Filed Date: Jan. 11, 2018
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The plaintiff in this case became a lawful permanent resident (LPR) in 1994 after immigrating to the United States from Trinidad and Tobago. After a conviction in 2001 for wire fraud, he served a prison sentence, was placed in immigration removal proceedings, and was held in immigration detention from 2006 to 2008. For a time, ICE had allowed the plaintiff to remain in the United States under an order of supervision and four successive stays of removal, accompanied by work authorization. Over the following decade, he became a nationally-known immigrants' rights activist based in New York. He checked in with ICE regularly as specified under the terms of his order of supervision.
The plaintiff was later arrested by immigration authorities, who sought to effectuate his removal from the United States. Three separate proceedings in both the Second and Third Circuits had important implications in determining his removability. For the sake of clarity, each will be addressed in turn.
Habeas Corpus Petition—Southern District of New York (1:18-cv-00236) and Second Circuit (18-01595)
The plaintiff was arrested by immigration authorities on January 11, 2018. The same day, the plaintiff filed a habeas corpus petition against the U.S. government for alleged violations of the Immigration and Nationality Act (INA) and the Fifth Amendment to the United States Constitution. Represented by NYU Law School's Immigrant Rights Clinic, the plaintiff filed the petition in the U.S. District Court for the Southern District of New York. The case was assigned to Judge Katherine B. Forrest.
In his habeas petition, the plaintiff alleged he was detained unlawfully. First, he argued that his detention was contrary to the INA, which does not permit re-detention without cause, notice, an opportunity to be heard, and an adequate post-custody review process. Additionally, he alleged that the detention was unconstitutional as a violation of his property and liberty rights under the Due Process Clause of the Fifth Amendment, his right to a bond hearing, and his right not to be indefinitely detained while removal was not foreseeable. He asked the Court to order the government either to release him or to hold a bond hearing.
On the same day the plaintiff filed the petition, Judge Forrest ordered the government not to transfer the plaintiff out of ICE's New York jurisdiction. The plaintiff moved to enforce the order. The government moved to oppose it, arguing that it had already sent the plaintiff to a detention center in Miami, Florida.
On January 17, 2018 after the Court's hearing, the government informed the Court that it would exercise its discretion and transfer the plaintiff back to New York. Judge Forrest also ordered the government to file proof of a "travel document" that it had mentioned during the hearing. The government's reply stated that the plaintiff's country of citizenship had issued him a travel document that had been valid until Jan. 14. (Later, in a Jan. 29 order, Judge Forrest explained that the government had argued that the plaintiff's status was always subject to revocation once the government had obtained this document, unbeknownst to the plaintiff.)
The plaintiff filed an amended habeas petition on January 17, 2018. The government response argued that it had validly revoked the plaintiff's stay of removal and permissibly detained him while seeking to execute his final removal order. In his reply, the plaintiff alleged that the government had failed to permit adjudication of his removal order. Rather, the government "arbitrarily arrested [him] . . . handcuffed him in front of his wife and attorney, hastily shuttled him to Miami for detention, without any assertion that he was a flight risk or danger."
On January 29, 2018, Judge Forrest granted the plaintiff's habeas petition. She wrote:
The Court in fact agrees with the Government that the statutory scheme . . . allows them to do what was done here. But there are times when statutory schemes may be implemented in ways that tread on rights that are larger, more fundamental. Rights that define who we are as a country, what we demand of ourselves, and what we have guaranteed to each other: our constitutional rights. That has occurred here.2018 WL 623557.
In sum, the Court finds that when this country allowed petitioner to become a part of our community fabric, allowed him to build a life with and among us and to enjoy the liberties and freedom that come with that, it committed itself to allowance of an orderly departure when the time came, and it committed itself to avoidance of unnecessary cruelty when the time came. By denying petitioner these rights, the Government has acted wrongly. . . .
Petitioner is entitled to the freedom to say goodbye.
On January 30, the plaintiff, now freed from detention, asked the Court to retain jurisdiction. The government had asked the plaintiff to report for deportation on February 30, but the plaintiff was concerned that the timing was premature. However, Judge Forrest responded that the Court's jurisdiction had been premised only on habeas, no longer applicable after the plaintiff's release.
