Ragbir v. Homan, No. 18-1597 (2d Cir. 2019)

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Plaintiff, an alien subject to a final order of removal, together with several immigration‐policy advocacy organizations, appealed the district court's interlocutory order denying their motion for a preliminary injunction and dismissing some of their claims. Plaintiff sought to enjoin his imminent deportation on the basis of evidence that Government officials targeted him for deportation because of his public speech that was critical of Immigration and Customs Enforcement and U.S. immigration policy.

The Second Circuit vacated the district court's order and held that plaintiff stated a cognizable constitutional claim where the court's prior precedent did not foreclose the claim and where plaintiff's claim involved outrageous conduct. In this case, plaintiff's speech implicated the highest position in the hierarchy of First Amendment protection; the Government's alleged retaliation was egregious; plaintiff has a substantial interest in avoiding selective deportation; and the Government's interest in having unchallenged discretion to deport plaintiff was less substantial.

The court also held that, although Congress intended to strip all courts of jurisdiction over plaintiff's claim, the Suspension Clause of the Constitution requires the availability of a habeas corpus proceeding in light of 8 U.S.C. 1252(g). Therefore the district court had jurisdiction over plaintiff's claim and the court remanded for further proceedings.

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18 1597 Ragbir v. Homan 1 In the 2 United States Court of Appeals 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 For the Second Circuit August Term, 2018 No. 18 1597 RAVIDATH LAWRENCE RAGBIR, NEW SANCTUARY COALITION OF NEW YORK CITY, CASA DE MARYLAND, INC., DETENTION WATCH NETWORK, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS GUILD, NEW YORK IMMIGRATION COALITION, Plaintiffs Appellants, v. THOMAS D. HOMAN, in his official capacity as Deputy Director and Senior Official Performing the duties of the Director of U.S. Immigration and Customs Enforcement, THOMAS DECKER, in his official capacity as New York Field Office Director for U.S. Immigration and Customs Enforcement, SCOTT MECHKOWSKI, in his official capacity as Assistant New York Field Office Director for U.S. Immigration and Customs Enforcement, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of Homeland Security, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, WILLIAM P. BARR, in his official capacity as Attorney General of the United States, UNITED STATES DEPARTMENT OF JUSTICE, Defendants Appellees. Appeal from the United States District Court for the Southern District of New York. No. 18 cv 1159 — P. Kevin Castel, Judge. ARGUED: OCTOBER 29, 2018 DECIDED: APRIL 25, 2019 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Before: WALKER, LEVAL, and DRONEY, Circuit Judges. Ravidath Ragbir, an alien subject to a final order of removal, together with several immigration policy advocacy organizations, appeals from an interlocutory order of the United States District Court for the Southern District of New York (Castel, J.) denying their motion for a preliminary injunction and dismissing certain of their claims. Plaintiffs Appellants sought to enjoin Ragbir’s imminent deportation on the basis of evidence that Government officials targeted him for deportation because of his public speech that was critical of Immigration and Customs Enforcement and U.S. immigration policy. The district court held that Ragbir failed to state a cognizable claim to the extent that he sought to enjoin his deportation and that 8 U.S.C. § 1252(g) deprives federal courts of jurisdiction over that claim. We conclude that Ragbir states such a claim, that the Suspension Clause of the Constitution requires the availability of a habeas corpus proceeding in light of § 1252(g), and thus, that the district court had jurisdiction over Ragbir’s claim. Accordingly, we VACATE the district court’s order, and REMAND to the district court for further proceedings consistent with this opinion. Judge WALKER dissents in a separate opinion. 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ROBERT STANTON JONES, Arnold & Porter Kaye Scholer LLP, Washington, DC (William C. Perdue, Sally L. Pei, Andrew T. Tutt, Arnold & Porter Kaye Scholer LLP, Washington, DC; Emily Newhouse Dillingham, Arnold & Porter Kaye Scholer LLP, Chicago, IL; Ada Añon, Arnold & Porter Kaye Scholer LLP, New York, NY; Alina Das, Jessica Rofé, Washington Square Legal Services, Inc., New York, NY, on the brief) for Plaintiffs Appellants. STEVEN J. KOCHEVAR, ASSISTANT UNITED STATES ATTORNEY (Benjamin H. Torrance, Assistant United States Attorney, on the brief), for GEOFFREY S. BERMAN, United States Attorney for the Southern District of New York, for Defendants Appellees. DRONEY, Circuit Judge: 26 The principal question presented in this appeal is whether 27 Ravidath Ragbir, an alien subject to a valid final order of removal, has 28 presented a legally recognizable claim to enjoin the Government from 3 1 deporting him on the basis of his public speech that was critical of the 2 Government’s immigration policies and practices. Related to that 3 question is whether Congress has deprived courts of jurisdiction to 4 hear Ragbir’s claim, 1 and if so, whether the Suspension Clause of the 5 Constitution, U.S. Const. art. I, § 9, cl. 2, nonetheless requires that the 6 writ of habeas corpus be available to Ragbir. 7 8 York City, CASA de Maryland, Inc., Detention Watch Network, 9 National Immigration Project of the National Lawyers Guild, and 10 New York Immigration Coalition (collectively, “Ragbir”), 2 appeals 11 from an interlocutory order of the district court denying Plaintiffs Ragbir, together with the New Sanctuary Coalition of New By “jurisdiction,” we refer to any grant of jurisdiction, including 28 U.S.C. §§ 1331, 2241, and 1651. 1 It is uncertain whether the organizational plaintiffs would have standing on their own to pursue the claim at issue in this appeal. However, we need not reach that issue because “the issues are sufficiently and adequately presented by” Ragbir, and “nothing is gained or lost” by the presence or absence of the organizational plaintiffs. Doe v. Bolton, 410 U.S. 179, 189 (1973); see also Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 72 n. 16 (1978); Railway Labor Execs. Ass’n v. U.S., 987 F.2d 806, 810 (D.C. Cir. 1993) (“[T]he Supreme Court has repeatedly held that if one party has standing in an action, a court need not reach the issue of the standing of other parties when it makes no difference to the merits of the case.”). 2 4 1 Appellants’ motion for a preliminary injunction and dismissing his 2 claim to the extent that he seeks to “declare unlawful or to enjoin the 3 execution of the final order of removal against him” on the basis of 4 First Amendment retaliation. App’x 281–82. Ragbir claims that 5 certain officials of the Department of Justice and of the Immigration 6 and Customs Enforcement (“ICE”) agency of the Department of 7 Homeland Security (collectively, “the Government”), selectively 8 enforced against Ragbir a final order of removal on the basis of his 9 speech that these officials disfavor. The district court concluded that 10 Ragbir failed to state a cognizable claim to the extent that he sought 11 to enjoin his deportation and that 8 U.S.C. § 1252(g) deprives all courts 12 of jurisdiction over that claim. 13 We conclude that Ragbir states a cognizable constitutional 14 claim, and although Congress intended to strip all courts of 15 jurisdiction over his claim, the Suspension Clause of the Constitution 16 nonetheless requires that Ragbir may bring his challenge through the 5 1 writ of habeas corpus. Accordingly, we vacate the district court’s 2 order and remand the case. FACTUAL AND PROCEDURAL BACKGROUND 3 4 Because the district court dismissed Ragbir’s claim (and 5 accordingly denied his motion for a preliminary injunction) for lack 6 of subject matter jurisdiction, we “must accept as true the [plausible] 7 allegations contained in [his] complaint and affidavits for purposes of 8 this appeal.”3 Filartiga v. Pena Irala, 630 F.2d 876, 878 (2d Cir. 1980); 9 see J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) 10 (“We may consider affidavits and other materials beyond the 11 pleadings to resolve . . . jurisdictional issue[s], but we may not rely on 12 conclusory or hearsay statements contained in the affidavits.”); see 13 also F.T.C. v. Dean Foods Co., 384 U.S. 597, 601 (1966) (“Since the case 14 comes to us from a dismissal on jurisdictional grounds we must take See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that “the tenet that a court must accept as true all of the [plaintiff’s] allegations contained in a complaint” applies only to those allegations that are plausible). 3 6 1 the allegations of the Commission s application for a preliminary 2 injunction as true.”). 3 I. Ragbir’s Immigration Status 4 Ragbir, a native and citizen of Trinidad and Tobago, lives in 5 Brooklyn, New York. He became a lawful permanent resident of the 6 United States in 1994. His wife is an American citizen, as is their 7 daughter. In 2001, Ragbir was convicted of wire fraud and conspiracy 8 to commit wire fraud in the United States District Court for the 9 District of New Jersey, and he was sentenced to 30 months’ 10 imprisonment. See generally United States v. Ragbir, 38 F. App’x 788 11 (3d Cir. 2002). His convictions were affirmed by the United States 12 Court of Appeals for the Third Circuit.4 Id. After exhausting the direct appeal of his conviction, Ragbir filed a coram nobis petition in the District of New Jersey. On March 23, 2018, the New Jersey district court stayed Ragbir’s administrative immigration removal pending the outcome of Ragbir’s petition, finding a likelihood of success on the merits and that the other relevant factors warranted a stay. See generally Ragbir v. United States, No. 2:17 cv 1256 KM, 2018 WL 1446407 (D.N.J. Mar. 23, 2018). The district court denied Ragbir’s coram nobis petition on January 25, 2019, and the stay of removal in that action expired on February 19, 2019. Ragbir, No. 2:17 cv 1256 KM, ECF No. 82. On January 30, 2019, Ragbir filed in the Third Circuit a notice of appeal of the district 4 7 1 After Ragbir served his sentence for his wire fraud convictions, 2 ICE detained him in May 2006. In August 2006, an immigration judge 3 entered an order of removal against him on the basis of those 4 convictions. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is 5 convicted of an aggravated felony at any time after admission is 6 deportable.”). The Bureau of Immigration Affairs (“BIA”) denied 7 Ragbir’s appeal of his removal order in March 2007. We denied 8 Ragbir’s petition for review of the BIA decision in 2010.5 Ragbir v. 9 Holder, 389 F. App’x 80 (2d Cir. 2010). In 2012, the BIA denied Ragbir’s 10 motion to reconsider and reopen, and we denied Ragbir’s petition for 11 review of that decision in 2016. Ragbir v. Lynch, 640 F. App’x 105 (2d 12 Cir. 2016). court’s denial of his coram nobis petition, id., ECF No. 84, and on February 27, 2019, the Third Circuit denied Ragbir’s motion to stay his removal pending the resolution of that appeal, Ragbir v. United States, No. 19 1282 (3d Cir.). The Supreme Court denied Ragbir’s petition for a writ of certioriari as to that appeal. 5 8 1 ICE released Ragbir from its detention in February 2008, having 2 determined that he was not a flight risk. Ragbir has since continued 3 to live in the United States under orders of supervision that 4 authorized him to remain and work in the United States, provided 5 that he complied with his supervision conditions. He also received 6 four administrative stays of removal6 from ICE: in 2011, 2013, 2014, 7 and 2016. 