United States District Court, D. New Hampshire
J. MCAULIFFE, UNITED STATES DISTRICT JUDGE
Veth brings this habeas corpus petition, seeking a stay of
his imminent deportation from the United States. See
28 U.S.C. § 2241. Because this court lacks jurisdiction
to entertain Veth's petition, the petition, as well as
his request for emergency injunctive relief, must necessarily
1983, Veth and his parents left a Cambodian refugee camp
located in Thailand and came to the United States as
refugees. At the time, Veth was eight years old. He is
2009, Veth was convicted in a Massachusetts state court of an
aggravated felony (indecent assault and battery on a child
under the age of 14). He pled guilty to the charge and was
convicted. The circumstances were apparently unusual and as a
result he received a light sentence of five years probation,
and he was ordered to undergo alcohol treatment and
counseling. In 2011, based upon that felony conviction, ICE
arrested Veth, issued a Notice to Appear, and began removal
proceedings in the Boston Immigration Court. Veth appeared at
his hearing, did not seek any relief from removal, and did
not express any fear of returning to Cambodia. He accepted
the order of removal and waived his appellate rights.
Approximately five months later, however, ICE released Veth
from custody, because Cambodia refused to provide the
necessary travel documents to effect his removal.
one-half years later (and three months before he filed his
habeas petition in this court), in September of 2018, ICE
again arrested Veth, after the Cambodian government agreed to
interview him and determine whether to issue travel
documents. Veth was originally detained in Massachusetts and
subsequently moved to New Hampshire, where he was being held
when he filed this petition on Monday, December 10, 2018. The
following day, Tuesday, December 11, 2018, the magistrate
judge entered an order directing service of Veth's habeas
petition upon the United States Attorney for the District of
New Hampshire and the other named defendants. That order
directed defendants to file a responsive pleading within
seven days and provide the court “with at least 48
hours advance notice of any scheduled removal or transfer of
Veth out of this court's jurisdiction.” But, before
receiving that order, the government had already transferred
Veth to Louisiana and then to Texas. There is also some
suggestion that Veth will be moved again -this time to either
California or Hawaii. His deportation is imminent: yesterday,
the government gave notice that it intends to remove Veth
from the United States in three days (i.e., on Monday,
December 17, 2018).
afternoon of Tuesday, December 11, 2018, the court
(Barbadoro, J.) conducted a telephonic hearing with counsel
for Veth and the government. During that hearing, the court
identified two potential jurisdictional issues. First, given
the fact that Veth is no longer in this district, the court
questioned whether the “primary custodian” rule
divested it of jurisdiction. Second, the court questioned
whether it had jurisdiction over Veth's petition given
the jurisdiction stripping provisions of 8 U.S.C. §
1252. The court afforded Veth's counsel 24 hours within
which to file a memorandum addressing those issues. Counsel
for the government was given the opportunity to respond
within 24 hours thereafter. Those memoranda have now been
does not (yet, anyway) challenge his final order of removal.
Indeed, he concedes that, based upon his state court felony
conviction, he is subject to deportation. What he seeks from
this court is a stay of his physical removal so he may have
the time necessary to challenge that underlying state court
conviction, arguing that his plea of guilty was plainly
improvident and subject to vacation. Specifically, he claims
to have received constitutionally deficient legal
representation in the state court proceeding because counsel
neglected to fully inform him of the immigration consequences
of his guilty plea. That, says Veth, amounted to a violation
of his Sixth Amendment rights, as well as his rights under
the Massachusetts Declaration of Rights, and likely renders
his plea improvident and invalid. See Padilla v.
Kentucky, 130 S.Ct. 1473 (2010); Commonwealth v.
Sylvain, 466 Mass. 422 (2013); Commonwealth v.
DeJesus, 468 Mass. 174 (2014).
juncture, federal habeas relief is unavailable -Veth cannot
challenge his state court conviction under 28 U.S.C. §
2254. His sole avenue of relief appears to lie with a
petition in the Massachusetts court of conviction seeking to
vacate his prior felony conviction. Then, if successful, he
might petition the Board of Immigration Appeals to reopen his
case. Because federal relief under section 2254 is
unavailable to him, Veth seeks habeas relief under section
2241, asserting that this court has jurisdiction to enter an
order - of indefinite duration - to stay his removal while he
attempts, first, to vacate his state felony conviction and,
second, to reopen his immigration proceedings and obtain
relief from his order of removal.
Jurisdiction over Veth's Habeas Petition.
party thinks that, standing alone, ICE's transfer of Veth
out of this jurisdiction divests this court of jurisdiction
under the “immediate custodian” rule. The court
is inclined to agree. See Rumsfeld v. Padilla, 542
U.S. 426, 440-41 (2004) (citing Ex Parte Endo, 323
U.S. 283, 306 (1944)). But, even assuming the court has not
been divested of jurisdiction solely by virtue of Veth's
removal to another state, it is plain that Congress has
stripped this court of jurisdiction to entertain Veth's
petition for habeas relief under 28 U.S.C. § 2241.
See 8 U.S.C. §§ 1252(b)(9) and 1252(g).
See also Aguilar v. U.S. Immigration &
Customs Enf't Div. of Dep't of Homeland Sec.,
510 F.3d 1, 9 (1st Cir. 2007).
says Veth, his rights under the Suspension Clause will be
violated if the court denies his requested habeas relief.
See generally Hussein v. Brackett, No. 18-cv-273-JL,
2018 WL 2248513, 2018 DNH 101 (D.N.H. May 5, 2018). And,
citing Devitri v. Cronen,289 F.Supp.3d 287 (D.
Mass. 2018), he asserts that the remedies available to him
under the BIA's process for adjudicating motions to
reopen and motions to stay are not adequate administrative
alternatives to habeas relief. The circumstances giving rise
to this case are, however, materially distinct from those in
Devitri. In Devitri, petitioners made a
colorable, non-frivolous ...