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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FRANCISCO BENITEZ,

Plaintiff, No. 09-CV-13386-DT

vs. Hon. Gerald E. Rosen

MICK DEDVUKAJ, et al.,

Defendants.

____________________________/

ORDER VACATING STAY OF REMOVAL, VACATING

ORDER FOR APPEARANCE, AND DISMISSING

CASE FOR LACK OF JURISDICTION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on September 4, 2009 

PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

I. INTRODUCTION

On August 26, 3009, Plaintiff Francisco Benitez, a citizen of Argentina, filed a

“Complaint for Mandamus and Motion for Emergency Stay of Removal,” seeking (1) to

compel the adjudication of his Application to Adjust Status (Form I-485) and (2) to block

his anticipated removal before a decision on his pending adjustment of status application

is rendered. On August 27, 2009, the Court entered an “Order Directing Service,

Response and Appearance,” which directed Plaintiff to effectuate proper service of all

pleadings on the Defendants, ordered the Defendants to file a response, and directed the

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 The Court’s record of this matter reveals that Defendants were duly served in

accordance with the August 27 Order on August 31, 2009.

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parties to appear for hearing on September 29, 2009. The August 27 Order further

ordered a stay of Plaintiff’s removal until further order of the Court but provided that, for

good cause shown, the Defendants could move to vacate this stay.1

 On August 31, 2009,

Defendants, through counsel, filed such a Motion to Vacate Stay of Removal.

Having reviewed and considered Plaintiff’s Complaint, the Government’s Motion,

Brief and supporting documents, the Court finds that the facts and legal arguments

pertinent to the parties’ positions have been adequately presented in the parties’ filings

and now concludes that further proceedings on this matter will not aide the judicial

process. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(e)(2), the

Court will VACATE the Order directing further briefing and counsel’s appearance and

this matter will be decided on the briefs and documents filed.

The Court also finds, for the reasons set forth below, that it is without jurisdiction

stay Plaintiff’s removal or to adjudicate any issues pertaining thereto. Therefore, the

Court will VACATE the Order staying removal and dismiss Plaintiff’s Complaint,

without prejudice.

II. FACTUAL BACKGROUND

Plaintiff Francisco Benitez, a citizen of Argentina, entered the United States in

1991 as a visitor under the Visa Waiver Program (VWP). Under the VWP, aliens from

certain countries are permitted to visit the United States for 90 days or less without a visa. 

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See 8 U.S.C. § 1187(a). In exchange for this procedural benefit, VWP visitors forfeit any

right to challenge their removal, except that they may apply for asylum. 8 U.S.C. §

1187(b).

Plaintiff Benitez did not depart within 90 days of his entry as he was required to do

under the terms of his VWP admission. Instead, he remained in the United States

illegally. In 2004, Plaintiff married Christina Djuric, a native-born United States citizen,

in Naples, Florida, and in May 2005, his wife filed an immediate family immigrant visa

petition, Form I-730, which was approved on December 7, 2005. The approval notice

sent to Mrs. Benitez, however, specifically advised that

The approval of this visa petition does not in itself grant any immigration

status and does not guarantee that the alien beneficiary [Francisco Benitez]

will subsequently be found to be eligible for a visa, for admission to the

United States, or for an extension, change or adjustment of status.

See Plaintiff’s Ex. A.

On July 18, 2007, Emilia Benitez, the daughter of Francisco and Christina Benitez

was born in Detroit, Michigan.

Two years later, on August 18, 2009, as a result of a traffic stop by Sterling

Heights police officers, Francisco Benitez came to the attention of the Bureau of

Immigration and Customs Enforcement (ICE). ICE subsequently arrested and detained

Plaintiff and on August 26, 2009, the ICE District Director ordered Plaintiff removed on

the basis that he had violated the conditions of his admission by having overstayed the

90-day admission period provided for under the VWP. See Order of Deportation,

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 Although Plaintiff provided the Court with numerous documents, he failed to

provide a copy of, or even mention that, an Order of Deportation has already been

entered.

