United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
BARBADORO, UNITED STATES DISTRICT JUDGE.
Lloyd Higgins is a Jamaican citizen. He is in custody and is
subject to a final order of removal from the United States.
Higgins has filed a habeas corpus petition in this court
seeking to stay his removal until he is able to file a motion
to reopen the removal proceeding with the Board of
Immigration Appeals (BIA). Defendants have argued in a motion
to dismiss that I lack subject matter jurisdiction to
consider Higgins' petition.
was granted lawful permanent residence status in 1987. In
2001, he was convicted of witness tampering in Connecticut.
Several years later, immigration officials commenced
proceedings to remove Higgins from the United States based on
his criminal conviction. Higgins obtained an attorney and
unsuccessfully challenged the removal proceedings before an
immigration judge, the BIA, and the Second Circuit Court of
Appeals. His final appeal was resolved in 2012.
was arrested on January 19, 2018 by officers of the
Department of Immigration and Customs Enforcement (ICE). He
filed his habeas corpus petition in this court on February
argues that he was denied effective assistance of counsel
during the proceedings that led to the removal order because
his attorney made no effort to challenge his witness
tampering conviction and failed to inform him that his
challenge to the removal order was unsuccessful. He concedes
that the proper way to present his claim is by filing a
motion to reopen with the BIA. He asserts, however, that he
needs a temporary stay from this court preventing his removal
while he prepares his motion to reopen. He argues that a stay
is required because he will be barred from filing his motion
if he is removed before he can file the motion.
base their motion to dismiss on 8 U.S.C. § 1252(a)(5)
and (b)(9), which purport to strip federal district courts of
jurisdiction to entertain most challenges to a removal order.
See Filippi v. President of the United States, 2017
DNH 221, *2-3. Higgins acknowledges the fact that the
jurisdiction stripping provisions appear to bar his petition.
Nevertheless, he argues that his case is an exception to the
general rule because his rights under the Constitution's
suspension clause would be violated if this court declines to
act on his request.
suspension clause provides that “[t]he writ of habeas
corpus shall not be suspended unless when, in cases of
rebellion or invasion, the public safety may require
it.” U.S. Const. art. I, § 9, cl.2.
Notwithstanding the clause's broad wording, the Supreme
Court has held that “the substitution of a collateral
remedy which is neither inadequate nor ineffective to test
the legality of a person's detention does not constitute
a suspension of the writ of habeas corpus.” Swain
v. Pressley, 430 U.S. 372, 381 (1977).
law allows a person subject to a removal order to challenge
the constitutionality of the order by filing a motion to
reopen with the BIA. Santana v. Holder, 731 F.3d 50,
55-56 (1st Cir. 2013). Although Higgins concedes that the
motion to reopen process is a constitutionally adequate
substitute for a habeas corpus challenge to a removal order
in most cases, see, e.g., Luna v. Holder, 637 F.3d
85, 97 (2d Cir. 2011), Higgins argues that his case is
different because he cannot avail himself of the motion to
reopen process until his counsel has an opportunity to
inspect his immigration file. Nor can he obtain a stay of
removal from the BIA until he files a motion to reopen.
Because Higgins is in danger of being removed before this
process can be completed and he contends that he will lose
his right to file a motion to reopen once he is removed,
Higgins argues that he has no effective alternative way to
protect his constitutional rights other than to obtain a stay
of removal from this court.
fatal flaw in Higgins' argument is that he bases it on
the incorrect assumption that he will lose his right to file
a motion to reopen if he is removed before he can file his
motion. Higgins grounds his argument on 8 C.F.R §
1003.2(d), a BIA regulation that purports to bar a removed
person from filing a motion to reopen. In Luna v.
Holder, 637 F.3d 85 (2d Cir. 2011), however, the Second
Circuit followed every other circuit that has addressed the
issue in holding that the BIA's post-departure bar
regulation cannot be applied to categorically prevent a
removed person from filing a motion to reopen after the
removal has occurred. See Id. at 100-01; see also
Santana, 731 F.3d at 55-56; Garcia-Carias v.
Holder, 697 F.3d 257, 264 (5th Cir. 2012);
Contreras-Bocanegra v. Holder, 678 F.3d 811, 818
(10th Cir. 2012); Coyt v. Holder, 593 F.3d 902 (9th
Cir. 2010); William v. Gonzalez, 499 F.3d 329, 333
(4th Cir. 2007). Although the Luna court left open the
possibility that the post-departure bar regulation may be
valid in certain unspecified contexts, see 731 F.3d at 102,
Higgins does not identify any unusual circumstances in his
case that would make the regulation effective against him.
Accordingly I am unpersuaded by his argument that the motion
to reopen process will provide him with an inadequate
substitute for habeas corpus relief. See Luna, 637
F.3d at 102 (power to remove aliens subject to a final order
of removal does not prevent motion to reopen process from
being an adequate substitute for habeas corpus where the
process otherwise remains adequate and
aforementioned reasons, Congress has stripped this court of
jurisdiction to consider Higgins' habeas corpus claim.
The jurisdiction stripping provisions do not deny Higgins his
rights under the Constitution's suspension clause because
he has an adequate alternative means ...