7 The shortest of those stays was for approximately one Deportation is now described as “removal” in the federal immigration statutes. Evangelista v. Ashcroft, 359 F.3d 145, 147 n.1 (2d Cir. 2004). We nonetheless occasionally use the term “deportation” in this opinion as a “well worn colloquialism[] for . . . ‘removal.’” Id. 6 Section 241 of the INA grants the Secretary of Homeland Security authority to stay the removal of an alien if he or she “decides . . . immediate removal is not practicable or proper.” 8 U.S.C. § 1231(c)(2)(A); see Clark v. Martinez, 543 U.S. 371, 374 n.1 (2005) (stating that while the INA refers to the Attorney General as the official to whom Congress delegates authority, this authority now belongs with the Secretary of Homeland Security (citing 6 U.S.C. §§ 251(2), 252(a)(3), 271(b)). 8 C.F.R. § 241.6 implements that authority: “Any request of an alien under a final order of deportation or removal for a stay of deportation or removal shall be filed . . . with the district director having jurisdiction over the place where alien is at the time of filing.” § 241.6(a). Any one of certain enumerated officials “in his or her discretion and in consideration of factors listed in 8 CFR § 212.5 and section 241(c) of the Act, may grant a stay of removal or deportation for such time and under such conditions as he or she may deem appropriate.” Id. Under 8 C.F.R. § 212.5, officials “may require reasonable assurances” that the applicant will make any required appearances and “depart the United States when required to do so.” § 212.5(d). “The consideration of all relevant factors includes:” assurances from the 7 9 1 year, while the two most recent stays were for approximately two 2 years each. The most recent stay Ragbir received was scheduled to 3 terminate in January 2018. Ahead of that date, Ragbir filed an 4 application for a fourth renewal of his stay in November 2017. 5 II. Ragbir’s Speech 6 After his release from immigration detention in 2008, Ragbir 7 became an outspoken activist on immigration issues, including 8 publicly criticizing ICE. The New Sanctuary Coalition of New York 9 City, which he founded, sends volunteers to accompany aliens to 10 court dates and ICE check in appointments. Ragbir maintained a 11 “regular presence” outside ICE’s office and Department of Justice 12 immigration courts in Manhattan, including leading weekly prayer 13 vigils, called “Jericho Walks,” with religious faith leaders. App’x 48. 14 Ragbir has received a number of awards for his “zealous advocacy” 15 for immigrants’ rights, including from the Episcopal Diocese of Long applicant sponsor or counsel, “community ties,” and “[a]greement to reasonable conditions (such as periodic reporting of whereabouts).” § 212.5(d)(1) (3). 10 1 Island and the New York State Association of Black and Puerto Rican 2 Legislators. App’x 49. 3 On March 9, 2017, Ragbir appeared for a scheduled check in 4 with ICE officials in New York City. He was accompanied by clergy 5 and elected officials, including a New York State Senator, the New 6 York City Council Speaker, and other New York City Council 7 Members. At the check in, ICE New York Field Office Director 8 Thomas Decker confronted Ragbir and attempted to send away the 9 individuals who had accompanied him. This confrontation garnered 10 negative press coverage for ICE in prominent news outlets, in which 11 Ragbir and several of the politicians who went with him to the check 12 in expressed criticism of ICE and U.S. immigration policy.8 E.g., Liz Robbins, Once Routine, Immigration Check Ins Are Now High Stakes, N.Y. Times (Apr. 11, 2017), https://www.nytimes.com/2017/04/11/nyregion/ice immigration check in deportation.html; Nick Pinto, Behind ICE’s Closed Doors, The Most Un American Thing I’ve Seen, Village Voice (Mar. 10, 2017), https://www.villagevoice.com/2017/03/10/behind ices closed doors the most un american thing ive seen/. 8 11 1 III. The Government’s Alleged Retaliation 2 Ragbir claims that the events of the March 9, 2017 check in, 3 including his public statements and the media coverage they 4 garnered, prompted ICE to retaliate against him. Less than one year 5 after that check in, on January 3, 2018, and days before Ragbir was 6 scheduled to have his next scheduled administrative check in, ICE 7 arrested Jean Montrevil, one of the co founders of Ragbir’s New 8 Sanctuary organization, and deported him six days later. 9 On January 5, 2018, Micah Bucey, a minister in New York City, 10 along with three other faith leaders, had a meeting with ICE’s New 11 York Field Office Deputy Director Scott Mechkowski at ICE’s office in 12 Manhattan, to discuss Montrevil’s case and the clergies’ concern that 13 ICE had been surveilling individuals outside a church. According to 14 Ragbir’s complaint and a sworn declaration submitted by Bucey, 15 Mechkowski stated at the meeting, “Nobody gets beat up in the news 16 more than we do, every single day. It’s all over the place, . . . how 12 1 we’re the Nazi squad, we have no compassion.” Mechkowski then 2 stated, “The other day Jean [Montrevil] made some very harsh 3 statements. . . . I’m like, ‘Jean, from me to you . . . you don’t want to 4 make matters worse by saying things.” App’x 55, 252 (emphasis added). 5 Unprompted, Mechkowski then brought up Ragbir, stating, “I 6 read something that Ravi [Ragbir] wrote, [stating] ‘do you think it’s 7 easy walking around with a target [on you]?’” App’x 253. 8 Mechkowski stated that it “bother[ed]” him that “there isn’t anybody 9 in this entire building that doesn’t . . . know about Ravi. Everybody 10 knows this case. No matter where you go . . . .” App’x 253. 11 Mechkowski also stated that Ragbir and Montrevil’s cases were the 12 two most high profile cases that ICE had in New York City. 13 Shortly thereafter, on January 8, 2018—three days before 14 Ragbir was scheduled to appear for his next ICE check in—Ragbir’s 15 counsel Alina Das spoke with Mechkowski, who stated that he felt 16 “resentment” about the events of the March 9, 2017 check in, that he 13 1 had heard Ragbir’s statements to the press, and that he continued to 2 see Ragbir at protest vigils outside ICE’s New York City office. App’x 3 55–56, 123. 4 On January 10, 2018, Ragbir’s counsel received an email 5 indicating that his November 2017 application for a renewed 6 administrative stay of removal was still pending and no decision had 7 been reached. Ragbir’s then existing stay was set to expire on January 8 19, 2018. Ragbir’s next check in occurred on January 11, 2018. At the 9 check in meeting, Mechkowski told Ragbir that officials had decided 10 that morning to deny Ragbir’s application for a renewed stay of 11 removal and that ICE would now enforce the removal order against 12 him. Ragbir later learned that his current stay of removal, which was 13 to last eight more days, had been revoked by ICE. 14 15 16 17 IV. 18 Florida, in preparation for his removal. He was detained in Florida Events After the Government’s Decision to Execute the Order of Removal That same day, ICE detained Ragbir and transferred him to 14 1 for two weeks. During that period, Ragbir’s counsel filed a petition 2 for a writ of habeas corpus in the United States District Court for the 3 Southern District of New York, which the district court granted on 4 January 29, 2018. Ragbir was released that day, but ICE ordered him 5 to check in again on February 10, 2018, and to bring luggage for his 6 removal. 7 A day before the February 10 check in was to occur, Ragbir 8 filed this action in the United States District Court for the Southern 9 District of New York. Later that day, the Government stipulated that 10 Ragbir’s removal would be stayed pending resolution of his motion 11 for a preliminary injunction, which he filed on February 12, 2018. 12 Ragbir then brought this action, alleging two First Amendment 13 claims in the district court: one for retaliation against his protected 14 speech and the other for viewpoint discrimination.9 As relevant to 15 this appeal, Ragbir sought declaratory and injunctive relief to prevent We consider these claims to be materially indistinguishable for our purposes and so, we refer to Ragbir’s retaliation “claim” in the singular. 9 15 1 the Government from executing the removal order against him on the 2 basis of his protected speech. He asserted that the district court had 3 federal question jurisdiction under 28 U.S.C. § 1331 and, in the 4 alternative, that it had jurisdiction under the All Writs Act, 28 U.S.C. 5 § 1651, habeas corpus jurisdiction under 28 U.S.C. § 2241, or pursuant 6 to the constitutionally minimum scope of the writ as required by the 7 Suspension Clause of the United States Constitution, U.S. Const. art. 8 I, § 9, cl. 2. 9 10 11 V. District Court Proceedings in this Action 12 lack of subject matter jurisdiction insofar as he sought to prevent the 13 Government from executing the final order of removal against him 14 and, accordingly, denied his motion for a preliminary injunction. 15 First, the district court concluded that 8 U.S.C. § 1252 deprives courts 16 of subject matter jurisdiction over all claims challenging the execution On May 23, 2018, the district court dismissed Ragbir’s claim for 16 1 of a valid final order of removal, including claims based on the United 2 States Constitution. Section 1252(g) provides: 3 4 5 6 7 8 9 10 11 12 13 Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter. 8 U.S.C. § 1252(g) (2012). 14 The district court determined that Ragbir’s claim arose from the 15 Government’s decision to “execute [the] removal order[]” against 16 him, see id., and that § 1252(g) deprives courts of jurisdiction over 17 constitutional claims, including those brought under 28 U.S.C. §§ 18 1331, 2241, or 1651. The district court emphasized that § 1252(g) 19 applies to “any cause or claim” and applies “notwithstanding any 20 other provision of law (statutory or nonstatutory),” including “any . . 21 . other habeas corpus provision.” App’x 269, 275 (quoting § 1252(g)) 17 1 (emphasis in original decision). Thus, the district court concluded 2 that it lacked subject matter jurisdiction over Ragbir’s claim. 3 The district court further concluded that it could avoid 4 deciding whether § 1252(g)’s withdrawal of jurisdiction posed a 5 Suspension Clause problem as to Ragbir because he did not state a 6 cognizable constitutional claim. First, the district court applied 7 decisions from this Court which, in its view, foreclosed a First 8 Amendment retaliation claim based on an official’s improper motives 9 underlying a criminal arrest or prosecution, provided that the official 10 had probable cause for the arrest or prosecution. 11 Second, the district court relied on the United States Supreme 12 Court’s decision in Reno v. Am. Arab Anti Discrimination Comm., 525 13 U.S. 471, 488 (1999) (henceforth, “AADC”), which stated that “[a]s a 14 general matter[,] . . . an alien unlawfully in this country has no 15 constitutional right to assert selective enforcement as a defense 16 against his deportation.” The district court acknowledged the 18 1 Supreme Court’s statement in AADC that it would not “rule out the 2 possibility of a rare case in which the alleged basis of discrimination 3 is so outrageous that the . . . considerations” that generally foreclose 4 a selective enforcement claim “can be overcome.” App’x 279 (quoting 5 AADC, 525 U.S. at 491). The district court declined, however, to 6 “extend this exception” to Ragbir’s claim. App’x 280. 7 The district court dismissed for lack of jurisdiction Ragbir’s 8 claim seeking to enjoin the execution of his removal order and, 9 accordingly, denied his motion for a preliminary injunction. 