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Defendants’ Ex. 1.2 Pursuant to the Order of Deportation, Plaintiff has been scheduled

for removal, and ICE has obtained an itinerary for Plaintiff’s flight to Argentina on

September 10, 2009.

On August 25, 2009, in anticipation of the then soon-to-be-issued removal order,

Mr. Benitez filed an application to adjust his status to that of a lawful permanent resident,

based upon the approval of his wife’s immediate family immigrant petition. He now asks

this Court to compel the adjudication of his adjustment of status and to order that his

removal be stayed pending a decision on his application for adjustment.

III. DISCUSSION

The REAL ID Act of 2005, codified at 8 U.S.C. § 1252, et seq., significantly

narrowed the scope of judicial review for removal orders in immigration cases and

essentially stripped district courts of jurisdiction over such cases. Section 106(a) of the

REAL ID Act amended section 242 of the Immigration and Nationality Act (the “INA”),

8 U.S.C. § 1252, to make clear that district courts do not have jurisdiction, habeas or

otherwise, to review any removal order for any alien. Among the amendments, the REAL

ID Act added subsection 242(a)(5), 8 U.S.C. § 1252(a)(5), which provides that a petition

filed with the appropriate court of appeals “shall be the sole and exclusive means for

judicial review of an order of removal entered or issued under any provision of this

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chapter, except as provided in subsection (e) of this section [pertaining to injunctive relief

from exclusion orders and class actions].” 

Section 242(g) of the amended INA, 8 U.S.C. § 1252(g) emphasizes the

exclusivity of appellate court jurisdiction and specifically precludes this Court from

exercising jurisdiction over this matter. It provides:

Except as provided in this section and notwithstanding any other provision

of law (statutory or nonstatutory), including section 2241 of title 28, United

States Code, or any other habeas corpus provision, and sections

1361[pertaining to district court jurisdiction over mandamus actions] and

1651 [pertaining to the court’s authority to issue writs in aid of the court’s

jurisdiction] of such title, no court shall have jurisdiction to hear any

cause or claim by or on behalf of any alien arising from the decision or

action by the Attorney General to commence proceedings, adjudicate

cases, or execute removal orders against any alien under this chapter.

8 U.S.C. § 1252(g) (emphasis added).

Plaintiff’s complaint here is brought pursuant to the Court’s mandamus jurisdiction

as provided in 28 U.S.C. § 1361. The Court entered its stay of removal pursuant to 28

U.S.C. § 1651. The REAL ID amendments to section 242(g), however, stripped this

Court of its jurisdiction under these sections with respect to removal of aliens. Exclusive

jurisdiction lies in the Sixth Circuit Court of Appeals.

The channeling of jurisdiction to the circuit courts applies both to direct and

indirect challenges to an alien’s removal order. Nwankoso v. Department of Homeland

Security, 2006 WL 212368 at *1 (N.D.N.Y. 2006); see also Novas v. ICE, 202 Fed. Appx.

115 (3d Cir. 2008).

Novas is substantially similar to this case. Javier Novas, a citizen of Argentina,

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entered the United States in 1999 under the VWP, and in 2005, he married a United States

citizen. Id. at 117. His wife filed an immediate relative petition in 2006, but later

withdrew it. Id. In January 2007, Novas was detained during a routine traffic stop. Id.

His immigration status as a VWP visa overstay was discovered and ICE took him into

custody and ordered him summarily removed. Id. Two weeks later, Novas’s wife re-filed

the spousal petition. Id.

Claiming that he had not received a copy of the removal order until his attorney

requested it in March 2007, Novas filed an “Emergency Petition for Writ of Habeas

Corpus to Stay Removal” in the District Court for the Middle District of Pennsylvania

seeking a stay of removal pending the adjudication of his adjustment of status application. 

