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Gomes v. Smith

United States District Court, D. Massachusetts

May 23, 2019

Manoel Flor Gomes, Plaintiff,
v.
Yolanda Smith, Defendant.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton, United States District Judge.

         Petitioner is a detained unlawful resident who seeks habeas corpus relief. Pending before the Court are respondent's motion to dismiss for lack of jurisdiction (Docket No. 14) and petitioner's motion for leave to file an amended writ of habeas corpus (Docket No. 16).

         I. Background

         Manoel Flor Gomes (“petitioner” or “Gomes”) unlawfully entered the United States from Brazil and has resided here for approximately 13 years. In 2005, Immigration and Customs Enforcement (“ICE”) arrested Gomes during a workplace raid, released him and gave him notice of his removal hearing. That written notice did not indicate the date and time of his removal hearing and petitioner did not provide an updated address to the government as instructed. As a result, Gomes did not appear at his removal hearing and was removed in absentia by the Immigration Judge (“IJ”) in September, 2005.

         Unaware of his removal status, Gomes continued to work and live in the United States. He married Delia Jara (“Jara”), a lawful permanent resident who is now eligible for U.S. citizenship. Gomes has helped raise Jara's children as his own and together, he and Jara have a newborn baby.

         In 2017, Gomes sought lawful status and his wife filed a petition for permanent residence on his behalf. Her petition requires a waiver of inadmissibility, which is precluded by petitioner's outstanding removal order from 2005. Consequently, Gomes moved to reopen his immigration proceedings in August, 2018. The IJ denied the motion to reopen in September, 2018, and petitioner was taken into custody the following month. He appealed the denial of his motion to reopen and sought a stay of removal with the Board of Immigration Appeals (“BIA”). The BIA denied his motion to stay removal in October, 2018.

         Petitioner filed a writ of habeas corpus in this Court in November, 2018. In January, 2019, the government submitted notice to this Court that petitioner would be removed from the United States sometime in January, 2019. In order to preserve this Court's jurisdiction over the matter, this Court stayed petitioner's removal until further notice. The government subsequently filed a motion to dismiss for lack of jurisdiction (Docket No. 14), which petitioner opposes. Petitioner then filed a motion for leave to file an amended writ of habeas corpus (Docket No. 16), which the government opposes.

         In March, 2019, the BIA remanded petitioner's motion to reopen to the IJ and directed the IJ to prepare a full decision containing the necessary findings of facts and conclusions of law and to adjudicate the motion to reopen.

         This Court held a hearing on the government's motion to dismiss on May 7, 2019. At the hearing, counsel informed the Court that the IJ had reissued his opinion on removal and that petitioner now has two appeals pending with the BIA.

         II. Legal Analysis

         A. Government's Motion to Dismiss (Docket No. 14)

         1. Jurisdiction

         The government argues that this Court lacks jurisdiction over petitioner's removal order because the Immigration and Nationality Act (“INA”) was amended by the Real ID Act of 2005 to vest jurisdiction as to removal orders exclusively within the United States Circuit Courts of Appeals. 8 U.S.C. § 1252(g); Ishak v. Gonzales, 422 F.3d 22, 28-29 (1st Cir. 2005).

         Petitioner rejoins that this Court has jurisdiction because he is not challenging the validity of his removal order but rather seeks a writ of habeas corpus to preserve his underlying claims for relief, namely waiver of inadmissibility, cancellation of removal and relief under the Conventions Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). To that effect, petitioner concedes that the motion to reopen process is a constitutionally adequate substitute to habeas relief but that, as applied, he would be subject to removal without the ability to seek the aforementioned relief. In support ...


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