18

‐ 1597

Ragbir v. Homan



## In the 1 

# United States Court of Appeals

2



## For the Second Circuit 3

4

5

August Term, 2018 6

No. 18

‐ 1597 7

8

R AVIDATH L AWRENCE R AGBIR

, N EW S ANCTUARY C OALITION OF N EW 9

Y ORK C ITY

, CASA DE M ARYLAND

, I NC

., D ETENTION W ATCH 10

N ETWORK

, N ATIONAL I MMIGRATION P ROJECT OF THE N ATIONAL 11

L AWYERS G UILD

, N EW Y ORK I MMIGRATION C OALITION

, 12

Plaintiffs

‐ Appellants

, 13

14

v. 15

16

T HOMAS D. H OMAN

, in his official capacity as Deputy Director and 17

Senior Official Performing the duties of the Director of U.S. 18

Immigration and Customs Enforcement, T HOMAS D ECKER

, in his 19

official capacity as New York Field Office Director for U.S. 20

Immigration and Customs Enforcement, S COTT M ECHKOWSKI

, in his 21

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

Immigration and Customs Enforcement, U NITED S TATES 23

I MMIGRATION AND C USTOMS E NFORCEMENT

, K EVIN K. M C A LEENAN

, 24

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

U NITED S TATES D EPARTMENT OF H OMELAND S ECURITY

, W ILLIAM P. 26

B ARR

, in his official capacity as Attorney General of the United 27

States, U NITED S TATES D EPARTMENT OF J USTICE

, 28

Defendants

‐ Appellees. 29

30

312 Appeal from the United States District Court 1

for the Southern District of New York. 2

No. 18

‐ cv

‐ 1159

— P. Kevin Castel, Judge

. 3

4

5

A RGUED : O CTOBER 29, 2018 6

D ECIDED : A PRIL 25, 2019 7

8

Before: W ALKER

, L EVAL

, and D RONEY

, Circuit Judges

. 9

10

11

Ravidath Ragbir, an alien subject to a final order of removal, 12

together with several immigration

‐ policy advocacy organizations, 13

appeals from an interlocutory order of the United States District 14

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

motion for a preliminary injunction and dismissing certain of their 16

claims. Plaintiffs

‐ Appellants sought to enjoin Ragbir’s imminent 17

deportation on the basis of evidence that Government officials 18

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

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

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

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

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

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

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

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

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

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

to the district court for further proceedings consistent with this 29

opinion. 30

31

Judge W ALKER dissents in a separate opinion. 323 1

2

R OBERT S TANTON J ONES

, Arnold & 3

Porter Kaye Scholer LLP, 4

Washington, DC (William C. Perdue, 5

Sally L. Pei, Andrew T. Tutt, Arnold 6

& Porter Kaye Scholer LLP, 7

Washington, DC; Emily Newhouse 8

Dillingham, Arnold & Porter Kaye 9

Scholer LLP, Chicago, IL; Ada Añon, 10

Arnold & Porter Kaye Scholer LLP, 11

New York, NY; Alina Das, Jessica 12

Rofé, Washington Square Legal 13

Services, Inc., New York, NY, on the 14

brief ) for Plaintiffs

‐ Appellants. 15

16

S TEVEN J. K OCHEVAR

, A SSISTANT 17

U NITED S TATES A TTORNEY (Benjamin 18

H. Torrance, Assistant United States 19

Attorney, on the brief ), for G EOFFREY S. 20

B ERMAN

, United States Attorney for 21

the Southern District of New York, for 22

Defendants

‐ Appellees. 23

24

D RONEY

, Circuit Judge : 25

The principal question presented in this appeal is whether 26

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

presented a legally recognizable claim to enjoin the Government from 284 deporting him on the basis of his public speech that was critical of the 1

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

question is whether Congress has deprived courts of jurisdiction to 3

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

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

writ of habeas corpus be available to Ragbir. 6

Ragbir, together with the New Sanctuary Coalition of New 7

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

National Immigration Project of the National Lawyers Guild, and 9

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

from an interlocutory order of the district court denying Plaintiffs

‐ 11

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.”).5 Appellants’ motion for a preliminary injunction and dismissing his 1

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

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

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

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

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

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

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

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

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

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

of jurisdiction over that claim. 12

We conclude that Ragbir states a cognizable constitutional 13

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

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

nonetheless requires that Ragbir may bring his challenge through the 166 writ of habeas corpus. Accordingly, we vacate the district court’s 1

order and remand the case. 2

FACTUAL AND PROCEDURAL BACKGROUND 3

Because the district court dismissed Ragbir’s claim (and 4

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

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

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

this appeal.” 3 Filartiga v. Pena

‐ Irala

, 630 F.2d 876, 878 (2d Cir. 1980); 8

see J.S. ex rel. N.S. v. Attica Cent. Sch.

, 386 F.3d 107, 110 (2d Cir. 2004) 9

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

pleadings to resolve

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

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

also F.T.C. v. Dean Foods Co

., 384 U.S. 597, 601 (1966) (“ Since the case 13

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

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).7 the allegations of the Commission ʹ s application for a preliminary 1

injunction as true.”). 2

I. Ragbir’s Immigration Status 3

Ragbir, a native and citizen of Trinidad and Tobago, lives in 4

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

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

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

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

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

imprisonment. See generally United States v. Ragbir

, 38 F. App’x 788 10

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

Court of Appeals for the Third Circuit. 4 Id

. 12

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 district8 After Ragbir served his sentence for his wire fraud convictions, 1

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

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

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

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

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

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

Ragbir’s petition for review of the BIA decision in 2010. 5 Ragbir v. 8

Holder

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

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

review of that decision in 2016. Ragbir v. Lynch

, 640 F. App’x 105 (2d 11

Cir. 2016). 12

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.9 ICE released Ragbir from its detention in February 2008, having 1

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

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

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

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

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

and 2016. 7 The shortest of those stays was for approximately one 7

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 the10 year, while the two most recent stays were for approximately two 1

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

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

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

II. Ragbir’s Speech 5

After his release from immigration detention in 2008, Ragbir 6

became an outspoken activist on immigration issues, including 7

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

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

court dates and ICE check

‐ in appointments. Ragbir maintained a 10

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

immigration courts in Manhattan, including leading weekly prayer 12

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

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

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

applicant sponsor or counsel, “community ties,” and “[a]greement to reasonable

conditions (such as periodic reporting of whereabouts).” § 212.5(d)(1)

‐ (3).11 Island and the New York State Association of Black and Puerto Rican 1

Legislators. App’x 49. 2

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

‐ in 3

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

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

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

Members. At the check

‐ in, ICE New York Field Office Director 7

Thomas Decker confronted Ragbir and attempted to send away the 8

individuals who had accompanied him. This confrontation garnered 9

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

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

‐ 11

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

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.villagevoic e.com/2017/03/10/behind

‐ ices

‐ closed

‐ doors

‐ the

‐ most

‐ un

‐

american

‐ thing

‐ ive

‐ seen/.12 III. The Government’s Alleged Retaliation 1

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

‐ in, 2

including his public statements and the media coverage they 3

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

after that check

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

scheduled to have his next scheduled administrative check

‐ in, ICE 6

arrested Jean Montrevil, one of the co

‐ founders of Ragbir’s New 7

Sanctuary organization, and deported him six days later. 8

On January 5, 2018, Micah Bucey, a minister in New York City, 9

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

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

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

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

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

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

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

. . . how 1613 we’re the Nazi squad, we have no compassion.” Mechkowski then 1

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

statements.

