United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
Dennis Saylor United States District Judge
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.
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.
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.
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.
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.
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.
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.
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.).
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. ¶
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.
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.
¶ 16). However, he also requested an administrative stay
of removal because of his illness and asked to speak with an