr. Ragbir began volunteering for immigrant rights organizations. He quickly became a recognized leader for his activities, first as the Chair of the Board of Families for Freedom, and then later as the Executive Director of the New Sanctuary Coalition and a member of the Steering Committee of the New York State Interfaith Network for Immigration Reform. Castle Decl. at ¶14. He has testified before the New York City Council on detention and deportation policies, met with President Obama’s transition team to share his views on national immigration policy, and spoken at countless conferences and media events. Ex. 1 (2017 Administrative Stay of Removal Application and Index of Accompanying Exhibits). He works tirelessly to organize accompaniment programs where volunteers support those otherwise navigating the immigration system alone. Id. 25. Mr. Ragbir has applied for and been granted work authorization on multiple occasions pursuant to his order of supervision and release. Ex. 1-B (Employment Authorization Documents). 26. During the course of this work, Mr. Ragbir met Amy Gottlieb, who oversees the American Friends Service Committee’s programs in the Northeast United States. Mr. Ragbir had invited Ms. Gottlieb to be interviewed on a radio show he was hosting at the time. They quickly grew close, fell in love, and were married on September 23, 2010 in front of friends and family. Ex. 1-F at ¶¶ 1, 6-8.
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27. Mr. Ragbir did not prevail on his original petition for review at the Second Circuit. See Ragbir v. Holder, 389 F. App’x 80 (2d Cir. 2010), cert. denied, 132 S. Ct. 95 (2011). Subject to his final order of removal, Mr. Ragbir thus sought an administrative stay of removal from the New York Field Office.
28. Because of Mr. Ragbir’s resounding equities—he is supported by members of the U.S. Congress, the New York State Senate, the New York City Council, over forty prominent nonprofit organizations, as well as clergy, community leaders, and hundreds of other community members—Mr. Ragbir was granted his first stay of removal by the ICE Field Office in New York City in December 2011. Ex. 1-P (ICE Letters Granting Stays of Removal); Ex. 1. This stay was renewed in February 2013, March 2014, and January 2016. Ex. 1-P. His most recent stay renewal request was filed on November 16, 2017. Castle Decl. at ¶26.
29. On March 15, 2012, Mr. Ragbir asked the BIA to reconsider, reopen and remand his immigration proceedings to consider adjustment of status because of his marriage to Ms. Gottlieb. On May 15, 2012, the BIA issued a perfunctory opinion, denying his motion on several grounds. Ex. 1-N (BIA Decision, dated May 15, 2012). The BIA instructed Mr. Ragbir to bring his claims to federal district court. Id. at 3 (“The issues involving…the respondent’s convictions are properly subject for a post-conviction motion to the federal criminal court.”); see also Ragbir v. Lynch, 640 F. App’x 105 (2d Cir. 2016). Accordingly, Mr. Ragbir has been pursuing post-conviction relief in the District of New Jersey and a petition for a writ of coram nobis is currently pending. Castle Decl. at ¶24.
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30. On December 7, 2017, Mr. Ragbir asked the DHS Office of Chief Counsel to join a motion to reopen and remand his proceedings; this request is pending review. Castle Decl. at ¶ 27.
31. Mr. Ragbir was recently awarded the 2017 Immigrant Excellence Award by the New York State Association of Black and Puerto Rican Legislators, given to those who show “deep commitment to the enhancement of their community.” Castle Decl. at ¶ 14; see also Ex. 1. He was also awarded the 2017 ChangeMaker Award by South Asian Americans Leading Together (SAALT) for his “tremendous sacrifice, fierce advocacy, and fearless leadership” in the immigrant community. Id.
32. Mr. Ragbir has been subject to various conditions pursuant to his order of supervision over the nine years since his release from Alabama, including electronic monitoring and regular check-ins. He has complied with all such conditions. Ex. 1-O (Proof of Compliance with OSUP); Ex. 1-F at ¶¶ 8, 13, 14. On January 11, 2018, Mr. Ragbir was suddenly and inexplicably detained in the presence of his U.S. Citizen wife, his legal representatives, and clergy in New York, NY.
CLAIMS FOR RELIEF 33. The Government is holding Mr. Ragbir in violation of the Due Process Clause of the U.S.
Constitution, the Immigration and Nationality Act, and federal regulations. The factual allegations listed above are incorporated into each of the causes of actions listed below.
FIRST CAUSE OF ACTION: THE IMMIGRATION AND NATIONALITY ACT DOES NOT AUTHORIZE MR. RAGBIR’S DETENTION BECAUSE HE HAS BEEN RELEASED ON A VALID
ORDER OF SUPERVISION.
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34. Respondents’ presumed basis for redetaining Mr. Ragbir is 8 U.S.C. § 1231, the statute governing detention following a final order of removal (“post-order detention”). However, under the terms of this statute and the governing regulations, Mr. Ragbir’s detention is unlawful.
35. 8 U.S.C. § 1231 authorizes the detention of individuals following a final order of removal only under specifically delineated circumstances. First, 8 U.S.C. § 1231(a)(2) requires the detention of individuals during a 90-day statutory “removal period” during which time the government must secure the individual’s removal. See 8 U.S.C. § 1231(a)(1)(A).
36. Second, if the Government fails to remove the individual during the 90-day removal period, 8 U.S.C. § 1231(a)(6) provides that the Government may detain an individual or release him or her under terms of supervision under paragraph 3 of the subsection. See 8 U.S.C. § 1231(a)(6). (“An alien ordered removed who is [1] inadmissible . . . , [2] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy,] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to [certain] terms of supervision in paragraph (3).”). Paragraph (3) provides that an individual who is not removed “shall be subject to supervision” under specific terms, including requirements that he or she appear periodically before an immigration officer, obey any written restrictions, and other conditions. 8 U.S.C. § 1231(a)(3). See also 8 C.F.R. § 241.5 (providing for specific conditions for release—involving but not limited to reporting requirements and travel document acquisition requirements—should an order of supervision be issued).
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37. Furthermore, 8 U.S.C. § 1231(a)(7) provides that work authorization can be issued when the removal of an individual is impossible as a result of travel document related issues or “otherwise impracticable or contrary to the public interest.” See also 8 C.F.R. § 274a.12(c)(18) (same).
38. According to DHS, the 90-day statutory removal period in Mr. Ragbir’s case ran from the date that his final order of removal was affirmed by the BIA on March 14, 2007, to June 29, 2007. After that time, Mr. Ragbir was provided with three post-order custody reviews, pursuant to 8 C.F.R. § 214.4. The first two resulted in decisions rejecting release, but the third, dated January 14, 2008, specifically recommended release because Mr. Ragbir had not committed a crime of violence and had gathered tremendous community support. Ex. 1-K (Post Order Custody Review Worksheets). Mr. Ragbir has been complying with all the conditions of his release and receiving work authorization pursuant to 8 U.S.C. § 1231(a)(7) and 8 C.F.R. § 274a.12(c)(18) since his release in 2008. See Ex. 1-B; see also Ex. 1-O. The grants of work authorization by definition represent a finding by the federal government that Mr. Ragbir’s removal is impracticable and/or contrary to the public interest. 8 U.S.C. § 1231(a)(7); 8 C.F.R. § 274a.12(c)(18).
39. No statute authorizes Mr. Ragbir’s detention at this time, without cause, prior notice, and an opportunity to be heard. Rather, the only statutory provision that applies to him is the statute that provides that noncitizens “shall” be subject to an order of “supervision” as opposed to “detention.” See 8 U.S.C. 1231(a)(6). SECOND CAUSE OF ACTION:
DETENTION PURSUANT TO A REVOCATION OF MR. RAGBIR’S ORDER OF SUPERVISION AND/OR STAY OF REMOVAL IS CONTRARY TO THE STATUTE,
VIOLATES ICE’S OWN REGULATIONS, AND VIOLATES MR. RAGBIR’S CONSTITUTIONAL RIGHTS.
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40. As articulated herein, Mr. Ragbir’s release on an order of supervision is authorized by statute. See 8 U.S.C. §1231(a)(6). The four administrative stays of removal that Mr. Ragbir has been granted are also authorized by statute. See 8 C.F.R. § 241.6. None of the conditions of Mr. Ragbir’s order of supervision or stays of removal have been violated.
41. To the extent the government has revoked Mr. Ragbir’s order of supervision and/or stay of removal without notice or an opportunity to be heard, the government has violated the statute and the applicable regulations, 8 C.F.R. § 241.4(l) and 241.13(i), by failing to provide Mr. Ragbir with a particularized notice of the reason(s) of the revocation of his release or an opportunity to respond to the allegations contained therein. To the extent this was done to effectuate a removal order on Friday, January 12, 2017, this would also present a violation of 8 C.F.R. §241.22 and 241.33(b). When the government fails to comply with its own federal regulations, as it did when it revoked Mr. Ragbir’s release in violation of its own procedures, the action should be found invalid. See e.g., Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403-04 (S.D.N.Y. 2004) (granting habeas petition where petitioner was deported fewer than 72 hours after her arrest and regulation mandated a 2hour rule); Rombot v. Souza, No. 17-11577-PBS, 2017 U.S. Dist. LEXIS 185244, at *12 (D. Mass. Nov. 8, 2017) (granting habeas petition where ICE conducted custody status review improperly in violation of 8 C.F.R. § 241.4).
42. The government has further violated its own representations to this Court and other, as well as to Mr. Ragbir in his Release Notification regarding the conditions under which his release could be revoked. See e.g., Leybinsky v. United States Immigration & Customs Enf’t, 2013 U.S. Dist. LEXIS 2966, at *16 (S.D.N.Y. Jan. 8, 2013), vacated, 553 Fed.
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Appx. 108 (2d Cir. 2014), cert. denied, 135 S. Ct. 279 (2014) (ICE states that, unless travel documents become available, a petitioner can control whether his release from detention is revoked by following the terms of his release); Ex. 1-M (Release Notification) (informing Mr. Ragbir that “a violation of one of more of these conditions, or of any local, state or federal law, may result in you being taken back into custody”). 43. To the extent the government has revoked Mr. Ragbir’s order of supervision and/or stay of removal without notice or an opportunity to be heard, the government has also deprived Mr. Ragbir of due process of law. The Due Process clause applies to all persons in the United States, “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Procedural due process constrains governmental decisions that deprive individuals of property or liberty interests within the meaning of the Due Process Clause of the Fifth Amendment. See Matthews v. Eldridge, 424 U.S. 319, 332 (1976); see also Perry v. Sindermann, 408 U.S. 593, 601–03 (1972) (reliance on informal policies and practices may establish a legitimate claim of entitlement to a constitutionally-protected interest). Infringing upon a protected interest triggers a right to a hearing before that right is deprived. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569–70 (1972). 44. Mr. Ragbir’s order of supervision and stay of removal create legitimate liberty and property interests. Although the regulatory framework suggests that stays and orders of supervision may be rescinded at the discretion of the government, both create vested liberty and property rights for Mr. Ragbir. First, Mr. Ragbir has a liberty interest in his freedom from physical confinement, which his order of supervision and stay of removal help to secure. See Zadvydas, 533 U.S. at 690. Second, Mr. Ragbir also has a property
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interest in his order of supervision and stay. Property interests “are created and their dimensions are defined by existing rules or understandings that . . . secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents of State Colleges, 408 U.S. at 577. As already demonstrated herein, Mr. Ragbir’s stay and order of supervision generate a protected property interest. In order to seek his four administrative stays of removal, Mr. Ragbir completed a rigorous application process and criminal background check and paid an application fee, with the expectation of validity through at least the grant date of January 19, 2018. Ex. 1-P. Similarly, Mr. Ragbir has complied with the terms of his order of supervision since 2008, a set of procedures that have continuously provided Mr. Ragbir with work authorization since his release. Ex. 1B; Ex. 1-O. 45. To the extent that the government revoked Mr. Ragbir’s order of supervision and/or stay of removal without prior notice or opportunity to be heard, the government has infringed upon Mr. Ragbir’s protected liberty and property interests. Mr. Ragbir should thus be afforded an opportunity to be heard prior to the revocation of his order of supervision and/or administrative stay of removal.
THIRD CAUSE OF ACTION: MR. RAGBIR’S DETENTION IS PRESUMPTIVELY UNCONSTITUTIONAL
BECAUSE HE HAS ALREADY BEEN DETAINED FOR A PROLONGED PERIOD OF TIME
46. Serious constitutional concerns are implicated in this case because Mr. Ragbir’s “freedom from imprisonment . . . lies at the heart of the liberty that [the Due Process] Clause protects.” Zadvydas v. Davis, 533 U.S. 678, 690 (2001). In the “special and narrow nonpunitive circumstances” of immigration detention, due process requires “a special
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justification . . . [that] outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” Id. (internal quotation marks omitted) (internal citations omitted). 47. Moreover, as detention becomes prolonged, the Due Process Clause requires a sufficiently strong justification to outweigh the significant deprivation of liberty, as well as procedural protections. Zadvydas, 533 U.S. at 690–91; Diop v. ICE, 656 F.3d 221, 231 (3d Cir. 2011) (noting the historical antecedents of implementing procedural protections against deprivation of liberty among citizens and noncitizens absent “‘sufficiently strong special justifications’”) (quoting Zadvydas, 533 U.S. at 690); cf. Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2014). The Zadvydas Court was explicit that after six months, detention pursuant to 8 U.S.C. § 1231 would become presumptively unconstitutional, requiring a sufficiently strong justification. 533 U.S. at 701. This requires release, or at a minimum, a bond hearing if a person has been detained for six months. See Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). 48. Mr. Ragbir has been most recently detained since January 11, 2018. However, he is being detained as part of the same removal proceedings and removal order for which he was previously detained. Mr. Ragbir’s previous detention began on May 22, 2006. Ex. 1-I (Notice of Custody Determination). He continued to be detained through and following the issuance of a final order of removal on March 14, 2007. He was released in February 2008. Ex. 1-M; Castle Decl. at ¶ 3. Thus, Mr. Ragbir has already been detained for twenty-two months, fourteen of which were post-final order. This far exceeds the sixmonth time period that the Supreme Court deemed presumptively reasonable in Zadvydas. See Zadvydas, 533 U.S. at 701; see also Lora v. Shanahan, 804 F.3d 601 (2d
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Cir. 2014) (holding that even prior to a final order of removal, individuals subject to mandatory detention must receive a bond hearing within six months). 49. The fact that the Government has re-detained Mr. Ragbir following nine years of release only strengthens Mr. Ragbir’s claim of unreasonably prolonged detention. Just as it is well established that detainees cannot run the clock in order to ripen a Zadvydas claim, so too is the government prohibited from arguing that Mr. Ragbir’s time of release and redetention re-started the clock. See Lin v. United States, No. CIV.A. 5:07-CV-26, 2007 WL 951618, at *3 (S.D. Tex. Mar. 28, 2007) (“If a detention of six months is presumably reasonable in order to achieve such ends, it hardly seems to matter under the statute when the government exercises that power.”) 50. Thus, counting the twenty-two months that Mr. Ragbir spent in detention, including the fourteen months of post-final order detention, Mr. Ragbir’s combined immigration detention has far exceeded one year by any measure—well beyond the average length of detention cited in Zadvydas and federal circuit cases governing pre- and/or post-final order detention. Zadvydas v. Davis, 533 U.S. 678 (2001); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2014); Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011). Pursuant to Zadvydas and this line of cases, Mr. Ragbir’s continued, prolonged detention is thus presumptively unconstitutional. He should therefore be released, or at minimum, is entitled to a bond hearing.
FOURTH CAUSE OF ACTION MR. RAGBIR’S DETENTION BEARS NO REASONABLE RELATIONSHIP TO ANY
LEGITIMATE PURPOSE, AS HIS REMOVAL IS NOT REASONABLY FORESEEABLE.
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51. To comport with due process, detention must bear a reasonable relationship to its two regulatory purposes—to ensure the appearance of noncitizens at future hearings and to prevent danger to the community pending the completion of removal. Zadvydas v. Davis, 533 U.S. at 690–691 (2001); Diop v. ICE, 656 F.3d 221, 233–234 (3d Cir. 2011); Gordon v. Shanahan, No. 15-Civ-261, 2015 WL 1176706 at *10 (S.D.N.Y. Mar. 13, 2015). As previously stated, such a justification for detention is required to be particularly strong once detention is presumptively unconstitutional. See supra at ¶ 45.
52. The detention of Mr. Ragbir nine years after his release is arbitrary on its face. As ICE itself recognized when they released Mr. Ragbir in February 2008, Mr. Ragbir did not commit a crime of violence, nor is he a flight risk. Ex. 1-K. In the interim between Mr. Ragbir’s release in 2008 and his re-detention in 2018, Mr. Ragbir was not arrested or convicted of any crimes. Castle Decl. at ¶ 28. For ten years, Mr. Ragbir has dutifully complied with every condition of his order of supervision. Ex. 1-O. Thus, DHS’s justification for Mr. Ragbir’s current detention cannot be based on any new criminal convictions or non-compliance with his order of supervision. Without any explanation or new basis for why Mr. Ragbir is now subject to detention—when ten years ago, he was released—his continued detention is arbitrary and violates due process. See supra, Second Cause of Action.
53. Nor has the government met its burden of proof that Mr. Ragbir’s removal is reasonably foreseeable as is required by Zadvydas. 533 U.S. at 701. Upon information and belief, Respondents do not and have not obtained a travel document from Trinidad and Tobago, despite Mr. Ragbir’s removal order having been deemed final since 2007. Requests from counsel to see any such document have been denied. In light of Respondents’ failure to
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obtain such a document in a decade, and their failure to produce such a document upon detaining Mr. Ragbir, Respondents have not demonstrated the likelihood that such a travel document could be sought and acquired in the reasonably foreseeable future. 54. Moreover, even if Respondents have travel documents, re-detention would not be authorized. By the terms of Mr. Ragbir’s own release notification and order of supervision, once a travel document is obtained, Mr. Ragbir must “be given an opportunity to prepare for an orderly departure”. Ex. 1-M (Release Notification) Through its sudden arrest of Mr. Ragbir and refusal to respond to attempts by Mr. Ragbir’s counsel to contact the field office prior to the check-in, see Castle Decl. at ¶26, ICE has violated its promise to permit Mr. Ragbir an orderly return. See Rombot v. Souza, No. 1711577-PBS, 2017 U.S. Dist. LEXIS 185244, at *13 (D. Mass. Nov. 8, 2017) (ICE violated the Due Process Clause of the Fifth Amendment when it detained Petitioner without providing him an opportunity to prepare for an orderly departure) 55. An individual such as Mr. Ragbir, who has been detained ten years after his release and has reintegrated into his community, should not be subject to detention without a bond hearing. His detention is presumptively unconstitutional, and the government has failed to rebut that presumption by articulating any legitimate purpose with which Mr. Ragbir’s continued detention comports.
FIFTH CAUSE OF ACTION POST ORDER CUSTODY REVIEW IS CONSTITUTIONALLY INADEQUATE
AND THEREFORE, MR. RAGBIR’S DETENTION WITHOUT A BOND HEARING RAISES SERIOUS CONSTITUTIONAL CONCERNS
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56. The administrative custody reviews (“POCR”) to which Mr. Ragbir is entitled under Zadvydas and 8 C.F.R. § 214.4 are constitutionally inadequate. POCR is nothing more than a cursory paper review. The Ninth Circuit has explained that a cursory paper review process falls “far short of the procedural protections afforded in ordinary bond hearings, where aliens may contest the necessity of their detention before an immigration judge and have an opportunity to appeal that determination to the BIA.” Casas-Castrillon v. DHS, 535 F.3d 942, 951 (9th Cir. 2008) (requiring individualized bond hearings because of the constitutional inadequacy of administrative custody review in the pre-final order context); see also Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (extending Casas-Castrillon to the post-final order context).
57. As he did on three occasions during his post-final order detention at the Perry County Jail in Alabama, Mr. Ragbir will receive a cursory paper review under POCR. However, ICE still retains the authority to deny him release based on specious findings that he presents a danger and a flight risk because of his criminal history—an immutable fact for Mr. Ragbir and so many detainees similarly situated. Indeed, in POCR reviews dated May 22, 2006 and July 13, 2007 the “Decision to Continue Detention” determination that Mr. Ragbir received states that the “criminal conviction and the penalty assessed indicate you to be a flight risk” with no explanation whatsoever and no consideration of evidence of rehabilitation. Ex. 1-L (Decision to Continue Detention).
58. Contrastingly, at a bond hearing, Mr. Ragbir would be able to be represented by his counsel, testify on his own behalf, and present witnesses and other evidence before an impartial immigration judge.
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59. Because Mr. Ragbir’s detention has been unaccompanied by the procedural protections that such a significant deprivation of liberty requires under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, his continued detention without a bond hearing is unlawful.
PRAYER FOR RELIEF WHEREFORE, Petitioner respectfully requests that this Court:
1) Assume jurisdiction over this matter; 2) Enjoin Respondents from transferring the Petitioner outside the jurisdiction of
the New York Field Office pending the resolution of this case; 3) Issue a Writ of Habeas Corpus ordering Respondents to release Petitioner
immediately, or, in the alternative, ordering Respondents to provide Mr. Ragbir with a constitutionally adequate, individualized hearing before an impartial adjudicator at which Respondents bear the burden of establishing that Petitioner’s continued detention is justified; 4) Declare that Respondent’s revocation of Petitioner’s order of supervised release was unlawful without a constitutionally adequate, individualized hearing before an impartial adjudicator at which Respondents bear the burden of establishing that revocation is unjustified and, if justified, provide the opportunity for an orderly departure; 5) Award Petitioner his costs and reasonable attorneys’ fees in this action as provided for by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other statute; and 6) Grant such further relief as the Court deems just and proper.
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Dated: New York, NY January 17, 2018

Respectfully submitted,
/s/ Alina Das ALINA DAS, Esq. (AD8805) JESSICA ROFÉ, Esq. Brittany Castle, Legal Intern Jeremy Cutting, Legal Intern Immigrant Rights Clinic Washington Square Legal Services, Inc. 245 Sullivan Street, 5th Floor New York, New York 10012 (212) 998-6430
Counsel for Petitioner

25

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EXHIBIT LIST

EXHIBIT 1

2017 Administrative Stay of Removal Application and Index of Accompanying Exhibits

Administrative Documents

EXHIBIT 1-A

Forms G-28, Notices of Entrance of Appearance

EXHIBIT 1-B

Employment Authorization Documents

Family Documents

EXHIBIT 1-C

Mr. Ragbir’s Immigrant Visa and Alien Registration

EXHIBIT 1-D

Birth Certificate of Deborah Ragbir, Petitioner’s U.S. Citizen Daughter

EXHIBIT 1-E

Marriage Certificate of Petitioner and Amy Gottlieb

EXHIBIT 1-F

Declaration of Amy Gottlieb

EXHIBIT 1-G

U.S. Passport of Amy Gottlieb

Criminal Case Documents

EXHIBIT 1-H

Judgment of Conviction

Immigration Case Documents

EXHIBIT 1-I

Notice of Custody Determination

EXHIBIT 1-J

BIA Decision, dated March 14, 2007

EXHIBIT 1-K

Post Order Custody Review Worksheets

EXHIBIT 1-L

Decision to Continue Detention

EXHIBIT 1-M

Release Notification Under the Intensive Supervision Appearance Program

EXHIBIT 1-N

BIA Decision, dated May 15, 2012

EXHIBIT 1-O

Proof of Compliance With OSUP

Case 1:18-cv-00236-KBF Document 21 Filed 01/17/18 Page 27 of 27

EXHIBIT 1-P EXHIBIT 1-Q

ICE Letters Granting Stays of Removal ICE Letter Denying Stay of Removal

 
 Case 1:18-cv-00236-KBF Document 23 Filed 01/17/18 Page 1 of 1
U.S. Department of Justice United States Attorney Southern District of New York

By ECF The Honorable Katherine B. Forrest United States District Judge Southern District of New York 500 Pearl Street New York, New York 10007

86 Chambers Street, 3rd floor New York, New York 10007
January 17, 2018

Re: Ragbir v. Sessions, 18 Civ. 236 (KBF)

Dear Judge Forrest:

This office represents the government in the above-referenced habeas matter, in which petitioner Ravidath Ragbir (“Mr. Ragbir”), who is subject to a final removal order, challenges his detention by U.S. Immigration and Customs Enforcement (“ICE”). As the Court is aware, Mr. Ragbir is currently detained at an ICE detention facility in Miami, Florida. I write respectfully to inform the Court that ICE will exercise its discretion to transfer Mr. Ragbir from Miami to a facility within ICE’s New York City Field Office’s area of responsibility.

The designation of the particular facility in the New York City region at which Mr. Ragbir is detained is solely within ICE’s discretion. ICE has determined to exercise its discretion to transfer Mr. Ragbir without waiver of, or prejudice to, the government’s rights or arguments in this or any other case, including arguments made in opposition to Mr. Ragbir’s motion to enforce the Court’s January 11, 2018 Order (ECF No. 13), or in support of the government’s motion to vacate portions of that order (ECF No. 16).

We thank the Court for its consideration of this submission.

Respectfully,

GEOFFREY S. BERMAN United States Attorney

By: /s/ Brandon M. Waterman
BRANDON M. WATERMAN Assistant United States Attorney 86 Chambers Street, Third Floor New York, New York 10003 Tel. (212) 637-2741 Fax (212) 637-2786

cc: Counsel of Record (via ECF)

 
 Case 1:18-cv-00236-KBF Document 34 Filed 01/19/18 Page 1 of 24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
RAVIDATH LAWRENCE RAGBIR, Petitioner,
- against -
JEFFERSON SESSIONS III, et al., Respondents.

No. 18 Civ. 236 (KBF) ECF Case

RESPONDENTS’ MEMORANDUM OF LAW IN OPPOSITION TO PETITIONER’S AMENDED PETITION FOR WRIT OF HABEAS CORPUS

BRANDON M. WATERMAN STEVEN J. KOCHEVAR Assistant United States Attorneys
– Of Counsel –

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York Attorney for the United States 86 Chambers Street, Third Floor New York, New York 10007 Tel: (212) 637-2741

Case 1:18-cv-00236-KBF Document 34 Filed 01/19/18 Page 2 of 24
TABLE OF CONTENTS PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................2
A. Mr. Ragbir’s Immigration Proceedings ...................................................................2 B. The events leading up to January 11, 2018, and thereafter......................................5 C. Mr. Ragbir’s Amended Habeas Petition ..................................................................6 ARGUMENT MR. RAGBIR’S PETITION SHOULD BE DENIED ........................................................6 A. ICE Validly Revoked Mr. Ragbir’s Supervised Release and Permissibly
Detained Him While Seeking To Execute His Final Removal Order .....................6 1. This Court lacks jurisdiction to review the revocation of Mr.
Ragbir’s supervised release and the denial of his request for a stay of removal ....................................................................................................7 2. Mr. Ragbir received all the process he was due...........................................7 3. ICE did not violate its regulations .............................................................13 B. Mr. Ragbir’s detention is authorized by 8 U.S.C. § 1231......................................14 C. Mr. Ragbir’s detention is lawful and constitutional, and he is not entitled to release ................................................................................................................15 CONCLUSION ..............................................................................................................................22
i

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Preliminary Statement Respondents (the “government”), by their attorney, Geoffrey S. Berman, United States Attorney for the Southern District of New York, respectfully submit this memorandum of law in opposition to the amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 filed on January 17, 2018 (Dkt. No. 21), by petitioner Ravidath Lawrence Ragbir (“Mr. Ragbir”). This is an action challenging Mr. Ragbir’s current immigration detention; it does not concern whether Mr. Ragbir should be removed from the United States—that decision has already been made, and this is not the proper forum for such a challenge. Mr. Ragbir, a native and citizen of Trinidad and Tobago, is subject to a valid, final removal order. Although formerly a lawful permanent resident (“LPR”) of the United States, Mr. Ragbir lost that status in March 2007 when he received a final order of removal in the immigration courts. Mr. Ragbir has filed extensive challenges to his removal order, but all have been unsuccessful. ICE repeatedly granted Mr. Ragbir administrative stays of removal, which are entirely discretionary and defer the removal of an alien subject to a final order of removal. On November 16, 2017, Mr. Ragbir submitted a request for another administrative stay of removal. At a meeting with ICE on January 11, 2018, ICE informed Mr. Ragbir and his attorney that his request for another stay of removal had been denied, that his order of supervision was being revoked, and that he would be detained for the purpose of executing his removal order. After that meeting, where Mr. Ragbir’s attorney had an opportunity to be heard, Mr. Ragbir was taken into custody and started the process of removing him until this Court issued a stay of removal. Mr. Ragbir remains detained pending his removal. In taking these actions, ICE acted within its statutory and constitutional authority to enforce Mr. Ragbir’s final order of removal. Contrary to Mr. Ragbir’s arguments, ICE complied

