The opinion of the court was delivered by: John D. Bates United States District Judge
Petitioner Fabrice Sadhvani ("petitioner" or "Sadhvani"), a native and citizen of Togo, entered the United States on a student visa in 1996, but remained well beyond the authorized period for his stay. After a series of proceedings before the immigration courts, Sadhvani was deported to Togo on December 28, 2005. Almost eight months later, he filed in this Court petitions for a writ of habeas corpus and a writ of mandamus, and also sought injunctive relief. At a hearing held on September 6, 2006, the Court denied petitioner's request for a preliminary injunction, emphasizing that he had little chance of success on the merits because of serious questions as to this Court's jurisdiction over the case. Respondents then filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Having considered the parties' submissions, the Court will grant respondents' motion and dismiss this case for lack of subject matter jurisdiction.
Petitioner entered the United States on May 26, 1996 as a nonimmigrant student authorized to remain in the country through March 30, 1997. Pet.'s Exh. 7 (Notice to Appear) He filed an application for asylum twelve days before his authorization lapsed. Petition at 9, ¶ 34. After that application was denied, the Immigration and Naturalization Service, now a part of the Department of Homeland Security ("DHS"), served petitioner with a notice to appear that charged him with remaining in the United States without authorization. Pet.'s Exh. 7. A hearing was held before an immigration judge ("IJ"), during which petitioner conceded that he was removable under § 237(a)(1)(B) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(B), but sought relief in the forms of asylum, withholding of removal, and voluntary departure. Pet.'s Exh. 2 (Hearing Transcript) at 2. The IJ denied petitioner's requests for asylum and withholding of removal, but granted him sixty days within which to depart the United States voluntarily. Petitioner appealed the IJ's decision to the Board of Immigration Appeals ("BIA") on September 25, 1998. Pet.'s Exh. 2 (Oral Decision of the IJ) at 8.
While his appeal was pending, petitioner married Miriam Mohamed Alawi, a Tanzanian national who had previously applied for asylum in the United States. Petition at 11, ¶ 40. Two days after the two were married, Alawi's asylum application was granted. Resp.'s Motion Exh. 1 (11/2/2005 Letter to Alawi). She then filed a form I-730 Refugee/Asylee Relative Petition, which would have derivatively converted petitioner into an asylee. Petition at 11, ¶ 40; Pet.'s Exh. 10 (Form I-730). But before the I-730 was processed, the BIA affirmed the earlier decision of the IJ and dismissed petitioner's appeal. Pet.'s Exh. 9 (BIA Decision). The BIA later denied his motion to reopen the removal proceedings because of his intervening marriage, as well as a subsequent motion for reconsideration. Pet.'s Exhs. 13 (Motion to Reopen), 16 (Motion to Reconsider). A few months after the latest administrative setback, petitioner and his wife separated. Pet.'s Exh. 19 (11/4/2005 Letter to Jeffrey Imperant). The INS still had not adjudicated petitioner's request for derivative relief by that time.
In March 2005, petitioner sought to reopen the removal proceedings on the additional ground that circumstances in Togo, the country to which he would be deported, had changed since the time of the 1998 hearing. See 8 C.F.R. § 1003.2(c)(3)(ii). He submitted three letters about the country conditions in Togo from asylees living in the United States, as well as a 2005 report prepared by Amnesty International. Petition at 12, ¶ 44; Pet.'s Exh. 20 (3/21/2006 BIA Order). While this motion was pending before the BIA, petitioner sought a stay of removal from both the Baltimore Field Office of DHS's Immigration and Customs Enforcement ("ICE") unit and the BIA. The stay request was based on his marriage to Alawi and the still pending I-730 application for derivative asylee status. See Pet.'s Exh. 17 (5/18/2005 ICE Letter). On May 18, 2005, ICE - -not the BIA - - granted the request "as a matter of discretion," but noted that the stay was "contingent on [petitioner's] I-730 and Motion to Reopen being granted by the [BIA]." Id.
