No, 03 C 1298 Page 5

“certain breaks in presence” from section 1229b(d)(2) — are within the court's jurisdiction).
The government attempts to distinguish Morales-Morales, claiming that the issue in

that case was the statutory interpretation of an element of relief, rather than the exercise of

discretion. See gov’t reply at 6 n.3. In Morales-Morales, the petitioncr’s claim was narrow
and turned on the meaning of a specific statutory language, while plaintiff alleges that the
government ignored statutory and constitutional dictates that required a hearing and other
procedural protections, such as being informed of the charges against him. Plaintiff's claims
may be broader than those raised in Morales-Morales, but they still turn on statutory
interpretation. In Count II, for example, plaintiff alleges that the government failed to comply
with 8 C.F.R. §§ 245.2(a)(1), 1.1(q), and 253.(b)(1). Taken together, those sections provide that
an arriving alien who has had his parole terminated or revoked, is still entitled to an exclusion
proceeding. See Geach v. Chertoff, 444 F.3d 940, 945 (8" Cir, 2006). Plaintiff also seeks relief
under the Fifth Amendment, and claims that he “had a liberty interest in being permitted to
return to the United States” (cplt., {4 50, 56), and that procedural due process required a
hearing, notice and opportunity to be heard (id., 4[[ 57, 62). See Hamdan, 425 F.3d at 1060
(citing Reno v. Flores, 507 U.S, 292, 306 (1993). (“The Fifth Amendment entitles aliens to due
process in immigration proccedings.”)*

The petitioner in Morales-Morales claimed that the Immigration Judge incorrectly

interpreted a statutory provision, and plaintiff claims that the government erred when it

5 With respect to plaintiff’s constitutional claims, we lack jurisdiction if the claims lack merit (see
Hamdan, 425 F.3d at 1061 (quoting Dave vy. Ashcroft, 363 F.3d 649, 653 (7"" Cir. 2004)), and procedural
‘ments alone are not liberty interests. Cevilla v. Gonzales, 446 F.3d 658, 662 (7 Cir. 2006). However,
since neither of the parties discuss this precise issue, and because there are alternate statutory grounds for
jurisdiction, at this time we will not address our jurisdiction predicated on the due process claim,



No, 03 € 1298 Page 8

2005). Plaintiff contends that section 1252(a)(2)(D) does not channel his action to the Seventh
Circuit because he was not subject to a final removal order. For support he cites Hamdan vy.
Gonzales, 425 F.3d 1051, 1057 (7" Cir. 2005), in which the Seventh Circuit stated that section
1252(a)(2)(D) “restored limited judicial review of constitutional claims and questions of law
presented in petitions for review of final removal orders.”

In Rosales-Pineda vy. Gonzales, 452 F.3d 627, 629-630 (7th Cir. 2006), the Seventh
Circuit described 1252(a)(2)(D) in broad terms, noting that it applies to deportation

proceedings and not just removal orders. (“But under the REAL ID Act, Pub, L. No, 109-

13,119 Stat. 231, 310-11 (2005) (codified at 8 U.S.C. § 1252(a)(2)(D)), this court has jurisdiction
to review all constitutional claims and questions of law arising from deportation proceedings.”)

However, Rosales-Pincda and Ramos v. Gonzales, 414 F.3d 800 (7" Cir. 2005), the case the

court cited, both involved petitions for relief from final orders of removal. See also Hashish
y. Gonzales, 442 F.3d 572, 574 (7th Cir. 2006) (“We also may review constitutional questions
and questions of law raised in a petition for review of a final removal order. See 8 U.S.C. §
1252(a)(2)(D).”)_ Review of plaintiff's claims does not involve analysis of a discretionary
decision or a final order of removal, two aspects of the immigration decision making process
that Congress has insulated and subjected to a streamlined review process. See Moallin v.
Cangemi, 427 F, Supp.2d 908, 920 (D. Minn, 2006) (reviewing petitioner's constitutional claims
secking release from custody, pending removal, “does not require the court to touch upon the
removal decision in any way that offends either the express text or legislative history of the
Act.”); Tejada v. Cabral, 424 F. Supp. 2d 296, 298 (D. Mass. 2006) (Real ID Act “only deprived
this Court of jurisdiction over petitions which challenge ‘any final order of removal.’ As noted

above, Tejada challenges only his underlying state conviction, not the Department’s order of