. . . I’m like, ‘Jean, from me to you

. . . you don’t want to 3

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

Unprompted, Mechkowski then brought up Ragbir, stating, “I 5

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

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

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

in this entire building that doesn’t

. . . know about Ravi. Everybody 9

knows this case. No matter where you go

. . . .” App’x 253. 10

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

two most high

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

Shortly thereafter, on January 8, 2018—three days before 13

Ragbir was scheduled to appear for his next ICE check

‐ in—Ragbir’s 14

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

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

‐ in, that he 1614 had heard Ragbir’s statements to the press, and that he continued to 1

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

55–56, 123. 3

On January 10, 2018, Ragbir’s counsel received an email 4

indicating that his November 2017 application for a renewed 5

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

been reached. Ragbir’s then

‐ existing stay was set to expire on January 7

19, 2018. Ragbir’s next check

‐ in occurred on January 11, 2018. At the 8

check

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

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

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

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

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

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

Order of Removal 15

16

That same day, ICE detained Ragbir and transferred him to 17

Florida, in preparation for his removal. He was detained in Florida 1815 for two weeks. During that period, Ragbir’s counsel filed a petition 1

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

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

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

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

removal. 6

A day before the February 10 check

‐ in was to occur, Ragbir 7

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

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

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

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

Ragbir then brought this action, alleging two First Amendment 12

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

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

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

9 We consider these claims to be materially indistinguishable for our purposes and

so, we refer to Ragbir’s retaliation “claim” in the singular.16 the Government from executing the removal order against him on the 1

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

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

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

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

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

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

I, § 9, cl. 2. 8

V. District Court Proceedings in this Action 9

10

On May 23, 2018, the district court dismissed Ragbir’s claim for 11

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

Government from executing the final order of removal against him 13

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

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

of subject matter jurisdiction over all claims challenging the execution 1617 of a valid final order of removal, including claims based on the United 1

States Constitution. Section 1252(g) provides: 2

Except as provided in this section and notwithstanding 3

any other provision of law (statutory or nonstatutory), 4

including section 2241 of title 28, or any other habeas 5

corpus provision, and sections 1361 and 1651 of such 6

title, no court shall have jurisdiction to hear any cause or 7

claim by or on behalf of any alien arising from the 8

decision or action by the Attorney General to commence 9

proceedings, adjudicate cases, or execute removal orders 10

against any alien under this chapter. 11

12

8 U.S.C. § 1252(g) (2012). 13

The district court determined that Ragbir’s claim arose from the 14

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

him, see id

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

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

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

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

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

. . 20

. other habeas corpus provision.” App’x 269, 275 (quoting § 1252(g)) 2118 (emphasis in original decision). Thus, the district court concluded 1

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

The district court further concluded that it could avoid 3

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

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

cognizable constitutional claim. First, the district court applied 6

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

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

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

had probable cause for the arrest or prosecution. 10

Second, the district court relied on the United States Supreme 11

Court’s decision in Reno v. Am.

‐ Arab Anti

‐ Discrimination Comm.

, 525 12

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

general matter[,]

. . . an alien unlawfully in this country has no 14

constitutional right to assert selective enforcement as a defense 15

against his deportation.” The district court acknowledged the 1619 Supreme Court’s statement in AADC that it would not “rule out the 1

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

is so outrageous that the

. . . considerations” that generally foreclose 3

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

AADC

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

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

The district court dismissed for lack of jurisdiction Ragbir’s 7

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

accordingly, denied his motion for a preliminary injunction. 9

VI. Proceedings in this Court 10

11

Ragbir and the organizational plaintiffs filed a notice of appeal 12

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

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

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

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

temporary stay of removal pending oral argument on the motion, 1720 which was held on August 14, 2018. We issued an order on August 1

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

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

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

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

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

his removal pending the outcome of this appeal. 7

APPELLATE JURISDICTION 8

As the parties agree, we have jurisdiction over this appeal from 9

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

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

dismissal of certain claims because that decision was “inextricably 12

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

injunction and “review of the unappealable issue is

. . . necessary for 14

review of the issue over which we have appellate jurisdiction,” Lamar 1521 Advertising of Penn, LLC v. Town of Orchard Park

, 356 F.3d 365, 371

‐ 72 1

(2d Cir. 2004). 2

DISCUSSION 3

We review de novo a district court’s dismissal of claims for lack 4

of subject matter jurisdiction. Malik v. Meissner

, 82 F.3d 560, 562 (2d 5

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

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

Fed ʹ n, Inc.

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

discretion when it rests its decision on

. . . an error of law.” Id

. 9

As an initial matter, Ragbir contends, and the Government does 10

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

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

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

removal became final. 10 Notwithstanding this situation, the 14

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 equitable22 Government argues that § 1252(g) withdraws federal court 1

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

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

would nonetheless require the availability of a habeas corpus 4

proceeding because AADC

, and certain of our decisions, foreclose 5

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

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

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

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

through a petition for the writ of habeas corpus. 10

We first consider whether § 1252(g) forecloses all jurisdiction 11

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

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

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

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

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

corpus proceeding. See Three Affiliated Tribes of Fort Berthold 5

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

fundamental rule of judicial restraint

. . . [that courts] will not reach 7

constitutional questions in advance of the necessity of deciding 8

them.”). 9

I. Whether § 1252(g) Forecloses Jurisdiction Over Ragbir’s 10

Claim 11

12

The crux of the dispute between Ragbir and the Government is 13

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

here; and 2) to constitutional claims. 15

A. Section 1252(g) Applies to the Alleged Government Conduct 16

17

The Supreme Court has emphasized that § 1252(g) “applies 18

only to three discrete actions:” the Government’s “‘decision or action’ 1924 to ‘ commence proceedings, adjudicate cases, or execute removal 1

orders.’” 11 AADC

, 525 U.S. at 482 (quoting § 1252(g)) (emphasis in 2

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

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

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

The Government argues that Ragbir’s claim falls within the 6

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

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

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

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

Appellants’ Br. at 31–32. 11

In support, Ragbir refers to a Ninth Circuit case, Arce v. United 12

States

, 899 F.3d 796 (9th Cir. 2018). In Arce

, the Government’s 13

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

removal from the United States. Id

. at 799. The alien plaintiff brought 2

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

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

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

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

to act.” Id

. at 800 (internal quotations omitted). In other words, while 7

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

discretion to effectuate a removal order.” Id

. at 800–01. Therefore, the 9

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

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

“jurisdiction

‐ stripping reach.” Id

. at 801. 12

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

, 13

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

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)).26 unquestionably had statutory authority to execute Ragbir’s final 1