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all applicable statutes and regulations controlling the removal of an alien. Indeed, 8 U.S.C. § 1231 calls for the removal of aliens subject to final orders of removal, and its implementing regulations provide the manner for revoking discretionary stays of removal and orders of supervision. In carrying out the statutory command of § 1231, ICE followed these rules.
Mr. Ragbir’s constitutional claims likewise fail. Aliens subject to a final order of removal do not have a protected liberty or property interest in their continued presence in the United States. Any discretionary protection against removal, such as an administrative stay of removal, does not fall within the ambit of the Due Process Clause. Even if Mr. Ragbir could invoke the Due Process Clause, he has received substantial process over his decades in the immigration system. He had full and fair removal proceedings, followed by unsuccessful appeals and a motion to reopen. He received multiple, discretionary administrative stays of removal from ICE. And at the meeting with ICE on January 11, 2018, Mr. Ragbir’s attorney had the opportunity to attempt to persuade ICE to reconsider its denial of his final request for administrative stay of removal. Mr. Ragbir has received constitutionally sufficient due process. ICE did not violate any statutory, regulatory, or constitutional by enforcing the outcome of that process.
Accordingly, the Court should deny Mr. Ragbir’s amended petition. BACKGROUND
A. Mr. Ragbir’s Immigration Proceedings Mr. Ragbir is a native and citizen of Trinidad and Tobago. See Declaration of Scott
Mechkowski, dated January 19, 2018, (“Mechkowski Decl.”) ¶ 4. In February 1994, Mr. Ragbir was admitted to the United States as a lawful permanent resident (“LPR”). Id. ¶ 5.
In 2001, following a jury trial, Mr. Ragbir was convicted in the U.S. District Court for the District of New Jersey of wire fraud and conspiracy to commit wire fraud. Id. ¶ 6. Mr. Ragbir
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was sentenced to 30 months’ imprisonment and was ordered to make restitution in the amount of $350,001. Id. In 2002, the U.S. Court of Appeals for the Third Circuit affirmed his conviction, and the U.S. Supreme Court denied Mr. Ragbir’s petition for a writ of certiorari. Id.
On May 22, 2006, ICE arrested and detained Mr. Ragbir, and served him with a Notice to Appear (“NTA”), the charging document used to commence removal proceedings. Id. ¶ 7. The NTA charged Mr. Ragbir as removable pursuant to two charges of section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien with a conviction for an aggravated felony; specifically, an offense that involves fraud or deceit in which the loss to the victim or victims exceeds $10,000, and an attempt or conspiracy to commit an aggravated felony, as further defined in the INA. Id. Mr. Ragbir was represented by counsel at his removal proceedings. On August 4, 2006, an immigration judge issued a decision sustaining the allegations and charges in the NTA, and ordering Mr. Ragbir removed to Trinidad and Tobago. Id. ¶ 8. On March 14, 2007, the Board of Immigration Appeals (“BIA”) dismissed Mr. Ragbir’s appeal, rendering the immigration judge’s removal order administratively final.1 Id. ¶ 9.
Mr. Ragbir filed a timely petition for review (“PFR”) of the BIA’s decision with the U.S. Court of Appeals for the Second Circuit, and the Second Circuit denied Mr. Ragbir’s PFR on August 12, 2010. Id. ¶¶ 9, 13. On November 22, 2010, the Second Circuit denied Mr. Ragbir’s
1 Once Mr. Ragbir’s removal order became administratively final, he lost his LPR status. See In re: Sandra Carolina Mendoza-Sandino, 22 I. & N. 1236, 1251 (BIA 2000) (“A lawful permanent resident who commits a removable or deportable offense remains a lawful permanent resident until an administratively final order of removal or deportation deprives him of that status.”). Thus, contrary to the characterizations in Mr. Ragbir’s amended petition that he is a “longtime Lawful Permanent Resident” and that he “has been a Lawful Permanent Resident since 1994,” Am. Pet. ¶ 15, the reality is that Mr. Rabir lost his LPR status effective March 14, 2007.
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petitions for rehearing and for a rehearing en banc. Id. ¶ 16. In October 2011, the U.S. Supreme Court denied Mr. Ragbir’s petition for a writ of certiorari. Id.
In February 2008, while Mr. Ragbir’s PFR was pending before the Second Circuit, ICE released Mr. Ragbir from detention on an order of supervision.2 Id. ¶ 10. While his PFR was pending with the Second Circuit, the government’s forbearance policy prevented ICE from removing him. Id.
On January 4, 2012, ICE, in its discretion, granted Mr. Ragbir an administrative stay of removal until December 22, 2012, during which Mr. Ragbir was required to continue to report on an order of supervision. Id. ¶ 18.
On March 16, 2012, Mr. Ragbir filed with the BIA a motion to reconsider, which the BIA denied on May 15, 2012. Id. ¶¶ 21, 23. The BIA also construed Mr. Ragbir’s motion as a motion to reopen proceedings and denied the motion as construed. Id. ¶ 23. Mr. Ragbir filed a timely PFR of the BIA’s decision with the Second Circuit, and the Second Circuit denied the PFR on March 4, 2016. Id. ¶¶ 23, 34.
On January 7, 2013, ICE initially denied Mr. Ragbir’s request for a renewed administrative stay of removal, but ICE later granted Mr. Ragbir a stay in February 2013, which was effective until February 14, 2014. Id. ¶ 27. In January 2014, Mr. Ragbir requested renewal of his administrative stay, which ICE initially approved until February 10, 2015, and later extended until March 10, 2016. Id. ¶ 32. In December 2015, Mr. Ragbir submitted another request for an administrative stay of removal, and ICE extended Mr. Ragbir’s administrative stay until January 19, 2018.
2 Mr. Ragbir was detained in pre-removal-order detention under 8 U.S.C. § 1226(c) for 296 days (9 months, 20 days). Mr. Ragbir was detained in post-removal-order detention under 8 U.S.C. § 1231(a) for approximately 10-11 months.
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On February 22, 2017, Mr. Ragbir filed a petition for a writ of coram nobis in the District of New Jersey, challenging his wire fraud conviction and sentence. Id. ¶ 37. The coram nobis is fully briefed and remains pending. Id.
On November 16, 2017, Mr. Ragbir submitted another request with ICE for an administrative stay of removal. ICE denied that request on January 11, 2018. Id. ¶¶ 40, 44.
On December 7, 2017, Mr. Ragbir submitted to ICE a second request for a joint motion to reopen his removal proceedings. Id. ¶ 41. On January 11, 2018, ICE notified Mr. Ragbir that it declined to join his motion to reopen. Id. ¶ 44.
On January 3, 2018, ICE obtained a travel document for Mr. Ragbir from the Consulate of Trinidad and Tobago, which was valid for use until January 14, 2018. Id. ¶ 42. B. The events leading up to January 11, 2018, and thereafter
On January 8, 2018, Mr. Ragbir’s attorney met with ICE officials. Id. ¶ 43. They informed her that no decision had yet been made on Mr. Ragbir’s request for an administrative stay of removal and that ICE was still reviewing the application. Id. Mr. Ragbir was to return, with his attorney, to 26 Federal Plaza, New York, NY on January 11, 2018. Id.
On January 11, 2018, Mr. Ragbir reported to ICE with his wife and his attorney. Id. ¶ 45. At the meeting, ICE informed Mr. Ragbir that, after reviewing Mr. Ragbir’s case, including his positive equities and mitigating circumstances, ICE had denied his request for an administrative stay of removal. Id.; Gov’t Return, Ex. 4. ICE also informed Mr. Ragbir that his order of supervision would therefore be revoked, and that Mr. Ragbir would be taken into custody for the purpose of removal to Trinidad and Tobago. Mechkowski Decl. ¶ 45; Gov’t Return, Ex. 3. In response to this information, Mr. Ragbir’s attorney raised Mr. Ragbir’s pending coram nobis and request for a presidential pardon, as well as a forthcoming motion to reopen at the BIA. Mechkowski Decl. ¶ 45; see Gov’t Return, Ex. 1. Mr. Ragbir’s attorney also asked if ICE would
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place Mr. Ragbir on a bracelet. Mechkowski Decl. ¶ 45. Mr. Ragbir’s wife also spoke. Id. About five to ten minutes into the meeting, Mr. Ragbir apparently lost consciousness, and he was taken to Bellevue Hospital Center for evaluation. Id. ¶¶ 45, 46. After he was discharged from the hospital, ICE transported Mr. Ragbir to the Newark Liberty International Airport, where ICE had scheduled him for a 4:13 p.m. flight to Miami, Florida in anticipation of his scheduled removal the next day. Id. ¶ 46.
Shortly after his arrest, Mr. Ragbir’s attorney filed a petition for a writ of habeas corpus in this Court, and sought an order to show cause. At or about 4:15 p.m., this Court issued an order to show cause, setting an expedited briefing schedule on the petition, staying Mr. Ragbir’s removal, and enjoining ICE from transferring Mr. Ragbir out of the jurisdiction.3 C. Mr. Ragbir’s Amended Habeas Petition
On January 11, 2018, shortly after his arrest by ICE, Mr. Ragbir filed the instant petition for a writ of habeas corpus. On January 17, 2018, Mr. Ragbir filed an amended petition. In his petition, Mr. Ragbir challenges ICE’s denial of his administrative stay of removal, the revocation of his order of supervision, and his detention.
ARGUMENT MR. RAGBIR’S PETITION SHOULD BE DENIED A. ICE Validly Revoked Mr. Ragbir’s Supervised Release and Permissibly Detained Him While Seeking To Execute His Final Removal Order ICE acted within its authority to revoke Mr. Ragbir’s supervised release and deny his administrative stay, and Mr. Ragbir received all the process he was due.
3 As explained in the government’s reply brief in support of the government’s motion to vacate, Mr. Ragbir already was at the airport, and likely already had departed, when the government learned of the Court’s order. Accordingly, he was stopped in Miami, before he could take a connecting flight to Trinidad and Tobago. See Dkt. No. 20.
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1. This Court lacks jurisdiction to review the revocation of Mr. Ragbir’s supervised release and the denial of his request for a stay of removal
To the extent that Mr. Ragbir seeks to challenge ICE’s discretionary decisions to revoke his supervised release and deny his request for an administrative stay of removal (as opposed to the process), the Court lacks subject-matter jurisdiction by virtue of 8 U.S.C. § 1252(a)(2)(B)(ii). See, e.g., Bernardo ex rel. M&K Engineering, Inc. v. Johnson, 814 F.3d 481, 485 (1st Cir. 2016) (holding that the judicial review bar at § 1252(a)(2)(B)(ii) applied as a result of statutory terms suggesting a grant of administrative discretion); cf. Zadvydas, 533 U.S. at 695 (supervised release when removal is not likely in the reasonably foreseeable future should be upon conditions “appropriate in the circumstances”). The statutes and regulations make clear that revocation of supervised release and denial of an administrative stay applications are within the agency’s discretion. 8 U.S.C. § 1231(a)(6); 8 C.F.R. § 241.4(l)(2), § 241.13(i). Indeed, courts that have considered habeas challenges to post-removal-order orders of supervision have accorded administrative authorities “wide latitude” to impose such orders. Yusov v. Shaughnessey, 671 F. Supp. 2d 523, 528 (S.D.N.Y. 2009) (citing cases). Accordingly, to the extent that Mr. Ragbir challenges the substance of ICE’s discretionary decisions to revoke his order of supervision and deny his stay request, the Court should decline to consider such challenges, as they lie squarely within the discretion of the agency.
2. Mr. Ragbir received all the process he was due Even if the Court determines that it has jurisdiction over Mr. Ragbir’s challenge, aliens do not have a constitutionally protected interest in discretionary forbearance from removal. The Supreme Court, the Second Circuit, and other circuits have repeatedly held as much, including in proceedings involving Mr. Ragbir. Accordingly, for the reasons explained below, Mr. Ragbir has received all the process he is constitutionally due.
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The Due Process Clause does not protect a “benefit . . . if government officials may grant or deny it in their discretion.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005); Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462-63 (1989); see Olim v. Wakinekona, 461 U.S. 238, 249 (1983). The protections of the Due Process Clause categorically do not attach to liberty and property interests that are granted at the discretion of government officials. Mr. Ragbir’s supervised release, stay of removal, and work authorization were at the discretion of government officials. See 8 U.S.C. § 1231(a)(6) (“An alien ordered removed who is . . . removable under section . . . 1227(a)(2) . . . of this title . . . may be detained beyond the removal period . . . .”) (emphasis added); id. § 1231(a)(7) (explaining that work authorizations for aliens ordered removed depend on the Attorney General making certain findings). Moreover, the fact that Mr. Ragbir’s supervised release was revoked rather than denied in the first instance does not alter the analysis. The implementing regulations specifically provide for discretionary revocation of release. See 8 C.F.R. § 241.4(l)(2) (“Release may be revoked in the exercise of discretion when, in the opinion of the revoking official: . . . (iii) [i]t is appropriate to enforce a removal order or to commence removal proceedings against an alien; or (iv) [t]he conduct of the alien, or any other circumstance, indicates that release would no longer be appropriate.”). As such, Mr. Ragbir’s continued stay of removal was a matter of discretionary authority.4 Because Ragbir’s continued stay of removal was at the discretion of government officials, the Due Process Clause did not prohibit its revocation.
4 The same is true of the other regulation Mr. Ragbir cites, 8 C.F.R. § 241.13(i). Section § 241.13(i)(2) provides that “[t]he Service may revoke an alien’s release under this section and return the alien to custody if, on account of changed circumstances, the Service determines that there is a significant likelihood that the alien may be removed in the reasonably foreseeable future.” In the present case, because ICE had a valid travel document for Mr. Ragbir, there was a significant likelihood that Mr. Ragbir may have been removed in the reasonably foreseeable future, and revocation of Mr. Ragbir’s release was within ICE’s discretion.
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The Second Circuit and other circuit courts have applied the Supreme Court’s holdings on the reach of the Due Process Clause in the particular context of discretionary relief for aliens subject to final orders of removal and unequivocally concluded that “[a]n alien has no constitutionally-protected right to discretionary relief or to be eligible for discretionary relief.” Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (quoting Oguejiofor v. Attorney General of U.S., 277 F.3d 1305, 1309 (11th Cir. 2002) (emphasis omitted)); see Smith v. Ashcroft, 295 F.3d 425, 430 (4th Cir. 2002) (addressing former statutory immigration scheme). In Yuen Jin, three petitioners subject to final orders of removal sought to file successive asylum petitions. Generally, successive asylum petitions are barred, but a successive petition may be considered when “the alien demonstrates [certain circumstances] to the satisfaction of the Attorney General.” 8 U.S.C. § 1158(a)(2)(D). In upholding the rejection of petitioners’ successive asylum applications, the Second Circuit considered petitioners’ statutory claims at length. By contrast, the Court’s discussion of petitioners’ constitutional due process claims was more direct: petitioners’ constitutional claims were defective because the Due Process Clause does not protect discretionary relief for aliens subject to removal orders. See Yuen Jin, 538 F.3d at 156-57. Simply put, there were no liberty or property interests to which due process protections attached. In the same way, Mr. Ragbir’s constitutional claims because they challenge the revocation of benefits awarded at the discretion of the Attorney General. Because he seeks discretionary protection from a final order of removal, Mr. Ragbir can cite no liberty or property interest to which due process protections attach. Cf. Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 1999) (“[E]xpectation does not equate with liberty or property, and a constitutionally protected interest cannot arise from relief that the executive exercises unfettered discretion to award.”); Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000) (“Eligibility for suspension is not a right protected by the
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Constitution. Suspension of deportation is rather an ‘act of grace’ that rests in the ‘unfettered discretion’ of the Attorney General. Because suspension of deportation is discretionary, it does not create a protectible liberty or property interest.”) (quoting Appiah v. INS, 202 F.3d 704, 709 (4th Cir. 2000)).
The Second Circuit also has specifically held that the Due Process Clause does not protect the revocation of the discretionary release of aliens. See Wong Hing Fun v. Esperdy, 335 F.2d 656, 657 (2d Cir. 1964) (Marshall, J.). In Wong Hing Fun, the Attorney General had exercised his “discretionary authority” to release two alien petitioners on parole. Id. The petitioners claimed that the Attorney General’s later “order revoking parole was illegal because it was entered without a full hearing.” Id. The Second Circuit held that “[t]here is no basis for appellants’ contention that due process requires a hearing on revocation of parole, even though Congress did not provide one.” Id. Despite the initial grant of parole in the Attorney General’s discretion, the Fifth Amendment did not protect any liberty interest in continued parole. Although Wong Hing Fun arose in the context of parole under a prior version of the INA, its holding applies here: Mr. Ragbir is similarly situated to a paroled alien because he is subject to a final order of removal and removable under 8 U.S.C. § 1227(a)(2)(A)(iii). His continued presence in the United States was a result of the government’s “discretionary authority,” and revocation of his protection from removal, like revocation of parole, does not fall within the ambit of the Due Process Clause. Wong Hing Fun, 335 F.2d at 657.
The Second Circuit recently affirmed its holding that the Due Process Clause does not attach to discretionary relief, in Mr. Ragbir’s own case. “[A]n alien has no constitutionally protected liberty or property interest in a grant of discretionary relief.” Ragbir v. Lynch, 640 F. App’x 105, 108 (2d Cir. 2016) (Summary Order). Mr. Ragbir sought an adjustment of his status,
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but, as the Second Circuit observed, “a grant of adjustment of status is discretionary,” and so “there [was] no merit to Ragbir’s due process claim.” Id. In Ragbir, the Second Circuit relied on Ahmed v. Gonzalez, 447 F.3d 433 (5th Cir. 2006), one of a line of cases from the Fifth Circuit that “ha[ve] repeatedly held that discretionary relief from removal, including an application for an adjustment of status, is not a liberty or property right that requires due process protection.” Id. at 440; see Ragbir, 640 F. App’x at 108 (citing Ahmed, 447 F.3d at 440); see also ManzanoGarcia v. Gonzales, 413 F.3d 462, 471 (5th Cir. 2005) (“[W]hat the Manzanos presuppose is that they have a constitutionally protected right to actual discretionary relief from removal or to be eligible for such discretionary relief . . . . This is incorrect.”); Assad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004) (“[T]he failure to receive relief that is purely discretionary in nature does not amount to a deprivation of a liberty interest.”). As such, several circuit courts, including the Second Circuit, have repeatedly held that there are no constitutionally protected liberty or property interests in protection from removal granted at the government’s discretion.
The animating idea behind these decisions is that the Constitution does not protect what “government officials may grant or deny . . . in their discretion.” Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005). While this principle applies in a variety of contexts, see, e.g., id.; Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 462–63 (1989), in the immigration context it applies with particular force because of the deference afforded to the political branches. See Rojas-Reyes, 235 F.3d 115, 121-22 (2d Cir. 2000). Indeed, the Supreme Court “ha[s] long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). In the present case, Mr. Ragbir’s stay of removal and supervised release were discretionary benefits bestowed upon him by the
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government. The Due Process Clause did not protect them or restrict the government’s discretion to revoke them. Accordingly, Ragbir’s constitutional claims before this Court fail.
Nevertheless, even assuming arguendo that the Due Process Clause extends to Mr. Ragbir’s discretionary stay of removal supervised release, he received constitutionally adequate process. In Yuen Jin, after deciding that petitioners did not have a protectable interest in discretionary relief, the Second Circuit concluded that, even if they did, petitioners had received due process as a result of their previous immigration proceedings, including “a full and fair removal hearing (which resulted in a final removal order).” Id. at 157. So too here: Mr. Ragbir received a full and fair removal hearing, which resulted in a final removal order from which he now seeks discretionary relief. Moreover, Mr. Ragbir has received further process as a result of his stay applications and check-ins with ICE. Mr. Ragbir has had the opportunity to submit evidence, including letters from supporters, as well as legal arguments, such as how his legal status would be affected by pending proceedings in other fora. See Das Decl. ¶¶ 8-11. Indeed, in his most recent stay application from November 2017, Mr. Ragbir took the opportunity to again submit letters from his supporters and present arguments about how his immigration status might change as a result of legal developments. See id. ¶¶ 12, 21. Although ICE exercised its discretion to revoke Ragbir’s stay and deny his most recent stay application, Ragbir did receive an opportunity to present substantial materials on why the stay might have been continued.
Additionally, on January 11, 2017, Mr. Ragbir and his attorney met with ICE officials in person. Mechkowski Decl. ¶ 45. At that meeting, Deputy Field Office Director Mechkowski informed Mr. Ragbir that, “after reviewing his case, including his positive equities and mitigating circumstances,” ICE had denied his request for another administrative stay of removal, that Mr. Ragbir’s order of supervision was being revoked, and that Mr. Ragbir would
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be taken into ICE custody for the purpose of executing the removal order. Id. DFOD Mechkowski and those present at the meeting engaged in a discussion regarding the reasons for the denial of the stay request and re-detention for removal, and Mr. Ragbir’s counsel raised a number of equities supporting her request to allow Mr. Ragbir to stay (e.g., the pending presidential pardon request, the pending coram nobis, and a forthcoming motion to reopen with the BIA). Id. Approximately five to ten minutes into the meeting, Mr. Ragbir appeared to lose consciousness, after which Mr. Ragbir was taken to a hospital for evaluation. Id. On this record, it is clear that Mr. Ragbir received sufficient process when ICE exercised its discretion to revoke Mr. Ragbir’s supervised release and to deny his administrative stay of removal.
Accordingly, even if the Due Process Clause does protect discretionary protection from removal in some form, the Court should conclude that Mr. Ragbir received constitutionally sufficient process, and that ICE validly revoked Mr. Ragbir’s supervised release and denied his administrative stay.5
3. ICE did not violate its regulations Mr. Ragbir suggests that ICE was going violate its regulations (8 C.F.R. § 241.22 and § 241.33(b)) by removing him within the first 72 hours of his arrest. See Am. Pet. ¶ 41. However, those regulations do not apply to Mr. Ragbir. Section 241.22 is found in subpart B to part 241, and section 241.33(b) is found in subpart C to part 241; and both sections are limited to the execution of final orders resulting from commenced prior to April 1, 1997. See 8 C.F.R. § 241.20. 241.33. Mr. Ragbir’s removal proceedings commenced in 2006. In any event,
5 To the extent that Mr. Ragbir challenges ICE’s revocation of his latest grant of an administrative stay of removal, that administrative stay expired today, January 19, 2018, and so there is no longer any administrative stay of removal in place.
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Mr. Ragbir was not removed within 72 hours of his detention, and thus ICE did not violate any applicable or inapplicable regulation. B. Mr. Ragbir’s detention is authorized by 8 U.S.C. § 1231
Mr. Ragbir incorrectly claims that no statute authorizes his detention. See Am. Pet. ¶¶ 34-39. Mr. Ragbir’s detention pending removal from the United States is unquestionably governed by INA § 241, 8 U.S.C. § 1231.
Under the INA, if ICE does not remove an alien subject to a final removal order within 90 days (the “removal period”), 8 U.S.C. § 1231(a)(1)(A), ICE may continue detention if it is “reasonably necessary” to effectuate removal, or ICE may release the alien “subject to supervision under regulations prescribed by the Attorney General.” 8 U.S.C. § 1231(a)(3); see Zadvydas, 533 U.S. at 689; 8 U.S.C. § 1231(a)(3) and (6) (providing that an alien who is subject to mandatory detention, inadmissible, or who has been determined to be a risk to the community or a flight risk, “may be detained beyond the removal period”) (emphasis added). Those regulations provide, inter alia, that supervision orders shall contain various reporting requirements, limitations on travel without prior ICE approval, and a mandate that the alien “continue efforts to obtain a travel document and assist the Service in obtaining a travel document.” See 8 C.F.R. § 241.5(a). Neither the statute nor the regulations contain a time limit on the period of supervision. The Zadvydas Court did not set a time limit and implicitly endorsed supervision for the duration of an alien’s presence in the United States when it held that deportable aliens with no foreseeable possibility of deportation should be released under supervision. 533 U.S. at 695-96; see also Yusov v. Shaughnessey, 671 F.Supp.2d 523, 527-28 (S.D.N.Y. 2009).
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Even though there is no question that the removal period has expired, ICE retains the statutory authority to hold Mr. Ragbir under 8 U.S.C. § 1231(a)(6), which permits detention beyond the “removal period” of an alien found removable under 8 U.S.C. § 1227(a)(2).6
That he was previously released on an order of supervision is of no consequence. C. Mr. Ragbir’s detention is lawful and constitutional, and he is not entitled to release
As noted above, Mr. Ragbir’s detention is governed by 8 U.S.C. § 1231. The Supreme Court addressed ICE’s authority to detain aliens after their removal orders become final in Zadvydas v. Davis, 533 U.S. 678 (2001). There, the Court held that 8 U.S.C. § 1231(a) authorizes immigration detention for a period reasonably necessary to accomplish the alien’s removal from the United States. Zadvydas, 533 U.S. at 699-700. The Court recognized six months as a presumptively reasonable period of time to allow the government to accomplish an alien’s removal. Id. at 701. However, the Supreme Court did not require the government to release every alien whose detention exceeds six months. Rather, the Court held:
After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as “reasonably foreseeable future” conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. Id. (emphasis added).7
6 8 U.S.C. § 1231(a)(6) provides that “[a]n alien ordered removed who is . . . removable under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title . . . may be detained beyond the removal period . . . .” Here, Mr. Ragbir falls under the purview of 8 U.S.C. § 1231(a)(6).
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Thus, in a challenge to post-order detention, the Supreme Court placed the initial burden on the alien. Id. If the alien fails to meet that burden, or if the government rebuts the alien’s showing, then continued detention is permissible. Id.
Aliens detained under 8 U.S.C. § 1231 are not entitled to bond hearings before an immigration judge. Instead, such aliens receive periodic custody reviews from ICE, and following Zadvydas, the government promulgated regulations requiring ICE to conduct custody reviews for aliens whose post-removal-order detention has exceeded six months. See 8 C.F.R. §§ 241.4, 241.13.
As an alien subject to a final removal order, Mr. Ragbir is detained under 8 U.S.C. § 1231. Mr. Ragbir has been detained for just over one week, since January 11, 2018, and thus he is within the presumptively reasonable period of detention authorized by Zadvydas. Yet Mr. Ragbir argues that his detention is unconstitutionally prolonged, claiming that he has been detained for more than 22 months by virtue of the fact that he was previously detained nearly ten years ago.8 The Court should reject Mr. Ragbir’s suggestion that he has been detained for 22 months, and instead find that he is currently detained within the six-month, presumptively reasonable period of detention. See, e.g., Phean v. Holder, No. 11-cv-535 (CCC), 2011 WL 1257389, at *2 (M.D. Pa. Mar. 30, 2011) (“[T]he presumptively reasonable six month period
7 In Zadvydas, the concern of “indefinite detention” arose where the petitioners could not be removed from the United States because their home countries would not accept their repatriation, yet the government continued to detain them. See Zadvydas, 533 U.S. at 684-86.
16

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began running on . . . the date he was taken back into custody.”). In any event, even if Mr. Ragbir’s detention no longer falls within a presumptively reasonable period of detention, review under the familiar Zadvydas-framework demonstrates that Mr. Ragbir’s detention is lawful.
As a threshold matter, Mr. Ragbir bears the initial burden of providing good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future, and he has not met this threshold burden. Zadvydas, 533 U.S. at 701; see Callender v. Shanahan, --- F. Supp. 3d ----, 2017 WL 6414152, at *6 (S.D.N.Y. Dec. 13, 2017) (“Regardless of the length of the detention to date, Zadvydas places the burden of proving that there is no significant likelihood of removal in the reasonably foreseeable future on the alien.” (quotation omitted)); see also Akinwale v. Aschcroft, 287 F.3d 1050, 1051-51 (11th Cir. 2002) (“to state a claim under Zadvydas the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future”) (emphasis added). Mr. Ragbir argues only that his detention has become prolonged, and that, upon his information and belief, ICE lacked a travel document to execute his removal. See Am. Pet. ¶ 53. However, “mere assertions that removal is unforeseeable do not satisfy [the petitioner’s] burden [under Zadvydas].” See Juma v. Mukasey, No. 09 Civ. 3122 (PAC)(AJP), 2009 WL 2191247, at *3 (S.D.N.Y. July 23, 2009) (vague, conclusory, and general claims that removal is not foreseeable,
8 Mr. Ragbir argues that “he has already been detained for twenty-two months, fourteen of which were post-final order.” Am. Pet. ¶¶ 48, 50. The Court should reject Mr. Ragbir’s characterization. As noted supra note 2, Mr. Ragbir was detained for approximately 10-11 months post-order before being released in February 2008. To the extent Mr. Ragbir seeks to raise a challenge to his nearly 10-month pre-removal-order detention, such a claim is moot. Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) (“To the extent that Wang previously may have had a cognizable due process argument under [§ 1226], that claim has been rendered moot” because Wang “is now subject to detention under [§ 1231].”).
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and that Embassy will not issue travel document in foreseeable future, fails to meet initial burden); see also id. at *3 n.4 (collecting cases).
Moreover, Mr. Ragbir’s assertion that ICE lacked a travel document is incorrect. ICE obtained a travel document from the Consulate of Trinidad and Tobago on January 3, 2018, and was in the process of executing his removal on January 11, 2018, but temporarily halted that process due to the court-ordered stays of removal by this Court and DNJ. Mr. Ragbir’s removal was not only reasonably foreseeable, but it was imminent. On these facts, Mr. Ragbir cannot meet his threshold burden under Zadvydas. Additionally, Mr. Ragbir cannot meet his initial burden by merely relying on the length of his detention, because the passage of time without issuance of a travel document, by itself, does not show that there is no significant likelihood of removal within the reasonably foreseeable future. See, e.g., Beckford v. Lynch, No. 15-CV-1020 (JTC), 2016 WL 827389, at *6 (W.D.N.Y. Mar. 3, 2016) (collecting cases); Newell v. Holder, 983 F. Supp. 2d 241, 248 (W.D.N.Y. 2013) (“[T]he mere passage of time [is] insufficient to meet the petitioner’s burden to demonstrate no significant likelihood of removal.”); see also Akinwale v. Aschcroft, 287 F.3d 1050, 1051-51 (11th Cir. 2002) (“to state a claim under Zadvydas the alien not only must show post-removal order detention in excess of six months but also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the
18