No. 03 C 1298 Page 4

petition for habeas relief (Count VITD was dismissed because he was not in custody and we did
not have jurisdiction over his putative custodian. In contrast, counts Il, IV, V and VI focus
on the government’s alleged statutory and constitutional violations in denying plaintiff re-

entry into the United States, and removing him without any hearing or related procedural

protections. We thus concluded that the remaining counts relate to the government’s non-

discretionary duties rather than the discretionary (and non-reviewable) decision to revoke
plaintiff's advance parole.

In the motion to dismiss, the government does argue that viability of any of plaintiff's
claims depends on his ability to assert a legal basis tv remain in the United States, and without
advance parole or a visa he has no such legal basis and cannot claim any injury from being
denied re-entry. We note that this analysis first appears, for the most part, in the
government’s reply bricf,‘ but we address it nevertheless because it is consonant with the
government’s previously asserted position that there is no significant difference between the
revocation of advance parole and the denial of re-entry and failure to provide a hearing.

Contrary to the government's position, there is a difference between a challenge to the
actual decision to revoke parole and the process that led to that decision. The latter concerns
non-discretionary questions that the jurisdiction stripping provisions of section
4252(a)(2)(B)(ii) do not reach. See Morales-Morales v. Ashcroft, 384 F.3d 418 (7" Cir, 2004)

(holding that non-discretionary questions of statutory interpretation — here, the meaning of

Circuit).

4 The government also uses its reply brief to incorporate, through a footnote, a motion to dismiss
filed on March 12, 2003. This motion was fully briefed but we decline, ut this time, to address any remaining
issucs. The government may re-file a motion to dismiss with respect to any issues raised in its initial motion
that remain relevant.


No. 03 © 1298 Page 6

ignored relevant statutory provisions (ie., interpreted them to be inapplicable). In both
instances the challenge is directed at legal crror and focuses on issues antecedent to the final
decision, Plaintiff does not contest the discretionary decision to revoke parole; rather, he
challenges the government’s revocation of his advance parole and subsequent prevention of
re-entry into the United States, under the correct interpretation of the hearing requirements
sct forth in the INA, and required by the Constitution. See Morales-Morales, 384 F.3d at 421.°

The government also argues that, to the extent that claims remain, the Real ID Act
requires that they be heard by the Seventh Circuit. The government’s position is subject to
several flaws, the first being reliance on the Real [D Act’s channeling of habeas review to the
courts of appeal, After the Seventh Circuit’s reversal, plaintiff may no longer seck relief by
petitioning for habeas relief, and he may not invoke the court’s jurisdiction under our
authority to grant that relief. But plaintiff does not persist with his defunct habeas claim. Also
significant to the applicability of the Real ID Act’s jurisdiction stripping provisions is the
nature of the Attorney General’s decision to revoke parole and the context in which that
decision was made.

Citing section 101(f) of the Real ID Act, the government argues that section
1252(a)(2)(B)(ii) applies even though the Attorney General’s decision was not made in the
context of a removal proceeding. By so arguing, the government concedes that the revocation

of plaintiff's advance parole transpired outside of a removal proceeding. Section

® Moreover, to the extent that the government argues that plaintiff's current status prevents him
from raising constitutional and statutory challenges, the question is not what rights he currently has, but
what rights he should have been afforded when he had a pending application for adjustment of status to
permanent resident alien and advance parole authorized by the INS. There is no debate that the government
had the diserction to revoke his advance parole. The issue is what was constitutionally and statutorily
required in order for it to make that decision,


No. 03 C 1298 Page 9

removal. This Court, therefore, properly has jurisdiction over Tejada’s pctition.”); Kaneth

y. Ridge, 2005 WL 1719217, *1 n.1 (1D. Minn. 2005); Fordjour v. Ashcroft, 2005 WL 200857

{E.D. Cal. 2005). Plaintiff's claims are independent of a final order of removal (because there

is none) and relate to non-discretionary issues, and are thus properly before the court.
CONCLUSION

For the foregoing reasons, the government’s motion to dismiss is denicd,’

B. Voce

JAMES B. MORAN

Senjor Judge, U. 8. District Court
as 20 _, 2006.