10 11 12 VI. Proceedings in this Court 13 of the district court’s decision on May 25, 2018. On June 19, 2018, the 14 district court denied Ragbir’s motion for a stay of removal pending 15 his appeal to this Court. On July 19, 2018, in response to Ragbir’s 16 motion for a stay of removal filed in this Court, we granted a 17 temporary stay of removal pending oral argument on the motion, Ragbir and the organizational plaintiffs filed a notice of appeal 19 1 which was held on August 14, 2018. We issued an order on August 2 15, 2018, expediting hearing of this appeal and instructing the parties 3 to notify the Court if the stay issued by the District Court for the 4 District of New Jersey was withdrawn or vacated before we heard the 5 appeal. We heard oral argument on the appeal on October 29, 2018, 6 and on November 1, 2018, we granted Ragbir’s motion for a stay of 7 his removal pending the outcome of this appeal. 8 APPELLATE JURISDICTION 9 As the parties agree, we have jurisdiction over this appeal from 10 the district court’s interlocutory denial of a preliminary injunction, 28 11 U.S.C. § 1292(a)(1), and our jurisdiction extends to the district court’s 12 dismissal of certain claims because that decision was “inextricably 13 intertwined” with the denial of Ragbir’s request for a preliminary 14 injunction and “review of the unappealable issue is . . . necessary for 15 review of the issue over which we have appellate jurisdiction,” Lamar 20 1 Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365, 371 72 2 (2d Cir. 2004). DISCUSSION 3 4 We review de novo a district court’s dismissal of claims for lack 5 of subject matter jurisdiction. Malik v. Meissner, 82 F.3d 560, 562 (2d 6 Cir. 1996). We review for abuse of discretion a district court’s denial 7 of a preliminary injunction. N. Am. Soccer League, LLC v. U.S. Soccer 8 Fed n, Inc., 883 F.3d 32, 36 (2d Cir. 2018). “A district court abuses its 9 discretion when it rests its decision on . . . an error of law.” Id. 10 As an initial matter, Ragbir contends, and the Government does 11 not dispute, that he could not have brought his claim in a BIA 12 proceeding or in a petition for review. That is because Ragbir’s claim 13 arose only after his petition process was exhausted and his order of 14 removal became final. 10 Notwithstanding this situation, the A renewed motion to reopen also is not available to Ragbir. Such a motion allows a petitioner to introduce “new facts” pertinent to the propriety of an order of removal. 8 C.F.R. § 1003.2(c)(1). Subject to certain exceptions that are inapplicable here, see id. § 1003.2(c)(3), and the possibility in a rare case of equitable 10 21 1 Government argues that § 1252(g) withdraws federal court 2 jurisdiction over Ragbir’s First Amendment claim. The Government 3 also contends that we need not decide whether the Suspension Clause 4 would nonetheless require the availability of a habeas corpus 5 proceeding because AADC, and certain of our decisions, foreclose 6 Ragbir’s claim. Ragbir disagrees, contending that he states a claim, 7 that § 1252(g) should be read to allow jurisdiction over his 8 constitutional claim in the district court, and that if § 1252(g) does not 9 so allow, the Suspension Clause requires a review of his claim 10 through a petition for the writ of habeas corpus. 11 We first consider whether § 1252(g) forecloses all jurisdiction 12 over Ragbir’s constitutional claim, which he could not bring in his tolling, see, e.g., Zhao v. INS, 452 F.3d 154, 157 (2d Cir. 2006) (equitably tolling numeric and time limits because of ineffective assistance of counsel during limitations period), “a party may file only one motion to reopen,” id. § 1003.2(c)(2). Here, even assuming, arguendo, that “new facts” as to the Government’s alleged retaliatory execution of Ragbir’s order of removal in 2018 could bear on the propriety of that order—entered years before the alleged retaliation—Ragbir already filed an unsuccessful motion to reopen (prior to the alleged retaliation). See generally Ragbir v. Lynch, 640 F. App’x 105 (2d Cir. 2016). 22 1 earlier—and concluded—petition for review. We then consider 2 whether Ragbir states a viable constitutional claim. If we answer that 3 question in the affirmative, we must then address whether the 4 Suspension Clause requires a hearing of Ragbir’s claim in a habeas 5 corpus proceeding. See Three Affiliated Tribes of Fort Berthold 6 Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 158 (1984) (“It is a 7 fundamental rule of judicial restraint . . . [that courts] will not reach 8 constitutional questions in advance of the necessity of deciding 9 them.”). 10 11 12 13 I. Whether § 1252(g) Forecloses Jurisdiction Over Ragbir’s Claim 14 whether § 1252(g) applies: 1) to the Government’s alleged conduct 15 here; and 2) to constitutional claims. The crux of the dispute between Ragbir and the Government is A. Section 1252(g) Applies to the Alleged Government Conduct 16 17 18 19 only to three discrete actions:” the Government’s “‘decision or action’ The Supreme Court has emphasized that § 1252(g) “applies 23 1 to ‘commence proceedings, adjudicate cases, or execute removal 2 orders.’”11 AADC, 525 U.S. at 482 (quoting § 1252(g)) (emphasis in 3 original decision). By contrast, § 1252(g) does not apply to “many 4 other decisions or actions that may be part of the deportation 5 process—such as the decisions to open an investigation.” Id. 6 The Government argues that Ragbir’s claim falls within the 7 ambit of § 1252(g) because his claim arises from the Government’s 8 execution of Ragbir’s final removal order. Ragbir disagrees, 9 contending that his claim instead arises “from immigration officials’ 10 unlawful decision to retaliate against [his] protected speech.” 11 Appellants’ Br. at 31–32. 12 In support, Ragbir refers to a Ninth Circuit case, Arce v. United 13 States, 899 F.3d 796 (9th Cir. 2018). In Arce, the Government’s AADC addressed the version of § 1252(g) as it was first enacted in 1996. As is discussed later in this opinion, § 1252(g) has since been amended by the REAL ID Act of 2005, but the statutory text regarding the three discrete Government actions has not changed. 11 24 1 violation of a judicial stay of removal resulted in the alien’s wrongful 2 removal from the United States. Id. at 799. The alien plaintiff brought 3 a Federal Tort Claims Act (“FTCA”) claim for damages suffered as 4 result of the removal. The Ninth Circuit held that this claim fell 5 outside the scope of § 1252(g) because “the stay of removal 6 temporarily suspend[ed] the source of the [Government’s] authority 7 to act.” Id. at 800 (internal quotations omitted). In other words, while 8 the stay was in place, the Government “totally lack[ed] the [statutory] 9 discretion to effectuate a removal order.” Id. at 800–01. Therefore, the 10 Ninth Circuit concluded that the Government’s “decision or action to 11 violate a court order staying removal f[ell] outside” of § 1252(g)’s 12 “jurisdiction stripping reach.” Id. at 801. 13 We express no opinion as to the Ninth Circuit’s decision in Arce, 14 which is distinguishable from this case. 12 Here, the Government We note that the Eighth Circuit appears to have come to a different conclusion than the Ninth Circuit. Silva v. United States, 866 F.3d 938, 940 (8th Cir. 2017) (holding that a claim challenging the execution of a removal order in violation of a stay still fell within § 1252(g)). 12 25 1 unquestionably had statutory authority to execute Ragbir’s final 2 order of removal, and that very conduct is the retaliation about which 3 Ragbir complains.13 To remove that decision from the scope of section 4 1252(g) because it was allegedly made based on unlawful 5 considerations would allow plaintiffs to bypass § 1252(g) through 6 mere styling of their claims. And so, we conclude that the 7 Government’s challenged conduct falls squarely within the ostensible 8 jurisdictional limitation of § 1252(g). B. Section 1252(g) Applies to Constitutional Claims 9 10 11 12 “constitutional” in § 1252(g) if it intended to foreclose jurisdiction 13 (habeas or otherwise) over those claims. Moreover, he contends that 14 § 1252(g) merely “channels” claims that could be brought in a petition Next, Ragbir argues that Congress would have used the word That discrete action necessarily includes the Government’s denial of a further administrative stay of removal in January 2018 and its early termination of Ragbir’s then existing stay. See AADC, 525 U.S. at 483 (describing the Executive’s discretion to abandon the execution of a removal order as part of the execution “stage” in the deportation process). 13 26 1 for review into that process, but does not eliminate jurisdiction over 2 other claims. The Government argues that § 1252(g) plainly states 3 otherwise. 4 Before proceeding to the current text of § 1252(g), a brief review 5 of the history of that provision—including court decisions construing 6 it—is instructive. Section 1252(g) was added to the Immigration and 7 Nationality Act (“INA”) through adoption of the Illegal Immigration 8 Reform and Immigrant Responsibility Act (“IIRIRA”) in 1996. The 9 initial version of § 1252(g) read as follows: 10 11 12 13 14 15 16 17 18 Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. 8 U.S.C. § 1252(g) (2000). 19 In Jean Baptiste v. Reno, 144 F.3d 212, 218–20 (2d Cir. 1998), we 20 held that the 1996 version of § 1252(g) barred federal court jurisdiction 27 1 under 28 U.S.C. § 1331 over constitutional claims within its scope— 2 there, the plaintiffs’ Fifth Amendment due process claim challenging 3 the INS’s deportation procedures. We dismissed the plaintiffs’ claim 4 for lack of subject matter jurisdiction under § 1331. Id. However, we 5 held that “in the absence of language affirmatively and clearly 6 eliminating habeas review,” § 1252(g) did not repeal habeas corpus 7 jurisdiction under 28 U.S.C. § 2241. Id. at 219–20. Other circuit courts, 8 and, eventually, the Supreme Court, also concluded that neither 9 IIRIRA nor the Anti Terrorism and Effective Death Penalty Act of 10 1996 (“AEDPA”) repealed (or limited the prior scope of) district court 11 jurisdiction over aliens’ petitions for writs of habeas corpus brought 12 pursuant to 28 U.S.C. § 2241. See I.N.S. v. St. Cyr, 533 U.S. 289, 314 13 (2001). 14 Congress responded to the Supreme Court’s St. Cyr decision by 15 enacting the REAL ID Act of 2005, Pub. L. No. 109 13, 119 Stat 302, 28 1 which strengthened § 1252(g)’s jurisdictional limitations. 2 Specifically, it amended § 1252(g) by inserting new language, which 3 is italicized: 4 5 6 7 8 9 10 11 12 13 14 14 Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this Act. 8 U.S.C. § 1252(g) (2012) (emphasis added). 15 Thus, the REAL ID Act had two primary functions as to section 16 1252(g). First, by adding unmistakably clear language, it 17 “eliminat[ed] the availability of habeas corpus relief in the United 18 States District Courts for aliens seeking to challenge orders of removal 19 entered against them.” Ruiz Martinez v. Mukasey, 516 F.3d 102, 105 20 (2d Cir. 2008). See Paul Diller, Habeas and (Non )Delegation, 77 U. Chi. L. Rev. 585, 615 (2010) (stating that Congress passed the REAL ID Act in direct response to St. Cyr). 14 29 1 Second, we conclude that by adding the words “statutory or 2 nonstatutory,” Congress further clarified what had already been our 3 construction of § 1252(g) in Jean Baptiste: it applies even to 4 constitutional claims. Taken together with § 1252(g)’s clear 5 elimination of habeas corpus jurisdiction, it follows that the statute 6 purports to forbid bringing even constitutional claims in such a 7 proceeding. In reaching the conclusion that the amended version of 8 § 1252(g) should be so construed, we are mindful that “[w]here 9 Congress intends to preclude judicial review of constitutional 10 claims[,] its intent to do so must be clear,” Webster v. Doe, 486 U.S. 11 592, 603 (1988), and that “if an otherwise acceptable construction of a 12 statute would raise serious constitutional problems, and where an 13 alternative interpretation of the statute is fairly possible, we are 14 obligated to construe the statute to avoid such problems,” St. Cyr, 533 15 U.S. at 299–300 (citing Crowell v. Benson, 285 U.S. 22, 62 (1932)) 16 (internal citation and quotation marks omitted). However, “[t]he 30 1 canon of constitutional avoidance comes into play only when, after 2 the application of ordinary textual analysis, the statute is found to be 3 susceptible of more than one construction; and the canon functions as 4 a means of choosing between them.” Clark v. Martinez, 543 U.S. 371, 385 5 (2005) (emphasis in original); see Boumediene v. Bush, 553 U.S. 723, 787 6 (2008) (stating that “[t]he canon of constitutional avoidance does not 7 supplant traditional modes of statutory interpretation” (citing Clark, 8 543 U.S. at 385)). In other words, “[w]e cannot” use constitutional 9 avoidance to “ignore the text and purpose of a statute in order to save 10 it.” Boumediene, 553 U.S. at 787. 