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reasonably foreseeable future”).9 Thus, Mr. Ragbir has not met his burden of showing “evidence of a good reason” to believe there is no likelihood of removal. See Akinwale, 287 F.3d at 1052.
But even if Mr. Ragbir had sustained his initial burden (which he has not), the government can easily rebut it here by showing that Trinidad and Tobago had actually issued ICE a travel document for Mr. Ragbir’s removal, and, as noted above, ICE was in the process of removing Mr. Ragbir on January 11, 2018, until the court-ordered stays were issued. See Dkt. No. 24; see Obikanye v. INS, 78 F. App’x 769, 772 (2d Cir. 2003) (“Because Obikanye’s removal is reasonably foreseeable, his detention does not implicate Zadvydas.”).
And while Mr. Ragbir is free to pursue whatever efforts he deems appropriate to prevent his removal, such efforts do not make his removal unlikely or entitle him to relief under Zadvydas. See Abimbola v. Ridge, 181 F. App’x 97 (2d Cir. 2006) (alien’s filing of numerous petitions is a “self-inflicted wound” that does not entitle him to protection under Zadvydas); see also Guangzu Zheng v. Decker, 618 F. App’x 26 (2d Cir. 2015) (“[T]he Government has been prevented from removing Zheng by the BIA’s stay of removal (sought by Zheng) and by its own forbearance policy (also resulting from Zheng’s pursuit of an additional stay). If this Court denies Zheng’s petition for review and pending stay motion, the Government can seek another travel document. Given this record, Zheng has not ‘provide[d] good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.’”); Agoro v. Dist.
9 To the extent that the length of Mr. Ragbir’s detention bears on the likelihood of his removal, courts have sustained far greater periods of detention where aliens have failed to produce evidence that there is no significant likelihood of removal in the reasonably foreseeable future. See, e.g., Callender, 2017 WL 6414152 (nearly two and a half years); Luna-Aponte v. Holder, 743 F. Supp. 2d 189, 197 (W.D.N.Y. 2010) (39 months); Kassama v. Dep’t of Homeland Sec., 553 F. Supp. 2d 301, 306 (W.D.N.Y. 2008) (21 months); see also Leslie v. Mule, 423 F. App’x 29 (2d Cir. 2011) (more than two years); Abimbola v. Ridge, 181 F. App’x 97 (2d Cir. 2006) (more than two years).
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Dir. for Immigration Custom Enforcement, 09 Civ. 8111 (SAS), 2010 WL 9976, at *5 & n.72 (S.D.N.Y. Jan. 4, 2010) (“[T]here is a significant likelihood that ICE will be able to procure another travel document for Agoro when he no longer has litigation pending in United States courts. Even if Agoro files additional claims in an effort to prolong the removal process, his removal will still be considered reasonably foreseeable because any resulting delay will be caused by Agoro’s own actions.”). “It is well-settled, however, that an alien cannot, through unilateral action, create the very circumstance that he relies on for relief under Zadvydas.” Callender, 2017 WL 6414152, at *7; see also Garcia v. Dep’t Homeland Security, 422 F. App’x 7, 8 (2d Cir. 2011) (“Garcia’s removal has been stayed at his own request. This self-inflicted wound cannot establish grounds for a Zadvydas claim.”). Because Mr. Ragbir’s removal is reasonably foreseeable, his detention is lawful.
Finally, Mr. Ragbir’s challenge to the post-order custody review (“POCR”) process is without merit. Zadvydas does not require any particular procedural protections in the post-order custody review context, and existing POCR process are adequate. See, e.g., Chi Thon Ngo, 192 F.3d 390, 399 (3d Cir. 1999) (considering seven elements of past rules governing POCR and “conclud[ing] that conscientiously applied, [the rules] provide reasonable assurance of fair consideration of a petitioner’s application for parole pending removal.”); Joseph v. DHS, No. 055233 (JLL), 2006 WL 1644875, at *4 (D.N.J. June 12, 2006) (considering POCR process in light of Fifth Amendment challenge and “find[ing] that Petitioner is not entitled to any greater custody reviews than that which [ICE] has already provided him); Harrison v. Hogan, No. 1:CV-051376, 2005 WL 2020711, at *4 (M.D. Penn. 2005).
Moreover, Mr. Ragbir has not been detained for a prolonged period of time. His detention would have lasted for a negligible amount of time—the time it would have taken for
20

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him to be removed—but for the issuance of the temporary court-ordered stays of removal. Ragbir cannot invoke the power of this Court to stay his removal and then simultaneously complain that, because his removal has been stayed, he has been detained without adequate process. As such, the Ninth Circuit cases Ragbir cites are not relevant here. See Amended Pet. ¶ 56. In Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), the Ninth Circuit held that “an individual facing prolonged immigration detention under 8 U.S.C. § 1231(a)(6) is entitled to release on bond.” Id. at 1082 (emphasis added). The Ninth Circuit was clear that “§ 1231(6) detainees . . . may be detained without bond when necessary to ensure their availability for removal.” Id. at 1088.10 There remains a significant likelihood of Ragbir’s removal in the reasonably foreseeable future, and so his detention without a bond hearing remains constitutionally valid.
The Court also should reject Mr. Ragbir’s claim that his continued detention without a bond hearing violates due process. Following the Supreme Court’s decision in Zadvydas, ICE enacted regulations to meet the criteria the Court established to prevent indefinite detention. See 8 C.F.R. § 241.4. Under those regulations, a detained alien is entitled to a review of his custody status before his removal period expires, at 180 days, and at annual intervals thereafter, with the right to request interim reviews from headquarters not more than once every three months. See 8 C.F.R. §§ 241.4(k)(1), (k)(2). While Mr. Ragbir was previously detained, he received such periodic custody reviews, and the third resulted in his release from custody in February 2008. See Am. Pet. ¶¶ 22–23. Thus, because ICE has given him the requisite periodic custody reviews,
10 The other Ninth Circuit case cited by Ragbir, Casas-Castillon v. DHS, 535 F.3d 942 (9th Cir. 2008), is even less relevant: it concerns an alien detained for seven years, first under 8 U.S.C. § 1226(c) and later under § 1226(a). 535 F.3d at 944, 947–48; see Pet ¶ 56. Ragbir is detained under 8 U.S.C. § 1231(a) because he is subject to a final order of removal.
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and will continue to do so, Mr. Ragbir has been provided the process required by ICE regulations and by Zadvydas.
CONCLUSION For the foregoing reasons, the Court should deny Mr. Ragbir’s amended petition.

Dated: New York, New York January 19, 2018

Respectfully submitted,

GEOFFREY S. BERMAN United States Attorney for the Southern District of New York, Attorney for the United States

By: /s/ Brandon M. Waterman
BRANDON M. WATERMAN STEVEN J. KOCHEVAR Assistant United States Attorneys 86 Chambers Street, Third Floor New York, New York 10007 Tel. (212) 637-2741 Fax (212) 637-2786 brandon.waterman@usdoj.gov

22

 
 Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Ravidath Lawrence RAGBIR

Petitioner,Case No.:

C

Petitioner

vs.

Jefferson SESSIONS III, in his official capacity as the Attorney General of the United States; Kirstjen NIELSEN in her official capacity as Secretary of Homeland Security; Thomas DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement; Scott MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement; and the U.S. DEPARTMENT OF HOMELAND SECURITY.
UNITED STATES DISTRICT COURT FOR THE SOUTRHeEspRoNndDenIStsTRICT OF NEW YORK

Case No.: 1:18-cv-236 (KBF)
PETITIONER’S REPLY IN SUPPORT OF AMENDED PETITION FOR WRIT OF HABEAS CORPUS

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 2 of 12
Detention is not a requirement of deportation. To the contrary, detention is a deprivation of liberty that carries with it serious consequences independent of any decision to deport.1 The Government ignores this distinction by focusing solely on Mr. Ragbir’s 2007 deportation order and the existence of a travel document, which does nothing to change their assessment of Mr. Ragbir’s flight risk and dangerousness. The Government provides no independent—let alone constitutionally adequate—justification for Mr. Ragbir’s current detention. Mr. Ragbir’s current detention serves only to take away the liberty of an outspoken immigrant rights activist, separating him from his family and community and jeopardizing his ability to pursue pending legal avenues for relief. Because “[f]reedom from imprisonment . . . lies at the heart of the liberty [the Due Process] Clause protects,” Zadvydas v. Davis, 533 U.S. 678, 690 (2001), this Court should reject the Government’s arguments and hold that Mr. Ragbir be immediately released and declare that any revocation of his order of supervised release was unlawful without a constitutionally adequate hearing. If, after such a hearing, it is determined that revocation is proper, Mr. Ragbir should be provided with an orderly departure.
An orderly departure, commonly provided to noncitizens by sending a Form I-166 (colloquially referred to as a “bag and baggage letter”), is a process by which ICE directs an individual to appear for removal at a particular date and time.2 When an individual is ordered removed and either was never detained or has been previously released from custody, it is
1 Immigrants in detention, including Mr. Ragbir, are frequently detained in county jails. They are held behind bars and put “in orange suits, they are shackled during visitation and court visits, they are subject to surveillance and strip searches, they are referred to by number, not by name.” Transcript of Oral Argument at 8, Jennings v. Rodriguez, No. 15-1204 (Nov. 30, 2016) (J. Sotomayor). Even though Mr. Ragbir has been moved from Florida to New York, he is being detained approximately two hours away from his wife, colleagues, and community. His detention is arbitrary and unnecessary, wastes resources, and is a double punishment. 2 A bag and baggage order “issues once the government determines that there is no further administrative relief available to an alien who is subject to an order of removal, and instructs the alien to appear at a specified location and time for removal.” Singh v. Gonzales, 494 F.3d 1170, 1772 n.3 (9th Cir. 2007).
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standard for ICE to provide the individual with an orderly departure3, as this process saves

enforcement and detention resources, and affords an individual the opportunity to put their

affairs in order and pursue any further relief for which they may be eligible. Instead of following

this common and humane removal procedure, ICE arbitrarily arrested Mr. Ragbir at his check-in

on January 11th, handcuffed him in front of his wife and attorney, hastily shuttled him to Miami

for detention, without any assertion that he was a flight risk or danger. In doing so, ICE violated

its own regulations, statutory authority, and Mr. Ragbir’s constitutionally protected rights.

I.

When the Government redetained Mr. Ragbir, it violated its own procedures,

regulatory and statutory authority, and the Constitution.

In abruptly arresting and redetaining Mr. Ragbir, the Government violated its own

regulations, procedures, and prior written commitments to provide him with an orderly

departure. Mr. Ragbir was released from detention on an order of supervision (“OSUP”) in 2008

after findings were made “pursuant to 8 CFR 241.4” that, despite ICE’s potential access to a

travel document, Mr. Ragbir “did not commit a crime of violence and does not appear to be a

flight risk” and thus merited release on specific conditions. ECF No. 1-12; ECF No. 1-14; 8

U.S.C. § 1231(a)(3) (authorizing supervised release pursuant to reasonable conditions).4

3 See Detention and Deportation Officer’s Field Manual, Chapter 11.6 “Docket Management of Non-Detained Cases”, available at https://www.ice.gov/doclib/foia/dro_policy_memos/09684drofieldpolicymanual.pdf (instructing ICE officers to “prepare…Form I-166, Notice to Deportable Alien to Surrender” if removal is ordered by an immigration judge and no appeal is pending); The Legal Aid Society, Immigration Detention and Removal: A Guide for Detainees and their Families (Oct. 2004), available at https://www.shusterman.com/pdf/detention1004.pdf (“If DHS can remove you, you will be sent a “bag and baggage” order requiring you to appear at DHS on a certain date for removal); see e.g., Coleman v. United States, 454 F. Supp. 2d 757, 762 (N.D. Ill. 2006) (describing typical procedural history in which ICE declined to grant a stay of removal and provided Petitioner with a bag and baggage letter); Devitri v. Conen, No. 17-11842-PBS (D. Mass. Sept. 26, 2017) (describing procedural history in which Petitioners were provided with letters at OSUP checkins instructing them to report back in 30 days showing purchase of airline tickets for departure within 30 days). 4 Mr. Ragbir’s release was not pursuant to a finding that his removal was not imminent. As the worksheet notes, ICE had contacted the Trinidadian consulate, which indicated that it would provide a travel document once Mr. Ragbir’s Second Circuit appeal was decided. Prior worksheet noted that Mr. Ragbir’s removal was imminent at all times and that a travel document was readily attainable. Mr. Ragbir’s Second Circuit appeal was decided in 2010, however no travel document was obtained at that time, and he remained on his OSUP.

2

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Any decision to revoke release pursuant to § 241.4 is reserved for the Executive
Associate Commissioner, based on specific findings. 8 C.F.R. § 241.4(l)(2); see also 8 U.S.C. §
1231(a)(3) (specifying terms of supervision).5 A District Director instead may revoke only when
“revocation is in the public interest and circumstances do not reasonably permit referral of the
case to the Executive Associate Commissioner.” Id. Federal regulations further require ICE to
provide notice “of the reasons for revocation,” to provide “an initial informal interview promptly
. . . to afford the alien an opportunity to respond to the reasons for revocation,” and to be given
the opportunity to submit evidence and contest alleged facts. 8 C.F.R. § 241.4(l)(1)-(3); see also
8 C.F.R. § 241.13(i)(3).6 The Government does not contest that, in its haste to detain Mr. Ragbir,
it unlawfully bypassed all of these procedural requirements.7
5 To the extent federal regulations can be read to permit revocation on grounds not found in the statute, those provisions would be ultra vires. The statute provides specific terms of supervised release, and does not authorize the revocation of release unrelated to those terms. See 8 U.S.C. § 1231(a)(3) (specifying supervised release terns); § 1231(a)(6) (specifying that individuals “if released, shall be subject to the terms of supervision in [(a)(3)]”). 6 8 C.F.R. § 241.13(i) provides similar procedural protections related to notice and an opportunity to be heard with respect to the revocation of release based on “changed circumstances” relating to the likelihood of removal. It does not govern the revocation of release orders based on a lack of flight risk or dangerousness, however. It explicitly states that: “Section 241.4 shall continue to govern the detention of aliens under a final order of removal, including aliens who have requested a review of the likelihood of their removal under this section, unless the Service makes a determination under this section that there is no significant likelihood of removal in the reasonably foreseeable future. The Service may release an alien under an order of supervision under § 241.4 if it determines that the alien would not pose a danger to the public or a risk of flight, without regard to the likelihood of the alien's removal in the reasonably foreseeable future.” § 241.13(b) (emphasis added). 7 The Government conceded that this Court has jurisdiction to review Mr. Ragbir’s claims that Respondents failed to follow the law in revoking Mr. Ragbir’s OSUP, see Transcript of Oral Argument at 20-21, but now argues that 8 U.S.C. § 1252(a)(2)(B)(ii) strips this Court of jurisdiction to hear a challenge to the “substance” of Respondents’ decision to revoke Mr. Ragbir’s release. Resp’t Br. at 7. While this Court need not address the “substance” of the Respondents’ revocation in order to grant Mr. Ragbir the relief he seeks, the Government’s jurisdiction-stripping argument is incorrect for two reasons. First, nothing in § 1231(a)(6) authorizes the government to revoke release without cause, let alone places such revocation decisions in ICE’s unfettered discretion. See 8 U.S.C. § 1231(a)(6) (specifying only that noncitizens who are released “shall be subject to the terms of supervision” with no reference to revocation). Second, even if this Court were to find that Congress had “specified” revocation discretion explicitly and exclusively to the Attorney General, § 1252(a)(2)(B)(ii) does not and cannot bar judicial review of constitutional claims or violations of law. Wong v. United States, 373 F.3d 952, 963 (9th Cir. 2004) (“[D]ecisions that violate the Constitution cannot be ‘discretionary,’ so claims of constitutional violations are not barred by § 1252(a)(2)(B).”). In any event, Mr. Ragbir’s claims focus on the Government’s failure to abide by Constitutional, statutory, and regulatory requirements governing the process of revoking his OSUP and ongoing detention, claims over which jurisdiction is undisputed. Zadvydas, 533 U.S. at 687.
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First, Deputy Field Office Director Scott Mechkowski’s decision to revoke Mr. Ragbir’s
release violated § 241.4(l)(2) because he is neither the Executive Associate Commissioner nor
the District Director. See ECF No. 33-3 (filed by counsel for Respondents). Second, the
Government failed to provide Mr. Ragbir and his counsel with any notice of the reasons for
revocation, as required under the regulations. See Ex. A, Declaration of Alina Das, ¶¶ 19-21
(“Das Decl.”). Third, at no point has anyone from ICE approached Mr. Ragbir for an interview,
informal or otherwise. See id. at ¶ 34. Fourth, without the necessary notice or interview, Mr.
Ragbir was deprived of his opportunity to respond to and challenge the allegations underlying the revocation.8 The decision to abruptly detain Mr. Ragbir also violated the written terms of his
Release Notification, which promised him “an opportunity to prepare for an orderly departure,”
provided he complied with the conditions of his release. ECF No. 1-14. The Government’s decision to suddenly redetain Mr. Ragbir abandoned this longstanding agreement.9
Thus Mr. Ragbir did not receive notice, cause, an opportunity to be heard, or an orderly
departure. Where DHS fails to adhere to its own regulations, and the regulations in question were
intended to bolster constitutional principles, relief is automatically warranted, and the noncitizen
need not show prejudice. Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994); Montilla v. INS, 926
8 The Government declines to address these violations, which, regardless of any statutory or constitutional arguments, form independent grounds for relief. However, to the extent that the Government suggests that Mr. Ragbir’s January 11 check-in satisfied the required procedures, they would be incorrect. At no point during Mr. Ragbir’s check-in did Deputy Director Mechkowski give Mr. Ragbir or his attorney any paperwork regarding any revocation of Mr. Ragbir’s OSUP, state that he had revoked the order, or provide the basis for any such decision. Deputy Director Mechkowski refused to provide Mr. Ragbir or his attorney with any reasons for or information about Mr. Ragbir’s redetention, repeating only that he was enforcing the removal order before declaring “I need to cool off” and leaving the room. Das Decl. ¶ 21. This one-sided interaction with an individual who has no authority to revoke an OSUP did not provide any rationale for ICE’s decision, much less an opportunity to respond or present evidence, and so it cannot possibly comport with procedural requirements. 9 Further regulatory violations would have occurred had a temporary stay not issued. The Government concedes that it would otherwise have deported him on January 12, 2018, in violation of 8 C.F.R. §§ 241.22 and 241.33(b) (preventing removal within 72 hours of arrest). The government’s assertion that the 72-hour rule does not apply to cases initiated after IIRIRA is incorrect. See Ying Fong v. Ashcroft, 317 F. Supp. 2d 398, 403-04 (S.D.N.Y. 2004) (72-hour rule applies to post-IIRIRA cases).
4

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F.2d 162, 169 (2d Cir. 1991); see also Bonitto v. Bureau of Immigration & Customs
Enforcement, 547 F. Supp. 2d 747, 757 (concluding that because §§ 241.4 and 241.13 “confer
important rights upon aliens ordered removed, DHS is bound by these regulations”).10
Yet the Constitution requires more than the regulations provide. See Zadvydas, 533 U.S.
at 690; Diouf v. Napolitano, 634 F.3d 1081, 1090 (9th Cir. 2011) (“We may not defer to DHS
regulations interpreting § 1231(a)(6), however, if they raise grave constitutional doubts.”). For
ten years, Mr. Ragbir has complied with every condition of his OSUP, including reporting to the
New York ICE Field Office as requested on no fewer than 16 occasions. See ECF No. 32. at ¶¶
11-45; ECF No. 1-16. This order conveyed a liberty interest,11 the potential deprivation of which
triggers the protection of the Due Process Clause.12 “The Supreme Court has recognized that an
‘alien may no doubt be returned to custody upon a violation of [supervision] conditions,’ but it
has never given ICE a carte blanche to re-incarcerate someone without basic due process
protection.” Rombot v. Souza, 2017 U.S. Dist. LEXIS 185244, *13-14 (D. Mass. Nov. 8, 2017)
10 No meaningful changes have taken place in Mr. Ragbir’s eligibility for release, as he continues to comply with every release condition. The Government does not allege that he presents a danger to the community or a flight risk or that his release is now contrary to the public interest. Only the government’s circumvention of these procedural protections allows this seemingly arbitrary decision to stand. 11 The Government misstates the nature of Mr. Ragbir’s interest, alleging that he has no “constitutionally protected interest in discretionary forbearance from removal.” Resp’t Br. 7. In fact, Mr. Ragbir does not ask this court for relief from removal. Because the Government mischaracterizes Mr. Ragbir’s claims, the cases to which it cites are inapposite. Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir. 2008) (grant of asylum); Ashki v. INS, 233 F.3d 913, 921 (6th Cir. 2000) (suspension of deportation); Ragbir v. Lynch, 640 Fed. App’x 105 (2d Cir. 2016) (adjustment of status). Mr. Ragbir’s liberty interest lies in being free from detention and is protected by Due Process irrespective of removability (as described above, an individual on supervised release can ultimately be removed without being detained). The Government’s reliance on a 1964 decision, Wong Hing Fun v. Esperdy, 335 F.2d 656, 657 (2d Cir. 1964), is flawed. Hing Fun deals with inadmissible individuals paroled into the U.S. for physical entry but not lawfully admitted. Id. They were thus, at the time of the decision, treated differently under the law than people lawfully admitted who subsequently faced detention and deportation. Indeed, the court held that the Fifth Amendment did not apply to the paroled petitioners based on the fact that they were “subject to the exclusion rather than the expulsion provisions of the statute.” Id. at 657. To the extent that Hing Fun even remains good law after Zadvydas and its progeny (recognizing due process rights for all detained noncitizens), it certainly does not stand for the proposition that those facing revocation of an OSUP fall outside the Due Process Clause. 12 Mr. Ragbir’s stay of removal conveyed a liberty and property interest revoked without due process, see ECF No. 21 at ¶¶ 43-44, but this exists independently from the OSUP. See Das Decl. ¶ 5-6 (noting that stays and orders of supervision serve different purposes, are governed by different regulations, and exist independently of each other).
5

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(citing Zadvydas, 533 U.S. at 700); see also Haynes v. Dep’t of Homeland Sec., 3:CV-05-0339,

2005 WL 1606321, *5 (M.D. Pa. July 8, 2005) (referring to “the constitutional command that

liberty be taken away only for appropriate reasons and only after the affected individual has been

afforded a meaningful opportunity to be heard.”).

The regulations governing release revocation are constitutionally inadequate under

Mathews for three reasons: (1) they do not provide for a formal hearing with counsel before

revocation; (2) they do not explicitly place the burden on the government to justify its decision

under the regulations; and (3) they do not provide for a decision by a neutral arbiter. Mathews v.

Eldridge, 424 U.S. 319 (1976); see also Boddie v. Connecticut, 401 U.S. 371, 379 (1971)

(holding that, “except for extraordinary situations,” a person must be afforded an opportunity for

a hearing before he is deprived of a protected interest”; Goldberg v. Kelly, 397 U.S. 254, 270

(1970) (“the right to be heard necessarily contemplates the right to be heard by counsel”). Liberty is one of the most precious interests under our Constitution.13 The risk of erroneous

deprivation of that liberty in an “informal interview,” assuming one is provided, is intolerably

high. Where ICE has already granted an individual an OSUP having determined they pose no

danger or flight risk, the additional requirement of a formal hearing before revocation is

reasonable.

II.

Mr. Ragbir’s current and continued detention is unlawful.

To date, the Government has failed to provide any non-arbitrary basis for Mr. Ragbir’s

detention, in violation of the INA and the Constitution. As an initial matter, the Government

13 The revocation also deprived Mr. Ragbir of a property interest in the employment authorization he held through his OSUP. See ECF No. 1-3. A property interest exists where regulations “meaningfully channel[] official discretion by mandating a defined administrative outcome.” Kapps v. Wing, 404 F.3d 105, 113 (2d Cir. 2005). Mr. Ragbir’s authorization, renewed continuously, constituted a property interest requiring the Attorney General to make “a specific finding” that his removal was “impracticable or contrary to the public interest.” 8 U.S.C. § 1231(a)(7)(B).
6

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 8 of 12
states that the 90-day removal period ended long ago. Resp’t Br. 15. 8 U.S.C. § 1231(a)(6) provides that ICE may detain someone past the removal period upon a finding that they are “a risk to the community or unlikely to comply with the order of removal.” The Supreme Court in Zadvydas holds that immigration detention is constitutional only on the basis of these twin justifications (danger and flight risk). 533 U.S. at 690. Here, by the Government’s own findings and concessions, Mr. Ragbir is neither a danger nor a flight risk.14 ECF No. 1-12; 1-14. Thus, his detention serves no legitimate purpose.
The Government’s argument that Mr. Ragbir’s detention is authorized by Zadvydas because his removal is reasonably foreseeable turns Zadvydas on its head. The unlikelihood of removal in the reasonably foreseeable future certainly undermines a finding that detention is justified to effectuate deportation. But the converse (that removal may be effectuated) does not suddenly justify detention for one who has been independently deemed to pose no risk of flight or dangerousness.15 Even if removal is reasonably foreseeable, detention is inappropriate if it is not necessary to assure “presence at the moment of removal.” Zadvydas, 553 U.S. at 699.
However, irrespective of the availability of a travel document—which the Government purportedly has had access to for over a decade—the Government made the finding that Mr. Ragbir is not a flight risk or danger and thus his release was justified in 2008. ECF No. 1-14. Nothing has changed in the ten years since except Mr. Ragbir’s prominence in the immigrant
14 Since his 2001 conviction for the non-violent crime of wire fraud, Mr. Ragbir has never been arrested, charged, or convicted of another crime. He has complied with every term of his release, as evidenced by the Government’s Declaration, ECF No. 32, showing his history of reporting to ICE, including appearing for his check-in appointment. 15 The petitioners in Zadvydas were deemed to be dangers to the community by ICE. 533 U.S. at 684-85. The petitioners did not challenge those findings but argued that detention served no purpose in their case because they could not be removed in the reasonably foreseeable future. The Court thus addressed this aspect of detention, while upholding the primary principle that immigration detention is only justified when necessary to ensure someone’s presence at the moment of removal and to protect the community. 533 U.S. at 699.
7

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 9 of 12
rights movement.16 He continues to abide by all conditions of supervision and pursue his legal
avenues for relief. Since Mr. Ragbir is not a flight risk or danger, this Court should find his
continued detention unlawful and inappropriate, ordering his immediate release from detention.
Even if the reasonable foreseeability of removal based on the existence of a travel
document were sufficient to justify detention Mr. Ragbir has provided “evidence of a good
reason” to believe his removal is not reasonably foreseeable, and the Government has not
adequately rebutted that showing. Zadvydas, 533 U.S. at 701. The Government has stated that it
will not seek a travel document until Mr. Ragbir’s stay of removal expires. ECF No. 32 at ¶ 52. Mr. Ragbir has three pending legal matters challenging the validity of the basis for removal.17
Mr. Ragbir sought a stay of removal related to two of these cases, in order to protect his ability to
access the courts and continue to meaningfully participate in these matters. Mr. Ragbir has a stay
of removal from the District Court of New Jersey valid until at least February 9, 2018, subject to
the Court’s determination whether a longer stay is needed to protect its jurisdiction over Mr.
Ragbir’s pending petition for a writ of coram nobis. Ex. D, D.N.J. Order. Mr. Ragbir also sought
a stay of removal from the Board of Immigration Appeals (“BIA”), which is pending and would, if granted, last for the duration of the pending motion to reopen.18
16 Mr. Ragbir’s role as a prominent immigrant rights activist raises serious First Amendment concerns about whether his detention was politically motivated. See Das Decl.; Ex. B, Declaration of Rev. Juan Carlos Ruiz (“Ruiz Decl.”). See Demore v. Kim, 538 U.S. 510, 532-33 (2003) (Kennedy, J., concurring) (“[s]ince the Due Process Clause prohibits arbitrary deprivations of liberty”, “it could become necessary . . . to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.”). 17 Mr. Ragbir’s Motion to Reopen his proceedings, was pending for approximately one month as a request to ICE’s Office of Chief Counsel to join in the motion. This request was denied at 10:03 am on January 11, 2018 via email, which counsel did not receive until after the check-in. The Motion to Reopen was formally filed with the BIA at approximately 11:00 am that same day. Mr. Ragbir’s petition for coram nobis and pardon application had been pending for many months prior to the check-in date. 18 The Government correctly points out that Mr. Ragbir was previously detained for approximately 10 ½ months after his order of removal became administratively final (calculated from the date that his appeal was denied by the BIA). Mr. Ragbir has now been detained for 22.5 months in total, 11 of which are pursuant to § 1231, which is well beyond the 6-month period of presumptive constitutionality. Contrary to the Government’s assertion, Resp’t Br. 16, Mr. Ragbir’s current detention should be considered a continuation of his previous detention. Am. Pet. ¶ 49; Lin v.
8

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 10 of 12
Having a stay of removal does not preclude a detained petitioner from the protections of Zadvydas. See Ly v. Hansen, 351 F.3d 263, 272 (6th Cir. 2003) (one cannot be “detained [indefinitely] merely because he seeks to explore avenues of relief that the law makes available to him”); Neziri v. Johnson, 187 F. Supp. 3d 211, 216 (D. Mass. 2016) (“[A petitioner] seeking avenues of relief that he is entitled to seek does not exempt his detention from the constitutional requirement of reasonableness”); Oyedeji v. Ashcroft, 332 F. Supp. 2d 747, 753 (M.D. Pa. 2004) (“[T]he price for securing a stay of removal should not be continuing incarceration.”). Unlike the cases cited by the Government, Mr. Ragbir did not file subsequent appeals after his arrest and merely to delay his deportation;19 rather, he pursues the meritorious challenges to his removal that ICE knew were pending at the time of his arrest. His decision to pursue these matters is not a “self-inflicted wound” making him ineligible for the constitutional protections implicated by his detention. The stay of removal protecting Mr. Ragbir’s meritorious challenges to his removal thus provides good reason why his removal is not reasonably foreseeable.
There is also good reason to believe that, even if his stays of removal expire, the Trinidadian consulate will not issue a second travel document to ICE so long as Mr. Ragbir’s other legal challenges are pending, as was its policy when Mr. Ragbir was initially in detention in 2008. See POCR Worksheet, ECF No. 1-12. Counsel suspects that the consulate was unaware
U.S., No. 5:07-CV-26, 2007 WL 951618, at *3 (S.D. Tex. Mar. 28, 2007); Bah v. Cangemi, 489 F. Supp. 2d 905, 916 (D. Minn. 2007) (discussing the total period of custody). To hold otherwise would allow ICE to circumvent Zadvydas by releasing and re-detaining individuals every six months; such a result could not have been the intention of the Zadvydas court. 19 In Abimbola v. Ridge, an unpublished decision, the Petitioner filed multiple lawsuits with identical arguments as a previous filing, in order to delay his removal. 181 Fed. App’x 97, 98-99 (2d Cir. 2006). In Garcia v. DHS, also unpublished, the Petitioner had filed a second identical claim. 422 Fed. App’x 7 (2d Cir. 2011). In Callender v. Shanahan, Petitioner filed ten applications and appeals, including three back-to-back motions to reopen and two similar applications to USCIS, with appeals in order to delay. 2017 WL 6414152 at *2 (SDNY Dec. 13, 2017). In Agoro v. Dist. Dir. For ICE, the Petitioner continued to file appeals “in an effort to prolong the removal process.” 2010 WL 9976 at *5 (SDNY Jan. 4, 2010).
9

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 11 of 12
of Mr. Ragbir’s multiple pending matters when they issued the now-expired travel document, ECF No. 24-1, due to misstatements by ICE.20 Thus, to the extent that the reasonable foreseeability of removal is even relevant to the issue before this Court, the Government cannot rely on issuance of the previous travel document to seek such a finding. He should thus be immediately released from custody.
CONCLUSION As Mr. Ragbir is neither a flight risk nor a danger, his detention is unjustified and unnecessary to ensure his presence at the moment of removal. This Court should, therefore, order Mr. Ragbir’s immediate release and declare the revocation of his OSUP unlawful without a constitutionally adequate hearing. If ICE then pursues revocation through a constitutionally sufficient hearing and an impartial adjudicator finds Mr. Ragbir’s OSUP was properly revoked, ICE’s final obligation would be to provide Mr. Ragbir with an opportunity for the orderly departure he was promised. An orderly departure is both appropriate and meaningful for Mr. Ragbir, given the value that having time to put his affairs in order would provide him, his U.S. Citizen wife and daughter, his extended family, the non-profit organization he leads, and the thousands of immigrants that the organization touches and empowers. See ECF 11-4 § III(B)(1) (discussing lack of flight risk); Ruiz Decl. (discussing Mr. Ragbir’s responsibilities as Executive Director of New Sanctuary Coalition).21
20 In the events surrounding Mr. Ragbir’s arrest and detention on January 11, 2018, ICE repeatedly – and incorrectly – claimed that he had exhausted his legal challenges, when in fact he had three legal matters pending. See ECF No. 1-18 (“your client has exhausted all legal means to prevent his removal”). 21 As explained by Rev. Ruiz, Co-Founder of New Sanctuary Coalition (“NSC”), NSC is an organization with few employees but enormous impact. As Executive Director, Mr. Ragbir is the face of NSC and personally maintained all of the organization’s relationships with numerous elected officials, faith leaders, legal organizations, and funders. The ability to make in-person introductions between these key players and the staff of NSC is critical to the sustainability of the organization. Additionally, Mr. Ragbir singularly handled the finances and grant applications, some of which are pending. His release, the opportunity to transition both leadership and institutional knowledge necessary for running NSC, and to put his personal affairs in order, would be incredibly valuable.
10

Case 1:18-cv-00236-KBF Document 39 Filed 01/25/18 Page 12 of 12

Dated: New York, New York January 25, 2018

Respectfully submitted,
/s/ Alina Das ALINA DAS, Esq. (AD8805) JESSICA ROFÉ, Esq. (JR5231) Brittany Castle, Legal Intern Jeremy Cutting, Legal Intern Washington Square Legal Services, Inc. Immigrant Rights Clinic 245 Sullivan St., 5th floor New York, New York 10012 Tel: (212) 998-6430 alina.das@nyu.edu
Counsel for Petitioner

11

 
 Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 1 of 7

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------ )( RAVIDATHLAWRENCE RAGBIR,

USDCSDNY DOCUMENT ELECTRONICALLY FILED DOC#: DATE FILED: January 29, 2018

Petitioner,

-v-

JEFFERSON SESSIONS III, in his official capacity as the Attorney General of the United States, KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security, THOMAS DECKER, in his official capacity as New York Field Office Di1·ector for U .S. Immigration and Customs Enforcement, SCOTT MECHKOWSKI, in his official capacity : as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement, and the U.S. DEPARTMENT OF HOMELAND SECURITY,

18-cv-236 (KBF) OPINION & ORDER

Respondents.
------------------------------------------------------------------ )( KATHERINE B. FORREST, District Judge:

There is, and ought to be in this great country, the freedom to say goodbye.

