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Osorio-Martinez v. Attorney General United States of America

United States Court of Appeals, Third Circuit

June 18, 2018

WENDY AMPARO OSORIO-MARTINEZ Individually and on behalf of her minor child, D.S.R.-O., and all others similarly situated; CARMEN ALEYDA LOBO MEJIA, Individually and on behalf of her minor child, A.D.M.-L., and all other similarly situated; MARIA DELMI MARTINEZ NOLASCO, Individually, and on behalf of her minor child, J.E.L.-M., and all others similarly situated; JETHZABEL MARITZA AGUILAR MANCIA, Individually, and on behalf of her minor child, V. G.R.-A., and all others similarly situated, Appellants

          Argued: September 19, 2017

          On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5-17-cv-01747) Honorable Paul S. Diamond, U.S. District Judge

          Bridget Cambria Jacquelyn M. Kline Cambria & Kline Carol A. Donohoe, Jessica Rickabaugh [ARGUED] Tucker Law Group Anthony C. Vale Pepper Hamilton LLP Counsel for Appellants

          Nancy Winkelman Bruce P. Merenstein Arleigh P. Helfer III Schnader Harrison Segal & Lewis Counsel for Amicus Appellant

          Chad A. Readler Assistant Attorney General William C. Preachey Director Office of Immigration Litigation Erez Reuveni Senior Litigation Counsel Vinita Adrapalliyal Joseph A. Darrow [ARGUED] United States Department of Justice Office of Immigration Litigation Counsel for Appellees

          Before: AMBRO, KRAUSE, and SCIRICA, Circuit Judges.



         Petitioners, four children of Salvadoran and Honduran origin and their mothers, appear before us for a second time to challenge their expedited orders of removal. In Castro v. United States Department of Homeland Security, 835 F.3d 422 (3d Cir. 2016), cert. denied, 137 S.Ct. 1581 (2017), we held that we lacked jurisdiction to review their claims under the Immigration and Nationality Act (INA) and that, while the Suspension Clause of the Constitution would allow an aggrieved party with sufficient ties to the United States to challenge that lack of jurisdiction, the petitioners' ties were inadequate because their relationship to the United States amounted only to presence in the country for a few hours before their apprehension by immigration officers. Thus, we affirmed the District Court's dismissal of their petition.

         Now, two years after their initial detention, Petitioners raise what, at first glance, appear to be the same claims. But upon inspection they differ in a critical respect: The children now have been accorded Special Immigrant Juvenile (SIJ) status-a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet its rigorous eligibility requirements. The protections afforded to children with SIJ status include an array of statutory and regulatory rights and safeguards, such as eligibility for application of adjustment of status to that of lawful permanent residents (LPR), exemption from various grounds of inadmissibility, and robust procedural protections to ensure their status is not revoked without good cause.

         Because we conclude that the INA prohibits our review just as it did in Castro, we are now confronted with a matter of first impression among the Courts of Appeals: Does the jurisdiction-stripping provision of the INA operate as an unconstitutional suspension of the writ of habeas corpus as applied to SIJ designees seeking judicial review of orders of expedited removal? We conclude that it does. As we explained in Castro, only aliens who have developed sufficient connections to this country may invoke our Constitution's protections. By virtue of satisfying the eligibility criteria for SIJ status and being accorded by Congress the statutory and due process rights that derive from it, Petitioners here, unlike the petitioners in Castro, meet that standard and therefore may enforce their rights under the Suspension Clause. Accordingly, we will reverse the District Court's denial of Petitioners' request for injunctive relief.[1]