11 Here, even putting aside our construction of the less obviously 12 restrictive version of 1252(g) in Jean Baptiste, we are aware of no 13 “nonstatutory” claim that a petitioner could bring in relation to a 14 deportation proceeding other than one rooted in the Constitution. 15 Nor does Ragbir offer such an explanation. And even if there were 16 such claims, we see no basis—in light of the text and legislative 31 1 history—for construing the word “nonstatutory” in § 1252(g) to 2 exclude constitutional claims. 15, 16 3 Accordingly, Congress appears to have made “an informed 4 legislative choice” that eliminating even habeas review of 5 constitutional claims would not pose a constitutional (Suspension 6 Clause) problem despite courts’ indications to the contrary, and so 7 Congress’s legislative “intent must be respected even if a difficult 8 constitutional question is presented.” Boumediene, 553 U.S. at 738 9 (recognizing that Congress’s passage of the Military Commissions 10 Act of 2006 was a direct response to the Court’s narrow reading of the 11 Detainee Treatment Act in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)). 12 It then falls upon “the Judiciary, in light of [Congress’s] For the same reasons, we also reject Ragbir’s argument that § 1252(g) merely “channels” certain claims into a petition for review but does not intend to eliminate jurisdiction for other claims. That argument lacks textual support and is belied by Congress’s plain indication, through the REAL ID Act, that § 1252(g)’s limitation of “any” cause or claim truly means “any.” 15 The Eighth and Sixth Circuits have come to the same conclusion. Silva, 866 F.3d at 941; Elgharib v. Napolitano, 600 F.3d 597, 602 (6th Cir. 2010). 16 32 1 determination” that such statutory language is constitutional, to 2 “proceed[] to its own independent judgment on the constitutional 3 question when required to do so in a proper case.” Id. 4 II. Whether Ragbir States a Constitutional Claim 5 As discussed above, Ragbir argues that even if § 1252 bars all 6 jurisdiction over his claim, the Suspension Clause nonetheless 7 requires the availability of a petition for writ of habeas corpus. The 8 Government counters that we need not reach that serious 9 constitutional question because Ragbir fails to state a cognizable claim 10 under certain of our decisions and because of the application of the 11 Supreme Court’s holding in AADC. We thus first address whether 12 Ragbir states a claim. A. Whether Our Prior Decisions Foreclose Ragbir’s Claim 13 14 15 16 show that: “(1) he has a right protected by the First Amendment; (2) 17 the defendant’s actions were motivated or substantially caused by To state a First Amendment retaliation claim, a plaintiff must 33 1 [the plaintiff’s] exercise of that right; and (3) the defendant’s actions 2 caused [the plaintiff] some injury.” Smith v. Campbell, 782 F.3d 93, 100 3 (2d Cir. 2015) (quoting Dorsett v. Cty. of Nassau, 732 F.3d 157, 160 (2d 4 Cir. 2013)). The Government contends that we have “long held” that 5 the existence of probable cause to arrest an individual defeats a 6 plaintiff’s First Amendment retaliation claim. Gov’t Br. at 39. And 7 so, the Government argues that, per force, Ragbir’s undisputedly valid 8 final order of removal bars his claim that Government officials sought 9 to deport him in retaliation for his speech. 10 Even if we were to accept the Government’s analogy of that 11 aspect of Fourth Amendment law to the execution of final orders of 12 removal,17 it reads our decisions too broadly. The Government relies It is unclear that Fourth Amendment doctrine should be so readily applied to the circumstances here, as it has developed within the context of the particular interests served by criminal investigations. See, e.g., Virginia v. Moore, 553 U.S. 164, 173 (2008) (“[A]n arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in custody investigation.” (internal citations omitted)). 17 34 1 primarily on Mozzochi v. Borden, 959 F.2d 1174, 1179–80 (2d Cir. 1992), 2 and Singer v. Fulton Cty. Sheriff, 63 F.3d 110, 120 (2d Cir. 1995), which 3 relied on Mozzochi for its legal standard. But, in Mozzochi the question 4 presented was whether it was “clearly established that an individual’s 5 constitutional rights were violated when a criminal prosecution, 6 supported by probable cause, was initiated in an attempt to deter or 7 silence the exercise by the criminal defendant of his right to free 8 speech, but without the effect of actually deterring or silencing the 9 individual.” Mozzochi, 959 F.2d at 1179 (emphasis added). Central to 10 our decision in favor of the defendants was that, at summary 11 judgment, Mozzochi had not adduced “any evidence to support his 12 allegation that he was actually chilled in the exercise of the right to 13 free speech.” Id. at 1179–80. Thus, Mozzochi stands for the proposition 14 that “[a]n individual does not have a right under the First 15 Amendment to be free from a criminal prosecution supported by 16 probable cause that is in reality an unsuccessful attempt to deter or 35 1 silence criticism of the government.” Id. at 1180. In Singer, we quoted 2 that holding from Mozzochi and affirmed the dismissal of Singer’s 3 First Amendment retaliation claim because, inter alia, he had “failed 4 to allege with sufficient particularity any actual ‘chilling’ of his 5 speech.”18, 19 Id. at 120. 6 7 insufficient showing that his speech has been or will be suppressed, 8 and so we deem that argument waived. Nor, at any rate, do we doubt 9 that Ragbir has made the requisite showing. We thus conclude that The Government does not argue that Ragbir has made an The Government also disputes Ragbir’s contention that the Supreme Court’s decision in Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), has broadened the scope of potential retaliatory arrest claims that are permissible under our precedents. However, we need not reach that issue for the reasons discussed above. 19 The Government cites in passing to another of our decisions that quoted the same standard from Mozzochi, and so, it is unpersuasive for the Government’s purposes. Fabrikant v. French, 691 F.3d 193, 215 (2d Cir. 2012). Likewise, Magnotti v. Kuntz, 918 F.2d 364, 368 (2d Cir. 1990), is unhelpful to the Government. In Magnotti, we stated that it was “undisputed that retaliatory prosecution may expose a state official” to damages. Id. The plaintiff, Magnotti, claimed that charges were brought against him in retaliation for his complaints of police misconduct. Id. We held against Magnotti at summary judgment, however, because, inter alia, the only evidence he had adduced of the retaliation was “omissions made in the warrant application.” Id. 18 36 1 the precedents cited by the Government do not foreclose Ragbir’s 2 claim. 3 B. Whether AADC Forecloses Ragbir’s claim 4 The Government also argues that the Supreme Court’s decision 5 in AADC forecloses Ragbir’s claim. In AADC, six temporary resident 6 aliens and two lawful permanent resident aliens brought a First 7 Amendment claim seeking to enjoin the Government’s initiation of 8 deportation proceedings against them. AADC, 525 U.S. at 474. The 9 six temporary residents were charged with technical immigration 10 violations such as overstaying visas, and the two resident alien 11 plaintiffs were charged with aiding a terrorist organization.20 Id. at 12 473–74. 13 The regional counsel of ICE’s predecessor agency, the 14 Immigration and Naturalization Service (“INS”), had stated at a press 15 conference that the INS was seeking to deport the plaintiffs because The INS had also brought against all the aliens “advocacy of communism charges,” which were later dropped. AADC, 525 U.S. at 473–74. 20 37 1 of their affiliation with the Popular Front for the Liberation of 2 Palestine (“PFLP”), a “group that the Government characterize[d] as 3 an international terrorist and communist organization.” Id. at 473. 4 The Government represented that it had evidence that the PFLP had 5 been responsible for multiple terrorist attacks around the world. Brief 6 for the Petitioners, AADC, 525 U.S. 471 (1998) No. 97 1252, 1998 WL 7 411431 at *2–4. 8 The plaintiffs brought an action in the district court, claiming 9 that the Government’s initiation of deportation proceedings 10 impinged upon their right to associate under the First Amendment. 11 They did not wish to wait to bring their claims until a final order of 12 removal (if any) was entered against them because deportation 13 proceedings could take years, and during that time their association 14 with the PFLP would be deterred. AADC, 525 U.S. at 487–88; Brief for 15 Respondents (“Plaintiffs’ AADC Br.”), AADC, 525 U.S. 471 (1998) No. 16 97 1252, 1998 WL 614300 at *30–37. In addition, the plaintiffs argued 38 1 that their claims required factual development that could not be 2 accomplished in an administrative immigration proceeding. 3 Plaintiffs’ AADC Br. at *14–15, 20–21. The plaintiffs thus urged the 4 Supreme Court to employ the doctrine of constitutional avoidance to 5 read the pre REAL ID Act version of § 1252(g) as permitting 6 immediate district court review of their constitutional claims. AADC, 7 525 U.S. at 487–88. 8 The Supreme Court held that § 1252(g) permissibly deprived 9 courts of jurisdiction over the plaintiffs’ claims. Id. The Court stated 10 that “[a]s a general matter—and assuredly in the context of claims 11 such as those put forward in the present case—an alien unlawfully in 12 this country has no constitutional right to assert selective enforcement 13 as a defense against his deportation.” Id. 14 The Court also expressed concern that the plaintiffs’ claims 15 “invade[d] a special province of the Executive—its prosecutorial 16 discretion.” Id. at 489. The Court was particularly concerned about 39 1 reviewing the Executive’s national security and foreign affairs 2 decisionmaking: What will be involved in deportation cases is not merely the disclosure of normal domestic law enforcement priorities and techniques, but often the disclosure of foreign policy objectives and (as in this case) foreign intelligence products and techniques. The Executive should not have to disclose its ‘real’ reasons for deeming nationals of a particular country a special threat—or indeed for simply wishing to antagonize a particular foreign country by focusing on that country s nationals— and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Id. at 490 91. The Court further stated that “the consideration on the 17 other side of the ledger in deportation cases—the interest of the target 18 in avoiding ‘selective’ treatment—is less compelling than in criminal 19 prosecutions.” Id. at 491. The Court explained: 20 21 22 23 24 25 26 While the consequences of deportation may assuredly be grave, they are not imposed as a punishment. In many cases (for six of the eight aliens here) deportation is sought simply because the time of permitted residence in this country has expired, or the activity for which residence was permitted has been completed. Even when deportation is sought because of some act the alien 40 1 2 3 4 5 6 has committed, in principle the alien is not being punished for that act (criminal charges may be available for that separate purpose) but is merely being held to the terms under which he was admitted. Id. (internal citation omitted). 