That is, the freedom to hug one's spouse and children, the freedom to organize the

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myriad of human affairs that collect over time. It ought not to be-and it has never

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before been-that those who have lived without incident in this country for years

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are subjected to treatment we associate with regimes we revile as unjust, regimes

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where those who have long lived in a country may be taken without notice from

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streets, home, and work. And sent away. We are not that country; and woe be the

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day that we become that country under a fiction that laws allow it. We have a law

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higher than any that may be so interpreted- and that is our Constitution. The

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wisdom of our Founders is evident in the document that demands and requires

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Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 2 of 7
more; before the deprivation ofliberty, there is due process; and an aversion to acts
that are unnecessarily cruel. These fundamental rights are at issue in this case.l
After having spent nine years in this country without incident, repm·ting as
required to immigration authorities and building a home, a family,2 and a
community, on January 11, 2018, Ravidath Ragbir3 was suddenly taken into
custody. He was informed that his time in this country was at an end; without
further ado, without the freedom to say goodbye, he was taken away. This abrupt
and by all accounts unnecessary detention, a step in the direction of deportation,
was wrong. To be sure, there is a complicated statutory scheme that has been
written in so many different voices and with so many agendas that it is now akin to
a corn maze. That scheme, read as the Government here reads it, allows for
precisely those acts that occuned on January 11, 2018. Under that reading,
petitioner's status was essentially always at will and subject to immediate
revocation if a myste1·ious "travel document" was obtained.4 How and when said
1 The Comt also notes with grave concern the argument that petitioner has been targeted as a result of his speech and political advocacy on behalf of immigrants' rights and social justice. "[A]s a gene1·al matte1·, the First Amendment means that government has no powe1· to restrict expression because of its message, its ideas, its subject matter, or its content." United States v. Alvarez, 579 U.S. 709, 716 (2012) (quoting Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted)). 2 Mr. Ragbir is married to a United States citizen and also has a child born in this country. 3 Ravidath ''Ravi" Lawrence Ragbir is an immigrant who came to the United States from Trinidad and became a Legal Pe1·manent Resident in 1994. Pri01· to detention, Mr. Ragbir lived in Brooklyn, New York, with his wife and daughter, both of whom are American citizens. He is the Executive Director ofthe New Sanctuary Coalition of New York City, sits on the Steering Committee of the New York State Interfaith Network for Immigration Reform, and has served as the Chair of the Boa1·d of Families for Freedom. 4 This Court notes that the travel document at issue expired by its terms on January 14, 2018. In other words, the circumstances that were "changed'' and that had allowed for the revocation of supervised release, have now "changed back." M01·eover, it appears from the record (various ICE worksheets) that a travel document has been easily obtainable for years, rendering receipt of such a document as the basis fm· "changed circumstances" fictive.
2

Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 3 of 7
document would be sought, let alone obtained, is unclear. Here, petitioner was never told that such a document had been applied for and, unless the process requiTes many years to complete, such document had not been sought for over a decade. In short, petitioner had no reason to suspect that this meeting on January 11, 2018 would result, as it did, in his immediate and abrupt detention.
The CoUTt in fact agrees with the Government that the statutory schemewhen one picks the path through the thicket in the corn maze- allows them to do what was done here. But there are times when statutory schemes may be implemented in ways that tread on rights that are larger, more fundamental. Rights that define who we are as a country, what we demand of ourselves, and what we have guaranteed to each other: our constitutional Tights. That has occurred here.
In sum, the Court finds that when this country allowed petitioner to become a part of our community fabric, allowed him to build a life with and among us and to enjoy the liberties and freedom that come with that, it committed itself to allowance of an orderly departure when the time came, and it committed itself to avoidance of unnecessary cruelty when the time came. By denying petitioner these rights, the Government has acted wrongly. The petition must and shall be granted.
3

Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 4 of 7

I. STATEMENT OF LEGAL PRINCIPLES5

The Court agrees that the statutory scheme governing petitioner's status is

properly 1·ead to allow for his removal without further right of contest. He is subject

to a final order of deportation, he has been under an order of supervision that the

statute provides a right to revoke if and when the1·e was a change in circumstances,

and receipt of a "travel document" that allowed for immediate deportation was such

a change of circumstance. Once the travel document had been obtained, the

statutory scheme provides for the revocation of supervision and detention, as his

deportation had become r easonably foreseeable. All of this is correct. But under

the circumstances, the process by which it was done was nonetheless insufficient.

The manner in which deportation was and is to be effected here requil·es more.

The statutory scheme fails to account fm· the circumstances here;

circumstances that petitioner shares with so many others who are similarly subject

to final m·ders of deportation and have similarly lived under orders of supervision

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without incident for years. In such circumstances, the Fifth Amendment's liberty

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and due process guarantees are North Stars that must guide our actions. Yes,

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petitioner knew he was under a final order of deportation; yes, he had had

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numerous instances in which he had been heard by U.S. Immigration and Customs

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5 The Court has jurisdiction over this petition under 28 U.S.C. § 2241. See Zadvydas v. Davis, 533 U.S. 678, 687 (2001) (citing 28 U.S.C. § 2241(c)(3), which "authorize[s] any person to claim in federal court that he or she is being held 'in custody in violation of the Constitution or laws ... of the United States"').
4

Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 5 of 7
Enforcement ("ICE") and courts, a1·guing that he should be allowed to stay.6 And
yes, that was all at an end. But if due process means anything at all, it means that
we must look at the totality of circumstances and determine whether we have dealt
fairly when we are depriving a person of the most essential aspects oflife, liberty,
and family.7 Here, any examination of those circumstances makes clear that
petitioner's liberty interest,8 his interest in due process, required that we not pluck
him out of his life without a moment's notice, remove him from his family and
community without a moment's notice. The process that was due here is not
process that will allow him to stay indefinitely-those processes have been had.
The process that is due here is the allowance that he know and understand that the
time has come, that he must organize his affairs, and that he do so by a date
certain. That is what is due. That is the process required afte1· a life lived among
u s.9
6 Mr. Ragbir was granted his first stay ohemoval by the ICE Field Office in New Yor k City in December 2011. This stay was renewed tluee more times in February 2013, March 2014, and January 2016. His most 1·ecent stay renewal request was filed on Novembe1· 16, 2017. Mr. Ragbir, his family, and his counsel had every reason to expect that the most recent stay would be granted. Mr. Ragbir had also been granted multiple, continuous work permits since his release pursuant to 8 U.S.C. § 1231(a)(7), which provides that wo1·k autho1·ization can be issued when the removal of an individual is impossible as a result of travel document related issues or is "otherwise impracticable or contrary to the public interest." 7 "These decisions underscore the truism that due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to t ime, place and circumstances. (D)ue process is flexible and calls for such procedural protections as the particular situation demands." Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (internal quotations and citations omitted). 8 "Freedom from imprisonment-from government custody, detention, or other fo1·ms of physical r estraint- lies at the heart of the liberty that [the Fifth Amendment's Due Process Clause] pl'Otects." Zadyydas, 533 U.S. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). sIn his first order ofrelease, petitioner was placed under supervision. At that time, the order of r elease informed him "Once a travel document has been obtained, you will be 1·equired to surrende1· to ICE for removal. You will, at that time, be given an oppOTtunity to prepare for a n orderly departure."
5

Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 6 of 7
Here, instead, the process we have employed has also been unnecessarily cruel. And those who are not subjected to such measures must be shocked by it, and find it unusual. Io That is, that a ma n we have allowed to live among us for years, to build a family and participate in the life of the community, was detained, handcuffed, forcibly placed on an airplane, and today finds himself in a prison celL All ofthis without any showing, or belief by ICE that there is any need to show, that h e would not have left on his own if simply told to do so; there has been no showing or even intimation that he would have fled or hidden to avoid leaving as directed. And certainly there has been no showing that he has not conducted himself lawfully for years.n Taking such a man, and there are many such men and women like him, and subjecting him to what is rightfully understood as no different or better than penal detention, is certainly cruel. We as a country need and must not act so. The Constitution commands bettm·. II. CONCLUSION
Having carefully reviewed the submissions and entire record in this matter, and having heard the parties, the Court is convinced that it must grant the petition for habeas corpus. Constitutional principles of due process and the avoidance of
lO "The Eighth Amendment's prohibition of cruel and unusual punishment 'guarantees individuals the right not to be subjected to excessive sanctions."' Miller v. Alabama, 567 U.S. 460, 469 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). The Court furthm· notes the clea1· principle th at deportation proceedings are "civil , not criminal" and are assumed to be "nonpunitive in purpose and effect." See Zadvvdas, 533 U.S. at 690. u The order of deportation is based upon a felony conviction for wire fmud that petitioner sustained in 2001. It is uncontested that since his release from custody, petitione1· has lived a life of a 1·edeemed man.
6

Case 1:18-cv-00236-KBF Document 48 Filed 01/29/18 Page 7 of 7

unnecessary cruelty here allow and provide for an orderly departure. Petitioner is

entitled to the freedom to say goodbye.

Accordingly, it is hereby ORDERED that petitioner shall be immediately

released from custody.

SO ORDERED.

Dated:

New York, New York January 29, 2018

tcrs.~
KATHERINE B. FORREST United States District Judge

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7

 
 Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 1 of 7
CLOSED,HABEAS,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:18−cv−00236−KBF

Ragbir v. Sessions III, et al Assigned to: Judge Katherine B. Forrest Cause: 28:2241in Habeas Corpus: INS
Petitioner Ravidath Lawrence Ragbir

Date Filed: 01/11/2018 Date Terminated: 01/29/2018 Jury Demand: None Nature of Suit: 530 Habeas Corpus (General) Jurisdiction: U.S. Government Defendant
represented by Jessica Louise Rofe Washington Square Legal Services, Inc. 245 Sullivan Street 5th Floor New York, NY 10012 (212) 992−7245 Fax: (212) 995−4031 Email: jessica.rofe@nyu.edu ATTORNEY TO BE NOTICED
Alina Das Washington Square Legal Services, Inc. 245 Sullivan Street 5th Floor New York, NY 10012 (212) 998−6430 x6467 Fax: (212) 995−4031 Email: alina.das@nyu.edu ATTORNEY TO BE NOTICED

V. Respondent Jefferson Sessions, III in his official capacity as the Attorney Gender al of the United States
Respondent Kirstjen Nielsen in her official capacity as Secretary of Homeland Security

represented by Brandon Matthew Waterman United States Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212)−637−2741 Email: brandon.waterman@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Nicholas Cordaro U.S. Attorney's Office, SDNY 86 Chambers Street New York, NY 10007 (212) 637−2745 Fax: (212) 637−2686 Email: Joseph.Cordaro@usdoj.gov ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Nicholas Cordaro (See above for address) ATTORNEY TO BE NOTICED

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 2 of 7

Respondent Thomas Decker in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement
Respondent Scott Mechkowski in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement
Respondent U.S. Department of Homeland Security
Amicus Amici Curiae New York Civil Liberties Union and American Civil Liberties Union Amici Curiae New York Civil Liberties Union and American Civil Liberties Union
Amicus Rutgers Law School Amici Curiae Legal Scholars and Advocates

represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Nicholas Cordaro (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Nicholas Cordaro (See above for address) ATTORNEY TO BE NOTICED
represented by Brandon Matthew Waterman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Nicholas Cordaro (See above for address) ATTORNEY TO BE NOTICED
represented by Jordan Wells New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 (212)−607−3314 Email: jwells@nyclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige Austin New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 212−607−3398 Fax: 212−607−3318 Email: paustin@nyclu.org ATTORNEY TO BE NOTICED

Date Filed 01/11/2018

# Docket Text
1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2241. (Filing Fee $ 5.00, Receipt Number 0208−14563631)Document filed by Ravidath Lawrence Ragbir. (Attachments: # 1 Exhibit Ex. 1 − Request for Stay of Removal and Index of Exhibits, # 2 Exhibit Ex. 1−A − Forms G−28 Notices of Appearance, # 3 Exhibit Ex. 1−B − EADs_one page, # 4 Exhibit Ex. 1−C − Ragbir, Immigrant Visa and Alien

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 3 of 7

01/11/2018 01/11/2018 01/11/2018 01/11/2018 01/11/2018 01/11/2018
01/11/2018
01/11/2018 01/11/2018
01/11/2018 01/11/2018 01/11/2018

Registration, # 5 Exhibit Ex. 1−D − Deborah Ragbir Birth Certificate, # 6 Exhibit Ex. 1−E − Marriage Certificate of Mr. Ragbir and Amy Gottlieb, # 7 Exhibit Ex. 1−F − Declaration of Amy Gottlieb, # 8 Exhibit Ex. 1−G − Passport of Amy Gottlieb, # 9 Exhibit Ex. 1−H − Judgment of Conviction, # 10 Exhibit Ex. 1−I − Notice of Custody Determination, # 11 Exhibit Ex. 1−J − BIA Decision 2007, # 12 Exhibit Ex. 1−K − Post Order Custody Review Worksheets, # 13 Exhibit Ex. 1−L − Decision to Continue Detention, # 14 Exhibit Ex. 1−M − Release Notification Under the Intensive Supervision Appearance Program, # 15 Exhibit Ex. 1−N − BIA Decision 2012, # 16 Exhibit Ex. 1−O − Proof of Compliance With OSUP, # 17 Exhibit Ex. 1−P − ICE Letters Granting Stays of Removal, # 18 Exhibit Ex. 1−Q Denial of Stay, # 19 Exhibit Ex. 2 − Castle Declaration for Habeas)(Das, Alina) (Entered: 01/11/2018)
2 CIVIL COVER SHEET filed. (Das, Alina) (Entered: 01/11/2018)
3 NOTICE OF APPEARANCE by Alina Das on behalf of Ravidath Lawrence Ragbir. (Das, Alina) (Entered: 01/11/2018)
4 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Alina Das on behalf of Ravidath Lawrence Ragbir. (Das, Alina) Modified on 1/15/2018 (db). (Entered: 01/11/2018)
5 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Alina Das on behalf of Ravidath Lawrence Ragbir. (Das, Alina) Modified on 1/15/2018 (db). (Entered: 01/11/2018)
6 FILING ERROR − DEFICIENT DOCKET ENTRY − NOTICE OF APPEARANCE by Alina Das on behalf of Ravidath Lawrence Ragbir. (Das, Alina) Modified on 1/15/2018 (db). (Entered: 01/11/2018)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The above−entitled action is assigned to Judge Alison J. Nathan. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (laq) (Entered: 01/11/2018)
Magistrate Judge Henry B. Pitman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (laq) (Entered: 01/11/2018)
Case Designated ECF. (laq) (Entered: 01/11/2018)
7 ORDER: The Court hereby VACATES the scheduling portion only of its Order to Show Cause dated January 11, 2018, and substitutes the following dates: 1. Respondents return shall be due not later than Thursday, January 18, 2018 (per the request in petitioners papers); 2. Petitioners reply shall be due not later than January 25, 2018 (per the request in petitioners papers); 3. The Court will hold a hearing on Ragbirs petition for writ of habeas corpus on Monday, January 29, 2018 at 11:00 a.m. 2. The other terms of the Courts Order to Show Cause dated January 11, 2018 shall remain in effect. Petitioner is directed to immediately serve this Order on Respondents by electronic means (and file proof of such service on the docket), and must also immediately confirm that Respondents have notice of this Order via telephone. (Signed by Judge Katherine B. Forrest on 1/11/2018) (jp) (Entered: 01/11/2018)
8 CERTIFICATE OF SERVICE of Certificate of Service served on Brandon Waterman, Assistant U.S. Attorney on 01/11/2018. Service was accepted by N/A. Service was made by N/A. Document filed by Ravidath Lawrence Ragbir. (Das, Alina) (Entered: 01/11/2018)
9 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions. (Waterman, Brandon) (Entered: 01/11/2018)
10 NOTICE OF APPEARANCE by Brandon Matthew Waterman on behalf of Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen,

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 4 of 7

01/11/2018
01/11/2018 01/12/2018 01/12/2018 01/12/2018 01/12/2018
01/12/2018 01/12/2018 01/12/2018 01/15/2018 01/15/2018 01/16/2018

Jefferson Sessions. (Waterman, Brandon) (Entered: 01/11/2018)
11 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Order to Show Cause Filed in person on January 11, 2018. Document filed by Ravidath Lawrence Ragbir. Return Date set for 1/18/2018 at 11:59 PM. (Attachments: # 1 Text of Proposed Order Proposed Order to Show Cause, # 2 Affidavit Declaration of Brittany Castle in Support of Application for Order to Show Cause, # 3 Affirmation of Service, # 4 Exhibit Memorandum of Law in Support of Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief and in Support of Application for Order to Show Cause, # 5 Exhibit Exhibit 1 to Memorandum of Law, # 6 Exhibit Exhibit 2 to Memorandum of Law, # 7 Exhibit Exhibit 3 to Memorandum of Law)(Das, Alina) Modified on 1/15/2018 (db). (Entered: 01/11/2018)
12 NOTICE of Order to Show Cause re: 7 Order, Set Motion and R&R Deadlines/Hearings, Set Hearings,,,,,,,,,. Document filed by Ravidath Lawrence Ragbir. (Das, Alina) (Entered: 01/11/2018)
NOTICE OF CASE REASSIGNMENT to Judge Katherine B. Forrest. Judge Alison J. Nathan is no longer assigned to the case. (bcu) (Entered: 01/12/2018)
13 MOTION to Enforce Judgment Court's Order of January 11, 2018. Document filed by Ravidath Lawrence Ragbir. (Attachments: # 1 Affidavit Declaration of Alina Das in Support of Motion, # 2 Text of Proposed Order Proposed Order, # 3 Exhibit Ex. 1 to Motion, # 4 Exhibit Ex. 2 to Motion, # 5 Exhibit Ex. 3 to Motion, # 6 Affirmation of Service)(Das, Alina) (Entered: 01/12/2018)
14 NOTICE OF APPEARANCE by Joseph Nicholas Cordaro on behalf of Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions. (Cordaro, Joseph) (Entered: 01/12/2018)
15 ORDER: On January 12, 2018, this action was transferred to the undersigned for all purposes. The undersigned hereby notifies the parties that she has previously taught a seminar entitled "Quantitative Methods" as an adjunct professor at New York University School of Law, and may do so again in the future. The Court does not believe that this poses any issues as to whether it should preside over this action, but if either party disagrees, such party shall so inform the Court not later than January 15, 2018. (Signed by Judge Katherine B. Forrest on 1/12/2018) (js) (Entered: 01/12/2018)
16 MOTION to Vacate Portions of the Court's Order Dated January 11, 2018. Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions.(Waterman, Brandon) (Entered: 01/12/2018)
17 MEMORANDUM OF LAW in Opposition re: 13 MOTION to Enforce Judgment Court's Order of January 11, 2018. AND in Support of the government's Motion to Vacate 16 . Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions. (Waterman, Brandon) (Entered: 01/12/2018)
18 DECLARATION of SDDO Pedro R. Crescente III in Opposition re: 13 MOTION to Enforce Judgment Court's Order of January 11, 2018.. Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions. (Waterman, Brandon) (Entered: 01/12/2018)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Alina Das to RE−FILE Document 5 Notice of Appearance, 4 Notice of Appearance, 6 Notice of Appearance. ERROR(S): Attorney filer does not match attorney signature. (db) (Entered: 01/15/2018)
19 MEMORANDUM OF LAW in Opposition re: 16 MOTION to Vacate Portions of the Court's Order Dated January 11, 2018. . Document filed by Ravidath Lawrence Ragbir. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Table of Exhibits, # 11 Affirmation of Service)(Das, Alina) (Entered: 01/15/2018)
20 REPLY MEMORANDUM OF LAW in Support re: 16 MOTION to Vacate Portions of the Court's Order Dated January 11, 2018. . Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 5 of 7

01/16/2018 01/17/2018
01/17/2018 01/17/2018 01/17/2018 01/17/2018
01/17/2018 01/17/2018 01/17/2018 01/18/2018 01/18/2018 01/19/2018 01/19/2018

Sessions. (Attachments: # 1 Exhibit A −− United Airlines Flight Information, # 2 Exhibit B − DNJ Stay Order)(Waterman, Brandon) (Entered: 01/16/2018)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Hearing held on 1/16/2018. (jp) (Entered: 01/17/2018)
21 AMENDED PETITION amending 1 Petition for Writ of Habeas Corpus,,,,, against Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions.Document filed by Ravidath Lawrence Ragbir. Related document: 1 Petition for Writ of Habeas Corpus,,,,,. (Attachments: # 1 Letter to Hon. Judge Forrest enclosing Amended Petition, # 2 Affirmation of Service)(Das, Alina) (Entered: 01/17/2018)
22 ORDER: The Court directs the Government to file proof of the "travel document" referred to on the record in the January 16, 2018 hearing. The Government shall file a copy on the docket not later than 12:00 p.m. today, January 17, 2018, and include proof of the dates of issuance and expiry (if applicable). (Signed by Judge Katherine B. Forrest on 1/17/2018) (mro) (Entered: 01/17/2018)
23 LETTER addressed to Judge Katherine B. Forrest from Brandon M. Waterman dated January 17, 2018 re: Detention of petitioner. Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions.(Waterman, Brandon) (Entered: 01/17/2018)
24 LETTER addressed to Judge Katherine B. Forrest from Brandon M. Waterman dated January 17, 2018 re: Travel Document. Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions. (Attachments: # 1 Travel Document, # 2 Email from Consulate)(Waterman, Brandon) (Entered: 01/17/2018)
25 MEMO ENDORSED on 23 Letter denying as moot 13 Motion to Enforce Judgment; denying 16 Motion to Vacate. ENDORSEMENT: Thank you. This saves judicial resources. Petitioner's motion at ECF No. 13 is therefore moot and is terminated. Briefing on the habeas petition shall proceed as previously ordered. The motion to vacate the stay (ECF No. 16) for lack of jurisdiction is DENIED for the reasons set forth on the record on 1/16/2018. (Signed by Judge Katherine B. Forrest on 1/17/2018) (js) (Entered: 01/17/2018)
26 LETTER MOTION for Extension of Time to File Response/Reply addressed to Judge Katherine B. Forrest from Brandon M. Waterman dated January 17, 2018. Document filed by Thomas Decker, Department Of Homeland Security, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions.(Waterman, Brandon) (Entered: 01/17/2018)
27 ORDER granting 26 Letter Motion for Extension of Time to File Response/Reply. The Government's time to respond is extended until Friday, January 19, 2018 only. All other dates set forth in this Court's order at ECF No. 7 shall remain in effect. So Ordered. (Signed by Judge Katherine B. Forrest on 1/17/2018) (js) (Entered: 01/18/2018)
Set/Reset Deadlines: Department Of Homeland Security answer due 1/23/2018. (js) (Entered: 01/18/2018)
28 LETTER MOTION for Extension of Time to File Response/Reply as to 27 Order on Motion for Extension of Time to File Response/Reply, addressed to Judge Katherine B. Forrest from Alina Das dated 01/18/2018. Document filed by Ravidath Lawrence Ragbir.(Das, Alina) (Entered: 01/18/2018)
29 ORDER: terminating 28 Letter Motion for Extension of Time to File Response/Reply. Ordered. The Government was not granted an extension to 1/23. My Order specifically states the extension was only to 1/19. Do you nonetheless need an extension? (Signed by Judge Katherine B. Forrest on 1/18/2018) (ap) (Entered: 01/18/2018)
Set/Reset Deadlines: Responses due by 1/19/2018 (jp) (Entered: 01/19/2018)
Set/Reset Deadlines: Thomas Decker answer due 1/19/2018; Scott Mechkowski answer due 1/19/2018; Kirstjen Nielsen answer due 1/19/2018; Jefferson Sessions, III answer due 1/19/2018; U.S. Department of Homeland Security answer due 1/19/2018. (jp) (Entered: 01/19/2018)

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 6 of 7

01/19/2018 01/19/2018 01/19/2018 01/19/2018
01/19/2018 01/22/2018 01/22/2018 01/25/2018
01/25/2018
01/25/2018
01/26/2018 01/26/2018
01/26/2018

30 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Alina Das on behalf of Ravidath Lawrence Ragbir (Das, Alina) (Entered: 01/19/2018)
31 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Alina Das on behalf of Ravidath Lawrence Ragbir (Das, Alina) (Entered: 01/19/2018)
32 DECLARATION of Deputy Field Office Director Scott Mechkowski in Opposition re: 1 Petition for Writ of Habeas Corpus,,,,, 21 Amended Petition,. Document filed by Thomas Decker, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions, III, U.S. Department of Homeland Security. (Waterman, Brandon) (Entered: 01/19/2018)
33 RESPONSE re: 32 Declaration in Opposition, 21 Amended Petition, 1 Petition for Writ of Habeas Corpus,,,,, ("Gov't Return"). Document filed by Thomas Decker, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions, III, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit 1 − ICE letter declining joint motion to reopen, # 2 Exhibit 2 − ICE letter revoking stay of removal, # 3 Exhibit 3 − ICE notice of revocation or release, # 4 Exhibit 4 − ICE notice of denial of stay)(Waterman, Brandon) (Entered: 01/19/2018)
34 MEMORANDUM OF LAW in Opposition re: 1 Petition for Writ of Habeas Corpus,,,,, 32 Declaration in Opposition, 21 Amended Petition, 33 Response,, . Document filed by Thomas Decker, Scott Mechkowski, Kirstjen Nielsen, Jefferson Sessions, III, U.S. Department of Homeland Security. (Waterman, Brandon) (Entered: 01/19/2018)
35 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Jessica Louise Rofe on behalf of Ravidath Lawrence Ragbir (Rofe, Jessica) (Entered: 01/22/2018)
36 NOTICE OF CHANGE OF ADDRESS by Jessica Louise Rofe on behalf of Ravidath Lawrence Ragbir. New Address: Washington Square Legal Services, Inc., 245 Sullivan Street, 5th Floor, New York, New York, USA 10012, 212−992−7245. (Rofe, Jessica) (Entered: 01/22/2018)
37 TRANSCRIPT of Proceedings re: argument held on 1/16/2018 before Judge Katherine B. Forrest. Court Reporter/Transcriber: Martha Martin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/15/2018. Redacted Transcript Deadline set for 2/26/2018. Release of Transcript Restriction set for 4/25/2018.(McGuirk, Kelly) (Entered: 01/25/2018)
38 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a argument proceeding held on 1/16/18 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 01/25/2018)
39 REPLY MEMORANDUM OF LAW in Support re: 1 Petition for Writ of Habeas Corpus,,,,, . Document filed by Ravidath Lawrence Ragbir. (Attachments: # 1 Exhibit List, # 2 Exhibit A, Declaration of Alina Das, # 3 Exhibit B, Declaration of Rev. Juan Carlos Ruiz, # 4 Exhibit C, Declaration of Amy Gottlieb, # 5 Exhibit D, Order of District Court of New Jersey, # 6 Affirmation of Service)(Das, Alina) (Entered: 01/25/2018)
40 Amicus Curiae APPEARANCE entered by Jordan Wells on behalf of Amici Curiae New York Civil Liberties Union and American Civil Liberties Union.(Wells, Jordan) (Entered: 01/26/2018)
41 LETTER MOTION to File Amicus Brief addressed to Judge Katherine B. Forrest from Jordan Wells dated 1/28/2018. Document filed by Amici Curiae New York Civil Liberties Union and American Civil Liberties Union. (Attachments: # 1 Brief of Amici Curiae New York Civil Liberties Union and American Civil Liberties Union in Support of Ravidath Ragbir's Petition for a Writ of Habeas Corpus)(Wells, Jordan) (Entered: 01/26/2018)
42 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Paige Austin on behalf of Amici Curiae New York Civil Liberties Union and American Civil Liberties Union

Case: 1:18-cv-236 As of: 02/14/2018 02:20 PM EST 7 of 7

01/26/2018 01/28/2018 01/29/2018 01/29/2018 01/29/2018
01/29/2018
01/29/2018 01/29/2018 01/30/2018 01/31/2018

(Austin, Paige) (Entered: 01/26/2018)
43 ORDER granting 41 Letter Motion to File Amicus Brief. Ordered. Accepted for filing. (Signed by Judge Katherine B. Forrest on 1/26/2018) (ras) (Entered: 01/26/2018)
44 MEMORANDUM OF LAW in Support re: 11 MOTION for Order to Show Cause Filed in person on January 11, 2018. . Document filed by Amici Curiae Legal Scholars and Advocates. (Attachments: # 1 Leave to file amicus brief, # 2 Draft Order, # 3 Certificate of Service, # 4 Declaration and Exhibits)(Venetis, Penny) (Entered: 01/28/2018)
45 MEMO ENDORSEMENT on re: 44 Memorandum of Law in Support of Motion, filed by Amici Curiae Legal Scholars and Advocates. ENDORSEMENT: Ordered: Accepted as part of the submissions on the petition. (Signed by Judge Katherine B. Forrest on 1/29/2018) (mro) (Entered: 01/29/2018)
46 MEMO ENDORSEMENT on Delegation of Authority to the Directors, Detention and Removal and Investigations, and To Field Office Directors, Special Agents in Charge and Certain Other Officers of the Bureau of Immigration and Customs Enforcement. ENDORSEMENT: Ordered: Post to docket. (Signed by Judge Katherine B. Forrest on 1/29/2018) (mml) (Entered: 01/29/2018)
47 ENDORSED LETTER addressed to Alina Dasfrom Christopher Shanahan dated 1/4/2012 re: After a review of your client's alien file as well as the facts and circumstances presented in your request, I have decided to grant your request for an administrative Stay of Removal. ENDORSEMENT: Ordered: Post to docket. Rec'd at argument. (Signed by Judge Katherine B. Forrest on 1/29/2018) (mml) (Entered: 01/29/2018)
48 OPINION & ORDER: Having carefully reviewed the submissions and entire record in this matter, and having heard the parties, the Court is convinced that it must grant the petition for habeas corpus. Constitutional principles of due process and the avoidance of unnecessary cruelty here allow and provide for an orderly departure. Petitioner is entitled to the freedom to say goodbye. Accordingly, it is hereby ORDERED that petitioner shall be immediately released from custody. SO ORDERED. (Signed by Judge Katherine B. Forrest on 1/29/2018) (mml) (Entered: 01/29/2018)
Transmission to Judgments and Orders Clerk. Transmitted re: 48 Opinion to the Judgments and Orders Clerk. (mml) (Entered: 01/29/2018)
Minute Entry for proceedings held before Judge Katherine B. Forrest: Oral Argument held on 1/29/2018 re: 1 Petition for Writ of Habeas Corpus, filed by Ravidath Lawrence Ragbir. (jp) (Entered: 01/29/2018)
49 LETTER addressed to Judge Katherine B. Forrest from Alina Das, Esq. dated January 30, 2018 re: Request to retain jurisdiction. Document filed by Ravidath Lawrence Ragbir.(Das, Alina) (Entered: 01/30/2018)
50 ORDER: The Court is in receipt of a letter from petitioner dated January 30, 2018, in which petitioner expresses concern about the timing of his pending deportation. (ECF No. 49.) As the parties no doubt appreciate, this Court's jurisdiction was premised solely on petitioner's detention; that is, habeas relief under 28 U.S.C. § 2241. Once petitioner was released, as he has been, this Courts jurisdiction terminated. This Court has no jurisdiction to grant any further relief. The Court provides this direction to the parties now so that if further claims are pursued, they should be pursued in the appropriate forum, or by way of a new action. SO ORDERED. (Signed by Judge Katherine B. Forrest on 1/31/2018) (mml) (Entered: 01/31/2018)

 
 United States Court of Appeals
FOR THE
SECOND CIRCUIT _________________

S.D.N.Y.-N.Y.C. 18-cv-236 Forrest, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 30th day of July, two thousand nineteen.

