United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
Barbadoro Paul Barbadoro United States District Judge
Filippi is a Brazilian national facing an order of removal.
He has challenged that order in a Petition for Writ of Habeas
Corpus and Complaint for Declaratory and Injunctive Relief.
For the reasons that follow, I determine that I do not have
subject matter jurisdiction to grant Filippi the relief he
traveled to the United States in 2002. With the help of a
“coyote” (a criminal smuggler), he crossed the
Rio Grande River from Mexico into the United States, but he
was soon taken into custody by United States immigration
case proceeded through administrative proceedings in the
immigration court and the court ultimately issued a final
order of removal. While the case was proceeding in the
immigration court, Filippi agreed to help the government by
“supplying information concerning the operation of the
smuggling organization which had brought him to the United
States” and “testi[fying] against its members. .
. .” Doc. 1 at 4. According to Filippi,
government agents told him that, in exchange for his
cooperation, he “would be permitted to remain
‘forever' in the United States.” Doc.
1 at 4.
initially remained in immigration detention, subject to a
final order of removal. After eleven months of detention,
however, he was released on an “Order of
Supervision.” Pursuant to the Order of Supervision,
Filippi had to check in with immigration authorities
periodically. He continued to work with government officials
to aid in the capture of individuals who smuggled people
across the border from 2003 until 2009.
also obtained employment at a self-storage facility in 2003.
He bought a house, where he lives with his wife, a lawful
permanent resident, and his daughter, who is a citizen. He
has no criminal history in the United States.
January 25, 2017, Executive Order 13768 went into effect.
Proclamation No. 13768, 82 Fed. Reg. 8799 (January 25, 2017).
The Executive Order states that the department of
“Homeland Security shall prioritize for removal”
those individuals who “are subject to an order of
removal, but who have not yet complied with their legal
obligation to depart the United States.” Id.
September 3, 2017, Filippi went to United States Immigration
and Customs Enforcement (ICE) to check in pursuant to his
Order of Supervision. He was told that he must report back to
ICE on October 6, 2017 with plane tickets and an itinerary
detailing his departure from the United States, and that he
must depart by November 6, 2017. Doc. 1 at 9.
filed his Petition and Complaint in this court on October 2,
2017. He alleges that the removal order cannot be enforced
because it is stale, he has not been given an adequate
opportunity to challenge the order, he will face persecution
and/or torture if the order is enforced, and any attempt to
enforce the order will breach the government's promise to
allow him to remain in the United States permanently. He
asserts a claim based on the Immigration and Nationality Act
(“INA”) (Count One), a procedural due process
claim (Count Two), a habeas corpus claim (Count Three), a
claim for injunctive relief (Count Four), a claim for
declaratory judgment (Count Five), and a claim for costs and
fees (Count Six).
federal district court may not consider a claim for relief
unless Congress has given the court jurisdiction to act.
Finley v. United States, 490 U.S. 545, 547-548
(1989). Filippi argues that the court has both
federal question jurisdiction and habeas corpus jurisdiction,
but his argument fails to properly account for 8 U.S.C.
§ 1252, which gives the courts of appeals exclusive
jurisdiction over claims that arise from a removal order. 8
U.S.C. § 1252(b)(9) provides in pertinent part
that “[e]xcept as otherwise provided in this section,
no court shall have jurisdiction, by habeas corpus under
section 2241 of Title 28 . . . or by any other provision of
law (statutory or nonstatutory), to review [a removal] order
. . . .” 8 U.S.C. § 1252(a)(5), further specifies
that “a petition for review filed with an appropriate
court of appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an order of
removal . . . .” Read together, these provisions leave
no doubt that this court lacks jurisdiction to consider
claims that arise from a removal order.
nevertheless argues that § 1252 does not limit this
court's power to consider his claims because he is not
attempting to directly challenge the removal order itself.
This argument is foreclosed by the First Circuit's
decision in Aguilar v. United States Immigration &
Customs Enforcement Div., 510 F.3d 1, 9 (1st Cir. 2007).
In Aguilar, the court stated that § 1252(b)(9)
“aims to consolidate ‘all questions of law and
fact' that ‘arise from' either an
‘action' or a ‘proceeding' brought in
connection with the removal of an alien.” Id.
at 9. The court also explained that “[t]he petitioners
cannot skirt the statutory channel markers by lumping
together a mélange of claims associated with removal,
each of which would be jurisdictionally barred if brought
alone, and eschewing a direct challenge to any particular
removal proceeding.” Id. at 9-10.
Filippi is attempting to do here is precisely what Aguilar
prohibits. Filippi argues in Count One that the removal order
cannot be enforced without violating the INA because the
order is stale and new evidence will demonstrate that he
faces persecution and/or torture if he is returned to Brazil.
He invokes the due process clause in Count Two in arguing
that using the removal order to force him to leave the United
States without an opportunity to present new evidence is
unconstitutional. He seeks a declaration in Count Five that
any attempt to remove him based on the removal order violates
the government's enforceable promise to allow him to
remain here ...