United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton, United States District Judge.
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).
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.
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.
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.
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
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.
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.
Government's Motion to Dismiss (Docket No. 14)
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).
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 ...