Present:

John M. Walker, Jr., Pierre N. Leval, Christopher F. Droney,
Circuit Judges.

Ravidath Lawrence Ragbir, Petitioner-Appellee,
v. William P. Barr, in his official capacity as the Attorney General of the United States, et al.,
Respondents-Appellants.

18-1595

Appellants move to dismiss this appeal as moot and to vacate the district court judgment. “When a civil case from a court in the federal system . . . has become moot while on its way [to appellate review], . . . established practice is to reverse or vacate the judgment below and remand with a direction to dismiss.” Azar v. Garza, 138 S. Ct. 1790, 1792 (2018) (quoting United States v. Munsingwear, 340 U.S. 36, 39–41 (1950)) (internal quotation marks omitted). The district court granted Petitioner temporary release from detention pursuant to 28 U.S.C. § 2241, and the Government promptly complied, thereby mooting the Government’s appeal and foreclosing its opportunity to challenge the district court’s judgment.
Petitioner argues that a live case remains because the district court judgment also applies to future deportation-related detentions to which he may be subjected. However, the district court’s January 29, 2018, release order was limited to the circumstances of Petitioner’s then-present detention. See Dist. Ct. Dkt. 48 at 7 (“Petitioner is entitled to . . . say goodbye.”); Dist. Ct. Dkt. 50 (“Once petitioner was released, as he has been, this Court’s jurisdiction [to grant any further relief] terminated.”). And, although Petitioner’s petition and letter of January 30, 2018, sought more expansive relief from detention, he has not cross-appealed the district court’s order foreclosing such relief in this action.

Therefore, upon due consideration, it is hereby ORDERED that the Government’s motion to dismiss this appeal is GRANTED, the district court’s judgment granting Petitioner’s 28 U.S.C. § 2241 petition is VACATED, and the case is REMANDED with instructions to dismiss the habeas petition to the extent it sought the unappealable relief that Petitioner has been granted.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court
2

 
 Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------x RAVIDATH LAWRENCE RAGBIR, et al.,

Plaintiffs,

18-cv-1159 (PKC)

-against-

MEMORANDUM AND ORDER

THOMAS D. HOMAN, et al.,

Defendants. -----------------------------------------------------------x

CASTEL, U.S.D.J.

Plaintiff Ravidath Lawrence Ragbir, a non-citizen who is a permanent resident of

the United States, is subject to a final order of removal. (Verified Complaint (“VC”) ¶ 42).

Ragbir was convicted in federal court of six counts of wire fraud and one count of conspiracy to

commit wire fraud. United States v. Ragbir, 00 Cr. 121 (D.N.J.), aff’d, 38 F. App’x 788, 789–90

(3d Cir. 2002). He served his prison term, and proceedings to remove him from the country

ensued. (VC ¶¶ 41–42). Before the Board of Immigration Appeals (“BIA”) and the Second

Circuit, he unsuccessfully challenged the grounds for removal, the finding that he had been convicted of an “aggravated felony.”1

Ragbir is also a “nationally-recognized immigration rights activist . . . who has

freely exercised his right to speak out against the injustices and inhumanity of our current

immigration system.” (VC ¶ 4). In the present action, Ragbir and his co-plaintiffs ask this

Court, among other things, to grant an Order “restraining [d]efendants from taking any action to

1 Subsections M and U of section 101(a)(43) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(43)(M), (U), provide the relevant definitions of “aggravated felony.”

Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 2 of 23
effectuate Mr. Ragbir’s removal from the United States unless [d]efendants demonstrate to the Court’s satisfaction that such action is untainted by unlawful retaliation or discrimination against protected speech.” (VC at 41, Prayer for Relief at c).
Ragbir is joined in this action by New Sanctuary Coalition of New York City, CASA de Maryland, Inc., Detention Watch Network, National Immigration Project of the National Lawyers Guild, and New York Immigration Coalition (the “Organizational Plaintiffs”). Named as defendants are the Department of Justice, the Department of Homeland Security (“DHS”), and Immigration and Customs Enforcement (“ICE”), as well as Thomas D. Homan, Thomas R. Decker, Scott Mechkowski, Kirstjen M. Nielsen, and Jefferson B. Sessions III in their official capacities.2
Plaintiffs moved for a preliminary injunction. (Doc. 11). While that motion was pending, plaintiffs requested leave to file a motion for expedited discovery to support their preliminary injunction motion. (Doc. 40). Following the lead of the Supreme Court in a recent immigration case, the Court advised the parties that it would first address defendants’ challenge to subject matter jurisdiction before considering whether leave is warranted. See In re United States, 138 S. Ct. 443, 444 (2017); (Order of Mar. 26, 2018, Doc. 70). The parties have briefed the issue of subject matter jurisdiction in the context of the preliminary injunction motion. For reasons that will be explained, all claims by plaintiffs to declare unlawful and to enjoin the execution of Ragbir’s final order of removal are dismissed for want of subject matter jurisdiction.
2 The attorneys representing the parties and the amici curiae are listed in Appendix A of this Memorandum and Order.
- 2 -

Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 3 of 23
BACKGROUND Ragbir became a lawful permanent resident in 1994. (VC ¶ 14). On September
12, 2001, following a 13-day jury trial, which resulted in a guilty verdict on seven counts, and the denial of post-verdict motions, Judge Bassler of the District of New Jersey sentenced Ragbir to 30 months imprisonment, 3 years supervised release, waiver of the fine, and imposition of restitution of $350,001. United States v. Ragbir, 00 Cr. 121 (WGB). The conviction was affirmed on appeal. United States v. Ragbir, 38 F. App’x 788, 789–90 (3d Cir. 2002). He was allowed to remain free on bail pending appeal and did not begin to serve his 30-month sentence until sometime after January 26, 2004. United States v. Ragbir, 00 Cr. 121 (WGB) (Doc. 80; Doc. 111).
Following completion of his term of imprisonment, ICE detained him and initiated removal proceedings. (VC ¶ 41–42). An immigration judge concluded that Ragbir had committed an “aggravated felony,” warranting removal under 8 U.S.C. § 1227(a)(2)(A)(iii), and entered an order of removal on August 4, 2006. In re Ragbir, No. A 44-248-862.3 The order of removal became final upon the BIA dismissing the appeal in 2007. In re Ragbir, No. A 44-248862, 2007 WL 1180505 (B.I.A. Mar. 14, 2007); (VC ¶ 42). Ragbir filed a petition for review of his final order of removal with the Second Circuit, which denied the petition, Ragbir v. Holder, 389 F. App’x 80, 85 (2d Cir. 2010) (summary order), and, thereafter, for a writ of certiorari to the Supreme Court, which denied that petition, Ragbir v. Holder, 565 U.S. 816 (2011). He subsequently moved for the BIA to reconsider and reopen his removal proceedings, both of which were denied, and filed a petition for review of this decision with the Second Circuit, which dismissed the petition. Ragbir v. Lynch, 640 F. App’x 105, 106–08 (2d Cir. 2016) (summary
3 The immigration proceedings of which this Court may take judicial notice are found in the record of Ragbir’s coram nobis proceeding. Ragbir v. United States, 17 Civ. 1256 (KM) (D.N.J. Jan. 23, 2018) (Doc. 22-1).
- 3 -

Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 4 of 23
order). Another motion to reopen and reconsider his order of removal and a coram nobis petition challenging his original conviction are currently pending. (VC ¶ 45).
ICE released Ragbir from detention in 2008, and since then, Ragbir has become a vocal advocate for immigrant rights and “a central figure in the broader community of immigration advocates.” (VC ¶¶ 4, 14; Doc. 17 ¶ 8). ICE granted him an administrative stay of removal pursuant to 8 C.F.R. § 241.6 in 2011. (See VC ¶ 48). ICE renewed the administrative stay three times, with the last stay set to expire on January 19, 2018. (VC ¶¶ 48, 64). Eight days before Ragbir’s administrative stay was to expire, ICE revoked the administrative stay and detained him in anticipation of imminent execution of the final order of removal. (VC ¶¶ 66– 67).
Ragbir immediately filed for a writ of habeas corpus in this District, seeking, among other things, that ICE release him. (VC ¶ 70; Amended Petition at 24, Ragbir v. Sessions, 18 Civ. 236 (KBF) (Jan. 17, 2018), 2018 WL 623557). Judge Forrest granted the writ and ordered Ragbir’s immediate release from custody to “allow and provide for an orderly departure.” Ragbir v. Sessions, 18 Civ. 236 (KBF), 2018 WL 623557, at *3 (S.D.N.Y. Jan. 29, 2018). Following Ragbir’s release, he was served with a notice to report for deportation on February 10, 2018 and asked the Court to retain jurisdiction over the matter. (Das Letter, Ragbir v. Sessions, 18 Civ. 236 (KBF) (Jan. 30, 2018), 2018 WL 623557). Judge Forrest declined to do so, writing, in part, that “[t]his Court has no jurisdiction to grant any further relief. The Court provides this direction to the parties now so that if further claims are pursued, they should be pursued in the appropriate forum, or by way of a new action.” (Order, Ragbir v. Sessions, 18 Civ. 236 (KBF) (Jan. 31, 2018), 2018 WL 623557).
- 4 -

Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 5 of 23
The day before Ragbir’s February 10 report date, this action was filed. The parties stipulated to a stay of removal during the pendency of Ragbir’s motion for a preliminary injunction. The stay was entered as an Order. (Stipulated Order, (Jan. 9, 2018), Doc. 4).
Plaintiffs assert that ICE decided to execute the final order of removal because Ragbir is an outspoken advocate for immigrant rights. (See VC ¶ 4). This decision, plaintiffs argue, is consistent with “a pattern and practice of [ICE] targeting immigrants who exercise[] their fundamental First Amendment rights to criticize immigration policy and immigration enforcement.” (VC ¶ 78). Plaintiffs conclude that this conduct is illicit retaliation and content, viewpoint, and speaker discrimination in violation of the First Amendment of the United States Constitution. (VC ¶¶ 124–37). They request (1) a declaration that defendants’ actions violate the First Amendment, (2) an “injunction restraining [d]efendants from taking any action to effectuate Mr. Ragbir’s removal from the United States unless [d]efendants demonstrate to the Court’s satisfaction that such action is untainted by unlawful retaliation or discrimination against protected speech,” and (3) an “injunction restraining [d]efendants on a nationwide basis from selectively enforcing the immigration laws against any individual—including, without limitation, through investigation, surveillance, detention, deportation, or any other adverse enforcement action—based on the individual’s protected political speech about U.S. immigration law and policy.” (VC at 40–41). DISCUSSION
I. The Court’s Subject Matter Jurisdiction “It is a fundamental precept that federal courts are courts of limited jurisdiction,”
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978), bound by the limits placed upon them by Article III of the United States Constitution and by Congress, Kokkonen v.
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Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). By virtue of Congress’s power, granted in Article III, to create all federal courts inferior to the Supreme Court, Congress retains the “lesser power to ‘limit the jurisdiction of those [c]ourts.’” Patchak v. Zinke, 138 S. Ct. 897, 906 (2018) (plurality) (quoting United States v. Hudson, 11 U.S. 32, 33 (1812)); accord Hudson, 11 U.S. at 33 (“[T]he power which congress possess to create Courts of inferior jurisdiction . . . necessarily implies the power to limit the jurisdiction of those Courts to particular objects.”). The “inferior” federal courts possess “only that jurisdiction which Congress confers upon them by statute.” Hendrickson v. United States, 791 F.3d 354, 362 (2d Cir. 2015); accord Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 333 (2d Cir. 2006) (“The power of the inferior federal courts is ‘limited to those subjects encompassed within a statutory grant of jurisdiction.’” (quoting Bechtel v. Competitive Techs., Inc., 448 F.3d 469, 471 (2d Cir. 2006))). In other words, absent statutory authorization, the Court lacks power to resolve the case or controversy. Achtman, 464 F.3d at 333. For a court to act without jurisdiction “is, by very definition, for a court to act ultra vires.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998).
Plaintiffs contend that this Court has jurisdiction over this matter under 28 U.S.C. § 1331, which supplies the federal courts with jurisdiction over federal questions, 28 U.S.C. § 2241, which is the general habeas corpus statute, and the Suspension Clause, U.S. Const. art. I, § 9, cl. 2. (VC ¶ 10).4
II. Section 1252(g) Eliminates Subject Matter Jurisdiction over Ragbir’s Challenge to the Execution of an Order of Removal Defendants urge that Ragbir’s claims arise from ICE’s decision to execute a
removal order against him and, therefore, that the claim is not within this Court’s subject matter
4 Although plaintiffs claim that the Court has jurisdiction under section 2241 and the Suspension Clause, they do not request the issuance of a writ of habeas corpus.
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jurisdiction. The provision on which they rely reads as follows: (g) Exclusive jurisdiction Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28 [Writs of Habeas Corpus], or any other habeas corpus provision, and sections 1361 [Writs of Mandamus] and 1651 [All Writs Act] of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.
8 U.S.C. § 1252(g).5 Plaintiffs’ claims seek to enjoin the execution of Ragbir’s removal order and to
declare the decision to execute the order unconstitutional and, thus, arise from the decision of the Secretary of Homeland Security to execute a final order of removal against Ragbir. This is plain from the allegations of the Verified Complaint and plaintiffs’ candid briefing to this Court. The Verified Complaint alleges that Ragbir is “subject to a final order of removal.” (VC ¶¶ 5, 10). Apart from costs and attorney’s fees, plaintiffs seek only declaratory and injunctive relief. (VC at 40–41). Plaintiffs also seek to have this Court “restrain [d]efendants from taking any action to effectuate Mr. Ragbir’s removal from the United States unless [d]efendants demonstrate to the Court’s satisfaction that such action is untainted by unlawful retaliation or viewpoint discrimination.” (VC ¶ 9). Restraining defendants from “effectuat[ing] . . . removal” is, in this context, synonymous with “execut[ing] an order of removal.” See Duamutef v. INS, 386 F.3d 172, 181 (2d Cir. 2004) (stating that it had “no difficulty find that the relief sought by [the petitioner] comes within the ‘execut[ion]’ prohibition of § 1252(g)” when petitioner was
5 Because Congress has transferred the authority to “carry[] out the immigration enforcement functions” formerly performed by INS to the Secretary of Homeland Security, 6 U.S.C. § 202(3), the reference in section 1252(g) to the Attorney General is “deemed to refer to DHS,” Ali v. Mukasey, 524 F.3d 145, 150 (2d Cir. 2008).
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“repeatedly challenging the INS’s failure to ‘effectuate’ or ‘expedite’ his removal”). “Execution” means “[p]utting into force. The completion, fulfillment, or perfecting of anything, or carrying it into operation and effect.” United States v. Wiehl, 904 F. Supp. 81, 87 (N.D.N.Y. 1995) (quoting Black’s Law Dictionary, 568 (6th ed. 1990)). Plaintiffs’ brief to this Court describes this action accurately as a challenge to “[d]efendants’ retaliatory execution of the order.” (P. Mem. in Support, Doc. 12 at 24).
The limitation on jurisdiction found in section 1252(g) does not depend on the form or theory on which a plaintiff proceeds and includes “any cause or claim by an alien,” provided that the claim “aris[es] from” the decision “to commence proceedings, adjudicate cases, or execute removal orders.” 8 U.S.C. § 1252(g). The statute forecloses the exercise of jurisdiction (except as permitted elsewhere in section 1252) under “any . . . provision of law.” Id. A 2005 amendment to section 1252(g) added explicit reference to “statutory or nonstatutory” law and, specifically, writs of habeas corpus or mandamus and petitions asserted under the All Writs Act. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. Compare § 1252(g), with Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, § 306, 110 Stat. 3009.
Before section 1252(g) was amended in 2005 to its current form, the Supreme Court construed section 1252(g) in the context of a First and Fifth Amendment claim by individuals who were asserting that INS, the entity tasked with enforcing the immigration laws before ICE, targeted them for deportation because they were members of a group that advocated terrorism. Reno v. Am.-Arab Anti-Discrimination Comm. (“AADC”), 525 U.S. 471, 474 (1999). The Court concluded that such a claim fell within section 1252(g), but it also narrowed the scope of the provision, concluding that it reaches only “three discrete actions that the
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Attorney General may take: her ‘decision or action’ to ‘commence proceedings, adjudicate cases, or execute removal orders.’” Id. at 482 (emphasis in original).
The Court reasoned that Congress had “good reason” to select these three particular stages of the removal process for “special attention.” Id. at 483. When Congress enacted section 1252(g), the INS, in its discretion, “had been engaging in a regular practice (which had come to be known as ‘deferred action’) of” deferring or declining to commence proceedings, adjudicate cases, or execute removal orders “for humanitarian reasons or simply for its own convenience.” Id. at 483–84. An offshoot of this practice was that removable aliens began asserting selective prosecution claims when this discretion was not exercised. Id. at 483– 84.
The effect was that aliens were able to cause “the deconstruction, fragmentation, and hence prolongation of removal proceedings” by bringing these claims outside the streamlined process that was then in place. Id. at 485, 487. The ability to prolong litigation proved useful for removable aliens, as it allotted more time for the removable alien’s “status [to] change—by, for example, marriage to an American citizen”—and “simply . . . extend[ed] the alien’s unlawful stay,” a substantial benefit for those attempting to remain in the United States indefinitely. Id. at 490. Congress, through section 1252(g), sought to alleviate these problems by ensuring that if these decisions “are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress ha[d] designed.” Id. at 485.
The selective enforcement claims in AADC are similar to the claims asserted by plaintiffs. While labeled First Amendment retaliation and content and viewpoint discrimination, plaintiffs’ claims are species of selective enforcement claim, asserting that “[d]efendants have
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engaged in a nationwide pattern and practice of selectively enforcing the immigration laws against immigration-rights activists on the basis of their protected speech.” (VC ¶¶ 127–28 (emphasis added)). Although the claim in AADC was premised on selective enforcement stemming from associational activities rather than, as here, speech activities, there is no principled reason for this distinction to make a difference in the interpretation of section 1252(g).
A potentially important distinction between this case and AADC is that the selective enforcement in AADC allegedly took place in “commenc[ing]” removal proceedings, thus giving the plaintiffs the potential for raising the issue in the context of judicial review of a final order of removal. See AADC, 525 U.S. at 473. But this distinction does not necessarily work in Ragbir’s favor. Ragbir does not challenge in this proceeding the lawfulness of the order of removal or its finality. He has had a full and fair opportunity to have the BIA and the Second Circuit review both his order of removal as well as the immigration judge’s refusal to reopen and reconsider the order. His claim is rather that that because ICE, purportedly with retaliatory animus, decided to enforce the final order of removal—instead of to continue staying his removal—they must continue to forebear unless they prove that any future decision to enforce the order is “untainted” by his speech activities. As the AADC Court wrote, “in all cases, deportation is necessary in order to bring to an end an ongoing violation of United States law. The contention that a violation must be allowed to continue because it has been improperly selected is not powerfully appealing.” AADC, 525 U.S. at 491 (emphasis in the original). That is particularly true when the existence of an ongoing violation has already been determined by clear and convincing evidence by an immigration judge and affirmed on review.
Ragbir argues nonetheless that his claim should be allowed to proceed, contending that section 1252(g) does not apply to his claim. Specifically, he asserts that
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section 1252(g) is a “channeling provision,” functioning to consolidate all claims within its scope into a petition for review of a final order of removal that must be filed in a federal court of appeals. (Doc. 12 at 25). He maintains that section 1252(g) cannot channel his claims that arose after the order of removal issued and, thus, the Court should not “read [section 1252(g)] to channel claims that cannot be channeled.” (Id.; accord Doc. 72 at 11). But section 1252(g) does not read as a channeling provision; it is a jurisdictional bar, precluding review of “any cause or claim” within its strictures “[e]xcept as provided in” the remainder of section 1252. See AADC, 525 U.S. at 485 (noting that section 1252(g) is “designed to give some measure of protection to ‘no deferred action’ decisions and similar discretionary determinations, providing that if they are reviewable at all, they at least will not be made the bases for separate rounds of judicial intervention outside the streamlined process that Congress has designed” (emphasis added)).
Construing section 1252(g) as inapplicable to claims that arise after the final order of removal, as Ragbir urges, is also inconsistent with the apparent purpose of Congress’s extension of section 1252(g) to “decisions or actions . . . [to] execute removal orders against any alien.” Prior to enacting section 1252(g), Congress had determined that an order of removal “shall become final upon the earlier of . . . (i) a determination by the [BIA] affirming such order . . . or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the [BIA].” Antiterrorism and Effective Death Penalty Act of 1996 § 440(b), 8 U.S.C. § 1101(a)(47) (1996).6 This provision operated in tandem with existing federal regulations, which had provided since at least 1971 that an order of removal “shall not be executed” until the BIA had completed its review of the order, if review was sought. See 8 C.F.R. § 1003.6; 36 Fed.
6 The defined term found in section 1101(a)(47) is “order of deportation.” In the IIRIRA, which enacted section 1252(g), Congress provided that “any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.” IIRIRA § 309(d)(2).
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Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 12 of 23
Reg. 316 (1971). Thus, execution of an order of removal could lawfully occur only after the order had become final. Congress was presumably aware of this when it enacted section 1252(g). Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (observing that it is “assume[d] that Congress is aware of existing law when it passes legislation”). It is not plausible that Congress designed section 1252(g) to cover only the execution of a removal order before the order became final for the simple reason that before the order became final, it could not be executed.
Ragbir’s argument is also contrary to Second Circuit precedent. In Daumutef v. INS, 386 F.3d 172 (2d Cir. 2004), the Second Circuit applied section 1252(g)’s jurisdictional bar to a claim that arose after a final order of removal and that stemmed from a decision arising from the “execut[ion] of [the] removal order[].” The petitioner did not contest the propriety of his order of removal and waived his right to appeal it. Id. at 174. Rather, he embraced his removal order and sought to compel his removal through a writ of mandamus in order to take advantage of the state’s grant of “Conditional Parole for Deportation Only.” Id. at 175–76. The Second Circuit concluded that his mandamus claim arose from the decision not to execute a removal order and, thus, fell within the scope of the jurisdictional bar of section 1252(g). Id. at 181.7 It did not matter that the claim could not be heard in the context of judicial review of a final order of removal.
Simply put, section 1252(g) reaches exactly what it says it reaches—“any cause or claim . . . arising from the decision or action . . . to execute removal orders.”
7 Duamutef declined to reach whether section 1252(g) applied to a habeas petition brought pursuant to 28 U.S.C. § 2241. Daumutef, 386 F.3d at 182 n.8. The later enacted REAL ID Act of 2005 amended section 1252(g) to reference 28 U.S.C. § 2241 expressly in section 1252(g)’s jurisdictional carve out.
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III. Constitutional Claims Are Not Excluded from the Limitation on this Court’s Subject Matter Jurisdiction Ragbir argues that even if section 1252(g) applies to decisions and actions that
occur after a final order of removal, it does not apply to his claims because he asserts constitutional violations. He predicates this argument on the doctrine of constitutional doubt, an interpretive tool that counsels courts, when faced with competing plausible interpretations of a statute, to avoid an interpretation that raises serious constitutional questions, such as an interpretation of a statute as “preclud[ing] all judicial review of a constitutional claim.” Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 n.20 (1994); see Clark v. Martinez, 543 U.S. 371, 381 (2005); Miller v. French, 530 U.S. 327, 336 (2000). To that end, the Supreme Court has held that “where Congress intends to preclude judicial review of constitutional claims[,] its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988). Ragbir maintains that section 1252(g) lacks the “clear and convincing” evidence necessary to preclude review of constitutional claims. Califano v. Sanders, 430 U.S. 99, 109 (1977) (quoting Weinberger v. Salfi, 422 U.S. 749, 762 (1975)).
To speak clearly, Congress need not “incant magic words”—the plain language of section 1252(g) rebuts Ragbir’s argument. Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013); accord Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 20 (2017). The statute does not distinguish between types of claims. Rather, it excludes from a court’s jurisdiction the power “to hear any cause or claim,” and it applies “notwithstanding any other provision of law (statutory or nonstatutory).” § 1252(g) (emphasis added). The language selected by Congress is broad, and it does not suggest any subject-matter limitation.
Two Circuits have addressed whether section 1252(g)’s limitation on jurisdiction reaches constitutional claims. The Eighth Circuit, in the context of a constitutional challenge to
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the execution of a removal, concluded that the section 1252(g)’s jurisdictional limitation extended to constitutional claims. Silva v. United States, 866 F.3d 938, 941 (8th Cir. 2017) (concluding that “it was unnecessary for Congress to enumerate every possible cause or claim” and that section 1252(g)’s broad language extends to constitutional claims arising from the execution of a removal order). The Sixth Circuit concluded that a district court did not have subject matter jurisdiction to hear a due process challenge to an order of removal that had become final, brought on by a writ of prohibition. Elgharib v. Napolitano, 600 F.3d 597, 602 (6th Cir. 2010) (“[A] natural reading of ‘any other provision of law (statutory or nonstatutory)’ includes the U.S. Constitution.” (quoting § 1252(g)); accord Viana v. President of United States, 18 Civ. 222 (LM), 2018 WL 1587474, at *3 (D.N.H. Apr. 2, 2018) (concluding that section 1252(g) does not permit a due process challenge to the execution of a removal order). This Court agrees with the conclusions of the Eighth and Sixth Circuits and, likewise, will not carve constitutional claims from section 1252(g)’s jurisdictional bar.
IV. Ragbir Does Not Have a Constitutional Claim to Assert Having concluded that section 1252(g), properly construed, does not permit a
court to hear a constitutional challenge to the execution of an order of removal, the Court next considers whether the jurisdictional limitation is, itself, constitutional as applied to the allegations of plaintiffs’ Verified Complaint. The beginning point of this analysis is consideration of whether Ragbir has a constitutional claim that could be interposed as a defense to removal. If he does, then the Court must address the constitutionality of section 1252(g). If he does not, then the Court may avoid ruling on the constitutionality of the jurisdictional limitation. The court concludes that Ragbir does not.
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A. First Amendment Retaliation “To plead a First Amendment retaliation claim a plaintiff must show: (1) he has a
right protected by the First Amendment; (2) the defendant’s actions were motivated or substantially caused by [plaintiff’s] exercise of that right; and (3) the defendant’s actions caused him some injury.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (alteration in original) (quoting Dorsett v. County of Nassau, 732 F.3d 157, 160 (2d Cir. 2013)). Ragbir claims that before ICE decided to execute the final order of removal, he had engaged in political speech criticizing governmental policies on immigration and that defendants are executing the order of removal to silence him and stifle his advocacy of immigrant rights. Both of these assertions are accepted as true for the purpose of the Court’s analysis. The Court concludes, however, that his asserted injury flows from the final order of removal, which he does not allege is defective or legally infirm.
In the context of a criminal prosecution, “[t]he existence of probable cause will defeat . . . a First Amendment claim that is premised on the allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence her.” Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). This is so because “‘[a]n individual does not have a right under the First Amendment to be free from a criminal prosecution supported by probable cause,’ even if that prosecution ‘is in reality an unsuccessful attempt to deter or silence criticism of the government.’” Id. (quoting Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992)). Likewise, probable cause to arrest an individual defeats a claim asserting that the arrest was in retaliation for speech protected by the First Amendment. See Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (holding that if an officer “had probable cause to arrest plaintiff, an inquiry into the underlying motive for the arrest need not be undertaken”); Singer v. Fulton Cty.
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Sheriff, 63 F.3d 110, 120 (2d Cir. 1995) (“If the officer . . . had probable cause[,] . . . then [courts] will not examine the officer’s underlying motive in arresting and charging the plaintiff.”); accord Caravalho v. City of New York, No. 17-1944, 2018 WL 1940938, at *3 (2d Cir. Apr. 25, 2018) (summary order) (“The existence of probable cause defeats a First Amendment claim premised on the allegation that defendants arrested a plaintiff based on a retaliatory motive.”).
Although it is true that a First Amendment retaliation claim may be predicated on justified discretionary actions in “a non-criminal regulatory enforcement action” if “the defendant, for improper motive, took regulatory action that was significantly more serious than other action he had discretion to take,” Mangino v. Incorporated Village of Patchogue, 808 F.3d 951, 957 (2d Cir. 2015), the context of this case bears little resemblance to a garden variety regulatory enforcement action. The order of removal issued in Ragbir’s case was entered after he was heard on the merits and the grounds for removal were found proven by clear and convincing evidence—“[e]vidence indicating that the thing to be proved is highly probable or reasonably certain”—reviewed by the BIA, and then reviewed in a federal judicial forum. Ragbir v. Holder, 389 F. App’x 80, 84–85 (2d Cir. 2010) (quoting Black’s Law Dictionary 636 (9th ed. 2009)); 8 U.S.C. § 1229a(c)(3); 8 C.F.R. § 1240.8(a). No court has held, insofar as research discloses, that the execution of a removal order that has become final after agency review may support a claim of First Amendment retaliation or viewpoint or content discrimination. The Court concludes that Ragbir has no such claim because the injury to him flows from the final order of removal and not its execution.8
8 Because Ragbir has no viable constitutional claim, the Court need not reach whether the Suspension Clause renders unconstitutional section 1252(g) insofar as it purports to bar all habeas claims. U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).
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The Court’s conclusion is buttressed by AADC, in which the Supreme Court was faced with a claim of selective enforcement based upon the First Amendment right of association. The Supreme Court observed that “[e]ven in the criminal-law field, a selective prosecution claim is a rara avis,” in part for the reason that courts are reluctant to intervene because “the decision to prosecute is particularly ill-suited to judicial review,” “entails systemic costs of particular concern,” “threatens to chill law enforcement,” and “may undermine prosecutorial effectiveness.” AADC, 525 U.S. at 489–90 (alteration in original) (quoting Wayte v. United States, 470 U.S. 598, 607–08 (1985)). “These concerns,” the Supreme Court observed, “are greatly magnified in the deportation context.” Id. at 490. “Whereas in criminal proceedings the consequence of delay is merely to postpone the criminal’s receipt of his just deserts, in deportation proceedings the consequence is to permit and prolong a continuing violation of United States law.” Id. The Supreme Court also recognized that because removal is imposed to hold the alien “to the terms under which he was admitted,” rather than “as a punishment,” the interest in avoiding selective treatment in removal proceedings is “less compelling than in criminal prosecutions.” Id. at 491. The Supreme Court concluded that “[a]s a general matter[,] . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” Id. at 488.
B. The Outrageous Discrimination Exception In AADC, the Supreme Court did not “rule out the possibility of a rare case in
which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome,” allowing for the assertion of a selective enforcement claim. AADC, 525 U.S. at 491. In Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008), the Second Circuit addressed this possible exception. There, the petitioners asserted in a petition for review of a final order of
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removal, in part, that “their deportation orders violate[d] their rights under the Equal Protection component of the Fifth Amendment’s Due Process Clause because the immigration laws were selectively enforced against them based on their religion, ethnicity, gender, and race.” Id. at 438. The Second Circuit noted the dictum in AADC and observed “that a selective prosecution based on an animus of th[e] kind [articulated by the petitioners] would call for some remedy.” Id. The Court concluded, however, that there was “no basis for petitioners’ claim” and therefore “[n]o circumstance calling for a remedy.” Id. at 438–39.
This Court declines to extend this exception for outrageous discrimination to Ragbir’s claim. Membership in a targeted and protected group is not usually a volitional act, and, thus, traditionally immutable characteristics are not easily subject to strategic use by the person who is subject to a removal order. Political speech is worthy of the highest protection, and so long as Ragbir remains in the United States, the First Amendment guarantees him the freedom to speak and associate on any subject of his choosing. But his decision to speak does not confer upon him an immunity from the enforcement of a pre-existing final order of removal. As “[c]ourts ‘have long recognized[,] the power to expel or exclude aliens [is] a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Rajah v. Mukasey, 544 F.3d at 438 (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977)). Having considered the nature of the claim, the clear Congressional directive contained in section 1252(g), and the purpose of that section, the Court will dismiss Ragbir’s claim for want of jurisdiction to the extent it seeks to enjoin the execution of his removal order and to declare the decision to execute the order unconstitutional.
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V. The Remaining Claims The Organizational Plaintiffs joined Ragbir in his challenge to the execution of
his removal order. The Court’s reasoning above applies without regard to the identity of the party asserting the claim. However, section 1252(g) does not bar all claims pertaining to an order of removal. As previously noted, AADC gives the statute a “narrow reading,” construing it to apply “only to three discrete actions”—the commencement of proceedings, the adjudication of cases, and the execution of removal orders. AADC, 525 U.S. at 482, 487.
The Verified Complaint asserts only two claims for relief. Count I is styled “Retaliation in Violation of the First Amendment,” (VC ¶¶ 124–29), and Count II “Content, Viewpoint, and Speaker Discrimination in Violation of the First Amendment,” (VC ¶¶ 130–37). Broadly read, they allege a “nationwide pattern and practice of selectively enforcing immigration laws against immigration-rights activists on the basis of their protected speech.” (VC ¶ 127; see VC ¶ 132). The claims may reach actions by immigration authorities beyond commencing proceedings, adjudicating cases and executing removal orders.
To understand whether the Organizational Plaintiffs and Ragbir have standing to bring the remaining portions of the claims and whether, with the excision of the challenge to the execution of Ragbir’s removal order, they state claims for relief, the Court must understand the contours of the claims. Defendants’ time to respond to the Verified Complaint has not run. The Court invites the parties to submit a proposed briefing schedule on these claims within 14 days. CONCLUSION
Because the Court lacks subject matter jurisdiction over plaintiffs’ challenges to the execution of the final order of removal, so much of the Verified Complaint as seeks to declare unlawful or to enjoin the execution of the final order of removal against plaintiff Ragbir
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Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 20 of 23 is DISMISSED. (Doc. 1). The motion for a preliminary injunction insofar as it seeks to stay removal of plaintiff Ragbir is DENIED. (Doc. 11). The stay set forth in the Stipulated Order filed February 9, 2018 is DISSOLVED. (Doc. 4). The parties shall submit a proposed briefing schedule on the remaining issues within 14 days.
SO ORDERED.
Dated: New York, New York May 23, 2018
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Appendix A
Appearances
Anthony D Boccanfuso Ada Añon Robert Stanton Jones John L. Freedman William C. Perdue Daniel F. Jacobson Emily Newhouse Dillingham Sally Pei Stephen Wirth Andrew T. Tutt
Arnold & Porter Kaye Scholer LLP
-and-
Alina Das Jessica Louise Rofé Brittany Castle (Legal Intern) Jeremy Cutting (Legal Intern)
Washington Square Legal Services, Inc. Attorneys for Plaintiffs
Geoffrey S. Berman United States Attorney
Jeffrey Stuart Oestericher Brandon Matthew Waterman Steven John Kochevar Joseph Nicholas Cordaro
Assistant United States Attorneys Attorneys for Defendants
Joshua B. Picker Henry Liu Jordan L. Moran Tracy O. Zinsou David Watnick
Covington & Burling LLP Attorneys for New York Elected Officials, Amici Curiae
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Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 22 of 23
Harry Sandick Peter A. Nelson Lauren M. Capaccio Zachary Kolodin Michael R. McDonald (Admission pending)
Patterson, Belknap, Webb & Tyler LLP Attorneys for 140 Religious Leaders, Amici Curiae
Yosef J. Riemer Katherine Anne Rocco
Kirkland & Ellis LLP Trudy S. Rebert Nicholas Espiritu Jessica R. Hanson
National Immigration Law Center -andAmy S. Taylor Sienna Fontaine Kendal K. Nystedt
Make the Road New York Attorneys for Adelante Alabama Worker Center and Twenty Other Groups, Amici Curiae
Penny Marina Venetis International Human Rights Clinic of Rutgers University
Attorneys for Certain Scholars, Public Interest Advocates and Organizations, Amici Curiae
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Case 1:18-cv-01159-PKC Document 83 Filed 05/23/18 Page 23 of 23
Joshua A. Geltzer Amy L. Marshak Robert D. Friedman Seth Wayne
Institute for Constitutional Advocacy and Protection Georgetown University Law Center -andJameel Jaffer Alex Abdo Carrie DeCell Ramya Krishnan (Admission pending)
Knight First Amendment Institute at Columbia University Attorney for Institute For Constitutional Advocacy and Protection at Georgetown Law Center and Knight First Amendment Institute at Columbia University, Amici Curiae Ryan Alexander Muennich Andrew Wachtenheim (Admission pending) Attorneys for Immigrant Defense Project, Amicus Curiae
- 23 -