On May 28, 2018, the government appealed the District Court’s order to the Second Circuit. On September 10, the government filed a motion to vacate the District Court’s order and dismiss the case as moot. In its supporting memo, the government argued that the District Court lacked jurisdiction to review the plaintiff’s habeas petition. Further, the government claimed that the District Court’s holding as to its purported violations of the plaintiff’s due process rights under the Fifth Amendment was unsupported by persuasive legal reasoning or precedent. Since the plaintiff had already been granted the relief sought, the government would not be able to obtain any redress on appeal. But, the government asserted, since it had been deprived of the opportunity to obtain review of the District Court’s order (due to the plaintiff’s release before review could be granted) the decision of the District Court should be vacated.
On September 17, the plaintiff responded, contending that the risk of future re-detention in the event that his habeas relief was overturned sufficed to prevent his case from becoming moot. Accordingly, the plaintiff asserted that the government should be prevented from, “making conclusory allegations about mootness in an attempt to simply erase the record of a decision it dislikes,” and that its motion should be denied.
On July 30, 2019, the Second Circuit granted the government’s motion, dismissing the case as moot and ordering the District Court to vacate its order. Though the plaintiff sought a rehearing en banc, the Court denied his motion on November 1. The Second Circuit’s order was carried into effect by the District Court on November 4.
This case is now closed.
First Amendment Challenge—Southern District of New York (1:18-cv-01159) and Second Circuit (18-01597)
On February 9, 2018 the plaintiff filed another complaint in the U.S. District Court of the Southern District of New York, claiming that he was targeted by immigration authorities on account of his political advocacy in violation of the First Amendment. This complaint was brought as a habeas petition under 28 U.S.C. § 2241. The complaint was filed against ICE leadership, the Attorney General, and the Secretary of Homeland Security. The case was heard by Judge Kevin Castel, and the plaintiff was represented by private counsel alongside co-plaintiffs from the National Immigration Project of the National Lawyers Guild and other immigration advocacy organizations.
According to the complaint, U.S. immigration authorities engaged in a pattern and practice of targeting immigration rights activists on the basis of protected political speech. Further, it alleged that the plaintiff was targeted specifically in retaliation for his criticism of U.S. immigration policy. The complaint sought a declaration from the Court that the defendants’ retaliatory enforcement of the immigration laws against the plaintiff and other immigration activists amounted to a violation of the First Amendment. Further, the plaintiff requested that the Court issue a preliminary and permanent injunction (1) restraining the defendants from removing the plaintiff from the U.S. unless they were able to demonstrate that the action was “untainted by unlawful retaliation or discrimination against protected speech;” and (2) restraining the defendant from “selectively enforcing the immigration laws against any individual . . . based on the individual’s protected political speech about U.S. immigration law and policy.”
The same day that the complaint was filed, the Court issued a stay to prevent the plaintiff’s removal from the U.S. by immigration authorities while his motion for a preliminary injunction remained pending. On February 12, 2018, the plaintiff filed a separate motion for a preliminary injunction, reiterating the injunctive requests articulated in the complaint.
On May 23, 2018, the District Court dismissed the plaintiff’s motion for a preliminary injunction for lack of subject matter jurisdiction. 2018 WL 2338792. According to the Court, provisions of the Immigration and Nationality Act eliminated federal court jurisdiction to review a challenge to the execution of an order of removal. Section 1252(g) provides that, “no court shall have jurisdiction to hear any cause or claim 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.” The Court held that this provision foreclosed subject matter jurisdiction over any claim, including those alleging constitutional violations. Further, the Court concluded that since the plaintiff’s First Amendment challenge itself was not adequately supported, it was not necessary to determine whether this statutory limitation on subject matter jurisdiction was unconstitutional as applied to the plaintiff.
On May 25, the plaintiff appealed the District Court’s dismissal to the Second Circuit. Though the plaintiff requested on June 1, 2018, that the District Court maintain its stay on his removal pending the outcome of this appeal, the Court denied his motion on June 19. 2018 WL 3038494. On July 3, the plaintiff again sought a stay to prevent his removal, this time from the Second Circuit. The defendants moved to dismiss in the district court after the first request to stay was denied, but on July 19, the Second Circuit granted the plaintiff's second motion and stayed proceedings in the district court.
