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Nken v. Napolitano

April 9, 2009

JEAN MARC NKEN, PETITIONER,
v.
JANET NAPOLITANO, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, RESPONDENT.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Petitioner Jean Marc Nken ("Petitioner") is a citizen and national of Cameroon who is currently detained in Maryland and awaiting deportation pursuant to a final removal order issued by the Board of Immigration Appeals ("BIA"). Petitioner has filed a petition for writ of habeas corpus against Janet Napolitano in her official capacity as the Secretary of the Department of Homeland Security (the "Secretary").*fn1 Currently pending before the Court is the Secretary's [10] Motion to Dismiss. After thoroughly reviewing the parties' submissions, applicable case law, statutory authority, and the entire record of the case as a whole, the Court shall GRANT the Secretary's Motion to Dismiss, for the reasons that follow.

I. BACKGROUND

Petitioner is a national and citizen of Cameroon, who entered the United States in April 2001. See First Amended Petition for Writ of Habeas Corpus, Docket No. [6], (hereinafter "Petition"), ¶ 13. According to his Petition, Petitioner's first application for asylum, withholding of removal and protection under the Conventional Against Torture was denied by an Immigration Judge ("IJ") on March 4, 2005. Id. ¶ 5. Petitioner appealed the IJ's decision to the BIA on March 31, 2005, and also submitted a motion to remand the case to the IJ in order to apply for an adjustment of status based on Petitioner's marriage to a U.S. citizen and pending I-130 application. Id. The BIA affirmed the IJ's denial of Petitioner's asylum application and denied the motion to remand on June 16, 2006. Id. ¶ 6. At that time, the BIA also issued a final order of removal. Id.

Petitioner filed a Petition for Review with the Fourth Circuit Court of Appeals on July 14, 2006. Id. The Fourth Circuit denied that Petition for Review on April 3, 2007. Id. ¶ 9; Nken v. Gonzales, 227 Fed. Appx. 265 (4th Cir. Apr. 3, 2007). During the interim, Petitioner and his wife attended an I-130 interview, at which Petitioner was arrested and placed in detention. Pet. ¶ 7. Petitioner was subsequently released and placed in the Intensive Supervision and Appearance Program ("ISAP"), a form of supervised parole. Id. Also during the interim, Petitioner filed two motions to reopen the BIA's asylum proceedings based on his marriage to a U.S. citizen. See Nken I, 559 F. Supp. 2d at 33-34. The BIA denied those motions to reopen, and the Fourth Circuit denied a Petition for Review of the BIA's denial of one of Petitioner's motions to reopen. Nken v. Mukasey, No. 07-1633, 2008 WL 961628 (4th Cir. Apr. 9, 2008). On May 6, 2008, Petitioner filed his third motion to reopen with the BIA, based on a claim of changed conditions in his home country of Cameroon. Pet. ¶ 9.

Shortly thereafter, Petitioner was arrested and placed in detention in Maryland on May 30, 2008. Pet. ¶ 10. Petitioner was informed on June 11, 2008 that he would be deported on June 16 or June 17, 2008, and that his removal was the result of his failure to comply with the ISAP supervised parole program. Id. ¶ 23. The date of his removal was later changed to June 19, 2008. Id.

On June 13, 2008, two days after Petitioner was informed of his imminent deportation, Petitioner filed an Emergency Petition for Writ of Habeas, Injunctive Relief and Stay of Removal. See Emergency Petition for Writ of Habeas, Injunctive Relief and Stay of Removal, Docket No. [1], (hereinafter "Emergency Petition"). The Emergency Petition, which the Court received in Chambers on the morning of June 16, 2008, raised various claims and sought various forms of relief. See generally id. In particular, the emergency portion of the petition asked the Court to issue injunctive relief in the form of a stay of Petitioner's removal from the United States in order to permit the BIA to consider the then-pending motion to reopen Petitioner's asylum application. See Nken v. Chertoff, 559 F. Supp. 2d 32, 32-33 (D.D.C. 2008). The Court decided to bifurcate the emergency portion of the Petition-i.e., the request for the Court to stay Petitioner's impending removal-from the remainder of the claims and requests for relief raised in the petition. Id. By Order dated June 18, 2008, this Court concluded that it lacked jurisdiction to issue a stay of Petitioner's removal order. Id. The Court held that the Immigration and Nationality Act, as amended by the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, 302, vests sole authority to review the BIA's final order of removal, as well as any claims arising from actions and proceedings brought in connection with the impending removal and claims arising from Executive Branch decisions to execute the removal order, in the Fourth Circuit Court of Appeals only. Id. The Court thus dismissed the emergency portion of the petition requesting a stay of the BIA's removal order. Id. at 38. The Court, however, explicitly did not reach the non-emergency portion of the petition. Id.