 
 Case 18-1597, Document 183-1, 04/25/2019, 2547963, Page1 of 73
18‐1597 Ragbir v. Homan

1

In the

2

United States Court of Appeals

3

For the Second Circuit

4

5

6

August Term, 2018

7

No. 18‐1597

8

9 RAVIDATH LAWRENCE RAGBIR, NEW SANCTUARY COALITION OF NEW

10

YORK CITY, CASA DE MARYLAND, INC., DETENTION WATCH

11

NETWORK, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL

12

LAWYERS GUILD, NEW YORK IMMIGRATION COALITION,

13

Plaintiffs‐Appellants,

14

15

v.

16

17 THOMAS D. HOMAN, in his official capacity as Deputy Director and

18

Senior Official Performing the duties of the Director of U.S.

19 Immigration and Customs Enforcement, THOMAS DECKER, in his

20

official capacity as New York Field Office Director for U.S.

21 Immigration and Customs Enforcement, SCOTT MECHKOWSKI, in his

22 official capacity as Assistant New York Field Office Director for U.S.

23

Immigration and Customs Enforcement, UNITED STATES

24 IMMIGRATION AND CUSTOMS ENFORCEMENT, KEVIN K. MCALEENAN,

25 in his official capacity as Acting Secretary of Homeland Security,

26

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, WILLIAM P.

27

BARR, in his official capacity as Attorney General of the United

28

States, UNITED STATES DEPARTMENT OF JUSTICE,

29

Defendants‐Appellees.

30

31

Case 18-1597, Document 183-1, 04/25/2019, 2547963, Page2 of 73

1

Appeal from the United States District Court

2

for the Southern District of New York.

3

No. 18‐cv‐1159 — P. Kevin Castel, Judge.

4

5

6

ARGUED: OCTOBER 29, 2018

7

DECIDED: APRIL 25, 2019

8

9

Before: WALKER, LEVAL, and DRONEY, Circuit Judges.

10

11

12

Ravidath Ragbir, an alien subject to a final order of removal,

13 together with several immigration‐policy advocacy organizations,

14 appeals from an interlocutory order of the United States District

15 Court for the Southern District of New York (Castel, J.) denying their

16 motion for a preliminary injunction and dismissing certain of their

17 claims. Plaintiffs‐Appellants sought to enjoin Ragbir’s imminent

18 deportation on the basis of evidence that Government officials

19 targeted him for deportation because of his public speech that was

20 critical of Immigration and Customs Enforcement and U.S.

21 immigration policy. The district court held that Ragbir failed to state

22 a cognizable claim to the extent that he sought to enjoin his

23 deportation and that 8 U.S.C. § 1252(g) deprives federal courts of

24 jurisdiction over that claim. We conclude that Ragbir states such a

25 claim, that the Suspension Clause of the Constitution requires the

26 availability of a habeas corpus proceeding in light of § 1252(g), and

27 thus, that the district court had jurisdiction over Ragbir’s claim.

28 Accordingly, we VACATE the district court’s order, and REMAND

29 to the district court for further proceedings consistent with this

30 opinion.

31

32

Judge WALKER dissents in a separate opinion.

2

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1

2

3

ROBERT STANTON JONES, Arnold &

4

Porter Kaye Scholer LLP,

5

Washington, DC (William C. Perdue,

6

Sally L. Pei, Andrew T. Tutt, Arnold

7

& Porter Kaye Scholer LLP,

8

Washington, DC; Emily Newhouse

9

Dillingham, Arnold & Porter Kaye

10

Scholer LLP, Chicago, IL; Ada Añon,

11

Arnold & Porter Kaye Scholer LLP,

12

New York, NY; Alina Das, Jessica

13

Rofé, Washington Square Legal

14

Services, Inc., New York, NY, on the

15

brief) for Plaintiffs‐Appellants.

16

17

STEVEN J. KOCHEVAR, ASSISTANT

18

UNITED STATES ATTORNEY (Benjamin

19

H. Torrance, Assistant United States

20

Attorney, on the brief), for GEOFFREY S.

21

BERMAN, United States Attorney for

22

the Southern District of New York, for

23

Defendants‐Appellees.

24

25 DRONEY, Circuit Judge:

26

The principal question presented in this appeal is whether

27 Ravidath Ragbir, an alien subject to a valid final order of removal, has

28 presented a legally recognizable claim to enjoin the Government from

3

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1 deporting him on the basis of his public speech that was critical of the

2 Government’s immigration policies and practices. Related to that

3 question is whether Congress has deprived courts of jurisdiction to

4 hear Ragbir’s claim, 1 and if so, whether the Suspension Clause of the

5 Constitution, U.S. Const. art. I, § 9, cl. 2, nonetheless requires that the

6 writ of habeas corpus be available to Ragbir.

7

Ragbir, together with the New Sanctuary Coalition of New

8 York City, CASA de Maryland, Inc., Detention Watch Network,

9 National Immigration Project of the National Lawyers Guild, and

10 New York Immigration Coalition (collectively, “Ragbir”),2 appeals

11 from an interlocutory order of the district court denying Plaintiffs‐

1 By “jurisdiction,” we refer to any grant of jurisdiction, including 28 U.S.C. §§ 1331, 2241, and 1651.
2 It is uncertain whether the organizational plaintiffs would have standing on their own to pursue the claim at issue in this appeal. However, we need not reach that issue because “the issues are sufficiently and adequately presented by” Ragbir, and “nothing is gained or lost” by the presence or absence of the organizational plaintiffs. Doe v. Bolton, 410 U.S. 179, 189 (1973); see also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72 n. 16 (1978); Railway Labor Execs. Ass’n v. U.S., 987 F.2d 806, 810 (D.C. Cir. 1993) (“[T]he Supreme Court has repeatedly held that if one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to the merits of the case.”).

4

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1 Appellants’ motion for a preliminary injunction and dismissing his

2 claim to the extent that he seeks to “declare unlawful or to enjoin the

3 execution of the final order of removal against him” on the basis of

4 First Amendment retaliation. App’x 281–82. Ragbir claims that

5 certain officials of the Department of Justice and of the Immigration

6 and Customs Enforcement (“ICE”) agency of the Department of

7 Homeland Security (collectively, “the Government”), selectively

8 enforced against Ragbir a final order of removal on the basis of his

9 speech that these officials disfavor. The district court concluded that

10 Ragbir failed to state a cognizable claim to the extent that he sought

11 to enjoin his deportation and that 8 U.S.C. § 1252(g) deprives all courts

12 of jurisdiction over that claim.

13

We conclude that Ragbir states a cognizable constitutional

14 claim, and although Congress intended to strip all courts of

15 jurisdiction over his claim, the Suspension Clause of the Constitution

16 nonetheless requires that Ragbir may bring his challenge through the

5

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1 writ of habeas corpus. Accordingly, we vacate the district court’s

2 order and remand the case.

3

FACTUAL AND PROCEDURAL BACKGROUND

4

Because the district court dismissed Ragbir’s claim (and

5 accordingly denied his motion for a preliminary injunction) for lack

6 of subject matter jurisdiction, we “must accept as true the [plausible]

7 allegations contained in [his] complaint and affidavits for purposes of

8 this appeal.”3 Filartiga v. Pena‐Irala, 630 F.2d 876, 878 (2d Cir. 1980);

9 see J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004)

10 (“We may consider affidavits and other materials beyond the

11 pleadings to resolve . . . jurisdictional issue[s], but we may not rely on

12 conclusory or hearsay statements contained in the affidavits.”); see

13 also F.T.C. v. Dean Foods Co., 384 U.S. 597, 601 (1966) (“Since the case

14 comes to us from a dismissal on jurisdictional grounds we must take

3 See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that “the tenet that a court must accept as true all of the [plaintiff’s] allegations contained in a complaint” applies only to those allegations that are plausible).
6

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1 the allegations of the Commissionʹs application for a preliminary

2 injunction as true.”).

3 I. Ragbir’s Immigration Status

4

Ragbir, a native and citizen of Trinidad and Tobago, lives in

5 Brooklyn, New York. He became a lawful permanent resident of the

6 United States in 1994. His wife is an American citizen, as is their

7 daughter. In 2001, Ragbir was convicted of wire fraud and conspiracy

8 to commit wire fraud in the United States District Court for the

9 District of New Jersey, and he was sentenced to 30 months’

10 imprisonment. See generally United States v. Ragbir, 38 F. App’x 788

11 (3d Cir. 2002). His convictions were affirmed by the United States

12 Court of Appeals for the Third Circuit.4 Id.

4 After exhausting the direct appeal of his conviction, Ragbir filed a coram nobis petition in the District of New Jersey. On March 23, 2018, the New Jersey district court stayed Ragbir’s administrative immigration removal pending the outcome of Ragbir’s petition, finding a likelihood of success on the merits and that the other relevant factors warranted a stay. See generally Ragbir v. United States, No. 2:17‐cv‐ 1256‐KM, 2018 WL 1446407 (D.N.J. Mar. 23, 2018). The district court denied Ragbir’s coram nobis petition on January 25, 2019, and the stay of removal in that action expired on February 19, 2019. Ragbir, No. 2:17‐cv‐1256‐KM, ECF No. 82. On January 30, 2019, Ragbir filed in the Third Circuit a notice of appeal of the district

7

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1

After Ragbir served his sentence for his wire fraud convictions,

2 ICE detained him in May 2006. In August 2006, an immigration judge

3 entered an order of removal against him on the basis of those

4 convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is

5 convicted of an aggravated felony at any time after admission is

6 deportable.”). The Bureau of Immigration Affairs (“BIA”) denied

7 Ragbir’s appeal of his removal order in March 2007. We denied

8 Ragbir’s petition for review of the BIA decision in 2010.5 Ragbir v.

9 Holder, 389 F. App’x 80 (2d Cir. 2010). In 2012, the BIA denied Ragbir’s

10 motion to reconsider and reopen, and we denied Ragbir’s petition for

11 review of that decision in 2016. Ragbir v. Lynch, 640 F. App’x 105 (2d

12 Cir. 2016).

court’s denial of his coram nobis petition, id., ECF No. 84, and on February 27, 2019, the Third Circuit denied Ragbir’s motion to stay his removal pending the resolution of that appeal, Ragbir v. United States, No. 19‐1282 (3d Cir.). 5 The Supreme Court denied Ragbir’s petition for a writ of certioriari as to that appeal.
8

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1

ICE released Ragbir from its detention in February 2008, having

2 determined that he was not a flight risk. Ragbir has since continued

3 to live in the United States under orders of supervision that

4 authorized him to remain and work in the United States, provided

5 that he complied with his supervision conditions. He also received

6 four administrative stays of removal6 from ICE: in 2011, 2013, 2014,

7 and 2016.7 The shortest of those stays was for approximately one

6 Deportation is now described as “removal” in the federal immigration statutes. Evangelista v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir. 2004). We nonetheless occasionally use the term “deportation” in this opinion as a “well‐worn colloquialism[] for . . . ‘removal.’” Id.
7 Section 241 of the INA grants the Secretary of Homeland Security authority to stay the removal of an alien if he or she “decides . . . immediate removal is not practicable or proper.” 8 U.S.C. § 1231(c)(2)(A); see Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (stating that while the INA refers to the Attorney General as the official to whom Congress delegates authority, this authority now belongs with the Secretary of Homeland Security (citing 6 U.S.C. §§ 251(2), 252(a)(3), 271(b)). 8 C.F.R. § 241.6 implements that authority: “Any request of an alien under a final order of deportation or removal for a stay of deportation or removal shall be filed . . . with the district director having jurisdiction over the place where alien is at the time of filing.” § 241.6(a). Any one of certain enumerated officials “in his or her discretion and in consideration of factors listed in 8 CFR § 212.5 and section 241(c) of the Act, may grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate.” Id. Under 8 C.F.R. § 212.5, officials “may require reasonable assurances” that the applicant will make any required appearances and “depart the United States when required to do so.” § 212.5(d). “The consideration of all relevant factors includes:” assurances from the

9

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1 year, while the two most recent stays were for approximately two

2 years each. The most recent stay Ragbir received was scheduled to

3 terminate in January 2018. Ahead of that date, Ragbir filed an

4 application for a fourth renewal of his stay in November 2017.

5 II. Ragbir’s Speech

6

After his release from immigration detention in 2008, Ragbir

7 became an outspoken activist on immigration issues, including

8 publicly criticizing ICE. The New Sanctuary Coalition of New York

9 City, which he founded, sends volunteers to accompany aliens to

10 court dates and ICE check‐in appointments. Ragbir maintained a

11 “regular presence” outside ICE’s office and Department of Justice

12 immigration courts in Manhattan, including leading weekly prayer

13 vigils, called “Jericho Walks,” with religious faith leaders. App’x 48.

14 Ragbir has received a number of awards for his “zealous advocacy”

15 for immigrants’ rights, including from the Episcopal Diocese of Long

applicant sponsor or counsel, “community ties,” and “[a]greement to reasonable conditions (such as periodic reporting of whereabouts).” § 212.5(d)(1)‐(3).

10

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1 Island and the New York State Association of Black and Puerto Rican

2 Legislators. App’x 49.

3

On March 9, 2017, Ragbir appeared for a scheduled check‐in

4 with ICE officials in New York City. He was accompanied by clergy

5 and elected officials, including a New York State Senator, the New

6 York City Council Speaker, and other New York City Council

7 Members. At the check‐in, ICE New York Field Office Director

8 Thomas Decker confronted Ragbir and attempted to send away the

9 individuals who had accompanied him. This confrontation garnered

10 negative press coverage for ICE in prominent news outlets, in which

11 Ragbir and several of the politicians who went with him to the check‐

12 in expressed criticism of ICE and U.S. immigration policy.8

8 E.g., Liz Robbins, Once Routine, Immigration Check‐Ins Are Now High Stakes, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/nyregion/ice‐ immigration‐check‐in‐deportation.html; Nick Pinto, Behind ICE’s Closed Doors, The Most Un‐American Thing I’ve Seen, Village Voice (Mar. 10, 2017), https://www.villagevoice.com/2017/03/10/behind‐ices‐closed‐doors‐the‐most‐un‐ american‐thing‐ive‐seen/.
11

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1 III. The Government’s Alleged Retaliation

2

Ragbir claims that the events of the March 9, 2017 check‐in,

3 including his public statements and the media coverage they

4 garnered, prompted ICE to retaliate against him. Less than one year

5 after that check‐in, on January 3, 2018, and days before Ragbir was

6 scheduled to have his next scheduled administrative check‐in, ICE

7 arrested Jean Montrevil, one of the co‐founders of Ragbir’s New

8 Sanctuary organization, and deported him six days later.

9

On January 5, 2018, Micah Bucey, a minister in New York City,

10 along with three other faith leaders, had a meeting with ICE’s New

11 York Field Office Deputy Director Scott Mechkowski at ICE’s office in

12 Manhattan, to discuss Montrevil’s case and the clergies’ concern that

13 ICE had been surveilling individuals outside a church. According to

14 Ragbir’s complaint and a sworn declaration submitted by Bucey,

15 Mechkowski stated at the meeting, “Nobody gets beat up in the news

16 more than we do, every single day. It’s all over the place, . . . how

12

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1 we’re the Nazi squad, we have no compassion.” Mechkowski then

2 stated, “The other day Jean [Montrevil] made some very harsh

3 statements. . . . I’m like, ‘Jean, from me to you . . . you don’t want to

4 make matters worse by saying things.” App’x 55, 252 (emphasis added).

5

Unprompted, Mechkowski then brought up Ragbir, stating, “I

6 read something that Ravi [Ragbir] wrote, [stating] ‘do you think it’s

7 easy walking around with a target [on you]?’” App’x 253.

8 Mechkowski stated that it “bother[ed]” him that “there isn’t anybody

9 in this entire building that doesn’t . . . know about Ravi. Everybody

10 knows this case. No matter where you go . . . .” App’x 253.

11 Mechkowski also stated that Ragbir and Montrevil’s cases were the

12 two most high‐profile cases that ICE had in New York City.

13

Shortly thereafter, on January 8, 2018—three days before

14 Ragbir was scheduled to appear for his next ICE check‐in—Ragbir’s

15 counsel Alina Das spoke with Mechkowski, who stated that he felt

16 “resentment” about the events of the March 9, 2017 check‐in, that he

13

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1 had heard Ragbir’s statements to the press, and that he continued to

2 see Ragbir at protest vigils outside ICE’s New York City office. App’x

3 55–56, 123.

4

On January 10, 2018, Ragbir’s counsel received an email

5 indicating that his November 2017 application for a renewed

6 administrative stay of removal was still pending and no decision had

7 been reached. Ragbir’s then‐existing stay was set to expire on January

8 19, 2018. Ragbir’s next check‐in occurred on January 11, 2018. At the

9 check‐in meeting, Mechkowski told Ragbir that officials had decided

10 that morning to deny Ragbir’s application for a renewed stay of

11 removal and that ICE would now enforce the removal order against

12 him. Ragbir later learned that his current stay of removal, which was

13 to last eight more days, had been revoked by ICE.

14 IV. Events After the Government’s Decision to Execute the

15

Order of Removal

16

17

That same day, ICE detained Ragbir and transferred him to

18 Florida, in preparation for his removal. He was detained in Florida

14

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1 for two weeks. During that period, Ragbir’s counsel filed a petition

2 for a writ of habeas corpus in the United States District Court for the

3 Southern District of New York, which the district court granted on

4 January 29, 2018. Ragbir was released that day, but ICE ordered him

5 to check in again on February 10, 2018, and to bring luggage for his

6 removal.

7

A day before the February 10 check‐in was to occur, Ragbir

8 filed this action in the United States District Court for the Southern

9 District of New York. Later that day, the Government stipulated that

10 Ragbir’s removal would be stayed pending resolution of his motion

11 for a preliminary injunction, which he filed on February 12, 2018.

12

Ragbir then brought this action, alleging two First Amendment

13 claims in the district court: one for retaliation against his protected

14 speech and the other for viewpoint discrimination.9 As relevant to

15 this appeal, Ragbir sought declaratory and injunctive relief to prevent

9 We consider these claims to be materially indistinguishable for our purposes and so, we refer to Ragbir’s retaliation “claim” in the singular.

15

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1 the Government from executing the removal order against him on the

2 basis of his protected speech. He asserted that the district court had

3 federal question jurisdiction under 28 U.S.C. § 1331 and, in the

4 alternative, that it had jurisdiction under the All Writs Act, 28 U.S.C.

5 § 1651, habeas corpus jurisdiction under 28 U.S.C. § 2241, or pursuant

6 to the constitutionally minimum scope of the writ as required by the

7 Suspension Clause of the United States Constitution, U.S. Const. art.

8 I, § 9, cl. 2.

9 V.
10 11

District Court Proceedings in this Action On May 23, 2018, the district court dismissed Ragbir’s claim for

12 lack of subject matter jurisdiction insofar as he sought to prevent the

13 Government from executing the final order of removal against him

14 and, accordingly, denied his motion for a preliminary injunction.

15 First, the district court concluded that 8 U.S.C. § 1252 deprives courts

16 of subject matter jurisdiction over all claims challenging the execution

16

Case 18-1597, Document 183-1, 04/25/2019, 2547963, Page17 of 73

1 of a valid final order of removal, including claims based on the United

2 States Constitution. Section 1252(g) provides:

3

Except as provided in this section and notwithstanding

4

any other provision of law (statutory or nonstatutory),

5

including section 2241 of title 28, or any other habeas

6

corpus provision, and sections 1361 and 1651 of such

7

title, no court shall have jurisdiction to hear any cause or

8

claim by or on behalf of any alien arising from the

9

decision or action by the Attorney General to commence

10

proceedings, adjudicate cases, or execute removal orders

11

against any alien under this chapter.

12

13 8 U.S.C. § 1252(g) (2012).

14

The district court determined that Ragbir’s claim arose from the

15 Government’s decision to “execute [the] removal order[]” against

16 him, see id., and that § 1252(g) deprives courts of jurisdiction over

17 constitutional claims, including those brought under 28 U.S.C. §§

18 1331, 2241, or 1651. The district court emphasized that § 1252(g)

19 applies to “any cause or claim” and applies “notwithstanding any

20 other provision of law (statutory or nonstatutory),” including “any . .

