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Fatty v. Nielsen

United States District Court, W.D. Washington, Seattle

July 20, 2018

BANGALLY FATTY, Petitioner,
v.
KIRSTJEN M. NIELSEN, et al., Respondents.

          ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION; GRANTING MOTION TO STAY REMOVAL; DENYING MOTION TO DISMISS; DENYING MOTION TO ENFORCE COURT ORDER

          Marsha J. Pechman United States District Judge.

         THIS MATTER comes before the Court on Petitioner's Objections (Dkt. No. 28) to the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge (Dkt. No. 27) and Motion to Enforce Court Order (Dkt. No. 36). Having carefully reviewed the Report and Recommendation, the Objections, the Response (Dkt. No. 29) and all related papers, and having considered the submissions of the parties at oral argument, the Court declines to adopt the Report and Recommendation; GRANTS Petitioner's Motion to Stay Removal; DENIES Respondents' Motion to Dismiss, and DENIES Petitioner's Motion to Enforce Court Order.

         Background

         Petitioner Bangally Fatty filed an immigration habeas petition under 28 U.S.C. § 2241 seeking a judicial stay of his removal pending adjudication of his petition for T nonimmigrant status (“T visa”). The relevant facts and procedural background are set forth in the Report and Recommendation. (Dkt. No. 27 at 2-7.) Mr. Fatty objects to the following findings in the Report and Recommendation: (1) that the Court lacks jurisdiction to hear his due process claims and his claims under the Administrative Procedures Act (“APA”); (2) that he failed to raise a due process claim; and (3) that actions by U.S. Citizenship and Immigration Service (“USCIS”) and U.S. Customs Enforcement (“ICE”) violated the APA. (See Dkt. No. 28.) Separately, Mr. Fatty moves to enforce the Court's previous order directing Respondents to provide a bond hearing under Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011) (“Diouf II”).

         Discussion

         I. Report and Recommendation

         Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the Magistrate Judge's Report and Recommendation that has been properly objected to and may accept, reject, or modify the recommended disposition. Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

         II. Jurisdiction

         The Court finds that 8 U.S.C. § 1252(g) (“Section 1252(g)”) does not divest it of jurisdiction to hear Mr. Fatty's claims. Section 1252(g) provides in relevant part that “no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.” The Ninth Circuit has explained that Section 1252(g) is to be interpreted narrowly, and is intended to limit “attempts to impose judicial constraints upon prosecutorial discretion.” United States v. Hovsepian, 359 F.3d 1144, 1155 (9th Cir. 2004) (citation omitted). Section 1252(g) does not divest courts of jurisdiction to hear those cases involving “a purely legal question, which does not challenge the Attorney General's discretionary authority[.]” Id. In particular, Section 1252(g) does not “prevent the district court from exercising jurisdiction over . . . due process claims [that] do not arise from a decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien, but instead constitute general collateral challenges to unconstitutional practices and policies used by the agency.” Barahona-Gomez v. Reno, 236 F.3d 1115, 1118 (9th Cir. 2001) (internal quotation marks and citations omitted).

         Were Mr. Fatty challenging his removal or the discretionary denial of his request for a stay of removal, review of that challenge clearly would be precluded by Section 1252(g). However, Mr. Fatty's claims are more properly categorized as collateral legal and constitutional challenges to the process by which the government seeks to remove him. The Court finds this to be a critical distinction, and one which enables it to hear his case.[1]

         III. Due Process Violations

         The Court finds that Mr. Fatty has raised a procedural due process claim based upon his interest obtaining a meaningful determination on his T visa application. Procedural due process “imposes constraints on governmental decisions which deprive individuals of ‘liberty' or ‘property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Elridge, 424 U.S. 319, 332 (1976). Once a petitioner has identified a protected liberty or property interest, the Court must determine whether constitutionally sufficient process has been provided. Id. In making this determination, the Court balances (1) “the private interest that will be affected by the official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Id. at 335. “Due process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 334 (citation omitted).

         A. Mr. Fatty Has a Liberty Interest in Preventing His Removal

         The Court concurs with the Report and Recommendation's finding that Mr. Fatty has a liberty interest in preventing his removal.[2] Courts have long recognized that removal implicates substantial liberty interests, such that “the Due Process Clause protects an alien subject to a final order of deportation.” Zadvydas v. ...


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