7 The Court continued, “[a]nd in all cases, deportation is 8 necessary in order to bring to an end an ongoing violation of United 9 States law. The contention that a violation must be allowed to 10 continue because it has been improperly selected is not powerfully 11 appealing.” Id. (emphasis in original). 12 Especially important for the situation that faces us, the Court 13 declined to “rule out the possibility of a rare case in which the alleged 14 basis of discrimination is so outrageous that the foregoing 15 considerations can be overcome. Whether or not there be such 16 exceptions, . . . [w]hen an alien’s continuing presence in this country 17 is in violation of the immigration laws, the Government does not 18 offend the Constitution by deporting him for the additional reason 41 1 that it believes him to be a member of an organization that supports 2 terrorist activity.”21 Id. at 491–92. 3 Ragbir’s situation is very different from the one presented in 4 AADC. Although the Supreme Court did not clarify what might 5 constitute an “outrageous” basis for discrimination, AADC compels 6 courts to evaluate the gravity of the constitutional right affected; the 7 extent to which the plaintiff’s conduct or status that forms the basis 8 for the alleged discrimination is actually protected; the egregiousness 9 of the Government’s alleged conduct; and the plaintiff’s interest in 10 avoiding selective treatment, as balanced against the Government’s 11 discretionary prerogative. We address these considerations in turn 12 and conclude that Ragbir’s claim involves “outrageous” conduct. 13 14 See also Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (agreeing, in the context of considering a Fifth Amendment equal protection claim, that a selective prosecution based on animus could be “outrageous” under AADC). 21 42 1 2 3 4 1. Ragbir’s Speech Implicates the Highest Position in the Hierarchy of First Amendment Protection First Amendment speech is preeminent among the liberties that 5 the Constitution protects. Indeed, “[i]f there is any fixed star in our 6 constitutional constellation, it is that no official, high or petty, can 7 prescribe what shall be orthodox in politics . . . or other matters of 8 opinion.” Janus v. Am. Fed’n of State, Cty., & Mun. Emps., Council 31, 9 138 S. Ct. 2448, 2463 (2018) (quoting West Va. Bd. of Educ. v. Barnette, 10 319 U.S. 624, 642 (1943)). 11 Ragbir’s speech implicates the apex of protection under the 12 First Amendment. His advocacy for reform of immigration policies 13 and practices is at the heart of current political debate among 14 American citizens and other residents. Thus, Ragbir’s speech on a 15 matter of “public concern”22 is at “the heart of . . . First Amendment[] “Speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community,’” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting Connick, 461 U.S. at 146), “or when it ‘is a subject of legitimate news interest; that is, a subject of general interest 22 43 1 protection,”23 and “occupies the highest rung of the hierarchy of First 2 Amendment values,’” Snyder v. Phelps, 562 U.S. 443, 451–52 (2011) 3 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983); Dun & Bradstreet, 4 Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985)). Because 5 Ragbir’s speech concerns “political change,” it is also “core political 6 speech” and thus “trenches upon an area in which the importance of 7 First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 8 414, 421–22, 425 (1988) (emphasis added and internal quotation marks 9 omitted). Indeed, his “speech critical of the exercise of the State’s 10 power lies at the very center of the First Amendment.” Gentile v. State 11 Bar of Nev., 501 U.S. 1030, 1034 (1991). 12 13 and of value and concern to the public,’” id. (quoting San Diego v. Roe, 543 U.S. 77, 83–84 (2004)). 23 See Snyder, 562 U.S. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)) (“The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.”). 44 2. The Government’s Alleged Retaliation Was Egregious 1 2 3 4 government may not punish or suppress speech based on 5 disapproval of the ideas or perspectives the speech conveys.” Matal 6 v. Tam, 137 S. Ct. 1744, 1765 (2017). “Such discriminat[ion] based on 7 viewpoint is an ‘egregious form of content discrimination,’ which is 8 ‘presumptively unconstitutional.’”24 Id. at 1766 (quoting Rosenberger 9 v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829–30 (1995)). The 10 Supreme Court has further described viewpoint discrimination as a 11 “blatant” “violation of the First Amendment.” Rosenberger, 515 U.S. 12 at 829. “It is a fundamental principle of the First Amendment that the 13 Ragbir’s plausible allegations and evidence, which we must 14 accept as true at this juncture, support that the Government singled 15 him out for deportation based not only on the viewpoint of his “At its most basic, the test for viewpoint discrimination is whether—within the relevant subject category—the government has singled out a subset of messages for disfavor based on the views expressed.” Matal, 137 S. Ct. at 1766. 24 45 1 political speech, but on the public attention it received. In a 2 declaration by Micah Bucey, a New York City minister, Bucey asserts 3 that ICE’s New York City Field Office Director, Scott Mechkowski, 4 stated that Ragbir and Jean Montrevil were ICE’s two most prominent 5 cases in New York City and complained that the activists’ protests 6 and comments to the press negatively portrayed ICE to the public and 7 to others in the Government. According to Bucey, Mechkowski 8 stated: “Nobody gets beat up in the news more than we do, every 9 single day. It’s all over the place, . . . how we’re the Nazi squad, we 10 have no compassion.” App’x 252. Mechkowski then stated that he 11 had heard Ragbir’s New Sanctuary cofounder Montrevil (whom ICE 12 had also just detained) “ma[ke] some very harsh statements. I’m like, 13 ‘Jean, from me to you . . . you don’t want to make matters worse by saying 14 things.” App’x 252 (emphasis added). Mechkowski then turned to 15 Ragbir specifically, stating that it “bother[ed]” him that “there isn’t 16 anybody in this entire building that doesn’t . . . know about Ravi.” 46 1 App’x 253. “Everybody knows this case,” Mechkowski stated, “[n]o 2 matter where you go.” App’x 253. Ragbir’s counsel Alina Das also 3 submitted a declaration stating that she spoke with Mechkowski, who 4 expressed “resentment” about the events of the March 9, 2017 check 5 in and disapprovingly mentioned that he had heard Ragbir’s 6 statements to the press. App’x 55–56, 123. 7 A plausible, clear inference is drawn that Ragbir’s public 8 expression of his criticism, and its prominence, played a significant 9 role in the recent attempts to remove him. The conclusion that ICE 10 would nonetheless still be free to deport Ragbir on the basis of his 11 advocacy would certainly draw considerable media attention and 12 thus would be a particularly effective deterrent to other aliens who 13 would also challenge the agency and its immigration policies. 14 Ragbir’s allegations and evidence support that certain officials were 47 1 well aware of that consequence. 25 To allow this retaliatory conduct 2 to proceed would broadly chill protected speech, among not only 3 activists subject to final orders of deportation but also those citizens 4 and other residents who would fear retaliation against others. In 5 short, the Government’s alleged conduct plausibly fits within the 6 “outrageous[ness]” exception to AADC. 7 3. The Alien’s Interest in Avoiding Selective Deportation 8 The Supreme Court stated in AADC that, “[w]hile the 9 consequences of deportation may assuredly be grave, they are not 10 imposed as a punishment.” AADC, 525 U.S. at 491. That premise 11 supported the Supreme Court’s conclusion that, by comparison to 12 those detained for crimes (who may bring selective enforcement 13 claims in certain limited circumstances), the AADC aliens had a 14 diminished liberty interest in preventing their deportation. Id. It is unclear whether Ragbir plausibly states a claim against all the named Defendants. However, neither party has briefed that issue, and so we decline to address it. 25 48 1 However, after AADC, the Supreme Court reiterated in Padilla v. 2 Kentucky, 559 U.S. 356 (2010), its longstanding recognition that 3 deportation is indeed a punishment for lawful permanent residents 4 who, like Ragbir, are rendered removable because of a criminal 5 conviction: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 We have long recognized that deportation is a particularly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740 (1893); but it is not, in a strict sense, a criminal sanction. Although removal proceedings are civil in nature, deportation is nevertheless intimately related to the criminal process. Our law has enmeshed criminal convictions and the penalty of deportation for nearly a century. And, importantly, recent changes in our immigration law have made removal nearly an automatic result for a broad class of noncitizen offenders. Thus, we find it “most difficult” to divorce the penalty from the conviction in the deportation context. United States v. Russell, 686 F.2d 35, 38 (C.A.D.C. 1982). Moreover, we are quite confident that noncitizen defendants facing a risk of deportation for a particular offense find it even more difficult. 49 1 Id. at 365–66 (some internal citations omitted). 26 The premise that 2 deportation of lawful permanent residents convicted of crimes is 3 punitive was important to the Court’s holding in Padilla: deportation 4 of the petitioner was so “close[ly] connect[ed]” to the criminal process 5 that the analysis that applies to claims of ineffective assistance of 6 counsel applied to his claim. Id. at 366. Thus, Padilla supports that 7 Ragbir has a substantial interest in avoiding deportation based on his 8 speech. 4. The Government’s Discretionary Prerogative 9 10 11 12 discretion to deport Ragbir is also less substantial than in AADC. 13 First, as discussed above, national security and foreign policy 14 concerns about terrorism were primary in AADC, and the Court Finally, the Government’s interest in having unchallenged See also Bridges v. Wixon, 326 U.S. 135, 147 (1945) (“[I]t must be remembered that although deportation technically is not criminal punishment, it may nevertheless visit as great a hardship as the deprivation of the right to pursue a vocation or a calling.”) (internal citations omitted); Lok v. INS, 548 F.2d 37, 39 (2d Cir. 1977) (“Deportation is a sanction which . . . surpasses all but the most Draconian criminal penalties.”). 26 50 1 expressed misgivings that a court proceeding allowing inquiry into 2 the “real reasons” why the Government sought to deport the PFLP 3 supporters would compromise intelligence sources and foreign 4 relations. AADC, 525 U.S. at 491. The Government makes no such 5 argument in this case. Here, the plaintiff’s plausible allegation is that 6 the Government undertook the deportation to silence criticism of the 7 responsible agency. 8 We recognize that in AADC the Supreme Court observed, “[I]n 9 all cases, deportation is necessary . . . to bring to an end an ongoing 10 violation of United States law.” Id. (emphasis removed). That was 11 certainly correct with respect to aliens who have entered the country 12 illegally or have overstayed their visas. However, the circumstance 13 is different for a former lawful permanent resident, such as Ragbir, 14 who has become “deportable.” See 8 U.S.C. § 1227(a)(2)(A)(iii). While 15 such a person is subject to removal at any time, his presence in the 16 United States while awaiting deportation violates no law. He is under 51 1 no legal obligation to depart prior to deportation. And, the law 2 imposes no criminal or civil penalties on that person for failing to 3 leave. See Gerard L. Neuman, Terrorism, Selective Deportation and 4 the First Amendment After Reno v. AADC, 14 Geo. Immigr. L.J. 313, 5 342 (2000) (“Permanent residents who become deportable are not 6 engaged in an ongoing violation of United States law. The INA . . . 