21 . other habeas corpus provision.” App’x 269, 275 (quoting § 1252(g))

17

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1 (emphasis in original decision). Thus, the district court concluded

2 that it lacked subject matter jurisdiction over Ragbir’s claim.

3

The district court further concluded that it could avoid

4 deciding whether § 1252(g)’s withdrawal of jurisdiction posed a

5 Suspension Clause problem as to Ragbir because he did not state a

6 cognizable constitutional claim. First, the district court applied

7 decisions from this Court which, in its view, foreclosed a First

8 Amendment retaliation claim based on an official’s improper motives

9 underlying a criminal arrest or prosecution, provided that the official

10 had probable cause for the arrest or prosecution.

11

Second, the district court relied on the United States Supreme

12 Court’s decision in Reno v. Am.‐Arab Anti‐Discrimination Comm., 525

13 U.S. 471, 488 (1999) (henceforth, “AADC”), which stated that “[a]s a

14 general matter[,] . . . an alien unlawfully in this country has no

15 constitutional right to assert selective enforcement as a defense

16 against his deportation.” The district court acknowledged the

18

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1 Supreme Court’s statement in AADC that it would not “rule out the

2 possibility of a rare case in which the alleged basis of discrimination

3 is so outrageous that the . . . considerations” that generally foreclose

4 a selective enforcement claim “can be overcome.” App’x 279 (quoting

5 AADC, 525 U.S. at 491). The district court declined, however, to

6 “extend this exception” to Ragbir’s claim. App’x 280.

7

The district court dismissed for lack of jurisdiction Ragbir’s

8 claim seeking to enjoin the execution of his removal order and,

9 accordingly, denied his motion for a preliminary injunction.

10 VI. Proceedings in this Court

11

12

Ragbir and the organizational plaintiffs filed a notice of appeal

13 of the district court’s decision on May 25, 2018. On June 19, 2018, the

14 district court denied Ragbir’s motion for a stay of removal pending

15 his appeal to this Court. On July 19, 2018, in response to Ragbir’s

16 motion for a stay of removal filed in this Court, we granted a

17 temporary stay of removal pending oral argument on the motion,

19

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1 which was held on August 14, 2018. We issued an order on August

2 15, 2018, expediting hearing of this appeal and instructing the parties

3 to notify the Court if the stay issued by the District Court for the

4 District of New Jersey was withdrawn or vacated before we heard the

5 appeal. We heard oral argument on the appeal on October 29, 2018,

6 and on November 1, 2018, we granted Ragbir’s motion for a stay of

7 his removal pending the outcome of this appeal.

8

APPELLATE JURISDICTION

9

As the parties agree, we have jurisdiction over this appeal from

10 the district court’s interlocutory denial of a preliminary injunction, 28

11 U.S.C. § 1292(a)(1), and our jurisdiction extends to the district court’s

12 dismissal of certain claims because that decision was “inextricably

13 intertwined” with the denial of Ragbir’s request for a preliminary

14 injunction and “review of the unappealable issue is . . . necessary for

15 review of the issue over which we have appellate jurisdiction,” Lamar

20

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1 Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 371‐72

2 (2d Cir. 2004).

3

DISCUSSION

4

We review de novo a district court’s dismissal of claims for lack

5 of subject matter jurisdiction. Malik v. Meissner, 82 F.3d 560, 562 (2d

6 Cir. 1996). We review for abuse of discretion a district court’s denial

7 of a preliminary injunction. N. Am. Soccer League, LLC v. U.S. Soccer

8 Fedʹn, Inc., 883 F.3d 32, 36 (2d Cir. 2018). “A district court abuses its

9 discretion when it rests its decision on . . . an error of law.” Id.

10

As an initial matter, Ragbir contends, and the Government does

11 not dispute, that he could not have brought his claim in a BIA

12 proceeding or in a petition for review. That is because Ragbir’s claim

13 arose only after his petition process was exhausted and his order of

14 removal became final. 10 Notwithstanding this situation, the

10 A renewed motion to reopen also is not available to Ragbir. Such a motion allows a petitioner to introduce “new facts” pertinent to the propriety of an order of removal. 8 C.F.R. § 1003.2(c)(1). Subject to certain exceptions that are inapplicable here, see id. § 1003.2(c)(3), and the possibility in a rare case of equitable

21

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1 Government argues that § 1252(g) withdraws federal court

2 jurisdiction over Ragbir’s First Amendment claim. The Government

3 also contends that we need not decide whether the Suspension Clause

4 would nonetheless require the availability of a habeas corpus

5 proceeding because AADC, and certain of our decisions, foreclose

6 Ragbir’s claim. Ragbir disagrees, contending that he states a claim,

7 that § 1252(g) should be read to allow jurisdiction over his

8 constitutional claim in the district court, and that if § 1252(g) does not

9 so allow, the Suspension Clause requires a review of his claim

10 through a petition for the writ of habeas corpus.

11

We first consider whether § 1252(g) forecloses all jurisdiction

12 over Ragbir’s constitutional claim, which he could not bring in his

tolling, see, e.g., Zhao v. INS, 452 F.3d 154, 157 (2d Cir. 2006) (equitably tolling numeric and time limits because of ineffective assistance of counsel during limitations period), “a party may file only one motion to reopen,” id. § 1003.2(c)(2). Here, even assuming, arguendo, that “new facts” as to the Government’s alleged retaliatory execution of Ragbir’s order of removal in 2018 could bear on the propriety of that order—entered years before the alleged retaliation—Ragbir already filed an unsuccessful motion to reopen (prior to the alleged retaliation). See generally Ragbir v. Lynch, 640 F. App’x 105 (2d Cir. 2016).

22

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1 earlier—and concluded—petition for review. We then consider

2 whether Ragbir states a viable constitutional claim. If we answer that

3 question in the affirmative, we must then address whether the

4 Suspension Clause requires a hearing of Ragbir’s claim in a habeas

5 corpus proceeding. See Three Affiliated Tribes of Fort Berthold

6 Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 158 (1984) (“It is a

7 fundamental rule of judicial restraint . . . [that courts] will not reach

8 constitutional questions in advance of the necessity of deciding

9 them.”).

10 I.
11 12 13

Whether § 1252(g) Forecloses Jurisdiction Over Ragbir’s Claim
The crux of the dispute between Ragbir and the Government is

14 whether § 1252(g) applies: 1) to the Government’s alleged conduct

15 here; and 2) to constitutional claims.

16

A. Section 1252(g) Applies to the Alleged Government Conduct

17

18

The Supreme Court has emphasized that § 1252(g) “applies

19 only to three discrete actions:” the Government’s “‘decision or action’

23

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1 to ‘commence proceedings, adjudicate cases, or execute removal

2 orders.’”11 AADC, 525 U.S. at 482 (quoting § 1252(g)) (emphasis in

3 original decision). By contrast, § 1252(g) does not apply to “many

4 other decisions or actions that may be part of the deportation

5 process—such as the decisions to open an investigation.” Id.

6

The Government argues that Ragbir’s claim falls within the

7 ambit of § 1252(g) because his claim arises from the Government’s

8 execution of Ragbir’s final removal order. Ragbir disagrees,

9 contending that his claim instead arises “from immigration officials’

10 unlawful decision to retaliate against [his] protected speech.”

11 Appellants’ Br. at 31–32.

12

In support, Ragbir refers to a Ninth Circuit case, Arce v. United

13 States, 899 F.3d 796 (9th Cir. 2018). In Arce, the Government’s

11 AADC addressed the version of § 1252(g) as it was first enacted in 1996. As is discussed later in this opinion, § 1252(g) has since been amended by the REAL ID Act of 2005, but the statutory text regarding the three discrete Government actions has not changed.
24

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1 violation of a judicial stay of removal resulted in the alien’s wrongful

2 removal from the United States. Id. at 799. The alien plaintiff brought

3 a Federal Tort Claims Act (“FTCA”) claim for damages suffered as

4 result of the removal. The Ninth Circuit held that this claim fell

5 outside the scope of § 1252(g) because “the stay of removal

6 temporarily suspend[ed] the source of the [Government’s] authority

7 to act.” Id. at 800 (internal quotations omitted). In other words, while

8 the stay was in place, the Government “totally lack[ed] the [statutory]

9 discretion to effectuate a removal order.” Id. at 800–01. Therefore, the

10 Ninth Circuit concluded that the Government’s “decision or action to

11 violate a court order staying removal f[ell] outside” of § 1252(g)’s

12 “jurisdiction‐stripping reach.” Id. at 801.

13

We express no opinion as to the Ninth Circuit’s decision in Arce,

14 which is distinguishable from this case. 12 Here, the Government

12 We note that the Eighth Circuit appears to have come to a different conclusion than the Ninth Circuit. Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (holding that a claim challenging the execution of a removal order in violation of a stay still fell within § 1252(g)).

25

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1 unquestionably had statutory authority to execute Ragbir’s final

2 order of removal, and that very conduct is the retaliation about which

3 Ragbir complains.13 To remove that decision from the scope of section

4 1252(g) because it was allegedly made based on unlawful

5 considerations would allow plaintiffs to bypass § 1252(g) through

6 mere styling of their claims. And so, we conclude that the

7 Government’s challenged conduct falls squarely within the ostensible

8 jurisdictional limitation of § 1252(g).

9

B. Section 1252(g) Applies to Constitutional Claims

10

11

Next, Ragbir argues that Congress would have used the word

12 “constitutional” in § 1252(g) if it intended to foreclose jurisdiction

13 (habeas or otherwise) over those claims. Moreover, he contends that

14 § 1252(g) merely “channels” claims that could be brought in a petition

13 That discrete action necessarily includes the Government’s denial of a further administrative stay of removal in January 2018 and its early termination of Ragbir’s then‐existing stay. See AADC, 525 U.S. at 483 (describing the Executive’s discretion to abandon the execution of a removal order as part of the execution “stage” in the deportation process).
26

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1 for review into that process, but does not eliminate jurisdiction over

2 other claims. The Government argues that § 1252(g) plainly states

3 otherwise.

4

Before proceeding to the current text of § 1252(g), a brief review

5 of the history of that provision—including court decisions construing

6 it—is instructive. Section 1252(g) was added to the Immigration and

7 Nationality Act (“INA”) through adoption of the Illegal Immigration

8 Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996. The

9 initial version of § 1252(g) read as follows:

10

Except as provided in this section and notwithstanding

11

any other provision of law, no court shall have

12

jurisdiction to hear any cause or claim by or on behalf of

13

any alien arising from the decision or action by the

14

Attorney General to commence proceedings, adjudicate

15

cases, or execute removal orders against any alien under

16

this Act.

17

18 8 U.S.C. § 1252(g) (2000).

19

In Jean‐Baptiste v. Reno, 144 F.3d 212, 218–20 (2d Cir. 1998), we

20 held that the 1996 version of § 1252(g) barred federal court jurisdiction

27

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1 under 28 U.S.C. § 1331 over constitutional claims within its scope—

2 there, the plaintiffs’ Fifth Amendment due process claim challenging

3 the INS’s deportation procedures. We dismissed the plaintiffs’ claim

4 for lack of subject matter jurisdiction under § 1331. Id. However, we

5 held that “in the absence of language affirmatively and clearly

6 eliminating habeas review,” § 1252(g) did not repeal habeas corpus

7 jurisdiction under 28 U.S.C. § 2241. Id. at 219–20. Other circuit courts,

8 and, eventually, the Supreme Court, also concluded that neither

9 IIRIRA nor the Anti‐Terrorism and Effective Death Penalty Act of

10 1996 (“AEDPA”) repealed (or limited the prior scope of) district court

11 jurisdiction over aliens’ petitions for writs of habeas corpus brought

12 pursuant to 28 U.S.C. § 2241. See I.N.S. v. St. Cyr, 533 U.S. 289, 314

13 (2001).

14

Congress responded to the Supreme Court’s St. Cyr decision by

15 enacting the REAL ID Act of 2005, Pub. L. No. 109‐13, 119 Stat 302,

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1 which strengthened § 1252(g)’s jurisdictional limitations. 14

2 Specifically, it amended § 1252(g) by inserting new language, which

3 is italicized:

4

Except as provided in this section and notwithstanding

5

any other provision of law (statutory or nonstatutory),

6

including section 2241 of Title 28, or any other habeas corpus

7

provision, and sections 1361 and 1651 of such title, no court

8

shall have jurisdiction to hear any cause or claim by or

9

on behalf of any alien arising from the decision or action

10

by the Attorney General to commence proceedings,

11

adjudicate cases, or execute removal orders against any

12

alien under this Act.

13

14 8 U.S.C. § 1252(g) (2012) (emphasis added).

15

Thus, the REAL ID Act had two primary functions as to section

16 1252(g). First, by adding unmistakably clear language, it

17 “eliminat[ed] the availability of habeas corpus relief in the United

18 States District Courts for aliens seeking to challenge orders of removal

19 entered against them.” Ruiz‐Martinez v. Mukasey, 516 F.3d 102, 105

20 (2d Cir. 2008).

14 See Paul Diller, Habeas and (Non‐)Delegation, 77 U. Chi. L. Rev. 585, 615 (2010) (stating that Congress passed the REAL ID Act in direct response to St. Cyr).

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1

Second, we conclude that by adding the words “statutory or

2 nonstatutory,” Congress further clarified what had already been our

3 construction of § 1252(g) in Jean‐Baptiste: it applies even to

4 constitutional claims. Taken together with § 1252(g)’s clear

5 elimination of habeas corpus jurisdiction, it follows that the statute

6 purports to forbid bringing even constitutional claims in such a

7 proceeding. In reaching the conclusion that the amended version of

8 § 1252(g) should be so construed, we are mindful that “[w]here

9 Congress intends to preclude judicial review of constitutional

10 claims[,] its intent to do so must be clear,” Webster v. Doe, 486 U.S.

11 592, 603 (1988), and that “if an otherwise acceptable construction of a

12 statute would raise serious constitutional problems, and where an

13 alternative interpretation of the statute is fairly possible, we are

14 obligated to construe the statute to avoid such problems,” St. Cyr, 533

15 U.S. at 299–300 (citing Crowell v. Benson, 285 U.S. 22, 62 (1932))

16 (internal citation and quotation marks omitted). However, “[t]he

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1 canon of constitutional avoidance comes into play only when, after

2 the application of ordinary textual analysis, the statute is found to be

3 susceptible of more than one construction; and the canon functions as

4 a means of choosing between them.” Clark v. Martinez, 543 U.S. 371, 385

5 (2005) (emphasis in original); see Boumediene v. Bush, 553 U.S. 723, 787

6 (2008) (stating that “[t]he canon of constitutional avoidance does not

7 supplant traditional modes of statutory interpretation” (citing Clark,

8 543 U.S. at 385)). In other words, “[w]e cannot” use constitutional

9 avoidance to “ignore the text and purpose of a statute in order to save

10 it.” Boumediene, 553 U.S. at 787.

11

Here, even putting aside our construction of the less obviously

12 restrictive version of 1252(g) in Jean‐Baptiste, we are aware of no

13 “nonstatutory” claim that a petitioner could bring in relation to a

14 deportation proceeding other than one rooted in the Constitution.

15 Nor does Ragbir offer such an explanation. And even if there were

16 such claims, we see no basis—in light of the text and legislative

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1 history—for construing the word “nonstatutory” in § 1252(g) to

2 exclude constitutional claims. 15, 16

3

Accordingly, Congress appears to have made “an informed

4 legislative choice” that eliminating even habeas review of

5 constitutional claims would not pose a constitutional (Suspension

6 Clause) problem despite courts’ indications to the contrary, and so

7 Congress’s legislative “intent must be respected even if a difficult

8 constitutional question is presented.” Boumediene, 553 U.S. at 738

9 (recognizing that Congress’s passage of the Military Commissions

10 Act of 2006 was a direct response to the Court’s narrow reading of the

11 Detainee Treatment Act in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)).

12 It then falls upon “the Judiciary, in light of [Congress’s]

15 For the same reasons, we also reject Ragbir’s argument that § 1252(g) merely “channels” certain claims into a petition for review but does not intend to eliminate jurisdiction for other claims. That argument lacks textual support and is belied by Congress’s plain indication, through the REAL ID Act, that § 1252(g)’s limitation of “any” cause or claim truly means “any.”
16 The Eighth and Sixth Circuits have come to the same conclusion. Silva, 866 F.3d at 941; Elgharib v. Napolitano, 600 F.3d 597, 602 (6th Cir. 2010).
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1 determination” that such statutory language is constitutional, to

2 “proceed[] to its own independent judgment on the constitutional

3 question when required to do so in a proper case.” Id.

4 II. Whether Ragbir States a Constitutional Claim

5

As discussed above, Ragbir argues that even if § 1252 bars all

6 jurisdiction over his claim, the Suspension Clause nonetheless

7 requires the availability of a petition for writ of habeas corpus. The

8 Government counters that we need not reach that serious

9 constitutional question because Ragbir fails to state a cognizable claim

10 under certain of our decisions and because of the application of the

11 Supreme Court’s holding in AADC. We thus first address whether

12 Ragbir states a claim.

13

A. Whether Our Prior Decisions Foreclose Ragbir’s Claim

14

15

To state a First Amendment retaliation claim, a plaintiff must

16 show that: “(1) he has a right protected by the First Amendment; (2)

17 the defendant’s actions were motivated or substantially caused by

33

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1 [the plaintiff’s] exercise of that right; and (3) the defendant’s actions

2 caused [the plaintiff] some injury.” Smith v. Campbell, 782 F.3d 93, 100

3 (2d Cir. 2015) (quoting Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d

4 Cir. 2013)). The Government contends that we have “long held” that

5 the existence of probable cause to arrest an individual defeats a

6 plaintiff’s First Amendment retaliation claim. Gov’t Br. at 39. And

7 so, the Government argues that, per force, Ragbir’s undisputedly valid

8 final order of removal bars his claim that Government officials sought

9 to deport him in retaliation for his speech.

10

Even if we were to accept the Government’s analogy of that

11 aspect of Fourth Amendment law to the execution of final orders of

12 removal,17 it reads our decisions too broadly. The Government relies

17 It is unclear that Fourth Amendment doctrine should be so readily applied to the circumstances here, as it has developed within the context of the particular interests served by criminal investigations. See, e.g., Virginia v. Moore, 553 U.S. 164, 173 (2008) (“[A]n arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in‐custody investigation.” (internal citations omitted)).

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1 primarily on Mozzochi v. Borden, 959 F.2d 1174, 1179–80 (2d Cir. 1992), 2 and Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995), which 3 relied on Mozzochi for its legal standard. But, in Mozzochi the question 4 presented was whether it was “clearly established that an individual’s 5 constitutional rights were violated when a criminal prosecution, 6 supported by probable cause, was initiated in an attempt to deter or 7 silence the exercise by the criminal defendant of his right to free 8 speech, but without the effect of actually deterring or silencing the 9 individual.” Mozzochi, 959 F.2d at 1179 (emphasis added). Central to 10 our decision in favor of the defendants was that, at summary 11 judgment, Mozzochi had not adduced “any evidence to support his 12 allegation that he was actually chilled in the exercise of the right to 13 free speech.” Id. at 1179–80. Thus, Mozzochi stands for the proposition 14 that “[a]n individual does not have a right under the First 15 Amendment to be free from a criminal prosecution supported by 16 probable cause that is in reality an unsuccessful attempt to deter or
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1 silence criticism of the government.” Id. at 1180. In Singer, we quoted

2 that holding from Mozzochi and affirmed the dismissal of Singer’s

3 First Amendment retaliation claim because, inter alia, he had “failed

4 to allege with sufficient particularity any actual ‘chilling’ of his

5 speech.”18, 19 Id. at 120.

6

The Government does not argue that Ragbir has made an

7 insufficient showing that his speech has been or will be suppressed,

8 and so we deem that argument waived. Nor, at any rate, do we doubt

9 that Ragbir has made the requisite showing. We thus conclude that

18 The Government also disputes Ragbir’s contention that the Supreme Court’s decision in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), has broadened the scope of potential retaliatory arrest claims that are permissible under our precedents. However, we need not reach that issue for the reasons discussed above.
19 The Government cites in passing to another of our decisions that quoted the same standard from Mozzochi, and so, it is unpersuasive for the Government’s purposes. Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). Likewise, Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990), is unhelpful to the Government. In Magnotti, we stated that it was “undisputed that retaliatory prosecution may expose a state official” to damages. Id. The plaintiff, Magnotti, claimed that charges were brought against him in retaliation for his complaints of police misconduct. Id. We held against Magnotti at summary judgment, however, because, inter alia, the only evidence he had adduced of the retaliation was “omissions made in the warrant application.” Id.

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1 the precedents cited by the Government do not foreclose Ragbir’s

2 claim.

3

B. Whether AADC Forecloses Ragbir’s claim

4

The Government also argues that the Supreme Court’s decision

5 in AADC forecloses Ragbir’s claim. In AADC, six temporary resident

6 aliens and two lawful permanent resident aliens brought a First

7 Amendment claim seeking to enjoin the Government’s initiation of

8 deportation proceedings against them. AADC, 525 U.S. at 474. The

9 six temporary residents were charged with technical immigration

10 violations such as overstaying visas, and the two resident‐alien

11 plaintiffs were charged with aiding a terrorist organization.20 Id. at

12 473–74.

13

The regional counsel of ICE’s predecessor agency, the

14 Immigration and Naturalization Service (“INS”), had stated at a press

15 conference that the INS was seeking to deport the plaintiffs because

20 The INS had also brought against all the aliens “advocacy‐of‐communism charges,” which were later dropped. AADC, 525 U.S. at 473–74.

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1 of their affiliation with the Popular Front for the Liberation of

2 Palestine (“PFLP”), a “group that the Government characterize[d] as

3 an international terrorist and communist organization.” Id. at 473.

4 The Government represented that it had evidence that the PFLP had

5 been responsible for multiple terrorist attacks around the world. Brief

6 for the Petitioners, AADC, 525 U.S. 471 (1998) No. 97‐1252, 1998 WL

7 411431 at *2–4.

8

The plaintiffs brought an action in the district court, claiming

9 that the Government’s initiation of deportation proceedings

10 impinged upon their right to associate under the First Amendment.

11 They did not wish to wait to bring their claims until a final order of

12 removal (if any) was entered against them because deportation

13 proceedings could take years, and during that time their association

14 with the PFLP would be deterred. AADC, 525 U.S. at 487–88; Brief for

15 Respondents (“Plaintiffs’ AADC Br.”), AADC, 525 U.S. 471 (1998) No.

16 97‐1252, 1998 WL 614300 at *30–37. In addition, the plaintiffs argued

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1 that their claims required factual development that could not be

2 accomplished in an administrative immigration proceeding.

3 Plaintiffs’ AADC Br. at *14–15, 20–21. The plaintiffs thus urged the

4 Supreme Court to employ the doctrine of constitutional avoidance to

5 read the pre‐REAL ID Act version of § 1252(g) as permitting

6 immediate district court review of their constitutional claims. AADC,

7 525 U.S. at 487–88.

8

The Supreme Court held that § 1252(g) permissibly deprived

9 courts of jurisdiction over the plaintiffs’ claims. Id. The Court stated

10 that “[a]s a general matter—and assuredly in the context of claims

11 such as those put forward in the present case—an alien unlawfully in

12 this country has no constitutional right to assert selective enforcement

13 as a defense against his deportation.” Id.

14

The Court also expressed concern that the plaintiffs’ claims

15 “invade[d] a special province of the Executive—its prosecutorial

16 discretion.” Id. at 489. The Court was particularly concerned about

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1 reviewing the Executive’s national‐security and foreign‐affairs

2 decisionmaking:

3

What will be involved in deportation cases is not merely

4

the disclosure of normal domestic law enforcement

5

priorities and techniques, but often the disclosure of

6

foreign‐policy objectives and (as in this case) foreign‐

7

intelligence products and techniques. The Executive

8

should not have to disclose its ‘real’ reasons for deeming

9

nationals of a particular country a special threat—or

10

indeed for simply wishing to antagonize a particular

11

foreign country by focusing on that countryʹs nationals—

12

and even if it did disclose them a court would be ill

13

equipped to determine their authenticity and utterly

14

unable to assess their adequacy.

15

16 Id. at 490‐91. The Court further stated that “the consideration on the

17 other side of the ledger in deportation cases—the interest of the target

18 in avoiding ‘selective’ treatment—is less compelling than in criminal

19 prosecutions.” Id. at 491. The Court explained:

20

While the consequences of deportation may assuredly be

21

grave, they are not imposed as a punishment. In many

22

cases (for six of the eight aliens here) deportation is

23

sought simply because the time of permitted residence in

24

this country has expired, or the activity for which

25

residence was permitted has been completed. Even

26

when deportation is sought because of some act the alien

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1

has committed, in principle the alien is not being

2

punished for that act (criminal charges may be available

3

for that separate purpose) but is merely being held to the

4

terms under which he was admitted.

5

6 Id. (internal citation omitted).

7

The Court continued, “[a]nd in all cases, deportation is

8 necessary in order to bring to an end an ongoing violation of United

9 States law. The contention that a violation must be allowed to

10 continue because it has been improperly selected is not powerfully

11 appealing.” Id. (emphasis in original).

12

Especially important for the situation that faces us, the Court

13 declined to “rule out the possibility of a rare case in which the alleged

14 basis of discrimination is so outrageous that the foregoing

15 considerations can be overcome. Whether or not there be such

16 exceptions, . . . [w]hen an alien’s continuing presence in this country

17 is in violation of the immigration laws, the Government does not

18 offend the Constitution by deporting him for the additional reason

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1 that it believes him to be a member of an organization that supports

2 terrorist activity.”21 Id. at 491–92.

3

Ragbir’s situation is very different from the one presented in

4 AADC. Although the Supreme Court did not clarify what might

5 constitute an “outrageous” basis for discrimination, AADC compels

6 courts to evaluate the gravity of the constitutional right affected; the

7 extent to which the plaintiff’s conduct or status that forms the basis

8 for the alleged discrimination is actually protected; the egregiousness

9 of the Government’s alleged conduct; and the plaintiff’s interest in

10 avoiding selective treatment, as balanced against the Government’s

11 discretionary prerogative. We address these considerations in turn

12 and conclude that Ragbir’s claim involves “outrageous” conduct.

13

14

21 See also Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (agreeing, in the context of considering a Fifth Amendment equal protection claim, that a selective prosecution based on animus could be “outrageous” under AADC).
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1

1. Ragbir’s Speech Implicates the Highest Position in the

2

Hierarchy of First Amendment Protection

3

4

First Amendment speech is preeminent among the liberties that

5 the Constitution protects. Indeed, “[i]f there is any fixed star in our

6 constitutional constellation, it is that no official, high or petty, can

7 prescribe what shall be orthodox in politics . . . or other matters of

8 opinion.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31,

9 138 S. Ct. 2448, 2463 (2018) (quoting West Va. Bd. of Educ. v. Barnette,

10 319 U.S. 624, 642 (1943)).

11

Ragbir’s speech implicates the apex of protection under the

12 First Amendment. His advocacy for reform of immigration policies

13 and practices is at the heart of current political debate among

14 American citizens and other residents. Thus, Ragbir’s speech on a

15 matter of “public concern”22 is at “the heart of . . . First Amendment[]

22 “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick, 461 U.S. at 146), “or when it ‘is a subject of legitimate news interest; that is, a subject of general interest
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1 protection,”23 and “occupies the highest rung of the hierarchy of First 2 Amendment values,’” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) 3 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983); Dun & Bradstreet, 4 Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985)). Because 5 Ragbir’s speech concerns “political change,” it is also “core political 6 speech” and thus “trenches upon an area in which the importance of 7 First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 8 414, 421–22, 425 (1988) (emphasis added and internal quotation marks 9 omitted). Indeed, his “speech critical of the exercise of the State’s 10 power lies at the very center of the First Amendment.” Gentile v. State 11 Bar of Nev., 501 U.S. 1030, 1034 (1991).
12 13
and of value and concern to the public,’” id. (quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004)). 23 See Snyder, 562 U.S. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)) (“The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide‐ open.”).
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1

2. The Government’s Alleged Retaliation Was Egregious

2

3

“It is a fundamental principle of the First Amendment that the

4 government may not punish or suppress speech based on

5 disapproval of the ideas or perspectives the speech conveys.” Matal

6 v. Tam, 137 S. Ct. 1744, 1765 (2017). “Such discriminat[ion] based on

7 viewpoint is an ‘egregious form of content discrimination,’ which is

8 ‘presumptively unconstitutional.’”24 Id. at 1766 (quoting Rosenberger

9 v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995)). The

10 Supreme Court has further described viewpoint discrimination as a

11 “blatant” “violation of the First Amendment.” Rosenberger, 515 U.S.

12 at 829.

13

Ragbir’s plausible allegations and evidence, which we must

14 accept as true at this juncture, support that the Government singled

15 him out for deportation based not only on the viewpoint of his

24 “At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.” Matal, 137 S. Ct. at 1766.

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1 political speech, but on the public attention it received. In a 2 declaration by Micah Bucey, a New York City minister, Bucey asserts 3 that ICE’s New York City Field Office Director, Scott Mechkowski, 4 stated that Ragbir and Jean Montrevil were ICE’s two most prominent 5 cases in New York City and complained that the activists’ protests 6 and comments to the press negatively portrayed ICE to the public and 7 to others in the Government. According to Bucey, Mechkowski 8 stated: “Nobody gets beat up in the news more than we do, every 9 single day. It’s all over the place, . . . how we’re the Nazi squad, we 10 have no compassion.” App’x 252. Mechkowski then stated that he 11 had heard Ragbir’s New Sanctuary cofounder Montrevil (whom ICE 12 had also just detained) “ma[ke] some very harsh statements. I’m like, 13 ‘Jean, from me to you . . . you don’t want to make matters worse by saying 14 things.” App’x 252 (emphasis added). Mechkowski then turned to 15 Ragbir specifically, stating that it “bother[ed]” him that “there isn’t 16 anybody in this entire building that doesn’t . . . know about Ravi.”
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1 App’x 253. “Everybody knows this case,” Mechkowski stated, “[n]o

2 matter where you go.” App’x 253. Ragbir’s counsel Alina Das also

3 submitted a declaration stating that she spoke with Mechkowski, who

4 expressed “resentment” about the events of the March 9, 2017 check‐

5 in and disapprovingly mentioned that he had heard Ragbir’s

6 statements to the press. App’x 55–56, 123.

