You v. Nielsen

Background

Xiu Qing You, a citizen of China, filed a petition under 28 U.S.C. § 2241 challenging his detention and removal on statutory and constitutional grounds. He had entered the United States in 2000 without valid entry documents, was paroled into the country, and later received a final removal order after an immigration judge denied his asylum application. The order was not executed.

You later married a United States citizen. His wife filed a petition on his behalf, and You filed an application to adjust his status to that of a lawful permanent resident. After the applications remained pending for approximately five years, You filed a separate action seeking to compel USCIS to act. USCIS scheduled an interview, arrested You during the interview, and later denied his adjustment-of-status application. USCIS stated that although he was eligible, negative discretionary factors outweighed the positive factors.

Judge Analisa Torres previously ordered You released from detention and temporarily stayed his removal. You then amended his habeas petition. The amended petition sought relief concerning his removal, adjustment-of-status application, detention, a possible provisional waiver process, and attorney’s fees and costs.

Report and Recommendation

Magistrate Judge Sarah Netburn recommended granting relief on the unlawful-detention claim, denying the adjustment-of-status and provisional-waiver claims, and denying the remaining requested relief. Both sides objected. Judge Daniels reviewed the report, overruled all objections, and adopted the report in full.

Unlawful detention

The court concluded that You’s detention claim remained a live dispute even though he had been released. His release had resulted from a temporary court order rather than a final decision on the merits.

The court also held that 8 U.S.C. § 1252(g) did not prevent review of the detention claim. In the court’s view, that provision limits review of discretionary decisions to commence proceedings, adjudicate cases, or execute removal orders, but does not bar review of the separate decision to detain someone.

On the merits, the court applied the Immigration and Nationality Act’s detention rules. An individual outside the 90-day removal period may be detained beyond that period if the Attorney General determines that the person poses a risk to the community or is unlikely to comply with the removal order. Otherwise, the person must be released subject to supervision conditions. The court found no indication that anyone had made either required finding about You. It therefore held that his detention from May 2018 through June 2018 was unlawful.

The respondents argued that the statute also permitted detention because You was allegedly inadmissible. The court rejected that argument, reasoning that You had been paroled into the United States and that, in any event, a person could not both be eligible for adjustment of status and be detained on the basis of inadmissibility under the circumstances presented.

As a remedy, the court enjoined the respondents from detaining You unless the findings required by 8 U.S.C. § 1231(a)(6) were made.

Adjustment-of-status claim

The court denied You’s adjustment-of-status claim for lack of jurisdiction. It held that 8 U.S.C. § 1252(a)(5) made a petition for review in a court of appeals the exclusive method for directly reviewing a removal order, and that You’s challenge to the adjustment-of-status denial was an indirect challenge to that order.

The court also held that 8 U.S.C. § 1252(a)(2)(B) independently barred review of USCIS’s discretionary denial of adjustment of status. Although some legal questions concerning eligibility may be reviewable, USCIS had found You eligible and had denied the application based on discretionary factors. The court concluded that the district court therefore could not review that denial.

Provisional-waiver claim

The court concluded that You’s request to prevent removal while he pursued a provisional waiver did not present a live case or controversy. You had not filed the application needed to begin that process and intended to pursue it only if his adjustment-of-status effort failed. The court therefore treated the claim as hypothetical and denied it.

Disposition

The court granted the habeas petition in part and denied it in part. The unlawful-detention claim was granted, with the stated injunction against future detention unless the statutory findings were made. The adjustment-of-status claim was denied for lack of jurisdiction, the provisional-waiver claim was denied as hypothetical, and all other claims for relief were denied.