7 creates no obligations for the aliens to depart without being asked, 8 and imposes no other sanction on permanent residents for becoming 9 deportable. If the [Government] do[es] not . . . seek deportation, then 10 the alien is committing no wrong by continuing residence in the 11 United States.”). Indeed, in Ragbir’s case, his continued presence 12 after his removal order became final was expressly sanctioned by 13 successive stay orders and work permits. Thus, while it is 14 indisputable that the Government retains an interest in enforcing the 15 immigration laws by removing a deportable person, Ragbir’s 16 continued presence until deported has not violated any U.S. law. The 52 1 Government’s interest in deporting him is lower than in the case of 2 an alien whose presence is illegal and in the cases of aliens who, as in 3 AADC, pose a threat to safety and security. * 4 * * 5 We acknowledge that judicial review of deportation 6 proceedings has produced concern about the Executive’s prerogative 7 to execute immigration law. The Government’s argument that a 8 holding in Ragbir’s favor would open the flood gates of litigation 9 deserves significant consideration. Accordingly, we do not delineate 10 the boundaries of what constitutes an “outrageous” claim within the 11 meaning of AADC. It suffices to say that, here, Ragbir’s speech 12 implicates the highest protection of the First Amendment, he has 13 adduced 14 responsible for the decision to deport him did so based on their 15 disfavor of Ragbir’s speech (and its prominence), Ragbir has a 16 substantial interest in avoiding deportation under these plausible—indeed, strong—evidence 53 that officials 1 circumstances, and the Government’s interests in avoiding any 2 inquiry into its conduct are less pronounced than in AADC. In these 3 circumstances, the basis for the alleged discrimination against Ragbir 4 qualifies as “outrageous” under AADC. 5 6 7 8 III. 9 adoption of § 1252(g), Congress foreclosed all grants of jurisdiction, 10 we must decide whether the Suspension Clause nonetheless entitles 11 Ragbir to the constitutionally mandated minimum scope of the 12 privilege of the writ of habeas corpus. The Suspension Clause of the 13 Constitution states, “The Privilege of the Writ of Habeas Corpus shall 14 not be suspended, unless when in Cases of Rebellion or Invasion the 15 public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. “At its 16 historical core, the writ of habeas corpus has served as a means of 17 reviewing the legality of Executive detention, and it is in that context 18 that its protections have been strongest.” St. Cyr, 533 U.S. at 301. Whether Ragbir is Entitled to the Privilege of the Writ of Habeas Corpus Because Ragbir states a cognizable claim but, through its 54 1 These protections extend fully to aliens subject to an order of removal. 2 Id.; see also Gerard L. Neuman, Habeas Corpus, Executive Detention, 3 and the Removal of Aliens, 98 Colum. L. Rev. 961, 1044 (1998) 4 (“[H]istorical precedents beginning shortly after 1787 and reaching to 5 the present confirm the applicability of the writ of habeas corpus to 6 the detention involved in the physical removal of aliens from the 7 United States. These precedents include opinions . . . denying the 8 power of Congress to eliminate judicial inquiry.”). 9 Thus, except in periods of “formal suspension” of the writ, 10 alien petitioners in “Executive custody,” Boumediene, 553 U.S. at 745, 11 must either be given access to an “adequate substitute” to the writ 12 (such as a petition for review), see St. Cyr, 533 U.S. at 305, or the writ 13 itself, so as “to maintain the ‘delicate balance of governance’ that is 14 itself the surest safeguard of liberty,” Boumediene, 553 U.S. at 745 15 (quoting Hamdi, 542 U.S. at 536 (plurality opinion)). 55 1 The Suspension Clause does not require the availability of the 2 writ as codified under section 2241, or any other statute, per se. 3 Rather, the Suspension Clause protects the constitutional “minimum” 4 scope of the writ, upon which Congress may expand through statute. 5 See Boumediene, 553 U.S. at 746; St. Cyr, 533 U.S. at 301. As to what 6 that “minimum” entails, “[t]he [Supreme] Court has been careful not 7 to foreclose the possibility that the protections of the Suspension 8 Clause have expanded along with post–1789 developments that 9 define the present scope of the writ.” Boumediene, 553 U.S. at 746 10 (citing St. Cyr, 533 U.S. at 300–01). “But the analysis” of the minimum 11 scope of the writ protected by the Suspension Clause “may begin with 12 precedents as of 1789, . . . when the Constitution was drafted and 13 ratified.” Id. 14 The Government does not contest these basic premises, nor do 15 the parties dispute that Ragbir has no “adequate substitute” for a 56 1 habeas petition.27 Rather, the Government argues that Ragbir is not 2 entitled to the constitutional minimum scope of the writ because, in 3 its view: 1) Ragbir does not seek release from custody since he does 4 not challenge his final order of removal; and 2) Ragbir is not in the 5 Government’s custody at all. 6 In addition, the Government suggests in passing that Ragbir is 7 not entitled to the constitutional minimum scope of habeas review 8 because the merits issues in this case are not purely legal, but rather 9 require factfinding. Although we might normally deem that issue In a Federal Rule of Appellate Procedure 28(j) letter, the Government brings to our attention the Sixth Circuit’s recent decision in Hamama v. Adducci, 912 F.3d 869 (6th Cir. 2018). In Hamama, the Sixth Circuit concluded that § 1252(g) divested the district courts of subject matter jurisdiction over the claims of the plaintiff Iraqi nationals, who sought stays of their removal, but that the plaintiffs had available an “adequate alternative” to habeas relief in the form of a “motion to reopen followed by a petition for review.” Id. at 876. As discussed above, the Government did not dispute in its response brief (in this appeal) Ragbir’s contention that no “adequate substitute” to a habeas proceeding was available to him. By contrast to Hamama, and as we discussed earlier in this opinion, see supra n. 10 and accompanying text, Ragbir’s constitutional claims arose only after his removal order became final and after he had taken full advantage of the review process prescribed by statute, including filing a petition for review and the one motion to reopen to which he was entitled. We thus conclude that the “adequate substitute” that the Hamama court found present in that case is not available to Ragbir. 27 57 1 waived for failure to develop it, we consider the issue because it bears 2 on the district court’s authority and means to adjudicate Ragbir’s 3 habeas petition. A. Habeas Relief Would Alter Ragbir’s Situation 4 5 6 7 because he does not challenge his final order of removal, and so, it 8 contends, the writ would leave him “in precisely the same position as 9 he is now.” Gov’t Br. at 44–45. That is incorrect; the Government 10 assumes that a habeas court’s only option would be to invalidate 11 Ragbir’s final order of removal, but habeas relief would of course 12 prevent the Government from deporting him for its duration. And 13 courts are “invested with the largest power to control and direct the 14 form of judgment to be entered in cases brought up before [them] on 15 habeas corpus.’” U.S. ex rel. D Amico v. Bishopp, 286 F.2d 320, 322 (2d 16 Cir. 1961) (quoting In re Bonner, 151 U.S. 242, 261 (1894)); see Harris v. 17 Nelson, 394 U.S. 286, 290–92 (1969) (“The very nature of the writ The Government argues that Ragbir is not entitled to the writ 58 1 demands that it be administered with the initiative and flexibility 2 essential to insure that miscarriages of justice within its reach are 3 surfaced and corrected.”). Thus, a habeas court has the authority to 4 grant relief that would alter Ragbir’s situation. 5 B. Ragbir is in Executive Custody 6 We also disagree with the Government’s argument that Ragbir 7 is not in custody. The “custody requirement” of habeas corpus “is 8 designed to preserve the writ of habeas corpus as a remedy for severe 9 restraints on individual liberty. . . . [I]ts use has been limited to cases 10 of special urgency” that are “severe” and “immediate.”28 Hensley v. 11 Mun. Court, San Jose Milpitas Judicial Dist., 411 U.S. 345, 351 (1973). In 12 Hensley, the Supreme Court held that an individual released on his The Supreme Court has stated that 8 U.S.C. § 2241 incorporates the common law habeas requirement that the petitioner be in “custody” and “does not attempt to mark the boundaries of ‘custody’ nor in any way other than by use of that word attempt to limit the situations in which the writ can be used.” Jones v. Cunningham, 371 U.S. 236, 238 (1963). And so, for purposes of determining the constitutional meaning of the custody requirement, we look to the common law and to authority interpreting § 2241. 28 59 1 own recognizance from state detention remained in the state’s 2 custody. Id. The Court noted that it had “consistently rejected 3 interpretations of the habeas corpus statute that would suffocate the 4 writ in stifling formalisms or hobble its effectiveness with the 5 manacles of arcane and scholastic procedural requirements. . . . That 6 same theme has indelibly marked our construction of the . . . custody 7 requirement.” Id. at 350. 8 Two primary considerations drove the Court’s conclusion in 9 Hensley. First, the petitioner was “subject to restraints not shared by 10 the public generally” because “[h]is freedom of movement rest[ed] 11 in the hands of state judicial officers, who may demand his presence 12 at any time and without a moment s notice.” Id. at 351 (quoting Jones 13 v. Cunningham, 371 U.S. 236, 240 (1963)) (internal quotation marks 14 omitted). Second, the petitioner “remain[ed] at large only by the 15 grace of a stay entered first by the state trial court and then extended 60 1 by two Justices of [the Supreme] Court.” Id. The Court went on to 2 explain: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 The State has emphatically indicated its determination to put him behind bars, and the State has taken every possible step to secure that result. His incarceration is not, in other words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where the unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retain the determination and the power to seize him as soon as the obstacle of the stay is removed. The need to keep the stay in force is itself an unusual and substantial impairment of his liberty. Id. at 351–52. The Court rejected the Government’s argument that habeas 20 relief would be available only when the Government again physically 21 detained the individual. “[W]e would badly serve the purposes and 22 the history of the writ,” the Court stated, “to hold that under these 23 circumstances the petitioner s failure to spend even 10 minutes in 24 jail is enough to deprive the District Court of power to hear his 61 1 constitutional claim.” Id. at 353. In the same term it decided Hensley, 2 the Court stated even more directly that “the writ is available . . . to 3 attack future confinement and obtain future releases.” Preiser v. 4 Rodriguez, 411 U.S. 475, 487 (1973). 