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Hussein v. Strafford County Department of Corrections Superintendent

United States District Court, D. New Hampshire

May 16, 2018

Abdigani Faisal Hussein
v.
Strafford County Department of Corrections Superintendent Christopher Brackett and U.S. Immigration and Customs Enforcement Boston Field Office Director Chris M. Cronen

          Mark J. Devine, Esq. Benjamin J. Wahrer, Esq. Twain Asher Braden, Esq. Terry L. Ollila, AUSA

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge

         This court's subject-matter jurisdiction over this action depends on whether the petitioner has made a colorable claim that certain provisions of the Real ID Act, see 8 U.S.C. § 1252, violate the United States Constitution's Suspension Clause, U.S. Const. art. I, § 9, cl. 2, by divesting this court of jurisdiction to hear his habeas petition. The court denies the respondents' motion to dismiss the petition. While the court does not conclude in this preliminary procedural posture that the Real ID Act's jurisdiction-divesting provisions violate the Suspension Clause, the habeas petitioner's colorable argument to that effect makes a jurisdiction-based dismissal inappropriate at this time.

         Abdigani Faisal Hussein filed a petition for a writ of habeas corpus, see 28 U.S.C. § 2241, and complaint for declaratory and injunctive relief, seeking to stay his removal to his native Somalia until the Board of Immigration Appeals (BIA) has decided his recently-filed motion to reopen his removal proceedings, see 8 U.S.C. § 1229a(c)(7). The federal respondents moved to dismiss Hussein's petition and complaint, arguing that this court lacks subject-matter jurisdiction under 8 U.S.C. § 1252. See Fed.R.Civ.P. 12(b)(1).

         Although the respondents convincingly argue that § 1252 divests the court of jurisdiction over issues of law and fact arising from final removal orders such as Hussein's, the court retains jurisdiction to adjudicate Hussein's distinct claim that § 1252 impermissibly violates the Suspension Clause as applied to him under these circumstances. Accordingly, the court denies the respondents' motion to dismiss Hussein's petition.

         I. Applicable legal standard

         “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” United States v. Coloian, 480 F.3d 47, 50 (1st Cir. 2007) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)) (formatting altered). “Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).

         Invoking Federal Rule of Civil Procedure 12(b)(1), the respondents move to dismiss Hussein's petition and complaint for lack of subject-matter jurisdiction. The burden to prove jurisdiction rests with the petitioner. See Acosta-Ramirez v. Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013). In resolving a motion to dismiss on those grounds, the court draws the facts from the petition and complaint, “credit[ing] the [petitioner's] well-pled factual allegations and draw[ing] all reasonable inferences in the [petitioner's] favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). In doing so, the “court may also ‘consider whatever evidence has been submitted, such as the depositions and exhibits submitted.'” Id. (quoting Aversa v. United States, 99 F.3d 1200, 1210 (1st Cir. 1996)) .

         II. Background

         The following factual summary takes that approach. Hussein, a native of Somalia, is a member of the Tunni ethnic group and a non-practicing Muslim. He fled Somalia in January 1991, after members of the United Somali Congress, a major rebel organization, shot at him seven times and shot and killed his mother. After living in Kenya for five years, he entered the United States as a 23-year-old refugee in 1996 and became a lawful permanent resident in 1997. He has lived and worked in and around Portland, Maine, since 2001. He married his wife, a United States citizen, in 2004. They have three children, all of whom are United States citizens.

         In 2003, Hussein was convicted under 21 U.S.C. § 841(a)(1) of possession with intent to distribute khat, a plant which contains cathinone, a Schedule I controlled substance, rendering him subject to removal. See 8 U.S.C. § 1227(a)(2)(A)(iii). His conviction was affirmed on appeal. He then petitioned for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT). An immigration judge denied those petitions in August 2006, and the Board of Immigration Appeals (BIA) and Third Circuit Court of Appeals in turn affirmed that decision. Hussein v. Attorney General of the United States, 273 Fed.Appx. 147, 148 (3d Cir. 2008). Hussein was not removed at the time. Instead, he was granted an order of supervision, which allowed him to remain in the United States as long as he complied with certain requirements, including periodic “check-ins.” See 8 C.F.R. § 241.5.

         Following a change in national immigration enforcement policy, United States Immigration and Customs Enforcement (ICE) sought to deport Hussein in late 2017. In March 2018, he was detained by ICE in Portland, and then transferred from the Cumberland County Jail in Portland to the Strafford County House of Corrections in Dover, New Hampshire, in preparation for removal.

         On March 28, 2018, while in custody, Hussein filed a motion to reopen his removal proceedings with the BIA, see 8 U.S.C. § 1229a(c)(7), seeking deferral of removal to Somalia under the CAT because, he contends, the country conditions in Somalia have changed since his hearing before an immigration law judge in 2006. To qualify under the CAT, he must show that “it is more likely than not that [he] would be tortured if removed to” Somalia. 8 C.F.R. § 208.16(C)(2). Specifically, he contends that al-Shabaab, a fundamentalist group allied with Al-Quaeda and that came to power beginning in late 2006 (after that hearing), would torture and/or kill him because: (1) al-Shabaab targets people with extensive Western backgrounds, which Hussein has, having lived in the United States since 1996; (2) it targets non-practicing Muslims, which Hussein is; (3) al-Shabaab's leadership are members of the Hawiye ethnic group, other members of which targeted and killed other members of Hussein's family in 1991; (4) his father helped prosecute the father of al-Shabaab's current spokesman; and (5) his family owns property in Mogadishu now occupied by members of the Hawiye ethnic group, such that his return will cause them to feel threatened.

         A week later, on April 4, 2018, Hussein filed a petition for a writ of habeas corpus and a complaint for declaratory and injunctive relief in this court.[1] At the same time, he moved for a temporary restraining order, see Fed.R.Civ.P. 65, preventing ICE from removing him until the BIA ruled on his motion to reopen.[2] The court initially granted a 14-day temporary restraining order.[3] It did not renew that temporary restraining order when it expired, having been informed by the United States Attorney's Office during a hearing that its order had the effect of delaying the BIA's consideration of Hussein's emergency motion to stay his removal.[4]

         III. Analysis

         A. The Real ID Act's jurisdiction-divesting provisions

          “A federal district court may not consider a claim for relief unless Congress has given the court jurisdiction to act.” Filippi v. President of United States, 2017 DNH 221, 4 (Barbadoro, J.) (citing Finley v. United States,490 U.S. 545, 547-548 (1989)). A federal district court generally has jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States, ” 28 U.S.C. § 1331, and petitions for writs of habeas corpus, 28 U.S.C. § 2241(a). Such jurisdiction can, however, “be precluded by another, more specific statute.” Pejepscot Indus. Park, Inc. v. Maine Cent. R. Co., 215 F.3d 195, 200 n.3 ...


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