         I. Factual and Procedural Background

         The eight Petitioners-Wendy Amparo Osorio-Martinez and her three-year-old child D.S. R.-O., Carmen Aleyda Lobo Mejia and her four-year-old child A.D. M.-L., Maria Delmi Martinez Nolasco and her seven-year-old child J.E. L.-M., and Jethzabel Maritza Aguilar Mancia and her sixteen-year-old child V.G. R.-A.-fled physical and sexual violence perpetrated by gangs in their home countries of Honduras and El Salvador. In September and October of 2015, each family crossed into the United States from Mexico and was apprehended by Customs and Border Patrol within four miles of the border almost immediately thereafter. They were initially detained in Texas and later moved to a detention center in Leesport, Pennsylvania. After immigration officers determined that Petitioners were inadmissible, they were each ordered expeditiously removed under 8 U.S.C. § 1225(b)(1). The families requested asylum due to their fear of gang-based violence in their home countries, but their asylum requests were denied by a Department of Homeland Security (DHS) Asylum Officer and affirmed by an Immigration Judge (IJ).[2]

         In late 2015, all eight Petitioners, along with twenty-five additional families being held at the detention center, sought habeas relief in the Eastern District of Pennsylvania, challenging their final expedited removal orders and the procedures underlying those orders. See Castro v. U.S. Dep't of Homeland Sec., 163 F.Supp.3d 157 (E.D. Pa. 2016). In that case, the families claimed that the Asylum Officers and IJs violated their constitutional and statutory rights in the manner that they conducted the "credible fear" interviews. See id. at 158. The District Court dismissed their claims, id. at 175, and when they appealed we did not reach the merits because we affirmed the District Court's dismissal for lack of subject-matter jurisdiction. Castro, 835 F.3d at 425.

         The key questions in Castro were whether the INA, 8 U.S.C. § 1252(e)(2), stripped us of jurisdiction to review the petitioners' claims, and if so, whether such jurisdiction-stripping violated the Suspension Clause of the Constitution. We concluded we did lack jurisdiction under the INA, explaining that, under § 1252(e)(2)(B), we were only permitted to review "whether an immigration officer issued that piece of paper [i.e., the expedited removal order] and whether the Petitioner is the same person referred to in that order." Castro, 835 F.3d at 431, 434 (citations omitted). We also concluded that "Petitioners [were] unable to invoke the Suspension Clause" because, "as recent surreptitious entrants deemed to be 'alien[s] seeking initial admission to the United States, '" they lacked any constitutional rights regarding their applications for admission. Id. at 448-49 (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)).

         That may have seemed the end of the road for the Castro petitioners. While the Castro litigation was pending, however, the four children here applied for SIJ status. To do so, they first sought and obtained orders from the Berks County Court of Common Pleas "finding that reunification with one or both the parents was not viable due to abuse, neglect, or abandonment, and that it would not be in the child's best interest to be returned to his or her country of origin." App. 7-8. Based on those orders, the children submitted petitions for SIJ status to the United States Citizenship and Immigration Services (USCIS). In late 2016, USCIS approved their petitions and, with the consent of the Secretary of Homeland Security, the children were formally granted SIJ status.

         Among other benefits, SIJ status conferred on the children eligibility and the right to apply for adjustment of status to that of lawful permanent residents while within the United States. See 8 U.S.C. § 1255(a), (h)(1). At the time they filed those applications, however, visas necessary for their adjustment of status had not yet come available.[3] Thus, for close to two years, the children have been wait-listed, retaining their SIJ classification and awaiting adjustment of their status to LPR. Notwithstanding these developments, however, DHS continued to detain the children and their mothers and to seek their expedited removal-removal to the very countries to which USCIS and the Berks County Court of Common Pleas both found, as part of the SIJ determination, it would not be in the children's best interest to return. The Government's decision to continue seeking removal is particularly noteworthy because, as far as we are aware, until very recently DHS has never attempted to remove SIJ-classified children back to their countries of origin, much less on an expedited basis.

         In view of the children's changed status, Petitioners filed a new class action complaint seeking a writ of habeas corpus or injunction to prevent the Government from executing the expedited removal orders against them and to require their release from immigration detention pursuant to those orders, on the ground that their SIJ classification prohibited their expedited removal and continued detention. Petitioners also sought a declaration that their expedited removal violates due process, and an emergency motion for a temporary restraining order. In so doing, Petitioners claimed that their expedited removal violates the Equal Protection and Due Process Clauses of the U.S. Constitution, the Immigration and Nationality Act and its implementing regulations, the Foreign Affairs Reform and Restructuring Act (which implements the Convention Against Torture), and the Administrative Procedure Act. They also asserted a Bivens action on the ground that their continued detention violated their Fifth Amendment right not to be illegally detained.[4]