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

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

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

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

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

Government’s challenged conduct falls squarely within the ostensible 7

jurisdictional limitation of § 1252(g). 8

B. Section 1252(g) Applies to Constitutional Claims 9

10

Next, Ragbir argues that Congress would have used the word 11

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

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

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

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

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

otherwise. 3

Before proceeding to the current text of § 1252(g), a brief review 4

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

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

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

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

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

Except as provided in this section and notwithstanding 10

any other provision of law, no court shall have 11

jurisdiction to hear any cause or claim by or on behalf of 12

any alien arising from the decision or action by the 13

Attorney General to commence proceedings, adjudicate 14

cases, or execute removal orders against any alien under 15

this Act. 16

17

8 U.S.C. § 1252(g) (2000). 18

In Jean

‐ Baptiste v. Reno

, 144 F.3d 212, 218–20 (2d Cir. 1998), we 19

held that the 1996 version of § 1252(g) barred federal court jurisdiction 2028 under 28 U.S.C. § 1331 over constitutional claims within its scope— 1

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

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

for lack of subject matter jurisdiction under § 1331. Id

. However

, we 4

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

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

jurisdiction under 28 U.S.C. § 2241. Id

. at 219–20. Other circuit courts, 7

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

IIRIRA nor the Anti

‐ Terrorism and Effective Death Penalty Act of 9

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

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

pursuant to 28 U.S.C. § 2241

. See I.N.S. v. St. Cyr

, 533 U.S. 289, 314 12

(2001). 13

Congress responded to the Supreme Court’s St. Cyr decision by 14

enacting the REAL ID Act of 2005, Pub. L. No. 109

‐ 13, 119 Stat 302, 1529 which strengthened § 1252(g)’s jurisdictional limitations. 14 1

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

is italicized: 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 corpus 6

provision, and sections 1361 and 1651 of such title

, no court 7

shall have jurisdiction to hear any cause or claim by or 8

on behalf of any alien arising from the decision or action 9

by the Attorney General to commence proceedings, 10

adjudicate cases, or execute removal orders against any 11

alien under this Act. 12

13

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

Thus, the REAL ID Act had two primary functions as to section 15

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

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

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

entered against them.” Ruiz

‐ Martinez v. Mukasey

, 516 F.3d 102, 105 19

(2d Cir. 2008). 20

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 ).30 Second, we conclude that by adding the words “statutory or 1

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

construction of § 1252(g) in Jean

‐ Baptiste : it applies even to 3

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

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

purports to forbid bringing even constitutional claims in such a 6

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

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

Congress intends to preclude judicial review of constitutional 9

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

, 486 U.S. 10

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

statute would raise serious constitutional problems, and where an 12

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

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

, 533 14

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

(internal citation and quotation marks omitted). However, “[t]he 1631 canon of constitutional avoidance comes into play only when, after 1

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

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

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

(2005) (emphasis in original); see Boumediene v. Bush

, 553 U.S. 723, 787 5

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

supplant traditional modes of statutory interpretation” (citing Clark

, 7

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

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

it.” Boumediene

, 553 U.S. at 787. 10

Here, even putting aside our construction of the less obviously 11

restrictive version of 1252(g) in Jean

‐ Baptiste

, we are aware of no 12

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

deportation proceeding other than one rooted in the Constitution. 14

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

such claims, we see no basis—in light of the text and legislative 1632 history—for construing the word “nonstatutory” in § 1252(g) to 1

exclude constitutional claims. 15, 16 2

Accordingly, Congress appears to have made “an informed 3

legislative choice” that eliminating even habeas review of 4

constitutional claims would not pose a constitutional (Suspension 5

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

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

constitutional question is presented.” Boumediene

, 553 U.S. at 738 8

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

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

Detainee Treatment Act in Hamdan v. Rumsfeld

, 548 U.S. 557 (2006)). 11

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

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).33 determination” that such statutory language is constitutional, to 1

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

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

. 3

II. Whether Ragbir States a Constitutional Claim 4

As discussed above, Ragbir argues that even if § 1252 bars all 5

jurisdiction over his claim, the Suspension Clause nonetheless 6

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

Government counters that we need not reach that serious 8

constitutional question because Ragbir fails to state a cognizable claim 9

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

Supreme Court’s holding in AADC

. We thus first address whether 11

Ragbir states a claim. 12

A. Whether Our Prior Decisions Foreclose Ragbir’s Claim 13

14

To state a First Amendment retaliation claim, a plaintiff must 15

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

the defendant’s actions were motivated or substantially caused by 1734 [the plaintiff’s] exercise of that right; and (3) the defendant’s actions 1

caused [the plaintiff] some injury.” Smith v. Campbell

, 782 F.3d 93, 100 2

(2d Cir. 2015) (quoting Dorsett v. Cty. of Nassau

, 732 F.3d 157, 160 (2d 3

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

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

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

so, the Government argues that, per force

, Ragbir’s undisputedly valid 7

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

to deport him in retaliation for his speech. 9

Even if we were to accept the Government’s analogy of that 10

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

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

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)).35 primarily on Mozzochi v. Borden

, 959 F.2d 1174, 1179–80 (2d Cir. 1992), 1

and Singer v. Fulton Cty. Sheriff

, 63 F.3d 110, 120 (2d Cir. 1995), which 2

relied on Mozzochi for its legal standard. But, in Mozzochi the question 3

presented was whether it was “clearly established that an individual’s 4

constitutional rights were violated when a criminal prosecution, 5

supported by probable cause, was initiated in an attempt to deter or 6

silence the exercise by the criminal defendant of his right to free 7

speech, but without the effect of actually deterring or silencing the 8

individual. ” Mozzochi

, 959 F.2d at 1179 (emphasis added). Central to 9

our decision in favor of the defendants was that, at summary 10

judgment, Mozzochi had not adduced “any evidence to support his 11

allegation that he was actually chilled in the exercise of the right to 12

free speech.” Id

. at 1179–80. Thus, Mozzochi stands for the proposition 13

that “[a]n individual does not have a right under the First 14

Amendment to be free from a criminal prosecution supported by 15

probable cause that is in reality an unsuccessful attempt to deter or 1636 silence criticism of the government.” Id

