SDNY Judge Blocks Challenge to Faulty Removal Orders for Immigrants
U.S. District Judge Jesse M. Furman of the Southern District of New York said Thursday that provisions of federal law "channel all challenges" to removal orders and proceedings to federal appeals courts, as the "sole and exclusive means for judicial review."
September 06, 2019 at 01:39 PM
3 minute read
A Manhattan federal judge has dismissed a constitutional challenge to removal orders issued to unrepresented immigrants who were allegedly not given proper notice to appear before immigration judges, ruling that district court lacked jurisdiction over the claims.
U.S. District Judge Jesse M. Furman of the Southern District of New York said Thursday that provisions of federal law "channel all challenges" to removal orders and proceedings to federal appeals courts, as the "sole and exclusive means for judicial review."
The ruling rejected a lawsuit filed by the Asylum Seeker Advocacy Project, a group of organizations that aids children and families who have arrived at the Mexico-U.S. border to seek asylum. The group said that the removal orders in question were based on faulty notices that were sent to the wrong addresses, reflected incorrect dates, times and locations for upcoming appearances or were sent to children who cannot read English.
The suit, filed in July, claimed that the Fifth Amendment's Due Process Clause required a hearing before an immigration judge before individuals could be removed and asked the court to force the government to hold hearings over whether the orders should be rescinded.
However, Furman said it was clear that the true aim of the lawsuit was to challenge the legality of the removal orders themselves, and the request, if granted, would leave the government with no mechanism to enforce them.
"The relief that plaintiffs seek is a 'necessary prerequisite' to any administrative challenge to the removal orders," Furman wrote in a 10-page opinion.
"It follows that, in substance if not form, plaintiffs challenge the underlying removal orders," he said.
In his ruling, Furman acknowledged that unrepresented immigrant families were caught in a "classic Catch-22 situation" because without attorneys, English fluency or the ability to navigate a complex immigration system, they would be unable to file motions to reopen their cases and bring deficient notices to light.
But the remedy, he said, lay in petitions filed with the U.S. Court of Appeals or in Congress changing the law.
The American Civil Liberties Union of Southern California, which represented the Asylum Seeker Advocacy Project, did not immediately respond Friday to a request for comment.
The U.S. Attorney's Office for the Southern District of New York, which defended the case, declined to comment.
The plaintiffs were represented by Ahilan Arulanantham, Amy Belsher, Christopher Dunn and Robert Andrew Hodgson of the ACLU and Skylar D. Brooks, Robert L. Dell Angelo, Gina Elliott, Melinda Eades Lemoine, Bradley Phillips and Gregory Phillips of Munger, Tolles & Olson in Los Angeles.
Assistant U.S. Attorney Brandon Matthew Waterman argued on behalf of the government.
The case was captioned Asylum Seeker Advocacy Project v. Barr.
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