         The District Court initially granted Petitioners' request for a temporary restraining order. But the case was then reassigned to a different judge who dissolved the TRO and declined to issue a preliminary injunction, interpreting Castro to mean that Petitioners could not succeed on the merits of their claims because the District Court lacked subject-matter jurisdiction to issue a writ of habeas corpus, enjoin Petitioners' removal, or place them in standard removal proceedings. This appeal followed.[5]

         II. Standard of Review and Jurisdiction

         "In reviewing the grant or denial of a preliminary injunction, we employ a tripartite standard of review: findings of fact are reviewed for clear error, legal conclusions are reviewed de novo, and the decision to grant or deny an injunction is reviewed for abuse of discretion." Del. Strong Families v. Att'y Gen. of Del., 793 F.3d 304, 308 (3d Cir. 2015) (internal quotation marks omitted).

         We "have jurisdiction to determine whether we have jurisdiction, " Jarbough v. Att'y Gen., 483 F.3d 184, 188 n.3 (3d Cir. 2007), and the central question in this case is whether the federal courts may exercise jurisdiction over Petitioners' claims either under the INA or through invocation of the Suspension Clause.[6] We address these issues in turn.

         III. Discussion

         The Government asserts that, for all intents and purposes, this case is identical to Castro and our holding there dictates the same outcome here. As we explain below, while we agree with the Government that Castro forecloses our jurisdiction under § 1252(e)(2), we conclude that Castro supports a different result as to the constitutionality of that jurisdiction-stripping provision as applied to SIJ designees.[7]We will address, first, the question of our jurisdiction under the INA; second, the constitutionality of § 1252(e)(2) under the Suspension Clause as applied to Petitioners; and third, the consequences of our analysis for Petitioners' motion for a preliminary injunction.

         A. Statutory Basis for Jurisdiction

         Petitioners' challenge arises at the conflux of two provisions of the INA. On the one hand, as we explained in detail in Castro, Congress prescribed expedited removal procedures to facilitate the speedy processing of certain inadmissible aliens, limiting their access to federal courts under § 1252(e)(2) and granting immigration officers virtually unchecked authority to effect their removal. 835 F.3d at 425-27. On the other hand, as Petitioners argue, for certain aliens present in the country, including SIJ designees, Congress has provided for special immigrant classifications, affording them a status and statutory protections that may not be revoked without specified process, including judicial review. See, e.g., 8 U.S.C. §§ 1101(27)(J) as modified by Pub. L. No. 110-457, § 235, 112 Stat. 5044 (Trafficking Victims Protection Reauthorization Act of 2008), 1255(h); 8 C.F.R. § 205.2. Because the children have now attained this status, they contend they are exempted from the application of § 1252(e)(2) and the courts retain statutory jurisdiction to review their expedited removal orders. We briefly review the provisions of the INA relevant to expedited removal and to SIJ status before explaining why Castro definitively resolved this issue in the Government's favor.

         i. Expedited Removal of Inadmissible Aliens

         As a general matter, when an immigration officer determines that an alien "is not clearly and beyond a doubt entitled to be admitted" to the United States, the INA requires that the alien be placed in standard removal proceedings. 8 U.S.C. § 1225(b)(2)(A); see also id. § 1229a (standard removal proceedings). Those proceedings take place before an IJ and provide the alien with a variety of procedural protections, including the rights to present evidence, examine the evidence against him, demand reconsideration or reopening of his case, and appeal adverse decisions. Id. § 1229a(b)(4)(B), (c)(5), (c)(6), (c)(7); see also Serrano-Alberto v. Att'y Gen., 859 F.3d 208, 211 (3d Cir. 2017) ("[A]liens in immigration proceedings . . . are entitled to due process of law.").