. at 1180. In Singer

, we quoted 1

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

First Amendment retaliation claim because, inter alia

, he had “failed 3

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

speech.” 18, 19 Id

. at 120. 5

The Government does not argue that Ragbir has made an 6

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

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

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

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

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

claim. 2

B. Whether AADC Forecloses Ragbir’s claim 3

The Government also argues that the Supreme Court’s decision 4

in AADC forecloses Ragbir’s claim. In AADC

, six temporary resident 5

aliens and two lawful permanent resident aliens brought a First 6

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

deportation proceedings against them. AADC

, 525 U.S. at 474. The 8

six temporary residents were charged with technical immigration 9

violations such as overstaying visas, and the two resident

‐ alien 10

plaintiffs were charged with aiding a terrorist organization. 20 Id

. at 11

473–74. 12

The regional counsel of ICE’s predecessor agency, the 13

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

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

20 The INS had also brought against all the aliens “advocacy

‐ of

‐ communism

charges,” which were later dropped. AADC

, 525 U.S. at 473–74.38 of their affiliation with the Popular Front for the Liberation of 1

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

an international terrorist and communist organization.” Id

. at 473. 3

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

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

for the Petitioners, AADC

, 525 U.S. 471 (1998) No. 97

‐ 1252, 1998 WL 6

411431 at *2 –4

. 7

The plaintiffs brought an action in the district court, claiming 8

that the Government’s initiation of deportation proceedings 9

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

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

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

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

with the PFLP would be deterred. AADC

, 525 U.S. at 487 –88; Brief for 14

Respondents (“Plaintiffs’ AADC Br.”), AADC

, 525 U.S. 471 (1998) No. 15

97

‐ 1252, 1998 WL 614300 at *30 –37. In addition, the plaintiffs argued 1639 that their claims required factual development that could not be 1

accomplished in an administrative immigration proceeding. 2

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

Supreme Court to employ the doctrine of constitutional avoidance to 4

read the pre

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

immediate district court review of their constitutional claims. AADC

, 6

525 U.S. at 487–88. 7

The Supreme Court held that § 1252(g) permissibly deprived 8

courts of jurisdiction over the plaintiffs’ claims. Id

. The Court stated 9

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

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

this country has no constitutional right to assert selective enforcement 12

as a defense against his deportation.” Id

. 13

The Court also expressed concern that the plaintiffs’ claims 14

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

discretion.” Id

. at 489. The Court was particularly concerned about 1640 reviewing the Executive’s national

‐ security and foreign

‐ affairs 1

decisionmaking: 2

What will be involved in deportation cases is not merely 3

the disclosure of normal domestic law enforcement 4

priorities and techniques, but often the disclosure of 5

foreign

‐ policy objectives and (as in this case) foreign

‐ 6

intelligence products and techniques. The Executive 7

should not have to disclose its ‘real’ reasons for deeming 8

nationals of a particular country a special threat—or 9

indeed for simply wishing to antagonize a particular 10

foreign country by focusing on that country ʹ s nationals— 11

and even if it did disclose them a court would be ill 12

equipped to determine their authenticity and utterly 13

unable to assess their adequacy. 14

15

Id

. at 490

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

other side of the ledger in deportation cases

— the interest of the target 17

in avoiding ‘selective’ treatment

— is less compelling than in criminal 18

prosecutions.” Id

. at 491. The Court explained: 19

While the consequences of deportation may assuredly be 20

grave, they are not imposed as a punishment. In many 21

cases (for six of the eight aliens here) deportation is 22

sought simply because the time of permitted residence in 23

this country has expired, or the activity for which 24

residence was permitted has been completed. Even 25

when deportation is sought because of some act the alien 2641 has committed, in principle the alien is not being 1

punished for that act (criminal charges may be available 2

for that separate purpose) but is merely being held to the 3

terms under which he was admitted. 4

5

Id

. (internal citation omitted). 6

The Court continued, “[a]nd in all cases, deportation is 7

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

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

continue because it has been improperly selected is not powerfully 10

appealing.” Id

. (emphasis in original). 11

Especially important for the situation that faces us, the Court 12

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

basis of discrimination is so outrageous that the foregoing 14

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

exceptions,

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

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

offend the Constitution by deporting him for the additional reason 1842 that it believes him to be a member of an organization that supports 1

terrorist activity.” 21 Id

. at 491–92. 2

Ragbir’s situation is very different from the one presented in 3

AADC

. Although the Supreme Court did not clarify what might 4

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

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

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

for the alleged discrimination is actually protected; the egregiousness 8

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

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

discretionary prerogative. We address these considerations in turn 11

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

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

Hierarchy of First Amendment Protection 2

3

First Amendment speech is preeminent among the liberties that 4

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

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

prescribe what shall be orthodox in politics

. . . or other matters of 7

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

, 8

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

, 9

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

Ragbir’s speech implicates the apex of protection under the 11

First Amendment. His advocacy for reform of immigration policies 12

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

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

matter of “public concern” 22 is at “the heart of

. . . First Amendment[] 15

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 interest44 protection,” 23 and “occupies the highest rung of the hierarchy of First 1

Amendment values,’” Snyder v. Phelps

, 562 U.S. 443, 451–52 (2011) 2

(quoting Connick v. Myers, 461 U.S. 138, 145 (1983); Dun & Bradstreet, 3

Inc. v. Greenmoss Builders, Inc.

, 472 U.S. 749, 758–59 (1985)). Because 4

Ragbir’s speech concerns “political change,” it is also “core political 5

speech” and thus “trenches upon an area in which the importance of 6

First Amendment protections is at its zenith .” Meyer v. Grant

, 486 U.S. 7

414, 421–22, 425 (1988) (emphasis added and internal quotation marks 8

omitted). Indeed, his “speech critical of the exercise of the State’s 9

power lies at the very center of the First Amendment.” Gentile v. State 10

Bar of Nev.

, 501 U.S. 1030, 1034 (1991). 11

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.”).45 2. The Government’s Alleged Retaliation Was Egregious 1

2

“It is a fundamental principle of the First Amendment that the 3

government may not punish or suppress speech based on 4

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

v. Tam

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

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

‘presumptively unconstitutional.’” 24 Id

. at 1766 (quoting Rosenberger 8

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

Supreme Court has further described viewpoint discrimination as a 10

“ blatant” “violation of the First Amendment.” Rosenberger

, 515 U.S. 11

at 829. 12

Ragbir’s plausible allegations and evidence, which we must 13

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

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

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 1766.46 political speech, but on the public attention it received. In a 1

declaration by Micah Bucey, a New York City minister, Bucey asserts 2

that ICE’s New York City Field Office Director, Scott Mechkowski, 3

stated that Ragbir and Jean Montrevil were ICE’s two most prominent 4

cases in New York City and complained that the activists’ protests 5

and comments to the press negatively portrayed ICE to the public and 6

to others in the Government. According to Bucey, Mechkowski 7

stated: “Nobody gets beat up in the news more than we do, every 8

single day. It’s all over the place,

. . . how we’re the Nazi squad, we 9

have no compassion.” App’x 252. Mechkowski then stated that he 10

had heard Ragbir’s New Sanctuary cofounder Montrevil (whom ICE 11

had also just detained) “ma[ke] some very harsh statements. I’m like, 12

‘Jean, from me to you

. . . you don’t want to make matters worse by saying 13

things .” App’x 252 (emphasis added). Mechkowski then turned to 14

Ragbir specifically, stating that it “bother[ed]” him that “there isn’t 15

anybody in this entire building that doesn’t

. . . know about Ravi.” 1647 App’x 253. “Everybody knows this case,” Mechkowski stated, “[n]o 1