The next day, on June 19, 2008, ICE officials took Petitioner to the Baltimore Washington International Airport to deport him from the country. Joint Status Report, Docket No. [9], (hereinafter "Joint Status Report") ¶ 4. ICE officials, however, were unable to carry out Petitioner's removal because of his continued objections. Id.; see also Pet. ¶ 24. Shortly thereafter, on June 23, 2008, the BIA denied Petitioner's third motion to reopen his case based upon a claim of changed conditions in his home country of Cameroon. Jt. Status Rep. ¶ 5.

Petitioner subsequently filed his First Amended Petition for Writ of Habeas Corpus with this Court on June 30, 2008. See generally Pet. The Petition alleges due process violations in connection with the ISAP program, which Petitioner claims resulted in ICE's decision to deport Petitioner. See id. ¶¶ 83-86. In addition, the Petition alleges that ICE's deportation of Petitioner before his motion to reopen was adjudicated would be a violation of due process and of the Convention Against Torture. See id. ¶¶ 78-82.

The parties thereafter filed a Joint Status Report, as required by the Court, indicating the manner in which the parties proposed to proceed with the remaining claims in the Petition-i.e., those claims not decided in the Court's June 18, 2008 Order addressing the emergency portion of Petitioner's claims. See Jt. Status Rep. The parties, in their Joint Status Report, raised a number of initial issues that the Court determined it must address before it could consider the merits of Petitioner's habeas claims. Accordingly, the Court set a schedule for briefing and ordered that the parties' first round of legal briefing be limited to only two issues: (1) the Court's jurisdiction over Petitioner's habeas claims (as opposed to subject matter jurisdiction); and (2) venue for Petitioner's claims. See 7/16/08 Min. Order. All remaining merits-related issues, as well as subject matter jurisdiction, were held in abeyance pending further order by the Court. See id.

Pursuant to that briefing schedule, the Secretary filed the instant Motion to Dismiss, which is currently pending before the Court. See Resp.'s MTD, Docket No. [10]. Petitioner filed his Opposition, see Petr.'s Opp'n, Docket No. [15], and the Secretary her Reply, see Resp.'s Reply, Docket No. [17]. Accordingly, Respondent's Motion to Dismiss is now ripe.

However, before turning to the merits of the arguments now before it, the Court pauses briefly to note that Petitioner filed a notice with the Court after the close of briefing on the Secretary's Motion to Dismiss advising the Court that the United States Supreme Court had granted Petitioner's application for a stay of his removal, pending further order. See Petr.'s Notice, Docket No. [18]. As indicated above, Petitioner had filed a third motion to reopen with the BIA on May 6, 2008, based on a claim of changed conditions in his home country of Cameroon. See supra p. 4. Shortly after the Court's June 18, 2008 Order dismissing the emergency portion of Petitioner's Emergency Petition, the BIA denied Petitioner's motion to reopen by order dated June 23, 2008. Jt. Status. Rep. at 2. Petitioner filed an appeal of the BIA's denial with the Fourth Circuit, as well as a motion for a stay of removal pending resolution of his petition for review. Petr.'s Notice, Docket No. [18], at 2. The Fourth Circuit subsequently denied Petitioner's motion for a stay, but did not rule on Petitioner's underlying appeal. Id. On November 7, 2008, Petitioner filed a petition for certiorari and an emergency motion for a stay of removal with the United States Supreme Court pending adjudication of the petition for review in the Fourth Circuit. Id. The Supreme Court granted Petitioner's application for a stay of his removal order, pending further order, and granted Petitioner's writ of certiorari to consider the applicable standard for deciding a request to stay an alien's removal pending consideration of the alien's petition for review. See id. As of the date of this Memorandum Opinion, no decision had yet been issued by the Supreme Court nor does it appear that the Fourth Circuit has yet ruled on Petitioner's underlying appeal.

II. LEGAL DISCUSSION

As discussed above, the Court limited the initial round of briefing to the following two threshold issues: (1) whether this Court has jurisdiction over Petitioner's habeas claims (as opposed to subject matter jurisdiction); and (2) whether this Court is the proper venue for entertaining Petitioner's habeas claims. See 7/16/08. Ultimately, the Court concludes that it lacks jurisdiction over Petitioner's habeas action, for the reasons below.*fn2 The Court therefore does not reach the second question of venue.

Accordingly, the lone question now before the Court is whether it has jurisdiction over Petitioner's habeas claims. This question in turn breaks down into two related subquestions: "First, who is the proper respondent to that petition? And second, does the [Court] have jurisdiction over him or her?" Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). That is, a petitioner must name the proper respondent, and the Court must have personal jurisdiction over that person. Petitioner in this case has named the Secretary of the Department of Homeland Security as the sole respondent to his writ for habeas corpus. Neither party disputes that this Court has personal jurisdiction over the Secretary if she is the proper respondent. The parties do, however, vigorously debate whether the Secretary is in fact the proper respondent to Petitioner's habeas action. The Secretary argues that only proper respondent to the instant Petition is the warden of the Maryland detention facility in which Petitioner is presently detained. As this Court lacks personal jurisdiction over the warden, the Secretary contends that the case must be dismissed for lack of jurisdiction. See Resp.'s MTD at 4-6. Petitioner disagrees and asserts that the Secretary is a proper ...


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