7

A plausible, clear inference is drawn that Ragbir’s public

8 expression of his criticism, and its prominence, played a significant

9 role in the recent attempts to remove him. The conclusion that ICE

10 would nonetheless still be free to deport Ragbir on the basis of his

11 advocacy would certainly draw considerable media attention and

12 thus would be a particularly effective deterrent to other aliens who

13 would also challenge the agency and its immigration policies.

14 Ragbir’s allegations and evidence support that certain officials were

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1 well aware of that consequence. 25 To allow this retaliatory conduct

2 to proceed would broadly chill protected speech, among not only

3 activists subject to final orders of deportation but also those citizens

4 and other residents who would fear retaliation against others. In

5 short, the Government’s alleged conduct plausibly fits within the

6 “outrageous[ness]” exception to AADC.

7

3. The Alien’s Interest in Avoiding Selective Deportation

8

The Supreme Court stated in AADC that, “[w]hile the

9 consequences of deportation may assuredly be grave, they are not

10 imposed as a punishment.” AADC, 525 U.S. at 491. That premise

11 supported the Supreme Court’s conclusion that, by comparison to

12 those detained for crimes (who may bring selective‐enforcement

13 claims in certain limited circumstances), the AADC aliens had a

14 diminished liberty interest in preventing their deportation. Id.

25 It is unclear whether Ragbir plausibly states a claim against all the named Defendants. However, neither party has briefed that issue, and so we decline to address it.
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1 However, after AADC, the Supreme Court reiterated in Padilla v.

2 Kentucky, 559 U.S. 356 (2010), its longstanding recognition that

3 deportation is indeed a punishment for lawful permanent residents

4 who, like Ragbir, are rendered removable because of a criminal

5 conviction:

6

We have long recognized that deportation is a

7

particularly severe “penalty,” Fong Yue Ting v. United

8

States, 149 U.S. 698, 740 (1893); but it is not, in a strict

9

sense, a criminal sanction. Although removal

10

proceedings are civil in nature, deportation is

11

nevertheless intimately related to the criminal process.

12

Our law has enmeshed criminal convictions and the

13

penalty of deportation for nearly a century. And,

14

importantly, recent changes in our immigration law have

15

made removal nearly an automatic result for a broad

16

class of noncitizen offenders. Thus, we find it “most

17

difficult” to divorce the penalty from the conviction in

18

the deportation context. United States v. Russell, 686 F.2d

19

35, 38 (C.A.D.C. 1982). Moreover, we are quite confident

20

that noncitizen defendants facing a risk of deportation

21

for a particular offense find it even more difficult.

22

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1 Id. at 365–66 (some internal citations omitted).26 The premise that

2 deportation of lawful permanent residents convicted of crimes is

3 punitive was important to the Court’s holding in Padilla: deportation

4 of the petitioner was so “close[ly] connect[ed]” to the criminal process

5 that the analysis that applies to claims of ineffective assistance of

6 counsel applied to his claim. Id. at 366. Thus, Padilla supports that

7 Ragbir has a substantial interest in avoiding deportation based on his

8 speech.

9

4. The Government’s Discretionary Prerogative

10

11

Finally, the Government’s interest in having unchallenged

12 discretion to deport Ragbir is also less substantial than in AADC.

13 First, as discussed above, national‐security and foreign‐policy

14 concerns about terrorism were primary in AADC, and the Court

26 See also Bridges v. Wixon, 326 U.S. 135, 147 (1945) (“[I]t must be remembered that although deportation technically is not criminal punishment, it may nevertheless visit as great a hardship as the deprivation of the right to pursue a vocation or a calling.”) (internal citations omitted); Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977) (“Deportation is a sanction which . . . surpasses all but the most Draconian criminal penalties.”).
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1 expressed misgivings that a court proceeding allowing inquiry into

2 the “real reasons” why the Government sought to deport the PFLP

3 supporters would compromise intelligence sources and foreign

4 relations. AADC, 525 U.S. at 491. The Government makes no such

5 argument in this case. Here, the plaintiff’s plausible allegation is that

6 the Government undertook the deportation to silence criticism of the

7 responsible agency.

8

We recognize that in AADC the Supreme Court observed, “[I]n

9 all cases, deportation is necessary . . . to bring to an end an ongoing

10 violation of United States law.” Id. (emphasis removed). That was

11 certainly correct with respect to aliens who have entered the country

12 illegally or have overstayed their visas. However, the circumstance

13 is different for a former lawful permanent resident, such as Ragbir,

14 who has become “deportable.” See 8 U.S.C. § 1227(a)(2)(A)(iii). While

15 such a person is subject to removal at any time, his presence in the

16 United States while awaiting deportation violates no law. He is under

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1 no legal obligation to depart prior to deportation. And, the law 2 imposes no criminal or civil penalties on that person for failing to 3 leave. See Gerard L. Neuman, Terrorism, Selective Deportation and 4 the First Amendment After Reno v. AADC, 14 Geo. Immigr. L.J. 313, 5 342 (2000) (“Permanent residents who become deportable are not 6 engaged in an ongoing violation of United States law. The INA . . . 7 creates no obligations for the aliens to depart without being asked, 8 and imposes no other sanction on permanent residents for becoming 9 deportable. If the [Government] do[es] not . . . seek deportation, then 10 the alien is committing no wrong by continuing residence in the 11 United States.”). Indeed, in Ragbir’s case, his continued presence 12 after his removal order became final was expressly sanctioned by 13 successive stay orders and work permits. Thus, while it is 14 indisputable that the Government retains an interest in enforcing the 15 immigration laws by removing a deportable person, Ragbir’s 16 continued presence until deported has not violated any U.S. law. The
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1 Government’s interest in deporting him is lower than in the case of

2 an alien whose presence is illegal and in the cases of aliens who, as in

3 AADC, pose a threat to safety and security.

4

* * *

5

We acknowledge that judicial review of deportation

6 proceedings has produced concern about the Executive’s prerogative

7 to execute immigration law. The Government’s argument that a

8 holding in Ragbir’s favor would open the flood gates of litigation

9 deserves significant consideration. Accordingly, we do not delineate

10 the boundaries of what constitutes an “outrageous” claim within the

11 meaning of AADC. It suffices to say that, here, Ragbir’s speech

12 implicates the highest protection of the First Amendment, he has

13 adduced plausible—indeed, strong—evidence that officials

14 responsible for the decision to deport him did so based on their

15 disfavor of Ragbir’s speech (and its prominence), Ragbir has a

16 substantial interest in avoiding deportation under these

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1 circumstances, and the Government’s interests in avoiding any

2 inquiry into its conduct are less pronounced than in AADC. In these

3 circumstances, the basis for the alleged discrimination against Ragbir

4 qualifies as “outrageous” under AADC.

5 III. Whether Ragbir is Entitled to the Privilege of the Writ of

6

Habeas Corpus

7

8

Because Ragbir states a cognizable claim but, through its

9 adoption of § 1252(g), Congress foreclosed all grants of jurisdiction,

10 we must decide whether the Suspension Clause nonetheless entitles

11 Ragbir to the constitutionally mandated minimum scope of the

12 privilege of the writ of habeas corpus. The Suspension Clause of the

13 Constitution states, “The Privilege of the Writ of Habeas Corpus shall

14 not be suspended, unless when in Cases of Rebellion or Invasion the

15 public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. “At its

16 historical core, the writ of habeas corpus has served as a means of

17 reviewing the legality of Executive detention, and it is in that context

18 that its protections have been strongest.” St. Cyr, 533 U.S. at 301.

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1 These protections extend fully to aliens subject to an order of removal.

2 Id.; see also Gerard L. Neuman, Habeas Corpus, Executive Detention,

3 and the Removal of Aliens, 98 Colum. L. Rev. 961, 1044 (1998)

4 (“[H]istorical precedents beginning shortly after 1787 and reaching to

5 the present confirm the applicability of the writ of habeas corpus to

6 the detention involved in the physical removal of aliens from the

7 United States. These precedents include opinions . . . denying the

8 power of Congress to eliminate judicial inquiry.”).

9

Thus, except in periods of “formal suspension” of the writ,

10 alien petitioners in “Executive custody,” Boumediene, 553 U.S. at 745,

11 must either be given access to an “adequate substitute” to the writ

12 (such as a petition for review), see St. Cyr, 533 U.S. at 305, or the writ

13 itself, so as “to maintain the ‘delicate balance of governance’ that is

14 itself the surest safeguard of liberty,” Boumediene, 553 U.S. at 745

15 (quoting Hamdi, 542 U.S. at 536 (plurality opinion)).

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1

The Suspension Clause does not require the availability of the

2 writ as codified under section 2241, or any other statute, per se.

3 Rather, the Suspension Clause protects the constitutional “minimum”

4 scope of the writ, upon which Congress may expand through statute.

5 See Boumediene, 553 U.S. at 746; St. Cyr, 533 U.S. at 301. As to what

6 that “minimum” entails, “[t]he [Supreme] Court has been careful not

7 to foreclose the possibility that the protections of the Suspension

8 Clause have expanded along with post–1789 developments that

9 define the present scope of the writ.” Boumediene, 553 U.S. at 746

10 (citing St. Cyr, 533 U.S. at 300–01). “But the analysis” of the minimum

11 scope of the writ protected by the Suspension Clause “may begin with

12 precedents as of 1789, . . . when the Constitution was drafted and

13 ratified.” Id.

14

The Government does not contest these basic premises, nor do

15 the parties dispute that Ragbir has no “adequate substitute” for a

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1 habeas petition.27 Rather, the Government argues that Ragbir is not

2 entitled to the constitutional minimum scope of the writ because, in

3 its view: 1) Ragbir does not seek release from custody since he does

4 not challenge his final order of removal; and 2) Ragbir is not in the

5 Government’s custody at all.

6

In addition, the Government suggests in passing that Ragbir is

7 not entitled to the constitutional minimum scope of habeas review

8 because the merits issues in this case are not purely legal, but rather

9 require factfinding. Although we might normally deem that issue

27 In a Federal Rule of Appellate Procedure 28(j) letter, the Government brings to our attention the Sixth Circuit’s recent decision in Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018). In Hamama, the Sixth Circuit concluded that § 1252(g) divested the district courts of subject matter jurisdiction over the claims of the plaintiff Iraqi nationals, who sought stays of their removal, but that the plaintiffs had available an “adequate alternative” to habeas relief in the form of a “motion to reopen followed by a petition for review.” Id. at 876. As discussed above, the Government did not dispute in its response brief (in this appeal) Ragbir’s contention that no “adequate substitute” to a habeas proceeding was available to him. By contrast to Hamama, and as we discussed earlier in this opinion, see supra n. 10 and accompanying text, Ragbir’s constitutional claims arose only after his removal order became final and after he had taken full advantage of the review process prescribed by statute, including filing a petition for review and the one motion to reopen to which he was entitled. We thus conclude that the “adequate substitute” that the Hamama court found present in that case is not available to Ragbir.
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1 waived for failure to develop it, we consider the issue because it bears

2 on the district court’s authority and means to adjudicate Ragbir’s

3 habeas petition.

4

A. Habeas Relief Would Alter Ragbir’s Situation

5

6

The Government argues that Ragbir is not entitled to the writ

7 because he does not challenge his final order of removal, and so, it

8 contends, the writ would leave him “in precisely the same position as

9 he is now.” Gov’t Br. at 44–45. That is incorrect; the Government

10 assumes that a habeas court’s only option would be to invalidate

11 Ragbir’s final order of removal, but habeas relief would of course

12 prevent the Government from deporting him for its duration. And

13 courts are “invested with the largest power to control and direct the

14 form of judgment to be entered in cases brought up before [them] on

15 habeas corpus.’” U.S. ex rel. DʹAmico v. Bishopp, 286 F.2d 320, 322 (2d

16 Cir. 1961) (quoting In re Bonner, 151 U.S. 242, 261 (1894)); see Harris v.

17 Nelson, 394 U.S. 286, 290–92 (1969) (“The very nature of the writ

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1 demands that it be administered with the initiative and flexibility

2 essential to insure that miscarriages of justice within its reach are

3 surfaced and corrected.”). Thus, a habeas court has the authority to

4 grant relief that would alter Ragbir’s situation.

5

B. Ragbir is in Executive Custody

6

We also disagree with the Government’s argument that Ragbir

7 is not in custody. The “custody requirement” of habeas corpus “is

8 designed to preserve the writ of habeas corpus as a remedy for severe

9 restraints on individual liberty. . . . [I]ts use has been limited to cases

10 of special urgency” that are “severe” and “immediate.”28 Hensley v.

11 Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973). In

12 Hensley, the Supreme Court held that an individual released on his

28 The Supreme Court has stated that 8 U.S.C. § 2241 incorporates the common‐law habeas requirement that the petitioner be in “custody” and “does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situations in which the writ can be used.” Jones v. Cunningham, 371 U.S. 236, 238 (1963). And so, for purposes of determining the constitutional meaning of the custody requirement, we look to the common law and to authority interpreting § 2241.

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1 own recognizance from state detention remained in the state’s

2 custody. Id. The Court noted that it had “consistently rejected

3 interpretations of the habeas corpus statute that would suffocate the

4 writ in stifling formalisms or hobble its effectiveness with the

5 manacles of arcane and scholastic procedural requirements. . . . That

6 same theme has indelibly marked our construction of the . . . custody

7 requirement.” Id. at 350.

8

Two primary considerations drove the Court’s conclusion in

9 Hensley. First, the petitioner was “subject to restraints not shared by

10 the public generally” because “[h]is freedom of movement rest[ed]

11 in the hands of state judicial officers, who may demand his presence

12 at any time and without a momentʹs notice.” Id. at 351 (quoting Jones

13 v. Cunningham, 371 U.S. 236, 240 (1963)) (internal quotation marks

14 omitted). Second, the petitioner “remain[ed] at large only by the

15 grace of a stay entered first by the state trial court and then extended

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1 by two Justices of [the Supreme] Court.” Id. The Court went on to

2 explain:

3

The State has emphatically indicated its determination to

4

put him behind bars, and the State has taken every

5

possible step to secure that result. His incarceration is

6

not, in other words, a speculative possibility that

7

depends on a number of contingencies over which he has

8

no control. This is not a case where the unfolding of

9

events may render the entire controversy academic. The

10

petitioner has been forced to fend off the state authorities

11

by means of a stay, and those authorities retain the

12

determination and the power to seize him as soon as the

13

obstacle of the stay is removed. The need to keep the stay

14

in force is itself an unusual and substantial impairment

15

of his liberty.

16

17 Id. at 351–52.

18

19

The Court rejected the Government’s argument that habeas

20 relief would be available only when the Government again physically

21 detained the individual. “[W]e would badly serve the purposes and

22 the history of the writ,” the Court stated, “to hold that under these

23 circumstances the petitionerʹs failure to spend even 10 minutes in

24 jail is enough to deprive the District Court of power to hear his

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1 constitutional claim.” Id. at 353. In the same term it decided Hensley,

2 the Court stated even more directly that “the writ is available . . . to

3 attack future confinement and obtain future releases.” Preiser v.

4 Rodriguez, 411 U.S. 475, 487 (1973).

5

The similarity of Ragbir’s situation to that of the petitioner in

6 Hensley is clear. If Ragbir were currently in the Government’s

7 physical confinement or had already been deported, that Ragbir

8 would be in custody is obvious.29 But that he has not been deported

9 is not for a lack of effort on the part of the Government, which

10 detained Ragbir without notice in January 2018 and sent him to

11 Florida, where he was detained for weeks in anticipation of deporting

29 As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239–40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted).

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1 him. Much like in Hensley, that process was stopped only because

2 Ragbir was released by a writ of habeas corpus issued by the district

3 court in January 2018 (after which the Government told Ragbir to

4 report again on February 10, 2018). Also like in Hensley, Ragbir must

5 continue to report for ICE check‐ins, and he remains in this country

6 primarily due to judicial stays of removal, including the one entered

7 by this Court. Moreover, the Government opposed a stay of removal

8 in the district court pending this appeal, and at oral argument, the

9 Government could not represent to this Court that—absent a stay

10 entered by this Court and the stay previously entered in the District

11 of New Jersey—ICE would not deport Ragbir pending resolution of

12 this appeal.

13

Thus, that Ragbir faces imminent deportation, which

14 necessarily involves a period of detention—and that he must comply,

15 absent judicial intervention, with the Government’s orders “at any

16 time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not

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1 in question. That effects a present, substantial curtailment of Ragbir’s 2 liberty. See id. We also cannot be confident that, if we were to wait 3 for the Government to again detain Ragbir, he would have access to 4 judicial oversight prior to being removed from the country. We thus 5 reject employing a “stifling formalism,” id. at 350, that would deny 6 Ragbir a hearing of his claim in a habeas proceeding on the basis that 7 he is not in Government custody, when the imminent, severe 8 curtailment of his liberty is so obvious, see Simmonds v. I.N.S., 326 F.3d 9 351, 354 (2d Cir. 2003) (concluding that alien subject to final order of 10 removal was in federal immigration officials’ custody and that if he 11 were currently “ordered removed [but] not incarcerated,” rather than 12 “being held in state prison, th[at] conclusion would [have been] a 13 simple one” (emphasis added)). 30
30 The Government contends that certain of our decisions require that Ragbir must be challenging his final order of removal in order to be in the custody of immigration officials. Not so; the cited decisions merely addressed variations of facts like those presented in Simmonds, in which the alien petitioner was currently being held in state detention yet argued he was also in federal government custody. In Duamutef v. I.N.S., 386 F.3d 172 (2d Cir. 2004), the petitioner did not challenge the legality of his state detention, but sought a writ of habeas corpus to compel the
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1

C. Common‐Law Habeas Courts Had Factfinding Authority

2

The constitutionally minimum scope of habeas review also

3 includes petitions that require factfinding. In St. Cyr, the Supreme

4 Court concluded that the scope includes pure questions of law:

5 “[E]ven assuming that the Suspension Clause protects only the writ

6 as it existed in 1789, there is substantial evidence to support the

7 proposition that pure questions of law like the one raised by the

8 respondent in th[at] case could have been answered in 1789 by a

9 common‐law judge with power to issue the writ of habeas corpus.”

10 St. Cyr, 553 U.S. at 304–05. Ragbir’s claims do not involve “pure

11 question[s] of law” but rather require the adjudication of contested

federal government to hasten his deportation. 386 F.3d at 178. We ultimately did not decide whether the petitioner was in federal immigration custody. Id. at 178‐ 79. And, in Ogunwomoju v. United States, 512 F.3d 69 (2d Cir. 2008), we decided that a petitioner in immigration detention or under an order of removal as a consequence of a state conviction was not in custody for purposes of challenging his state conviction under 28 U.S.C. § 2254. 512 F.3d at 70. Here, Ragbir challenges only federal immigration officials’ conduct and is undisputedly not in state custody.

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1 facts, and so, we consider whether there is “substantial evidence” to

2 support that a common‐law court in 1789 would have had the

3 authority to issue the writ in such a case. See id.

4

The Supreme Court touched on this issue in St. Cyr: “At

5 common law, ‘[w]hile habeas review of a court judgment was limited

6 to the issue of the sentencing courtʹs jurisdictional competency, an

7 attack on an executive order could raise all issues relating to the

8 legality of the detention.’” Id. at 301 n.14 (citing Note, Developments

9 in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1238

10 (1970)). And although “the early practice was not consistent,” habeas

11 courts sometimes “permitted factual inquiries when,” as here, “no

12 other opportunity [existed] for judicial review” of the petitioner’s

13 claim. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus

14 Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L.

15 Rev. 2029, 2102 (2007).31 That is not surprising because “common‐law

31 Other scholars have also noted that eighteenth‐century habeas courts had authority to engage in factual inquiries, although they did so less often than they

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1 habeas corpus was, above all, an adaptable remedy. Its precise

2 application and scope changed depending upon the circumstances.”

3 Boumediene, 553 U.S. at 779–80 (discussing circumstances in which

4 “the black‐letter rule that prisoners could not controvert facts in the

5 jailer’s return was not followed”) (citing, inter alia, Fallon & Meltzer,

6 120 Harv. L. Rev. at 2102; Cunningham, 371 U.S. at 243 (stating that

7 habeas is not “a static, narrow, formalistic remedy; its scope has

8 grown to achieve its grand purpose”)).

9

Moreover, in 1867, the federal courts were expressly vested

10 with factfinding authority in habeas proceedings by the Habeas

11 Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385. Of course, this is not

12 definitive evidence of the scope of the writ in 1789, but it further

13 supports that habeas courts in the early republic exercised factfinding

reviewed pure questions of law. See, e.g., Neuman, 98 Colum. L. Rev. at 986. (“One of the maxims of eighteenth‐century habeas corpus practice had been that . . . the facts [the custodian] alleged as justifying the detention were to be taken as true,” but this “papered over exceptions [and] . . . was also qualified by a willingness to let the prisoner allege additional facts.”).
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1 authority. The Act provided that the “petitioner may deny any of the
2 material facts set forth in the [custodian’s] return, or may allege any
3 fact to show that the detention is in contravention of the constitution
4 or laws of the United States,” and it required the habeas court to
5 “proceed in a summary way to determine the facts of the case, by
6 hearing testimony and the arguments of the parties interested . . . .”
7 Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385.32
32 Factfinding provisions for federal habeas proceedings are currently set forth in 28 U.S.C. § 2243, which employs substantially similar language to that first codified in 1867; the petitioner “may, under oath, deny any of the facts set forth in the return or allege any other material facts.” § 2243. “The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” Id. As such, “[p]etitioners in habeas corpus proceedings . . . are [presently] entitled to careful consideration and plenary processing of their claims including full opportunity for presentation of the relevant facts.” Harris, 394 U.S. at 298–301. See Wingo v. Wedding, 418 U.S. 461, 468–70 (1974) (“More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, . . . Congress has expressly vested plenary power in the federal courts ‘for taking testimony and trying the facts anew in habeas hearings’”) (internal citation omitted); Sigler v. Parker, 396 U.S. 482, 487 n.* (1970) (Douglas J. dissenting) (stating that § 2243 provides no right to jury trial but permits the use of an advisory jury under certain circumstances); U.S. ex rel. Mitchell v. Follette, 358 F.2d 922, 928 (2d Cir. 1966) (stating that a habeas judge “may direct a hearing to determine the facts before handing down a final disposition”).
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1

In the end, we cannot rely “upon the assumption that the

2 historical record is complete and that the common law, if properly

3 understood, yields a definite answer to the questions before us.”

4 Boumediene, 553 U.S. at 752 (citing Paul D. Halliday & G. Edward

5 White, The Suspension Clause: English Text, Imperial Contexts, and

6 American Implications, 94 Va. L. Rev. 575, 588–93 (2008) (noting that

7 most reports of 18th‐century habeas proceedings were not printed));

8 see Fallon & Meltzer, 120 Harv. L. Rev. at 2096 (“[E]fforts to

9 reconstruct historical practice with respect to most kinds of habeas

10 proceedings founder quickly, for surviving records are fragmentary

11 and practices were not consistent and shifted over time.”). In that

12 light, “substantial evidence” supports that a common‐law habeas

13 judge “could have” adjudicated a claim involving disputed issues of

14 fact in 1789.33 See St. Cyr, 533 U.S. at 304–305.

33 We take care to emphasize that this not a case in which the Executive or another court has already adjudicated any facts regarding Ragbir’s present claim, and so the district court here is not called upon to question the Executive’s duly obtained factual findings. “[T]he necessary scope of habeas review in part depends upon

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1

* * *

2

The constitutionally required scope of the privilege of the writ

3 of habeas corpus encompasses Ragbir’s claim. Because Congress has

4 provided no “adequate substitute” and because there has been no

5 formal suspension of the writ, Boumediene, 553 U.S. at 771–72, Ragbir

6 is entitled to a habeas corpus proceeding as to the basis for the

7 Government’s impending action to deport him.

8 IV. Summary and Considerations on Remand

9

We hold that the district court improperly dismissed Ragbir’s

10 claim for lack of subject matter jurisdiction. Because that conclusion

the rigor of any early proceedings.” Boumediene, 553 U.S. at 781; see Heikkila v. Barber, 345 U.S. 229, 235–36 (1953) (discussing that the constitutional ambit of habeas review has always entailed extensive deference to administrative factfinding, subject to “the enforcement of due process requirements”); Gerard L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1968 (2000) (“[Habeas] [r]eview of [executive] fact‐finding can ordinarily be precluded, [although] courts do enforce a due process requirement that factual determinations be supported by ‘some evidence.’”). Moreover, in any event, the Government, in opposing the availability of habeas review, does not argue that the declarations of certain officials submitted to the district court must be accepted as true (or even given deference).
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1 was the basis for the district court’s order denying Ragbir’s motion

2 for a preliminary injunction, we vacate that order and remand to the

3 district court.

4

We note that, while Ragbir states a claim in his complaint and

5 attachments, it does not necessarily follow that even if he proves that

6 the officials sought to remove him as a result of his First Amendment

7 speech, he may never be removed. But, at least for the near future,

8 the taint of the unconstitutional conduct could preclude removal.

9 That “near future” could be the end of a typical two‐year stay

10 extension that Ragbir would plausibly have otherwise received

11 through January 2020, or some other period. 34 We leave that

34 Ragbir’s plausible allegations support that, in the past, he was never denied a stay application, the shortest stay he received was approximately one year, and several of them, including the two most recent, were for two years. App’x 51. If he had received a two year administrative stay in January 2018, that would have lasted through January 2020. Judge Walker argues in dissent that it is implausible, in light of DHS’s 2017 policy statement that “criminal aliens are a priority for removal,” that Ragbir would have received another stay absent any retaliatory conduct by the Government. We observe, however, that Ragbir’s past stay applications were approved even though the then‐operative DHS policies stated, even more emphatically, that aliens convicted of aggravated felonies are categorized as the highest enforcement priority. Compare Memorandum from Jeh

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1 determination to the district court on remand. However, accepting

2 as true the record currently before us, it is plausible that—absent the

3 Government’s alleged retaliation in January 2018—Ragbir would not

4 yet have been deported, and likely not until at least January 2020.

5

Our order of November 1, 2018, staying Ragbir’s removal shall

6 remain in force until our mandate issues. We direct the district court

7 to enter a stay of Ragbir’s removal following the issuance of our

8 mandate, to continue at least until such time that the district court has

Charles Johnson, Sec’y of Dep’t of Homeland Sec., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) at 3 (classifying as “Priority 1,” the “highest priority to which enforcement resources should be directed,” “aliens convicted of an offense classified as a felony in the convicting jurisdiction,” as well as “aliens convicted of an ‘aggravated felony’” as defined in section 101(a)(43) of the INA); Memorandum from John Morton, Director, U.S. Immigrations & Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011) at 1–2 (classifying as “Priority 1” “aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders,” and further prioritizing as “Level 1 offenders” “aliens convicted of ‘aggravated felonies’”) with Memorandum from John Kelly, Sec’y of Homeland Sec., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017) at 3 (“criminal aliens are a priority for removal”). Moreover, even in the absence of a stay, Ragbir was allowed to remain in the country under a final order of removal from 2008 until 2011. Thus, it is plausible that—absent the Government’s retaliation in January 2018—Ragbir would not have been deported until at least January 2020, and so habeas release delaying his deportation would remedy the ongoing effect of that retaliation.

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1 reconsidered, consistently with this opinion, whether a stay should

2 remain in place through adjudication of the motion for a temporary

3 injunction or the merits of the case.

4

CONCLUSION

5

For the foregoing reasons, we VACATE the district court’s

6 order denying Plaintiffs‐Appellants’ motion for preliminary

7 injunction and dismissing certain claims, and REMAND to the

8 district court for proceedings not inconsistent with this opinion.

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United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: April 25, 2019 Docket #: 18-1597cv Short Title: Ragbir v. Homan

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 18-cv-1159 DC Court: SDNY (NEW YORK CITY) DC Judge: Castel

BILL OF COSTS INSTRUCTIONS

The requirements for filing a bill of costs are set forth in FRAP 39. A form for filing a bill of costs is on the Court's website.
The bill of costs must: * be filed within 14 days after the entry of judgment; * be verified; * be served on all adversaries; * not include charges for postage, delivery, service, overtime and the filers edits; * identify the number of copies which comprise the printer's unit; * include the printer's bills, which must state the minimum charge per printer's unit for a page, a cover, foot lines by the line, and an index and table of cases by the page; * state only the number of necessary copies inserted in enclosed form; * state actual costs at rates not higher than those generally charged for printing services in New York, New York; excessive charges are subject to reduction; * be filed via CM/ECF or if counsel is exempted with the original and two copies.

Case 18-1597, Document 183-3, 04/25/2019, 2547963, Page1 of 1

United States Court of Appeals for the Second Circuit Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007

ROBERT A. KATZMANN
CHIEF JUDGE
Date: April 25, 2019 Docket #: 18-1597cv Short Title: Ragbir v. Homan

CATHERINE O'HAGAN WOLFE
CLERK OF COURT
DC Docket #: 18-cv-1159 DC Court: SDNY (NEW YORK CITY) DC Judge: Castel

VERIFIED ITEMIZED BILL OF COSTS

Counsel for _________________________________________________________________________
respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to prepare an itemized statement of costs taxed against the ________________________________________________________________
and in favor of _________________________________________________________________________
for insertion in the mandate.
Docketing Fee _____________________
Costs of printing appendix (necessary copies ______________ ) _____________________
Costs of printing brief (necessary copies ______________ ____) _____________________
Costs of printing reply brief (necessary copies ______________ ) _____________________

(VERIFICATION HERE)

________________________ Signature

 
 Pham v. Ragbir, --- S.Ct. ---- (2020) 20 Cal. Daily Op. Serv. 10,303, 2020 Daily Journal D.A.R. 10,848

2020 WL 5882107 Supreme Court of the United States.
Tony H. PHAM, Senior Official Performing the Duties of the Director of U.S. Immigration and
Customs Enforcement, et al., Petitioners, v.
Ravidath Lawrence RAGBIR, et al.
No. 19-1046. |
October 5, 2020
Case below, 923 F.3d 53.
Opinion

*1 On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Department of Homeland Security v. Thuraissigiam, 591 U.S. ––––, 140 S.Ct. 1959, 207 L.Ed.2d 427 (2020).
All Citations
--- S.Ct. ----, 2020 WL 5882107 (Mem), 20 Cal. Daily Op. Serv. 10,303, 2020 Daily Journal D.A.R. 10,848

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