The next key event occurred in early October 2005, when Alawi was contacted by a representative of DHS. During a telephone conversation, Alawi informed the representative that she and petitioner had separated and that she intended to file for divorce. Resp.'s Motion Exh. 1. Petitioner was detained by ICE agents on October 12, 2005. Petition at 13, ¶ 74; Pet.'s Exh. 19. Approximately three weeks later, DHS sent Alawi a letter formally denying the I-730 application that she had filed on behalf of petitioner. Resp.'s Motion Exh. 1. The letter explained that, because she and petitioner were in the process of getting divorced, he was "no longer eligible for any benefits under Section 208 of the [INA]." Id. Two days after that letter was sent to Alawi, petitioner's counsel sent a letter to DHS, along with an affidavit from Alawi, emphasizing that Alawi had not yet filed for divorce and that the couple had married in good faith, and also seeking a copy of the correspondence denying petitioner's I-730 application. Pet.'s Exh. 19.
On December 22, 2005, the BIA denied petitioner's request for a stay of removal. Pet.'s Exh. 18. The one-paragraph order stated that all information had been considered and that the request for a stay had been denied because there was "little likelihood" that petitioner's pending motion to reopen would be granted. Id. Six days later, on December 28, 2005, petitioner was sent back to Togo. Petition at 13, ¶ 48. The BIA, which had apparently never been informed of petitioner's removal, took up his motion to reopen the removal proceedings based on changed circumstances and granted that motion in March 2006. In another brief order, the BIA announced that petitioner's motion met "the standards for reopening based on new evidence of changed circumstances" and remanded the matter to the IJ for further proceedings. Although DHS filed a motion for reconsideration that brought petitioner's intervening removal to the attention of the BIA, a hearing before the IJ was scheduled for September 11, 2006. Resp.'s Opp'n Exh. 2 (Master Calender Docket for 9/11/2006); Resp.'s Opp'n Exh. 3 (DHS Motion to Reconsider).
In the meantime, petitioner sought relief in this Court, simultaneously filing petitions for a writ of habeas corpus and a writ of mandamus, as well as a motion for a preliminary injunction. Dkt. No. 1, 2. The Court conducted a hearing on September 6, 2006, at the conclusion of which it entered an order denying the motion for a preliminary injunction. Dkt. No. 9. Central to the Court's determination that petitioner had little likelihood of prevailing on the merits was the substantial doubt that this Court even had jurisdiction over the case. The Court thus invited respondents to file a motion to dismiss for lack of subject matter jurisdiction. See Order (9/6/2006). That motion is now ripe for resolution.
In their motion to dismiss, respondents put forth a number of reasons, some of which overlap, why the Court lacks subject matter jurisdiction. Their two central arguments are that (1) because Sadhvani has been returned to Togo, he is no longer in respondents' "custody," a prerequisite to jurisdiction under the habeas corpus statute; and (2) § 106(a)(3) of the REAL ID Act, Pub. L. No. 109-13, div. B, § 106(a)(3), 119 Stat. 231, 310-11 (2005), divests district courts of jurisdiction over all claims arising from the execution of a removal order against an alien, whether relief is sought in the form of habeas or mandamus. These arguments will be addressed in turn.
Under Fed. R. Civ. P. 12(b)(1), the party seeking to invoke the jurisdiction of a federal court - - petitioner here - - bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103-04 (1998)); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority"); Pitney Bowes, Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 18 (D.D.C. 1998). Although a court must accept as true all the factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993), "'plaintiff[s'] factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1990)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharmaceuticals, Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987); Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986).
A motion to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) should not prevail "unless plaintiffs can prove no set of facts in support of their claim which would entitle them to relief." Kowal v. MCI Commun. Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994); Beverly Enters., Inc. v. Herman, 50 F. Supp. 2d 7, 11 (D.D.C. 1999). At the stage of litigation when dismissal is sought, a plaintiff's complaint must be construed liberally, and the plaintiff should receive the ...