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

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

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

‐ 4

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

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

A plausible, clear inference is drawn that Ragbir’s public 7

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

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

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

advocacy would certainly draw considerable media attention and 11

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

would also challenge the agency and its immigration policies. 13

Ragbir’s allegations and evidence support that certain officials were 1448 well aware of that consequence. 25 To allow this retaliatory conduct 1

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

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

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

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

“outrageous[ness]” exception to AADC

. 6

3. The Alien’s Interest in Avoiding Selective Deportation 7

The Supreme Court stated in AADC that, “ [w]hile the 8

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

imposed as a punishment.” AADC

, 525 U.S. at 491. That premise 10

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

those detained for crimes (who may bring selective

‐ enforcement 12

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

diminished liberty interest in preventing their deportation. Id

. 14

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.49 However, after AADC

, the Supreme Court reiterated in Padilla v. 1

Kentucky

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

deportation is indeed a punishment for lawful permanent residents 3

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

conviction: 5

We have long recognized that deportation is a 6

particularly severe “penalty,” Fong Yue Ting v. United 7

States, 149 U.S. 698, 740 (1893); but it is not, in a strict 8

sense, a criminal sanction. Although removal 9

proceedings are civil in nature, deportation is 10

nevertheless intimately related to the criminal process. 11

Our law has enmeshed criminal convictions and the 12

penalty of deportation for nearly a century. And, 13

importantly, recent changes in our immigration law have 14

made removal nearly an automatic result for a broad 15

class of noncitizen offenders. Thus, we find it “most 16

difficult” to divorce the penalty from the conviction in 17

the deportation context. United States v. Russell, 686 F.2d 18

35, 38 (C.A.D.C. 1982). Moreover, we are quite confident 19

that noncitizen defendants facing a risk of deportation 20

for a particular offense find it even more difficult. 21

2250 Id

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

deportation of lawful permanent residents convicted of crimes is 2

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

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

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

counsel applied to his claim. Id

. at 366. Thus, Padilla supports that 6

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

speech. 8

4. The Government’s Discretionary Prerogative 9

10

Finally, the Government’s interest in having unchallenged 11

discretion to deport Ragbir is also less substantial than in AADC

. 12

First, as discussed above, national

‐ security and foreign

‐ policy 13

concerns about terrorism were primary in AADC

, and the Court 14

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.”).51 expressed misgivings that a court proceeding allowing inquiry into 1

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

supporters would compromise intelligence sources and foreign 3

relations. AADC

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

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

the Government undertook the deportation to silence criticism of the 6

responsible agency. 7

We recognize that in AADC the Supreme Court observed, “[I]n 8

all cases, deportation is necessary

. . . to bring to an end an ongoing 9

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

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

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

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

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

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

United States while awaiting deportation violates no law. He is under 1652 no legal obligation to depart prior to deportation. And, the law 1

imposes no criminal or civil penalties on that person for failing to 2

leave. See Gerard L. Neuman, Terrorism, Selective Deportation and 3

the First Amendment After Reno v. AADC, 14 Geo. Immigr. L.J. 313, 4

342 (2000) (“Permanent residents who become deportable are not 5

engaged in an ongoing violation of United States law. The INA

. . . 6

creates no obligations for the aliens to depart without being asked, 7

and imposes no other sanction on permanent residents for becoming 8

deportable. If the [Government] do[es] not

. . . seek deportation, then 9

the alien is committing no wrong by continuing residence in the 10

United States.”). Indeed, in Ragbir’s case, his continued presence 11

after his removal order became final was expressly sanctioned by 12

successive stay orders and work permits. Thus, while it is 13

indisputable that the Government retains an interest in enforcing the 14

immigration laws by removing a deportable person, Ragbir’s 15

continued presence until deported has not violated any U.S. law. The 1653 Government’s interest in deporting him is lower than in the case of 1

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

AADC

, pose a threat to safety and security. 3

* * * 4

We acknowledge that judicial review of deportation 5

proceedings has produced concern about the Executive’s prerogative 6

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

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

deserves significant consideration. Accordingly, we do not delineate 9

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

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

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

adduced plausible—indeed, strong—evidence that officials 13

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

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

substantial interest in avoiding deportation under these 1654 circumstances, and the Government’s interests in avoiding any 1

inquiry into its conduct are less pronounced than in AADC

. In these 2

circumstances, the basis for the alleged discrimination against Ragbir 3

qualifies as “outrageous” under AADC

. 4

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

Habeas Corpus 6

7

Because Ragbir states a cognizable claim but, through its 8

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

we must decide whether the Suspension Clause nonetheless entitles 10

Ragbir to the constitutionally mandated minimum scope of the 11

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

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

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

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

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

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

that its protections have been strongest.” St. Cyr

, 533 U.S. at 301. 1855 These protections extend fully to aliens subject to an order of removal. 1

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

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

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

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

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

United States. These precedents include opinions

. . . denying the 7

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

Thus, except in periods of “formal suspension” of the writ, 9

alien petitioners in “Executive custody,” Boumediene

, 553 U.S. at 745, 10

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

(such as a petition for review), see St. Cyr

, 533 U.S. at 305, or the writ 12

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

itself the surest safeguard of liberty,” Boumediene

, 553 U.S. at 745 14

(quoting Hamdi, 542 U.S. at 536 (plurality opinion)). 1556 The Suspension Clause does not require the availability of the 1