5 The similarity of Ragbir’s situation to that of the petitioner in 6 Hensley is clear. If Ragbir were currently in the Government’s 7 physical confinement or had already been deported, that Ragbir 8 would be in custody is obvious.29 But that he has not been deported 9 is not for a lack of effort on the part of the Government, which 10 detained Ragbir without notice in January 2018 and sent him to 11 Florida, where he was detained for weeks in anticipation of deporting As to the custodial status of a deported individual, the Supreme Court “has repeatedly held” that the writ of habeas corpus is available to aliens excluded from the United States. Cunningham, 371 U.S. at 239–40 (citing Brownell v. Tom We Shung, 352 U.S. 180, 183 (1956); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888)). Although “in those cases each alien was free to go anywhere else in the world,” “[h]is movements . . . [we]re restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.” Id. (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 213 (1953)) (internal quotation marks omitted). 29 62 1 him. Much like in Hensley, that process was stopped only because 2 Ragbir was released by a writ of habeas corpus issued by the district 3 court in January 2018 (after which the Government told Ragbir to 4 report again on February 10, 2018). Also like in Hensley, Ragbir must 5 continue to report for ICE check ins, and he remains in this country 6 primarily due to judicial stays of removal, including the one entered 7 by this Court. Moreover, the Government opposed a stay of removal 8 in the district court pending this appeal, and at oral argument, the 9 Government could not represent to this Court that—absent a stay 10 entered by this Court and the stay previously entered in the District 11 of New Jersey—ICE would not deport Ragbir pending resolution of 12 this appeal. 13 Thus, that Ragbir faces imminent deportation, which 14 necessarily involves a period of detention—and that he must comply, 15 absent judicial intervention, with the Government’s orders “at any 16 time and without a moment’s notice,” Hensley, 411 U.S. at 351—is not 63 1 in question. That effects a present, substantial curtailment of Ragbir’s 2 liberty. See id. We also cannot be confident that, if we were to wait 3 for the Government to again detain Ragbir, he would have access to 4 judicial oversight prior to being removed from the country. We thus 5 reject employing a “stifling formalism,” id. at 350, that would deny 6 Ragbir a hearing of his claim in a habeas proceeding on the basis that 7 he is not in Government custody, when the imminent, severe 8 curtailment of his liberty is so obvious, see Simmonds v. I.N.S., 326 F.3d 9 351, 354 (2d Cir. 2003) (concluding that alien subject to final order of 10 removal was in federal immigration officials’ custody and that if he 11 were currently “ordered removed [but] not incarcerated,” rather than 12 “being held in state prison, th[at] conclusion would [have been] a 13 simple one” (emphasis added)). 30 The Government contends that certain of our decisions require that Ragbir must be challenging his final order of removal in order to be in the custody of immigration officials. Not so; the cited decisions merely addressed variations of facts like those presented in Simmonds, in which the alien petitioner was currently being held in state detention yet argued he was also in federal government custody. In Duamutef v. I.N.S., 386 F.3d 172 (2d Cir. 2004), the petitioner did not challenge the legality of his state detention, but sought a writ of habeas corpus to compel the 30 64 1 C. Common Law Habeas Courts Had Factfinding Authority 2 The constitutionally minimum scope of habeas review also 3 includes petitions that require factfinding. In St. Cyr, the Supreme 4 Court concluded that the scope includes pure questions of law: 5 “[E]ven assuming that the Suspension Clause protects only the writ 6 as it existed in 1789, there is substantial evidence to support the 7 proposition that pure questions of law like the one raised by the 8 respondent in th[at] case could have been answered in 1789 by a 9 common law judge with power to issue the writ of habeas corpus.” 10 St. Cyr, 553 U.S. at 304–05. Ragbir’s claims do not involve “pure 11 question[s] of law” but rather require the adjudication of contested federal government to hasten his deportation. 386 F.3d at 178. We ultimately did not decide whether the petitioner was in federal immigration custody. Id. at 178 79. And, in Ogunwomoju v. United States, 512 F.3d 69 (2d Cir. 2008), we decided that a petitioner in immigration detention or under an order of removal as a consequence of a state conviction was not in custody for purposes of challenging his state conviction under 28 U.S.C. § 2254. 512 F.3d at 70. Here, Ragbir challenges only federal immigration officials’ conduct and is undisputedly not in state custody. 65 1 facts, and so, we consider whether there is “substantial evidence” to 2 support that a common law court in 1789 would have had the 3 authority to issue the writ in such a case. See id. 4 The Supreme Court touched on this issue in St. Cyr: “At 5 common law, ‘[w]hile habeas review of a court judgment was limited 6 to the issue of the sentencing court s jurisdictional competency, an 7 attack on an executive order could raise all issues relating to the 8 legality of the detention.’” Id. at 301 n.14 (citing Note, Developments 9 in the Law—Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1238 10 (1970)). And although “the early practice was not consistent,” habeas 11 courts sometimes “permitted factual inquiries when,” as here, “no 12 other opportunity [existed] for judicial review” of the petitioner’s 13 claim. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus 14 Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. 15 Rev. 2029, 2102 (2007).31 That is not surprising because “common law Other scholars have also noted that eighteenth century habeas courts had authority to engage in factual inquiries, although they did so less often than they 31 66 1 habeas corpus was, above all, an adaptable remedy. Its precise 2 application and scope changed depending upon the circumstances.” 3 Boumediene, 553 U.S. at 779–80 (discussing circumstances in which 4 “the black letter rule that prisoners could not controvert facts in the 5 jailer’s return was not followed”) (citing, inter alia, Fallon & Meltzer, 6 120 Harv. L. Rev. at 2102; Cunningham, 371 U.S. at 243 (stating that 7 habeas is not “a static, narrow, formalistic remedy; its scope has 8 grown to achieve its grand purpose”)). 9 Moreover, in 1867, the federal courts were expressly vested 10 with factfinding authority in habeas proceedings by the Habeas 11 Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385. Of course, this is not 12 definitive evidence of the scope of the writ in 1789, but it further 13 supports that habeas courts in the early republic exercised factfinding reviewed pure questions of law. See, e.g., Neuman, 98 Colum. L. Rev. at 986. (“One of the maxims of eighteenth century habeas corpus practice had been that . . . the facts [the custodian] alleged as justifying the detention were to be taken as true,” but this “papered over exceptions [and] . . . was also qualified by a willingness to let the prisoner allege additional facts.”). 67 1 authority. The Act provided that the “petitioner may deny any of the 2 material facts set forth in the [custodian’s] return, or may allege any 3 fact to show that the detention is in contravention of the constitution 4 or laws of the United States,” and it required the habeas court to 5 “proceed in a summary way to determine the facts of the case, by 6 hearing testimony and the arguments of the parties interested . . . .” 7 Habeas Corpus Act of 1867, ch. 28, § 1, 14 Stat. 385.32 Factfinding provisions for federal habeas proceedings are currently set forth in 28 U.S.C. § 2243, which employs substantially similar language to that first codified in 1867; the petitioner “may, under oath, deny any of the facts set forth in the return or allege any other material facts.” § 2243. “The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” Id. As such, “[p]etitioners in habeas corpus proceedings . . . are [presently] entitled to careful consideration and plenary processing of their claims including full opportunity for presentation of the relevant facts.” Harris, 394 U.S. at 298–301. See Wingo v. Wedding, 418 U.S. 461, 468–70 (1974) (“More often than not, claims of unconstitutional detention turn upon the resolution of contested issues of fact. Accordingly, since the Judiciary Act of February 5, 1867, . . . Congress has expressly vested plenary power in the federal courts ‘for taking testimony and trying the facts anew in habeas hearings’”) (internal citation omitted); Sigler v. Parker, 396 U.S. 482, 487 n.* (1970) (Douglas J. dissenting) (stating that § 2243 provides no right to jury trial but permits the use of an advisory jury under certain circumstances); U.S. ex rel. Mitchell v. Follette, 358 F.2d 922, 928 (2d Cir. 1966) (stating that a habeas judge “may direct a hearing to determine the facts before handing down a final disposition”). 32 68 1 In the end, we cannot rely “upon the assumption that the 2 historical record is complete and that the common law, if properly 3 understood, yields a definite answer to the questions before us.” 4 Boumediene, 553 U.S. at 752 (citing Paul D. Halliday & G. Edward 5 White, The Suspension Clause: English Text, Imperial Contexts, and 6 American Implications, 94 Va. L. Rev. 575, 588–93 (2008) (noting that 7 most reports of 18th century habeas proceedings were not printed)); 8 see Fallon & Meltzer, 120 Harv. L. Rev. at 2096 (“[E]fforts to 9 reconstruct historical practice with respect to most kinds of habeas 10 proceedings founder quickly, for surviving records are fragmentary 11 and practices were not consistent and shifted over time.”). In that 12 light, “substantial evidence” supports that a common law habeas 13 judge “could have” adjudicated a claim involving disputed issues of 14 fact in 1789.33 See St. Cyr, 533 U.S. at 304–305. We take care to emphasize that this not a case in which the Executive or another court has already adjudicated any facts regarding Ragbir’s present claim, and so the district court here is not called upon to question the Executive’s duly obtained factual findings. “[T]he necessary scope of habeas review in part depends upon 33 69 1 * * * 2 The constitutionally required scope of the privilege of the writ 3 of habeas corpus encompasses Ragbir’s claim. Because Congress has 4 provided no “adequate substitute” and because there has been no 5 formal suspension of the writ, Boumediene, 553 U.S. at 771–72, Ragbir 6 is entitled to a habeas corpus proceeding as to the basis for the 7 Government’s impending action to deport him. 8 IV. Summary and Considerations on Remand 9 We hold that the district court improperly dismissed Ragbir’s 10 claim for lack of subject matter jurisdiction. Because that conclusion the rigor of any early proceedings.” Boumediene, 553 U.S. at 781; see Heikkila v. Barber, 345 U.S. 229, 235–36 (1953) (discussing that the constitutional ambit of habeas review has always entailed extensive deference to administrative factfinding, subject to “the enforcement of due process requirements”); Gerard L. Neuman, Jurisdiction and the Rule of Law After the 1996 Immigration Act, 113 Harv. L. Rev. 1963, 1968 (2000) (“[Habeas] [r]eview of [executive] fact finding can ordinarily be precluded, [although] courts do enforce a due process requirement that factual determinations be supported by ‘some evidence.’”). Moreover, in any event, the Government, in opposing the availability of habeas review, does not argue that the declarations of certain officials submitted to the district court must be accepted as true (or even given deference). 70 1 was the basis for the district court’s order denying Ragbir’s motion 2 for a preliminary injunction, we vacate that order and remand to the 3 district court. 