United States District Court, D. Massachusetts
WILLIAM G. YOUNG DISTRICT JUDGE.
October 25, 2018, Francis Viana ("Viana") and
Munique Santos, his wife, (collectively, the
"Petitioners") filed a petition for writs of habeas
corpus and mandamus and a motion for a preliminary injunction
and a temporary restraining order seeking a stay of
Viana's removal and release from detention at the
Plymouth County, Massachusetts Correctional Facility.
See Pet. Writs Emergency Habeas Corpus, Mandamus
& Compl. Declaratory & Inj. Relief 4, 6
("Pet."), ECF No. 1. The petition named as
respondents James McCament, listed as the Director of United
States Citizenship and Immigration Services; Kirstjen
Nielsen, then-Secretary of the Department of Homeland
Security; Jefferson Sessions, then-United States Attorney
General; Denis Riordan, Boston Director of United States
Citizenship and Immigration Services; and Chris Cronen,
Boston Field Office Director of Immigration and Customs
Enforcement (collectively, the "Respondents").
Id. at 1.
January 2, 2019, the Respondents moved to dismiss the
petition for lack of subject matter jurisdiction and failure
to state a claim. Resp'ts' Mot. Dismiss Pet., ECF No.
8. The parties fully briefed that motion. Resp'ts'
Mem. Supp. Mot. Dismiss ("Resp'ts' Mem."),
ECF No. 9; Pet'rs' Opp'n Resp'ts' Mot.
Dismiss ("Pet'rs' Opp'n"), ECF No. 15.
The Court heard the motion on February 7, 2019 and took the
motion under advisement. Electronic Clerk's Notes, ECF
No. 17. In the meantime, the Court ordered the Respondents
not to remove Viana from the District of Massachusetts.
February 21, 2019, the Petitioners moved for Viana's
release from custody, alleging that the Respondents had
detained Viana for more than six months without him having
"his detention reviewed under the common law and as a
matter of constitutional right." Pis.' Mot. Custody
Release Supp. Habeas Corpus Pet. ("Release Mot.")
¶ 15, ECF No. 18. The Respondents opposed this motion on
March 6, 2019. Resp'ts' Mem. Opp'n
Pet'rs' Mot. Release ("Opp'n Release
Mot."), ECF No. 19.
careful consideration of the parties' arguments, the
Court GRANTS the Respondents' motion to dismiss, ECF No.
8, because this Court lacks subject matter jurisdiction over
the Petitioners' attempt to stop Viana's reinstated
prior order of removal. See 8 U.S.C. § 1252(b)(9), (g);
see also Tejada v. Cabral, 424 F.Supp.2d 296, 298
(D. Mass. 2006) ("One thing the REAL ID Act certainly
did do, however, was emphatically to declare that this Court
was not in any way to impede orders of removal." (citing
8 U.S.C. § 1252(a)(2)(C))). The Court acknowledges that
another session of this Court has reasoned that the
Suspension Clause requires district courts to exercise habeas
corpus jurisdiction where a petitioner alleges that
Immigrations and Customs Enforcement failed to exercise its
discretion in deciding to execute a removal order. See
Jimenez v. Nielsen, 334 F.Supp.3d 370, 385 (D. Mass.
2018) (Wolf, J.). Judge Wolf explained that this exception
applies if the petitioner's claim is colorable.
Id. (citing Accardi v. Shaughnessy, 347
U.S. 260, 268 (1954)).
accepting Judge Wolf's analysis for the purposes of this
motion, the Petitioners do not lodge a colorable claim and
thereby fail to establish this Court's jurisdiction. The
Court construes the petition to assert that Viana seeks a
provisional unlawful presence waiver, Pet. ¶ 18, and an
adjustment of status, id. ¶ 22a. Yet section
212.7(e)(4)(v) of the Code of Federal Regulations clearly
[A]n alien is ineligible for a provisional unlawful presence
waiver . . . if . . . CBP or ICE, after service of notice
under 8 CFR 241.8, has reinstated a prior order of removal
under section 241(a)(5) of the Act, either before the filing
of the provisional unlawful presence waiver application or
while the provisional unlawful presence waiver application is
8 C.F.R. § 212.7(e)(4)(v). The Petitioners fail to
allege that Viana filed a provisional unlawful presence
waiver before Immigration and Customs Enforcement reinstated
his prior order of removal. See Pet'rs'
Opp'n 12 (stating that Petitioners are "requesting
DHS to reconsider the Reinstatement of Removal in order to
apply for relief while in the United States");
see generally Pet. Consequently, the plain
terms of the regulation make clear, beyond all doubt, that
Viana cannot apply for a provisional unlawful presence
waiver. See 8 C.F.R. § 212.7(e)(4)(v).
Petitioners also posit that Viana may apply to adjust his
status under section 240A(b) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b. Pet'rs'
Opp'n 12. The Petitioners' position is untenable,
however, in light of section 1231(a)(5) of chapter 8 of the
United State Code, which states that an alien with a
reinstated final order of removal "is not eligible and
may not apply for any relief under this chapter, and the
alien shall be removed under the prior order at any time
after the reentry." What's more, the very same
provision states that a reinstated final order "is not
subject to being reopened or reviewed." Id.
Accordingly, the Petitioners lack a colorable claim that the
Respondents failed to exercise their discretion because the
relevant statutes and regulations foreclosed any discretion
with regard to the identified forms of relief that Viana
purports to seek.
this Court (1) GRANTS the Respondents' motion to dismiss
for lack of subject matter jurisdiction, ECF No.
(2) DENIES the Petitioners' motion for release, ECF No.
18, because, even though the Court has subject matter
jurisdiction over habeas corpus petitions challenging
prolonged immigration detention, Viana's removal is
"reasonably foreseeable" considering that he is not
entitled to relief, see Zadvydas v. Davis, 533 U.S.
678, 688, 701 (2001); and (3) VACATES its order that Viana
not be removed, ECF No. 17.
 The Court substitutes the following
respondents pursuant to Federal Rule of Civil Procedure
25(d): L. Francis Cissna for James McCament; Kevin McAleenan
for Kirstjen Nielsen; and ...