         However, Congress has also provided for a separate form of removal, known as "expedited removal, " which permits the accelerated removal of aliens who, according to immigration officers, meet a set of statutorily determined criteria. 8 U.S.C. § 1225(b)(1). Those requirements include: (1) that the alien be "arriving in the United States" or not have been continuously present in the United States for two years; (2) that the alien has "not been admitted or paroled" into the United States; and (3) that the alien either lack valid immigration documentation or have made a misrepresentation in an attempt to attain immigration status. Id. Aside from an asylum interview, such aliens are afforded no procedural protections, let alone the various procedural safeguards of standard removal proceedings. See id.

         As relevant to Petitioners' claims, expedited removal also affects aliens in two other respects. First, the INA tightly constrains judicial review of expedited removal orders, stripping federal courts of jurisdiction to review such orders except on three narrow grounds: (1) whether the petitioner is an alien; (2) whether the petitioner was "ordered removed" under the expedited removal provisions; and (3) whether the petitioner can prove that she has been granted legal permanent resident, refugee, or asylum status. Id. § 1252(e)(2). Underscoring the limited scope of the second ground, the statute specifies that the inquiry into whether a petitioner was "ordered removed" may address only "whether such an order in fact was issued and whether it relates to the petitioner." Id. § 1252(e)(5). It also bars review of any claim "arising from or relating to the implementation or operation of an order of removal pursuant to [the expedited removal provision]." Id. § 1252(a)(2)(A)(i).

         Second, expedited removal significantly restricts an alien's eligibility for future admission to the United States, as "[a]ny alien who has been ordered removed under [the expedited removal provisions] . . . and who again seeks admission within 5 years of the date of such removal . . . is inadmissible." Id. § 1182(a)(9)(A)(i). And if that alien reenters the United States without being admitted, he or she is then inadmissible for 10 years. Id. § 1182(a)(9)(C)(i), (ii).

         ii. Special Immigrant Juvenile Classification

         Congress established SIJ status in 1990 in order to "protect abused, neglected or abandoned children who, with their families, illegally entered the United States, " Yeboah v. U.S. Dep't of Justice, 345 F.3d 216, 221 (3d Cir. 2003); 8 U.S.C. § 1101(a)(27)(J), and it entrusted the review of SIJ petitions to USCIS, a component of DHS. 6 USCIS Policy Manual, pt. J, ch. 1 (Mar. 21, 2018).

         Alien children may receive SIJ status only after satisfying a set of rigorous, congressionally defined eligibility criteria, including that a juvenile court find it would not be in the child's best interest to return to her country of last habitual residence and that the child is dependent on the court or placed in the custody of the state or someone appointed by the state. 8 U.S.C. § 1101(a)(27)(J); 8 C.F.R. § 204.11(c). The child must also receive approval from USCIS and the consent of the Secretary of Homeland Security to obtain the status. 8 U.S.C. § 1101(a)(27)(J); Memorandum from Donald Neufeld, Acting Assoc. Dir., Domestic Operations & Pearl Chang, Acting Chief, Office of Policy & Strategy, USCIS, Trafficking Victims Protection Reauthorization Act of 2008: Special Immigrant Juvenile Status Provisions 3 (Mar. 24, 2009), anda/Static_Files_Memoranda/2009/TVPRA_SIJ.pdf [hereinafter USCIS Memorandum] (citing H.R. Rep. No. 105-405, at 130 (1997) (Conf. Rep.)).

         Once attained, SIJ classification conveys a host of important benefits. For purposes of 8 U.S.C. § 1255(a), which describes adjustment of status, SIJ designees are "deemed . . . to have been paroled into the United States." 8 U.S.C. § 1255(h)(1). Moreover, the INA automatically exempts SIJ designees from a set of generally applicable grounds of inadmissibility and provides that other grounds of inadmissibility also may be waived at the Attorney General's discretion. 8 U.S.C. §§ 1255(h)(2), 1182(a). Of particular note, the INA exempts SIJ designees from inadmissibility based on the lack of "valid entry document[s], " id. § 1182(a)(7)(A)(i)(I)-the very ground on which the Government alleges Petitioners are eligible for expedited removal. App. 437 (citing 8 U.S.C. § 1225(b)(1)). Additionally, Congress has granted SIJ designees various ...

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