Id. at 118. The government moved to dismiss arguing that Novas’s actions should be

construed as a petition for review over which the Third Circuit, not the district court, had

jurisdiction. Id. In response, Novas asserted that he was not challenging his removal

order but was instead claiming, just as Plaintiff Benitez claims in this case, a violation of

his constitutional right to due process. Id. The district court rejected this argument and

dismissed the petition, finding that the gravamen of Novas’s complaint was a challenge to

his removal order. Id.

The Third Circuit affirmed the district court’s decision finding that Novas’s

motion for an emergency stay sought to delay removal so that he could adjudicate his

status a spouse of a U.S. citizen. The court reasoned that “[t]o the extent Novas raised

any colorable claim, it was the due process claim. . . and the District Court properly

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construed that as a direct challenge to the order of removal.” Id. Therefore, the Third

Circuit concluded that “Novas’s motion did properly belong before this court pursuant to

8 U.S.C. § 1252(a)(5) (‘[A] petition for review filed with an appropriate court of appeals .

. . shall be the sole and exclusive means for judicial review of an order of removal. . . .’)”. 

Id. at 118-119.

Here, Plaintiff filed his application to adjust his status only one week ago and only

after he was discovered to have overstayed his 90-day VWP admission by over eight

years, in order to avoid the consequences of his removal order. Plaintiff cannot

circumvent the REAL ID Act’s review provisions and express limitation of district court

jurisdiction by claiming that he is pursuing in this court a due process claim that is

somehow distinct from his removal order. See Nwankoso, supra, 2006 WL 212368, at *1

(disallowing indirect challenge to removal order); Ginters v. Cangemi, 419 F. Supp. 2d

1124, 1131 (D. Minn. 2006 (while petitioner’s action “does not challenge his removal per

se. . . a review [of the visa petition] by this Court resulting in a favorable determination

for [petitioner] would indirectly challenge the validity of the removal order”); see also

Yzo v. Gonzales, 2007 WL 1840145 (E.D. Mich. 2007) (Zatkoff, J.).

In Yzo, the petitioner, who had been lawfully temporarily admitted to the United

States, had been unsuccessful with his petition for asylum. He was subsequently taken

into ICE custody and was ordered removed. Yzo filed a petition for a writ of habeas

corpus in the district court. Upon receipt of the petition, the court entered an order

directing service and stayed the deportation. The government responded and moved to

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lift the stay. Finding that the REAL ID Act stripped the district court of jurisdiction over

such matters, Judge Zatkoff vacated the stay and dismissed Yzo’s habeas petition, without

prejudice. In so doing, Judge Zatkoff rejected the petitioner’s argument that he was not

challenging his order of removal but was instead asserting claims of Fifth and Sixth

Amendment deprivations. The court reasoned:

[A]lthough Petitioner challenges his detention, the fact of the matter is that

his detention is only illegal if the order of removal was erroneously entered. 

If the order of removal is valid, so is the BICE’s action in detaining

him. At this time, therefore, Petitioner’s true objective is, and must be,

to challenge the order of removal entered by the Immigration Judge and

upheld by the BIA. His argument that he has “not had a meaningful

opportunity to address. . . his meritorious asylum claim, and . . . the

propriety of his release from detention” exemplifies that objective.

2007 WL 1840145 at *3.

CONCLUSION

For all of the foregoing reasons, the Court concludes that it lacks jurisdiction to

stay Plaintiff’s removal or to adjudicate any issues pertaining thereto, including the effect

of his tardy application for adjustment of status on the order of removal. Jurisdiction over

this matter lies exclusively in the Sixth Circuit Court of Appeals. Therefore,

IT IS HEREBY ORDERED that Defendants’ Motion to Vacate Stay of Removal

[Dkt. # 11] is GRANTED. Accordingly,

IT IS FURTHER ORDERED the August 27, 2009 Order staying Petitioner’s

removal [Dkt. 2] is hereby VACATED.

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IT IS FURTHER ORDERED that this case is DISMISSED, WITHOUT

PREJUDICE.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: September 4, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record

on September 4, 2009, by electronic and/or ordinary mail.

s/Ruth Brissaud 

Case Manager

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