Ottey v. Department of Homeland Security

Background

The government informed the court that Immigration and Customs Enforcement intended to remove Ottey from the United States by the end of July 2020. The court had previously denied Ottey’s emergency request for a temporary restraining order stopping his removal during this civil case, while requiring the government to give at least 48 hours’ notice before the removal. The Second Circuit had denied and dismissed Ottey’s petitions for review of his removal order on July 7, 2020.

Ottey again asked the district court to stay, or temporarily stop, his removal while he pursued his civil-rights complaint against the defendants. The opinion refers to that complaint as a Bivens complaint, meaning a claim for damages or other relief against federal officials for alleged constitutional violations.

Jurisdiction and Removal Stay

The court relied on 8 U.S.C. § 1252(f)(2), which generally bars a court from enjoining removal under a final removal order unless the person seeking relief shows by clear and convincing evidence that carrying out the order is prohibited by law. The court also explained that the law makes a petition for review in the appropriate federal court of appeals the sole and exclusive method for obtaining judicial review of a removal order, leaving district courts without jurisdiction to directly review such orders.

The court determined that Ottey’s request was plainly an effort to stop execution of his removal order. Ottey had not offered the required showing that executing the order would be illegal. Although he stated that he was not challenging the removal order in the civil case, the court concluded that the requested stay would directly interfere with that order and that the district court had no jurisdiction to grant the request.

Rulings and Other Directions

The court denied Ottey’s motion for a stay of removal for lack of jurisdiction. It did not decide the merits of Ottey’s underlying civil-rights complaint.

The court found moot the order to show cause asking why the case should not be dismissed or transferred to the Northern District of Alabama as duplicative of an earlier-filed petition, because Ottey had voluntarily dismissed that earlier petition. The opinion does not state that the underlying civil-rights case was dismissed or transferred.

Because the government represented that Ottey would be removed by the end of July 2020, the court directed him to file updated contact information after removal if he wanted to continue the litigation. The defendants’ deadline to respond to the complaint was extended to 30 days after Ottey filed that information. The defendants were directed to give Ottey a copy of the order before his removal, and court staff would also mail him a copy. The court stated that the case would be closed administratively after six months if he had not updated his contact information.

The court certified that an appeal would not be taken in good faith and denied Ottey permission to appeal without paying filing fees. Judge Laura Taylor Swain signed the order.