4 We note that, while Ragbir states a claim in his complaint and 5 attachments, it does not necessarily follow that even if he proves that 6 the officials sought to remove him as a result of his First Amendment 7 speech, he may never be removed. But, at least for the near future, 8 the taint of the unconstitutional conduct could preclude removal. 9 That “near future” could be the end of a typical two year stay 10 extension that Ragbir would plausibly have otherwise received 11 through January 2020, or some other period. 34 We leave that 34 Ragbir’s plausible allegations support that, in the past, he was never denied a stay application, the shortest stay he received was approximately one year, and several of them, including the two most recent, were for two years. App’x 51. If he had received a two year administrative stay in January 2018, that would have lasted through January 2020. Judge Walker argues in dissent that it is implausible, in light of DHS’s 2017 policy statement that “criminal aliens are a priority for removal,” that Ragbir would have received another stay absent any retaliatory conduct by the Government. We observe, however, that Ragbir’s past stay applications were approved even though the then operative DHS policies stated, even more emphatically, that aliens convicted of aggravated felonies are categorized as the highest enforcement priority. Compare Memorandum from Jeh 71 1 determination to the district court on remand. However, accepting 2 as true the record currently before us, it is plausible that—absent the 3 Government’s alleged retaliation in January 2018—Ragbir would not 4 yet have been deported, and likely not until at least January 2020. 5 Our order of November 1, 2018, staying Ragbir’s removal shall 6 remain in force until our mandate issues. We direct the district court 7 to enter a stay of Ragbir’s removal following the issuance of our 8 mandate, to continue at least until such time that the district court has Charles Johnson, Sec’y of Dep’t of Homeland Sec., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants (Nov. 20, 2014) at 3 (classifying as “Priority 1,” the “highest priority to which enforcement resources should be directed,” “aliens convicted of an offense classified as a felony in the convicting jurisdiction,” as well as “aliens convicted of an ‘aggravated felony’” as defined in section 101(a)(43) of the INA); Memorandum from John Morton, Director, U.S. Immigrations & Customs Enforcement, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens (Mar. 2, 2011) at 1–2 (classifying as “Priority 1” “aliens convicted of crimes, with a particular emphasis on violent criminals, felons, and repeat offenders,” and further prioritizing as “Level 1 offenders” “aliens convicted of ‘aggravated felonies’”) with Memorandum from John Kelly, Sec’y of Homeland Sec., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017) at 3 (“criminal aliens are a priority for removal”). Moreover, even in the absence of a stay, Ragbir was allowed to remain in the country under a final order of removal from 2008 until 2011. Thus, it is plausible that—absent the Government’s retaliation in January 2018—Ragbir would not have been deported until at least January 2020, and so habeas release delaying his deportation would remedy the ongoing effect of that retaliation. 72 1 reconsidered, consistently with this opinion, whether a stay should 2 remain in place through adjudication of the motion for a temporary 3 injunction or the merits of the case. 4 CONCLUSION 5 For the foregoing reasons, we VACATE the district court’s 6 order denying Plaintiffs Appellants’ motion for preliminary 7 injunction and dismissing certain claims, and REMAND to the 8 district court for proceedings not inconsistent with this opinion. 73 18 1597 cv Ragbir et al. v. Homan et al. 1 John M. Walker, Jr., Circuit Judge, dissenting: 2 Although I agree with much of the reasoning in the majority 3 opinion, because I would not remand the case for further proceedings 4 or reach the issue of whether Ragbir’s claim fits within the 5 “outrageous” exception to § 1252(g)’s withdrawal of jurisdiction that 6 was articulated by the Supreme Court in Reno v. American Arab Anti 7 Discrimination Committee, 525 U.S. 471, 488–92 (1999) [hereinafter 8 “AADC”], I respectfully dissent. 9 In my view, remand is not warranted because the 10 Government’s retaliation against Ragbir has ended and its taint has 11 dissipated. Ragbir plausibly alleged that the Government’s 12 retaliation occurred on January 11, 2018 and included terminating his 13 third administrative stay early, arresting him on the spot without 14 prior notice, and attempting to immediately deport him by 15 transporting him from New York City to Florida and incarcerating 16 him there. But the taint of any retaliation ended no later than January 17 29, 2018, more than a year ago, when Ragbir was released from 18 custody following the district court’s grant of his habeas corpus 19 petition. Importantly, that grant was ordered not so Ragbir could 20 remain in the United States, but to allow him “an orderly departure” 21 and “the freedom to say goodbye.” Ragbir v. Sessions, No. 18 CV 236 22 (KBF), 2018 WL 623557, at *3 (S.D.N.Y. Jan. 29, 2018). Benefiting from 23 litigation prompted stays, Ragbir has yet to be removed. 2 1 Ragbir, in this proceeding, has never taken issue with the fact 2 that he is subject to a valid removal order entered in March 2007 as a 3 result of his felony conviction for wire fraud. Nor does he dispute 4 that no stay prevents his removal other than the one entered by this 5 court in this appeal. It is the stated policy of the current executive 6 branch to “prioritize for removal . . . removable aliens who [h]ave 7 been convicted of any criminal offense.” Exec. Order. No. 13,768, 82 8 Fed. Reg. 8,799, 8800 (Jan. 25, 2017). See also U.S. DEPARTMENT OF 9 HOMELAND SECURITY, ENFORCEMENT OF THE IMMIGRATION LAWS TO 10 SERVE THE NATIONAL INTEREST (2017), at 3 (“criminal aliens are a 11 priority for removal”).1 Although this has also been the stated policy 12 of past administrations, enforcement practices on the ground can 13 differ from administration to administration. One would have to be 14 blind not to notice that the change of administration in January 2017 15 has brought with it an unremitting focus on deporting convicted 16 felons, such as Ragbir. See U.S. IMMIGRATION AND CUSTOMS 17 ENFORCEMENT, FISCAL YEAR 2018 ICE ENFORCEMENT AND REMOVAL 18 OPERATIONS REPORT, at 14 (In fiscal year 2018, ICE “conducted 256,085 19 removals – the highest level since FY2014” and prioritized “public We may take judicial notice of written materials “[w]hen there is no dispute as to the authenticity of such materials and judicial notice is limited to law, legislative facts, or factual matters that are incontrovertible, such notice is admissible.” Oneida Indian Nation of New York v. State of N.Y., 691 F.2d 1070, 1086 (2d Cir. 1982). 1 3 1 safety threats and immigration violators, as reflected by the fact that, 2 like in FY2017, 9 out of 10 [ICE] administrative arrests had either a 3 criminal conviction(s), pending charge(s), were an ICE fugitive, or 4 illegally reentered the country after previously being removed.”).2 5 For the above reasons, I disagree with the majority’s contention 6 that the consequences of the Government’s retaliation continue 7 because, but for the retaliation, Ragbir would plausibly have obtained 8 a further extension of his administrative stay from an administration 9 that has steadfastly sought to deport him, much less another two year 10 extension. Under these circumstances, I see no reason for this case to 11 continue in the district court, further impeding Ragbir’s removal.3 12 I also have reservations about the majority’s discussion of 13 AADC’s “outrageous” exception to the § 1252(g) removal of 14 jurisdiction. As a preliminary matter, I fail to see the necessity of The Government has also represented to this court in a related case that “Ragbir has been issued a so called ‘bag and baggage’ letter notifying him that he is to report to ICE for removal. (Dist. Ct. ECF No. 49). Thus, at this point it has been made abundantly clear to him that, once any judicial impediment to his removal has been lifted, it is substantially likely that the government will promptly effectuate his removal.” Reply Memorandum for Respondents Appellants at 5, Ragbir v. Sessions (2d Cir.) (No. 18 1595). 3 Any concern by the majority that Ragbir’s prompt removal now would somehow revive the previous retaliation of more than a year ago could presumably be addressed by the recusal of the officer who made the decisions in January 2018. This would enable a previously uninvolved officer to independently decide whether to enforce the March 2007 order of removal without regard to the circumstances that are alleged to have prompted the Government’s actions in January 2018. 2 4 1 addressing this issue at all given the majority’s conclusion that Ragbir 2 is entitled to a habeas corpus proceeding under the Suspension 3 Clause despite § 1252(g)’s withdrawal of jurisdiction. That he is 4 permitted to bring a habeas proceeding would allow us to consider 5 Ragbir’s case regardless of whether the Government’s conduct falls 6 within the “outrageous” exception contemplated by AADC. As I read 7 AADC, that exception was predicated on the assumption that habeas 8 relief was not available or would come too late, AADC, 525 U.S. at 9 487–88, indicating that it is unnecessary to undertake this analysis if 10 timely habeas relief is available. 11 Second, despite the majority’s statement that it is not 12 “delineat[ing] the boundaries of what constitutes an ‘outrageous’ 13 claim within the meaning of AADC,” it creates from whole cloth a 14 five factor balancing test to determine whether the Government’s 15 conduct was “outrageous.” I am concerned that, because this test will 16 be the standard by which future claims are evaluated, it will become 17 an open door for evading the will of Congress in enacting § 1252(g). 18 Considering only the “Government’s discretionary prerogative” 19 gives short shrift to the Government’s significant enforcement 20 interests and does not provide a framework for adequately 21 considering the Government’s actions in context. 22 Turning to the facts of this case, although the majority opinion 23 acknowledges that Ragbir is a criminal alien subject to a valid removal 5 1 order, it quickly discounts this fact by arguing that Ragbir has no duty 2 to leave the country on his own, unlike an alien who unlawfully 3 enters and therefore is engaged in a continuing violation of law. To 4 my mind, however, the Government’s interest in removing a criminal 5 alien, heightened when the executive branch has a stated policy of 6 prioritizing the removal of criminal aliens, is at least as strong as the 7 Government’s interest in “bring[ing] to an end an ongoing violation 8 of United States law” by one who has simply overstayed his visa. 9 AADC, 525 U.S. at 491 (emphasis omitted). 10 Finally, although I agree that the complaint sufficiently alleged 11 that the Government acted improperly when it shortened Ragbir’s 12 administrative stay, arrested him, and held him in custody in 13 preparation for his departure, there was nothing inherently unlawful 14 in these acts which, absent improper motive, are fully authorized 15 when enforcing an alien’s removal. I can easily imagine much more 16 “outrageous” acts of government impropriety, such as the deliberate 17 and unjustified use of grossly excessive force or vindictive placement 18 in solitary confinement. Therefore, I am not at all convinced that the 19 Government’s actions against Ragbir were “outrageous” under the 20 circumstances. 21 For these reasons, I respectfully dissent.

Primary Holding

Plaintiff stated a cognizable constitutional claim that Government officials targeted him for deportation because of his public speech that was critical of Immigration and Customs Enforcement and U.S. immigration policy.

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