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Julce v. Smith

United States District Court, D. Massachusetts

February 27, 2018

JULVIO JULCE, Petitioner,
v.
YOLANDA SMITH, Respondent.

          MEMORANDUM AND ORDER

          F. Dennis Saylor United States District Judge

         This is an immigration case. Petitioner Julvio Julce is a Haitian citizen who is subject to a final order of removal from the United States. He seeks an injunction from this Court preventing his transfer out of Massachusetts until his case is resolved; a stay of removal; and a writ of habeas corpus ordering his immediate release.

         Julce became a lawful permanent resident of the United States in 1993. In 2004, he was convicted of two drug offenses under Massachusetts law. On the basis of those convictions, the government initiated removal proceedings against him. The Board of Immigration of Appeals affirmed the removal order in 2007, and his petition for review was denied by the First Circuit in 2008. Except for a three-week period in late 2007, he has resided in the United States continuously since 1993.

         In October 2017, Julce was informed that he would be removed from the United States. He then filed this habeas petition pursuant to 28 U.S.C. § 2241. The petition raises claims under the Due Process Clause of the Fifth Amendment and United Nations Convention Against Torture, and counsel has also invoked the Suspension Clause of the Constitution. In substance, Julce contends that he suffers from Crohn's disease, and that the Haitian government “routinely incarcerates” deportees with criminal records and subjects them to “abhorrent, unsanitary conditions.” He seeks to block his removal pending a further opportunity to litigate his claims.

         Julce is a sympathetic figure in several respects. He suffers from a debilitating disease; he has resided in the United States for nearly 25 years; and he is about to be removed to the poorest country in the hemisphere. But virtually all illegal immigrants are sympathetic figures, at least to some degree. Virtually all came here to escape poverty, crime, and injustice. Most have family members here; some have children who are citizens. And virtually all will be worse off after removal, some dramatically so.

         The question presented is not whether Julce will suffer a grave hardship if he is removed, but who gets to decide whether his removal is appropriate. By law, the power to establish immigration controls, and to establish a process for resolving immigration disputes, rests with Congress, subject only to the restraints of the Constitution. Congress has created a statutory procedure that does not include a role for the district courts; indeed, Congress has expressly stripped district courts of jurisdiction to hear such disputes. The only power that this Court has is to ascertain whether any aspect of the process to which petitioner has been subjected violates the Constitution. For the reasons set forth below, it plainly does not. Accordingly, the petition will be dismissed.

         I. Background

         A. Factual Background

         Julvio Julce is a citizen of Haiti. (Pet. ¶ 1). He is currently 38 years old and suffers from Crohn's disease. (Pet. ¶¶ 1, 8). He entered the United States as a lawful permanent resident on August 23, 1993. Julce v. Mukasey, 530 F.3d 30, 32 (1st Cir. 2008) (summarizing Julce's immigration history). On May 14, 2003, he pleaded guilty in Massachusetts state court to one count of possession with intent to distribute a Class D substance (marijuana) and one count of possession of marijuana in a school zone, and received a two-year sentence. Id.

         Because of those convictions, U.S. Immigrations and Customs Enforcement initiated removal proceedings against Julce on May 25, 2004. Id. ICE stated that he was removable because he had been convicted of an aggravated felony and because he violated a law relating to a controlled substance. Id. (citations omitted). He contested his removability, arguing that he was eligible for discretionary cancellation of removal because his conviction for possession with intent to distribute did not qualify as an “aggravated felony.” Id. The Immigration Judge rejected his application for cancellation of removal on January 30, 2007. Id. The Board of Immigration Appeals (“BIA”) affirmed the IJ's decision on August 2, 2007. Id.

         Julce then petitioned the First Circuit for review of the BIA's decision. Id. at 33. The First Circuit initially denied the petition without prejudice on September 5, 2007, for failure to provide an argument showing any likelihood of success. (Resp. Ex. A at 4). The following month, on October 12, 2007, the government filed a notice of intent to remove Julce on or after October 24, 2007. (Id.). Within a week, an attorney entered an appearance on behalf of Julce, and on October 22, 2007, he filed a renewed application for stay of removal. (Id.). The First Circuit granted a stay, but stated that the grant was “without prejudice to the [government] filing a response to the renewed motion and moving to lift the stay.” (Id.).

         Despite the stay, ICE's Enforcement and Removal Operations (“ERO”) improperly removed Julce from the United States to Haiti in late November 2007. (Pet. ¶ 7). Upon arriving in Port-au-Prince, he fell ill and was hospitalized due to complications from Crohn's disease. (Pet. ¶ 9).

         On December 11, 2007, ICE granted Julce a 90-day parole back into the United States on humanitarian grounds. (Pet. ¶ 10; Docket No. 15). He appears to have reentered the United States on December 18, 2007. (Docket No. 15). After the 90-day period expired, he remained in the United States on an order of supervision. (Pet. ¶¶ 11-12). ICE has not authorized additional parole after the initial 90-day period expired in March 2008. (Greenbaum Decl. ¶ 5). On June 20, 2008, the First Circuit ruled on the merits of his petition, and denied his request for review of the BIA's denial of his application for cancellation of removal. Julce, 530 F.3d at 36.[1]

         Over the past decade, Julce's medical situation has worsened and he has developed a chronic rheumatoid condition along with gastrointestinal issues associated with Crohn's disease. (Pet. ¶ 13). On October 19, 2017, an ERO officer informed him that he would have to obtain an airline ticket to depart the United States by December 21, 2017. (Pet. ¶ 15). In addition, he would have to provide proof of the airline ticket by November 21, 2017. (Id.). On November 21, 2017, he reported to the ERO officer with a plane ticket to Haiti scheduled for December 21, 2017. (Pet. ΒΆ 16). However, he also requested an administrative stay of removal because of his illness and asked to speak with an ...


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