United States District Court, D. New Hampshire
McCafferty District Judge.
Elvecio Pereira Viana, an alien subject to a final order of
removal, brings a complaint seeking injunctive relief against
various federal agencies and officials to prevent his removal
from the United States. On March 22, 2018, this court issued
an order to show cause why the action should not be dismissed
for lack of subject matter jurisdiction. Viana timely
responded to the court's order and further explicated his
jurisdictional argument. For the reasons that follow, the
court concludes that it lacks jurisdiction over Viana's
complaint. Therefore, the complaint is dismissed without
court noted in its previous order, “a federal court has
an obligation to inquire sua sponte into its own subject
matter jurisdiction.” McCulloch v. Velez, 364
F.3d 1, 5 (1st Cir. 2004). The existence of subject matter
jurisdiction presents a question of law. See Skwira v.
United States, 344 F.3d 64, 72 (1st Cir. 2003).
“At the pleading stage . . . an order [of dismissal for
lack of subject matter jurisdiction] is appropriate only when
the facts alleged in the complaint, taken as true, do not
justify the exercise of subject matter jurisdiction.”
Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st
Cir. 2003). Nevertheless, “[i]t is the plaintiff's
burden to prove the existence of subject matter
jurisdiction.” Aversa v. United States, 99
F.3d 1200, 1209 (1st Cir. 1996).
following facts are taken from the complaint, unless
otherwise noted. Viana was born in Brazil and entered the
United States legally in 1990 on a tourist visa. He was
granted work authorization in 1993, which continued through
2008. On the eve of the expiration of his visa, Viana filed a
petition for asylum, which an immigration judge denied in
January 2010. Through an attorney, Viana appealed the denial.
In October 2011, the Board of Immigration Appeals
(“BIA”) denied the appeal. Viana alleges that,
although his attorney received a copy of the BIA's
decision, he never received a copy from either the BIA or his
attorney. Viana did not learn that his appeal had been denied
until late 2017.
November 2017, Viana's daughter-a United States
citizen-filed a “Petition for Alien Relative”
(Form I-130) on Viana's behalf. On March 5, 2018,
however, Immigration and Customs Enforcement
(“ICE”) summoned Viana to its local office. ICE
served Viana with an “Order of Supervision, ”
which required him to “produce airplane tickets on
March 15 . . . for his return to Brazil no later than April
4.” Doc. no. 1 at 5.
March 19, Viana filed the present complaint. He alleges that
defendants have violated his procedural and substantive due
process rights (Count I), as well as his statutory rights
under the Immigration and Nationality Act (Count II). The
basis for these claims is Viana's assertion that the
“unreasonably compressed schedule to leave the
country” prevents him from pursuing various avenues for
relief from removal. Id. at 3. Viana indicates that
he has begun the process of filing a motion to reopen with
the BIA, based on claims for asylum and under the Convention
Against Torture. He also states that he intends to research
other “amnesty and visa avenues.” Id. at
10. The sole relief he seeks is an injunction against his
removal until he has had a reasonable opportunity to present
his claims for relief from removal. With his complaint, Viana
filed an “Emergency Motion to Stay, ” requesting
that the court issue a stay of his impending removal for the
reasons set forth in the complaint.
complaint, Viana stated that this court had jurisdiction by
virtue of 28 U.S.C. § 1331 (federal question
jurisdiction), and 28 U.S.C. § 1651 (All Writs Act). In
his memorandum on jurisdiction, however, Viana asserts only
28 U.S.C. § 1331 as the basis for this court's
jurisdiction. He further concedes that he does not challenge
the validity of the removal order itself. Accordingly, the
court confines its analysis to whether the court has
jurisdiction, pursuant to 28 U.S.C. § 1331, to consider
Viana's claims and order the requested relief.
district courts have original jurisdiction over what have
come to be known as ‘federal question' cases, that
is, civil actions ‘arising under the Constitution,
laws, or treaties of the United States.'”
Viqueira v. First Bank, 140 F.3d 12, 17 (1st Cir.
1998) (quoting 28 U.S.C. § 1331). However, jurisdiction
conferred under this statute “can be precluded by
another, more specific statute.” Pejepscot Indus.
Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 200 n.3
(1st Cir. 2000). In this case, the more specific statute at
issue is 8 U.S.C. § 1252, which contains numerous
provisions limiting or eliminating the jurisdiction of
district courts over immigration matters.
here is 8 U.S.C. § 1252(g). That provision states that
“no court shall have jurisdiction to hear any cause or
claim by . . . any alien arising from the decision or action
by the Attorney General to . . . execute removal orders
against any alien.” 8 U.S.C. § 1252(g) (emphasis
added). This provision applies “notwithstanding any
other provision of law (statutory or nonstatutory), including
section 2241 of Title 28, or any other habeas corpus
provision, and sections 1361 and 1651 of such title.”
Id. Section 1252(g) is “directed against a
particular evil: attempts to impose judicial constraints upon
[certain categories of] prosecutorial discretion.”
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S.
471, 485 n.9 (1999).
claims appear to fall well within the ambit of §
1252(g). He challenges the manner in which immigration
authorities decided to execute his removal order, arguing
that it prevents him from seeking potential avenues for
relief from removal. His claims are dependent on and grounded
in that decision, and thus are reasonably understood to
“arise from” that decision. See Ma v.
Holder, 860 F.Supp.2d 1048, 1059 (N.D. Cal. 2012)
(interpreting “arising from” in § 1252(g) to
include claims that are “connected directly and
immediately to a decision or action . . . to execute a
removal order” (internal quotation marks
omitted)). And Viana's requested relief, a stay
from removal, would necessarily impose a judicial constraint
on immigration authorities' decision to execute the
removal order, contrary to the purpose of § 1252(g). See
Reno, 525 U.S. at 485 n.9; Jusufi v. Chertoff, No.
07-15450, 2007 WL 4591760, at *3 (E.D. Mich. Dec. 28, 2007);
Aziz v. Chadbourne, No. 07-11806, 2007 WL 3024010,
at *1 (D. Mass. Oct. 15, 2007).
district courts have likewise held that the jurisdictional
bar imposed by § 1252(g) extends to claims where the
alien challenges the timeframe in which authorities seek to
remove him, as well as to the specific relief of a stay from
removal. See, e.g., Ibrahim v. Acosta, No.
17-cv-24574, 2018 WL 582520, at *4-5 (S.D. Fla. Jan. 26,
2018); Devitri v. Cronen, No. 17-11842, 2017 WL
5707528, at *3-5 (D. Mass. Nov. 27, 2017); Hamama v.
Adducci,258 F.Supp.3d 828, 834-38 (E.D. Mich. 2017);
Diaz-Amezcua v. Johnson, No. C14-1313, 2015 WL
419029, at *3 (W.D. Wash. Jan. 30, 2015); Ma, 860 F.Supp.2d