7 The government carlicr suggested that it appeal the conclusions in the February 28, 2006, order by
seeking a writ of mandamus. We directed, instead, that it brief the motion to dismiss, We agree, however,
that early review by the Court of Appeals may well be appropriate. Only the Court of Appeals can determine
with certainty whether it intended to end the case or whether it intended only to end a portion of it. This
court would be, in those circumstances, sympathetic to a section 1292(b) motion.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

SABRI IBRAHIM SAMIRAH,

Plaintiff,

vs. No. 03 C 1298

ALBERTO GONZALES, Attorney
General of the United States, et al.,

weer ew

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Sabri [brahim Samirah was a resident alien who desired to leave the country
to visit family in Jordan. In 2002 he requested and received from the former Immigration and
Naturalization Seryice (INS) advance parole, which was permission to reenter the United
States. At the time, plaintiff had applied for adjustment of status to that of a Legal Permanent
Resident. On January 17, 2003, plaintiff was out of the country and the District Director of
the Chicago INS, acting on behalf of the Attorney General, revoked the advance parole, citing
information indicating that plaintiff was a security risk to the United States. Plaintiff received
notice of the revocation on January 18, 2003, during his return trip to the United States, while
he was at a pre-inspection station in Shannon, Ireland. Possessing neither advance parole nor
a visa, plaintiff was forced to return to Jordan.

On February 20, 2003, plaintiff filed a nine-count complaint and sought, among other

things, an injunction requiring the government to permit his return to the United States.’ The

As set forth in the complaint, plaintiffs nine claims were: “Violation of Regulations and Statute in
parole revocation” (Count 1); “Violation of Regulations and Statute in denying return to the United States”
(Count II); “Violation of Procedural Due Process in parole revocation” (Count 111); “Violation of Procedural
Due Pracess in denial of return to the United States” (Count LV); “Violation of Equal Protection Prong of the


No. 03 C 1298 Page 7

1252(a)(2)(B)(ii) does indeed apply to decisions made outside of formal removal proceedings.
The Seventh Circuit so held, and Congress so intended. See Samirah, 335 F.3d at 549; H.R.
Rep. No. 109-13 at 170 (“Subsection 101(f) would amend subparagraph 242(a)(2)(B) of the
INA by clarifying that the provision barring judicial review of denials of diserctionary relief
applics regardless of whether the discretionary judgment, decision, or action is made in
removal proceedings.”). However, section 1252(a)(2)(B)(ii) only precludes our jurisdiction
over the Attorney General’s discretionary decisions, See El-Khader v, Monica, 366 F.3d 562,
567 (7" Cir. 2004) (emphasis in original) (stating that the scope of section 1252(a)(2)(B)(i)
“extends beyond removal and deportation proceedings,” and holding “that the judicial review
of the revocation of a visa petition under 8 U.S.C. § 1155 is precluded, so /ong as that decision
is discretionary in nature.”). ‘The Seventh Circuit made that clear, and the government echoes
that conclusion in its motion to dismiss, when it states that “neither the Constitution nor the
statute provide for judicial review or ‘process’ by which plaintiff may challenge this discretion
determination” to revoke advance parole (gov’t motion at 3). As explained above, the
remaining claims involve non-discretionary decisions, and therefore section 1252(a)(2)(B)(ii)
does not preclude our jurisdiction to address whether those decisions were legal. See Sissuko
v. Rocha, 440 F.3d 1145, 1159, 1162-63 (9" Cir. 2006).

Further inquiry into our jurisdiction leads us to another provision added by the Real
ID Act that consolidates review in the courts of appeals. Section1252(a)(2)(D) provides that
no provision of the chapter “which limits or eliminates judicial review, shall be construed as
precluding review of constitutional claims or questions of law raised upon a petition for review
filed with an appropriate court of appeals in accordance with this section.” See Gattem v.