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

. 2

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

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

See Boumediene

, 553 U.S. at 746; St. Cyr

, 533 U.S. at 301. As to what 5

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

to foreclose the possibility that the protections of the Suspension 7

Clause have expanded along with post–1789 developments that 8

define the present scope of the writ.” Boumediene

, 553 U.S. at 746 9

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

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

precedents as of 1789,

. . . when the Constitution was drafted and 12

ratified.” Id

. 13

The Government does not contest these basic premises, nor do 14

the parties dispute that Ragbir has no “adequate substitute” for a 1557 habeas petition. 27 Rather, the Government argues that Ragbir is not 1

entitled to the constitutional minimum scope of the writ because, in 2

its view: 1) Ragbir does not seek release from custody since he does 3

not challenge his final order of removal; and 2) Ragbir is not in the 4

Government’s custody at all. 5

In addition, the Government suggests in passing that Ragbir is 6

not entitled to the constitutional minimum scope of habeas review 7

because the merits issues in this case are not purely legal, but rather 8

require factfinding. Although we might normally deem that issue 9

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.58 waived for failure to develop it, we consider the issue because it bears 1

on the district court’s authority and means to adjudicate Ragbir’s 2

habeas petition. 3

A. Habeas Relief Would Alter Ragbir’s Situation 4

5

The Government argues that Ragbir is not entitled to the writ 6

because he does not challenge his final order of removal, and so, it 7

contends, the writ would leave him “in precisely the same position as 8

he is now.” Gov’t Br. at 44–45. That is incorrect; the Government 9

assumes that a habeas court’s only option would be to invalidate 10

Ragbir’s final order of removal, but habeas relief would of course 11

prevent the Government from deporting him for its duration. And 12

courts are “invested with the largest power to control and direct the 13

form of judgment to be entered in cases brought up before [them] on 14

habeas corpus.’” U.S. ex rel. D ʹ Amico v. Bishopp

, 286 F.2d 320, 322 (2d 15

Cir. 1961) (quoting In re Bonner

, 151 U.S. 242, 261 (1894)); see Harris v. 16

Nelson

, 394 U.S. 286, 290–92 (1969) (“The very nature of the writ 1759 demands that it be administered with the initiative and flexibility 1

essential to insure that miscarriages of justice within its reach are 2

surfaced and corrected.”). Thus, a habeas court has the authority to 3

grant relief that would alter Ragbir’s situation. 4

B. Ragbir is in Executive Custody 5

We also disagree with the Government’s argument that Ragbir 6

is not in custody. The “custody requirement” of habeas corpus “is 7

designed to preserve the writ of habeas corpus as a remedy for severe 8

restraints on individual liberty.

. . . [I]ts use has been limited to cases 9

of special urgency” that are “severe” and “immediate.” 28 Hensley v. 10

Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973). In 11

Hensley

, the Supreme Court held that an individual released on his 12

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 § 2241.60 own recognizance from state detention remained in the state’s 1

custody. Id

. The Court noted that it had “consistently rejected 2

interpretations of the habeas corpus statute that would suffocate the 3

writ in stifling formalisms or hobble its effectiveness with the 4

manacles of arcane and scholastic procedural requirements.

. . . That 5

same theme has indelibly marked our construction of the

. . . custody 6

requirement.” Id

. at 350. 7

Two primary considerations drove the Court’s conclusion in 8

Hensley

. First, the petitioner was “subject to restraints not shared by 9

the public generally” because “[h]is freedom of movement rest[ed] 10

in the hands of state judicial officers, who may demand his presence 11

at any time and without a moment ʹ s notice.” Id

. at 351 (quoting Jones 12

v. Cunningham

, 371 U.S. 236, 240 (1963)) (internal quotation marks 13

omitted). Second, the petitioner “remain[ed] at large only by the 14

grace of a stay entered first by the state trial court and then extended 1561 by two Justices of [the Supreme] Court.” Id. The Court went on to 1

explain: 2

The State has emphatically indicated its determination to 3

put him behind bars, and the State has taken every 4

possible step to secure that result. His incarceration is 5

not, in other words, a speculative possibility that 6

depends on a number of contingencies over which he has 7

no control. This is not a case where the unfolding of 8

events may render the entire controversy academic. The 9

petitioner has been forced to fend off the state authorities 10

by means of a stay, and those authorities retain the 11

determination and the power to seize him as soon as the 12

obstacle of the stay is removed. The need to keep the stay 13

in force is itself an unusual and substantial impairment 14

of his liberty. 15

16

Id

. at 351–52. 17

18

The Court rejected the Government’s argument that habeas 19

relief would be available only when the Government again physically 20

detained the individual. “[ W]e would badly serve the purposes and 21

the history of the writ,” the Court stated, “to hold that under these 22

circumstances the petitioner ʹ s failure to spend even 10 minutes in 23

jail is enough to deprive the District Court of power to hear his 2462 constitutional claim.” Id

. at 353. In the same term it decided Hensley

, 1

the Court stated even more directly that “ the writ is available

. . . to 2

attack future confinement and obtain future releases.” Preiser v. 3

Rodriguez

, 411 U.S. 475, 487 (1973). 4

The similarity of Ragbir’s situation to that of the petitioner in 5

Hensley is clear. If Ragbir were currently in the Government’s 6

physical confinement or had already been deported, that Ragbir 7

would be in custody is obvious. 29 But that he has not been deported 8

is not for a lack of effort on the part of the Government, which 9

detained Ragbir without notice in January 2018 and sent him to 10

Florida, where he was detained for weeks in anticipation of deporting 11

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).63 him. Much like in Hensley

, that process was stopped only because 1

Ragbir was released by a writ of habeas corpus issued by the district 2

court in January 2018 (after which the Government told Ragbir to 3

report again on February 10, 2018). Also like in Hensley

, Ragbir must 4

continue to report for ICE check

‐ ins, and he remains in this country 5

primarily due to judicial stays of removal, including the one entered 6

by this Court. Moreover, the Government opposed a stay of removal 7

in the district court pending this appeal, and at oral argument, the 8

Government could not represent to this Court that—absent a stay 9

entered by this Court and the stay previously entered in the District 10

of New Jersey—ICE would not deport Ragbir pending resolution of 11

this appeal. 12

Thus, that Ragbir faces imminent deportation, which 13

necessarily involves a period of detention—and that he must comply, 14

absent judicial intervention, with the Government’s orders “at any 15

time and without a moment’s notice,” Hensley

, 411 U.S. at 351—is not 1664 in question. That effects a present, substantial curtailment of Ragbir’s 1

liberty. See id

. We also cannot be confident that, if we were to wait 2

for the Government to again detain Ragbir, he would have access to 3

judicial oversight prior to being removed from the country. We thus 4

reject employing a “stifling formalism,” id

. at 350, that would deny 5

Ragbir a hearing of his claim in a habeas proceeding on the basis that 6

he is not in Government custody, when the imminent, severe 7

curtailment of his liberty is so obvious, see Simmonds v. I.N.S.