The Second Circuit vacated the District Court's holding on the First Amendment claim on April 25, 2019. 923 F.3d 53. According to the Second Circuit, the plaintiff’s advocacy constituted “core political speech” entitling it to the most vigilant protection available under First Amendment jurisprudence. Further, the Court held that the plaintiff’s claims, if true as to the retaliatory measures taken by the government, amounted to egregious misconduct. Finding that the plaintiff raised a valid First Amendment claim, the Court concluded that Section 1252(g) unconstitutionally restricted the plaintiff’s ability to have a court hear this claim as a habeas petition.
The Second Circuit directed the District Court to reconsider the plaintiff’s motion for a preliminary injunction in light of its holding. Further, it ordered the District Court to prevent the plaintiff’s removal until the District Court had the opportunity to assess whether a stay should remain in effect until reconsideration of the injunction, or through final adjudication of the merits. The government’s motion for a rehearing before the Second Circuit was denied on September 26, 2019.
The government filed a writ of certiorari with the U.S. Supreme Court appealing the Second Circuit's decision on December 23, 2019. The Supreme Court granted the petition for the writ of certiorari. On October 5, 2020, the Court issued an opinion vacating the Second Circuit's judgment and remanded the case to the Second Circuit for further consideration in light of its holding in Department of Homeland Security v. Thuraissigiam (140 S.Ct. 1959).
The case is ongoing as of November 17, 2020.
Coram Nobis Petition—District of New Jersey (2:17-cv-01256) and Third Circuit (19-01282)
On February 22, 2017, the plaintiff filed a petition for a writ of Coram Nobis in the U.S. District Court of the District of New Jersey. A writ of Coram Nobis seeks to correct a final judgment issued by a court in light of subsequently discovered fundamental errors. Through his petition, the plaintiff sought to have his 2001 criminal conviction overturned. Private counsel represented the plaintiff before Judge Kevin McNulty, who heard the petition. The plaintiff claimed that overly broad jury instructions enabled the jury to convict the plaintiff on the basis of conduct that was not fraudulent or otherwise criminal. Further, the plaintiff alleged that he was provided with ineffective assistance of counsel both during his trial and appellate proceedings.
On the day of the plaintiff’s January 11, 2018 arrest, the District Court stayed the plaintiff’s removal from the United States, pending final adjudication of this collateral challenge to his criminal conviction. This stay was litigated by the parties, and ultimately upheld on March 23, 2018. 2018 WL 1446407.
On January 25, 2019, the plaintiff’s Coram Nobis petition was dismissed by the District Court. Concerning the allegedly faulty jury instructions, the Court held that errors such as these cannot be considered sufficiently “fundamental” as to justify application of the writ. According to the court, since these errors were of the kind that could be corrected by a new trial, their existence could not sustain a collateral attack on a finalized judgment. Addressing the plaintiff’s claim to ineffective assistance of counsel, the court held that plaintiff’s counsel was either not deficient on the bases alleged, or the errors were not significant enough to warrant relief. Last, the Court held that the plaintiff’s failure to adequately justify the numerous intervening years between the filing of this petition and his conviction was also a ground to foreclose the relief sought.
On January 30, the plaintiff appealed the district court’s order to the Third Circuit, and submitted a motion to the trial court requesting that it maintain its stay blocking his removal pending appeal. On February 4, the district court denied the stay, stating that the court's authority to maintain the stay expired when it decided the Coram Nobis petition. The same day, the plaintiff filed a motion for an emergency stay before the Third Circuit. On February 27, the Third Circuit denied the plaintiff’s motion for a stay of his removal. This appeal remains ongoing.
Ava Morgenstern (2/3/2018)
Charles Baeder (11/15/2019)
Chelsea Rinnig (1/12/2020)
Rachel Kreager (11/17/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/6285823/parties/ragbir-v-sessions-iii/
Castel, P. Kevin (New York)
Das, Alina (New York)
Berman, Geoffrey S. (New York)
Austin, Paige (New York)
Cordaro, Joseph Nicholas (New York)
Castel, P. Kevin (New York)
Droney, Christopher Fitzgerald (New York)
Forrest, Katherine Bolan (New York)
Leval, Pierre Nelson (New York)
Walker, John Mercer Jr. (New York)
See docket on RECAP: https://www.courtlistener.com/docket/6285823/ragbir-v-sessions-iii/
Last updated Feb. 13, 2024, 3:03 a.m.
State / Territory: New York
Filing Date: Jan. 11, 2018
Case Ongoing: Yes
A detained LPR
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: No
Class Action Outcome: Not sought
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Prevailing Party: None Yet / None
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