Gonzales, 412 F.3d 758, 762-63 (7° Cir, 2005); Vasile y. Gonzales, 417 F.3d 766, 768 (7" Cir,


"No. 03 C 1298 Page 2

court granted plaintiff's motion for injunctive relief (see docket no. £5 (03C1298), March 25,
2003), but, after granting the government’s motion to stay the ruling, the Seventh Circuit
Court of Appeals reversed. See Samirah y. O'Connell, 335 F.3d 545 (7" Cir. 2003). Plaintiff's
motion for a rehearing e# bare was denied, as was his subsequently filed petition for a writ of

certiorari, On July 22, 2004, plaintiff filed a motion to set a date for the government to respond

to the remaining counts in his complaint. The government opposed that motion, stating that
no counts remained, On February 28, 2006, we granted the plaintiff’s motion. See Samirah
y. Gonzales, 2006 WL 516580 (N.D. Ill. 2006). The government now moves to dismiss the
complaint under Fed. R, Ciy, P, 12(b)(1) and 12(b)(6).

The government raises two principal arguments in support of its motion. First, it
contends that the Seventh Circuit dismissed the case in its entirety, which echoes its opposition
to plaintiff’s motion to sect a date for a response. Second, the government argues that section
106(a) of the Real LD Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, enacted after the
Seventh Circuit's opinion, amended 8 U.S.C, § 1252(b)(9) so that all issues relating to removal
of an alien, including constitutional challenges, must be raised in a petition for review in the
Seventh Circuit.? According to the government, section 1252, as amended by 101(f), applies
to discretionary decisions that are not made in the context of a removal order, In response,
plaintiff asserts that we have already concluded that the Seventh Circuit did not reach his

constitutional and statutory claims. Plaintiff further argues that section 106(a) only applies

Fifth Amendment” (Count Y); “Violation of the Requirements of the Administrative Procedure Act” (Count
VI; “Mandamus” (Count VI); “Petition for Writ of Habeas Corpus” (Count VIII); and “Declaratory and
Injunctive Relief” (Count 1X).

2 The Real ID Act retroactively applies to plaintiff's case, as the revocation of parole was issucd
before May 11, 2005, the date the Act was enacted. See 8 U.S.C. § 1252(a)(2)(D); Hamdan v. Gonzales, 425
F.3d 1051, 1057 (7" Cir. 2005).


No. 03 C 1298 Page 3

to removal orders, and section 101(f) only impacts the discretionary decision to revoke his
advance parole, which plaintiff is not challenging.
In ruling on the government’s motion to dismiss, the court “accepts as true all well-

pleaded factual allegations and draws all reasonable inferences in the plaintiff's favor.”

McCullah v. Gadert, 344 F.3d 655, 657 (7th Cir, 2003); Ezekiel vy. Michel, 66 F.3d 894, 897 (7th
Cir, 1995).

The Seventh Circuit concluded that we lacked jurisdiction over plaintiff's petition for
habeas relief and held that section 1252(a)(2)(B)(ii) “bars jurisdiction over of [sic] the rest of
[plaintiff’s| action,” because that section “makes clear that one of the subjects beyond any
statutory grant of jurisdiction, at least outside the context of a habeas proceeding, is review
of the Attorney General’s discretionary decision to revoke parole.” Samirah, 335 F.3d at 552.
The court then reversed, without remanding for additional proceedings. In our February 28,
2006, order, we observed that the Seventh Circuit reversed without expressly remanding for
additional proceedings, but concluded that the “rest of Samirah’s action” did not encompass
plaintiff's constitutional and statutory claims, which the court only referenced in passing.
Samirah, 2006 WL 516580, *2.

The government again depicts the Seventh Circuit’s ruling as total and foreclosing
future proceedings, but it offers little that we have not yet considered. As the Seventh Circuit
held, we “lack[] jurisdiction to review, much less reverse, the revocation of [plaintiff's] parole”
(Samirah, 335 F.3d at 549), and therefore cannot grant relief under Counts J and JIT, which

assert statutory and constitutional violations “in Parole Revocation.” Further, plaintiff's

3 The Seventh Circuit's attention to our focus on parole revocation is evident in its quotation of our
conclusion that the government could not “short-circuit” plaintiff's rights “hy revoking his parole and then

treating him as if he had never been here at all.” Samirah, 335 F.3d at 548 (emphasis added by the Seventh