, 326 F.3d 8

351, 354 (2d Cir. 2003) (concluding that alien subject to final order of 9

removal was in federal immigration officials’ custody and that if he 10

were currently “ordered removed [but] not incarcerated,” rather than 11

“being held in state prison, th[at] conclusion would [have been] a 12

simple one” (emphasis added)). 30 13

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 the65 C. Common

‐ Law Habeas Courts Had Factfinding Authority 1

The constitutionally minimum scope of habeas review also 2

includes petitions that require factfinding. In St. Cyr

, the Supreme 3

Court concluded that the scope includes pure questions of law: 4

“ [E]ven assuming that the Suspension Clause protects only the writ 5

as it existed in 1789, there is substantial evidence to support the 6

proposition that pure questions of law like the one raised by the 7

respondent in th[at] case could have been answered in 1789 by a 8

common

‐ law judge with power to issue the writ of habeas corpus .” 9

St. Cyr

, 553 U.S. at 304–05. Ragbir’s claims do not involve “pure 10

question[s] of law” but rather require the adjudication of contested 11

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.66 facts, and so, we consider whether there is “substantial evidence” to 1

support that a common

‐ law court in 1789 would have had the 2

authority to issue the writ in such a case. See id

. 3

The Supreme Court touched on this issue in St. Cyr : “At 4

common law, ‘[w]hile habeas review of a court judgment was limited 5

to the issue of the sentencing court ʹ s jurisdictional competency, an 6

attack on an executive order could raise all issues relating to the 7

legality of the detention.’” Id

. at 301 n.14 (citing Note, Developments 8

in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1238 9

(1970)). And although “the early practice was not consistent,” habeas 10

courts sometimes “permitted factual inquiries when,” as here, “no 11

other opportunity [existed] for judicial review” of the petitioner’s 12

claim. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus 13

Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. 14

Rev. 2029, 2102 (2007). 31 That is not surprising because “common

‐ law 15

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 they67 habeas corpus was, above all, an adaptable remedy. Its precise 1

application and scope changed depending upon the circumstances.” 2

Boumediene

, 553 U.S. at 779–80 (discussing circumstances in which 3

“the black

‐ letter rule that prisoners could not controvert facts in the 4

jailer’s return was not followed”) (citing, inter alia

, Fallon & Meltzer, 5

120 Harv. L. Rev. at 2102; Cunningham, 371 U.S. at 243 (stating that 6

habeas is not “a static, narrow, formalistic remedy; its scope has 7

grown to achieve its grand purpose”)). 8

Moreover, in 1867, the federal courts were expressly vested 9

with factfinding authority in habeas proceedings by the Habeas 10

Corpus Act of 1867, ch. 28

, § 1, 14 Stat. 385. Of course, this is not 11

definitive evidence of the scope of the writ in 1789, but it further 12

supports that habeas courts in the early republic exercised factfinding 13

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.”).68 authority. The Act provided that the “petitioner may deny any of the 1

material facts set forth in the [custodian’s] return, or may allege any 2

fact to show that the detention is in contravention of the constitution 3

or laws of the United States,” and it required the habeas court to 4

“proceed in a summary way to determine the facts of the case, by 5

hearing testimony and the arguments of the parties interested

. . . .” 6

Habeas Corpus Act of 1867, ch. 28

, § 1, 14 Stat. 385. 32 7

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”).69 In the end, we cannot rely “upon the assumption that the 1

historical record is complete and that the common law, if properly 2

understood, yields a definite answer to the questions before us.” 3

Boumediene

, 553 U.S. at 752 (citing Paul D. Halliday & G. Edward 4

White, The Suspension Clause: English Text, Imperial Contexts, and 5

American Implications, 94 Va. L. Rev. 575, 588–93 (2008) (noting that 6

most reports of 18th

‐ century habeas proceedings were not printed)); 7

see Fallon & Meltzer, 120 Harv. L. Rev. at 2096 (“[E]fforts to 8

reconstruct historical practice with respect to most kinds of habeas 9

proceedings founder quickly, for surviving records are fragmentary 10

and practices were not consistent and shifted over time.”). In that 11

light, “substantial evidence” supports that a common

‐ law habeas 12

judge “could have” adjudicated a claim involving disputed issues of 13

fact in 1789. 33 See St. Cyr

, 533 U.S. at 304–305. 14

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 upon70 * * * 1

The constitutionally required scope of the privilege of the writ 2

of habeas corpus encompasses Ragbir’s claim. Because Congress has 3

provided no “adequate substitute” and because there has been no 4

formal suspension of the writ, Boumediene

, 553 U.S. at 771–72, Ragbir 5

is entitled to a habeas corpus proceeding as to the basis for the 6

Government’s impending action to deport him. 7

IV. Summary and Considerations on Remand 8

We hold that the district court improperly dismissed Ragbir’s 9

claim for lack of subject matter jurisdiction. Because that conclusion 10

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).71 was the basis for the district court’s order denying Ragbir’s motion 1

for a preliminary injunction, we vacate that order and remand to the 2

district court. 3

We note that, while Ragbir states a claim in his complaint and 4

attachments, it does not necessarily follow that even if he proves that 5

the officials sought to remove him as a result of his First Amendment 6

speech, he may never be removed. But, at least for the near future, 7

the taint of the unconstitutional conduct could preclude removal. 8

That “near future” could be the end of a typical two

‐ year stay 9

extension that Ragbir would plausibly have otherwise received 10

through January 2020, or some other period. 34 We leave that 11

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 Jeh72 determination to the district court on remand. However, accepting 1

as true the record currently before us, it is plausible that—absent the 2

Government’s alleged retaliation in January 2018—Ragbir would not 3

yet have been deported, and likely not until at least January 2020. 4

Our order of November 1, 2018, staying Ragbir’s removal shall 5

remain in force until our mandate issues. We direct the district court 6

to enter a stay of Ragbir’s removal following the issuance of our 7

mandate, to continue at least until such time that the district court has 8

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.73 reconsidered, consistently with this opinion, whether a stay should 1

remain in place through adjudication of the motion for a temporary 2

injunction or the merits of the case. 3

CONCLUSION 4

For the foregoing reasons, we VACATE the district court’s 5

order denying Plaintiffs

‐ Appellants’ motion for preliminary 6

injunction and dismissing certain claims, and REMAND to the 7

district court for proceedings not inconsistent with this opinion. 818

‐ 1597

‐ cv

Ragbir et al. v. Homan et al.

