United States District Court, D. Massachusetts
WILLIAM G. YOUNG, D.J.
11, 2019, petitioners Munique Viana Santos
("Santos") and Francis Viana ("Viana")
(collectively, "Petitioners") filed a petition for
a writ of habeas corpus. Pet. Writ Habeas Corpus Under 28
U.S.C. § 2241 ("Pet."), ECF No. 1. On June 28,
2019, Respondents Kevin McAleenan, Todd Lyons, Joseph D.
McDonald, Jr., and Antone Moniz (collectively,
"Respondents") moved to dismiss the petition,
see Resp'ts' Mot. Dismiss, ECF No. 12; Mem.
Supp. Resp't's Mot. Dismiss & Opp'n
Pet'r's Mot. TRO ("Mot. Dismiss"), ECF No.
13, and to reconsider the temporary stay of removal that
Judge Saris entered after ordering service, see
Resp't's Mot. Reconsider June 12, 2019 Order, ECF No.
14; Order, ECF No. 4. On July 9, 2019, Judge Wolf transferred
the case to this session of the Court per Local Rule 40.1,
ECF Nos. 17, 18. Petitioners opposed Respondents' motions
on July 17, 2019, Pet'rs' Mem. Opp'n
Resp'ts' Mot. Dismiss Pet. Writ Habeas Corpus
("Opp'n Mot. Dismiss"), ECF No. 21;
Pet'rs' Mem. Opp'n Resp'ts' Mot.
Reconsider June 12, 2019 Order, ECF No. 22. Respondents filed
a reply memorandum on July 24, 2019. Reply Pet'r's
Mem. Opp'n Resp'ts' Mot. Dismiss
("Reply"), ECF No. 24.
careful review of the parties' submissions, the Court
DISMISSES the petition, ECF No. 1. Putting aside whether res
judicata, the abuse of the writ doctrine, or section 2244 of
chapter 28 of the United States Code precludes this petition,
the Court concludes that Petitioners bring the same
substantive claims in this petition as they lodged in a
previously dismissed petition. Compare Pet. Writs
Emergency Habeas Corpus, Mandamus & Compl. Decl. &
Inj. Relief, Civ. A. No. 18-12232-WGY, ECF No. 1 (D. Mass.
Oct. 25, 2018) and Santos v.
Cissna, Civ. A. No. 18- 12232-WGY, 2019 WL 1745187
(D. Mass. Apr. 18, 2019), with Pet.
the instant petition additionally asserts that Viana belongs
to a certified class of plaintiffs eligible to seek
provisional unlawful presence waivers, see Pet. 19;
Order ¶ 2, Calderon Jimenez v.
McAleenan, Civ. A. No. 18-10225 (May 17, 2019)
(Wolf, J.), ECF No. 253. This distinction makes no
difference, however, because the Court already decided that
Viana lacks even a colorable entitlement to a waiver through
that process. See Santos, 2019 WL 1745187, at *2
(citing 8 C.F.R. § 212.7(e)(4)(v)).
adherence to its previous decision, the Court thus GRANTS
Respondents' motion to dismiss, ECF No. 12.
Court nonetheless dismisses the instant petition without
prejudice and DENIES Respondents' motion to reconsider,
ECF No. 14. In their opposition to Respondents' motion to
dismiss, Petitioners point to the Ninth Circuit's recent
decision in Thuraissigiam v. United States
Department of Homeland Security, 917 F.3d 1097 (9th Cir.
2019). See Opp'n Mot. Dismiss 4-6. There, the Ninth
Circuit held that Congress violated the Suspension Clause
when it stripped federal courts of jurisdiction to consider
habeas corpus petitions alleging that immigration authorities
did not follow their own procedures and applicable legal
standards for reviewing asylum claims raised in expedited
removal proceedings. See Thuraissigiam, 917 F.3d at
1118-19 (declaring application of section 1252(e)(2) of
chapter 8 of the United States Code violated the Suspension
Clause). Insofar as Petitioners challenge the validity of the
expedited removal scheme, their challenge fails because
"an alien seeking initial admission to the United States
requests a privilege and has no constitutional rights
regarding his application, for the power to admit or exclude
aliens is a sovereign prerogative." See Landon
v. Plasencia, 459 U.S. 21, 32 (1982); see
also Thuraissigiam, 917 F.3d at 1103, 1112-13
(distinguishing case from Garcia de Rincon v.
Dep't of Homeland Sec, 539 F.3d 1133, 1141 (9th
Cir. 2008), which upheld expedited removal process's
limits on habeas corpus review against general due process
objections). The Thuraisssigiam decision only holds
that section 1252(e) (2)'s limits on habeas corpus review
of the expedited removal process suspends the writ of habeas
corpus insofar as it fails to provide immigrants with a
"meaningful opportunity" to show they are entitled
to asylum. Thuraissigiam, 917 F.3d at 1110, 1117.
their opposition, Petitioners suggest - for the first time -
that Viana had an asylum claim when he first attempted to
enter the United States but did not request asylum because he
"was not made aware that he could have raised a valid
claim for political asylum due to the imminent threat which
his family in Brazil faced due to local gang violence which
had targeted them prior to his arrival in 2002."
Opp'n Mot. Dismiss 5. This claim may fall within the
Thuraissigiam decision's ambit because the expedited
removal process has long required immigration officers to
advise immigrants subject to that process of their right to
claim asylum, see American Immigration Lawyers
Association v. Reno, 18 F.Supp.2d 38, 44
(D.D.C. 1998), aff'd, 199 F.3d 1352 (D.C. Cir.
2000), but Petitioners only fleetingly allude to this
possible ground for relief in their brief, Opp'n Mot.
Dismiss 5. Respondents counter with a factual argument - that
"Viana was not deprived of an opportunity to present an
asylum claim." Reply 4.
the Court dismisses the petition without prejudice and with
leave to file a motion to amend the petition in light of the
seriousness of this late-offered allegation. In that motion
and proposed amended petition, Petitioners may attempt to
support factually and legally their claim to relief based on
Viana's supposed unawareness of his right to present an
asylum claim. The Court further observes that the
Thuraissigiam decision not only created a circuit
split with the Third Circuit, see Castro v.
United States Department of Homeland Security, 835
F.3d 422 (3d Cir. 2016), but also the petitioner in
Thuraissigiam challenged directly his expedited
removal order, not the reinstatement of a final removal
order. See Thuraissigiam, 917 F.3d at 1100, 1111.
the Court enters this order having reserved decision on
whether res judicata,  the abuse of the writ doctrine,
section 2244(a) of chapter 28 of the United States
proscribe this second habeas corpus action.
 The Court substitutes respondent Todd
Lyons for Christopher Cronen pursuant to Federal Rule of
Civil Procedure 25(d) .
 The Court observes that, historically,
res judicata did not apply to habeas corpus petitions.
See Sanders v.United States, 373 ...