John M. Walker, Jr., Circuit Judge, dissenting: 1

Although I agree with much of the reasoning in the majority 2

opinion, because I would not remand the case for further proceedings 3

or reach the issue of whether Ragbir’s claim fits within the 4

“outrageous” exception to § 1252(g)’s withdrawal of jurisdiction that 5

was articulated by the Supreme Court in Reno v. American

‐ Arab Anti

‐ 6

Discrimination Committee

, 525 U.S. 471, 488–92 (1999) [hereinafter 7

“ AADC ”], I respectfully dissent. 8

In my view, remand is not warranted because the 9

Government’s retaliation against Ragbir has ended and its taint has 10

dissipated. Ragbir plausibly alleged that the Government’s 11

retaliation occurred on January 11, 2018 and included terminating his 12

third administrative stay early, arresting him on the spot without 13

prior notice, and attempting to immediately deport him by 14

transporting him from New York City to Florida and incarcerating 15

him there. But the taint of any retaliation ended no later than January 16

29, 2018, more than a year ago, when Ragbir was released from 17

custody following the district court’s grant of his habeas corpus 18

petition. Importantly, that grant was ordered not so Ragbir could 19

remain in the United States, but to allow him “an orderly departure” 20

and “the freedom to say goodbye.” Ragbir v. Sessions

, No. 18

‐ CV

‐ 236 21

(KBF), 2018 WL 623557, at *3 (S.D.N.Y. Jan. 29, 2018). Benefiting from 22

litigation

‐ prompted stays, Ragbir has yet to be removed. 232

Ragbir, in this proceeding, has never taken issue with the fact 1

that he is subject to a valid removal order entered in March 2007 as a 2

result of his felony conviction for wire fraud. Nor does he dispute 3

that no stay prevents his removal other than the one entered by this 4

court in this appeal. It is the stated policy of the current executive 5

branch to “prioritize for removal

. . . removable aliens who [h]ave 6

been convicted of any criminal offense.” Exec. Order. No. 13,768, 82 7

Fed. Reg. 8,799, 8800 (Jan. 25, 2017). See also U.S. D EPARTMENT OF 8

H OMELAND S ECURITY

, E NFORCEMENT OF THE I MMIGRATION L AWS TO 9

S ERVE THE N ATIONAL I NTEREST (2017), at 3 (“criminal aliens are a 10

priority for removal”). 1 Although this has also been the stated policy 11

of past administrations, enforcement practices on the ground can 12

differ from administration to administration. One would have to be 13

blind not to notice that the change of administration in January 2017 14

has brought with it an unremitting focus on deporting convicted 15

felons, such as Ragbir. See U.S. I MMIGRATION AND C USTOMS 16

E NFORCEMENT

, F ISCAL Y EAR 2018 ICE E NFORCEMENT AND R EMOVAL 17

O PERATIONS R EPORT

, at 14 (In fiscal year 2018, ICE “conducted 256,085 18

removals

– the highest level since FY2014” and prioritized “public 19

1 We may take judicial notice of written materials “[w]hen there is no

dispute as to the authenticity of such materials and judicial notice is limited

to law, legislative facts, or factual matters that are incontrovertible, such

notice is admissible.” Oneida Indian Nation of New York v. State of N.Y.

, 691

F.2d 1070, 1086 (2d Cir. 1982).3

safety threats and immigration violators, as reflected by the fact that, 1

like in FY2017, 9 out of 10 [ICE] administrative arrests had either a 2

criminal conviction(s), pending charge(s), were an ICE fugitive, or 3

illegally reentered the country after previously being removed.”). 2 4

For the above reasons, I disagree with the majority’s contention 5

that the consequences of the Government’s retaliation continue 6

because, but for the retaliation, Ragbir would plausibly have obtained 7

a further extension of his administrative stay from an administration 8

that has steadfastly sought to deport him, much less another two

‐ year 9

extension. Under these circumstances, I see no reason for this case to 10

continue in the district court, further impeding Ragbir’s removal. 3 11

I also have reservations about the majority’s discussion of 12

AADC’s “outrageous” exception to the § 1252(g) removal of 13

jurisdiction. As a preliminary matter, I fail to see the necessity of 14

2 The Government has also represented to this court in a related case that

“Ragbir has been issued a so

‐ called ‘bag and baggage’ letter notifying him

that he is to report to ICE for removal. (Dist. Ct. ECF No. 49). Thus, at this

point it has been made abundantly clear to him that, once any judicial

impediment to his removal has been lifted, it is substantially likely that the

government will promptly effectuate his removal.” Reply Memorandum

for Respondents

‐ Appellants at 5, Ragbir v. Sessions (2d Cir.) (No. 18

‐ 1595).

3 Any concern by the majority that Ragbir’s prompt removal now would

somehow revive the previous retaliation of more than a year ago could

presumably be addressed by the recusal of the officer who made the

decisions in January 2018. This would enable a previously uninvolved

officer to independently decide whether to enforce the March 2007 order of

removal without regard to the circumstances that are alleged to have

prompted the Government’s actions in January 2018.4

addressing this issue at all given the majority’s conclusion that Ragbir 1

is entitled to a habeas corpus proceeding under the Suspension 2

Clause despite § 1252(g)’s withdrawal of jurisdiction. That he is 3

permitted to bring a habeas proceeding would allow us to consider 4

Ragbir’s case regardless of whether the Government’s conduct falls 5

within the “outrageous” exception contemplated by AADC

. As I read 6

AADC

, that exception was predicated on the assumption that habeas 7

relief was not available or would come too late, AADC

, 525 U.S. at 8

487–88, indicating that it is unnecessary to undertake this analysis if 9

timely habeas relief is available. 10

Second, despite the majority’s statement that it is not 11

“delineat[ing] the boundaries of what constitutes an ‘outrageous’ 12

claim within the meaning of AADC ,” it creates from whole cloth a 13

five

‐ factor balancing test to determine whether the Government’s 14

conduct was “outrageous.” I am concerned that, because this test will 15

be the standard by which future claims are evaluated, it will become 16

an open door for evading the will of Congress in enacting § 1252(g). 17

Considering only the “Government’s discretionary prerogative” 18

gives short shrift to the Government’s significant enforcement 19

interests and does not provide a framework for adequately 20

considering the Government’s actions in context. 21

Turning to the facts of this case, although the majority opinion 22

acknowledges that Ragbir is a criminal alien subject to a valid removal 235

order, it quickly discounts this fact by arguing that Ragbir has no duty 1

to leave the country on his own, unlike an alien who unlawfully 2

enters and therefore is engaged in a continuing violation of law. To 3

my mind, however, the Government’s interest in removing a criminal 4

alien, heightened when the executive branch has a stated policy of 5

prioritizing the removal of criminal aliens, is at least as strong as the 6

Government’s interest in “bring[ing] to an end an ongoing violation 7

of United States law” by one who has simply overstayed his visa. 8

AADC, 525 U.S. at 491 (emphasis omitted). 9

Finally, although I agree that the complaint sufficiently alleged 10

that the Government acted improperly when it shortened Ragbir’s 11

administrative stay, arrested him, and held him in custody in 12

preparation for his departure, there was nothing inherently unlawful 13

in these acts which, absent improper motive, are fully authorized 14

when enforcing an alien’s removal. I can easily imagine much more 15

“outrageous” acts of government impropriety, such as the deliberate 16

and unjustified use of grossly excessive force or vindictive placement 17

in solitary confinement. Therefore, I am not at all convinced that the 18

Government’s actions against Ragbir were “outrageous” under the 19

circumstances. 20

For these reasons, I respectfully dissent. 21