MEMORANDUM OPINION AND ORDER Plaintiffs, a group of organizations dedicated to helping immigrant families and children, bring this action to challenge removal orders that the Government obtained with respect to unrepresented immigrants without first affording them proper notice of a hearing or a meaningful opportunity to be heard. See ECF No. 1 (“Compl.”),
1, 35-36, 40-46, 49. In particular, Plaintiffs challenge the lawfulness of in absentia removal orders entered pursuant to allegedly deficient notices to appear (“NTAs”) before immigration judges. According to Plaintiffs, those NTAs sometimes reflected the incorrect dates of upcoming appearances; were sent to incorrect addresses; did not include the dates, times, or locations of upcoming appearances; or were “sent to children who cannot read English and/or have no control over whether they appear.” See ECF No. 42 (“Opp’n”), at 3-4. Plaintiffs contend that the process by which unrepresented immigrants may challenge the removal orders — that is, by filing a written motion to reopen — is effectively unavailable to those who “speak limited[,] if any[,] English” and “lack the capacity to read, understand, and comply with the requirements for writing and filing a motion to reopen.” Compl. 57. Accordingly, Plaintiffs argue, “the motion-to-reopen process does not provide unrepresented individuals facing imminent removal any meaningful opportunity to challenge defects in their in absentia removal orders prior to deportation.” Id. 60. Plaintiffs seek both declaratory and injunctive relief. More specifically, they seek a declaration that, under the Due Process Clause of the Fifth Amendment, “all currently unrepresented families and children who were ordered removed in absentia on or after May 1, 2014 are entitled, prior to their physical removal, to…a hearing before an immigration judge” and, in advance of such a hearing, to access to their immigration files and certain related records. Compl. at 25-26 (Prayer for Relief). And they seek an order that both “requir[es]” the Government to hold hearings as to such persons in order “ to determine whether their removal order[s] should be rescinded” and, in advance of such a hearing, “grant[s] each such person” access to their immigration files and certain related records. Id. Defendants now move, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss. They argue, among other things, that the REAL ID Act of 2005, 8 U.S.C. §1252 et seq., prevents this Court from reviewing or otherwise interfering with the in absentia removal orders at the heart of Plaintiffs’ claims. See ECF No. 40 (“Defs.’ Mem.”). Plaintiffs oppose the motion on the ground that the REAL ID Act’s jurisdiction-stripping and jurisdiction-channeling provisions do not apply to the specific facts of this case and, to the extent that they do, are unconstitutional under the Suspension Clause. For the reasons that follow, the Court concludes that the Government has the better argument and that it lacks subject-matter jurisdiction over Plaintiffs’ claims. LEGAL STANDARDS A case must be dismissed pursuant to Rule 12(b)(1) “when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)). In considering a motion to dismiss for lack of subject-matter jurisdiction, “the district court may consider evidence outside the pleadings,” Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (citation omitted), aff’d, 130 S.Ct. 2869 (2010); see Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002), and must accept Plaintiffs’ “material factual allegations” as true, Atl. Mut. Ins. Co. v. Balfour Maclaine Int’l Ltd., 968 F.2d 196, 198 (2d Cir. 1992); cf. ECF No. 43 (“July 18 Conf. Tr.”), at 30 (articulating the Government’s contention “that the Court…lack[s] jurisdiction regardless of the validity of [Plaintiffs'] underlying arguments, whether [the unrepresented immigrant families and children] received notice or not” (emphasis added)). That said, because “[t]he burden of proving jurisdiction is on the party asserting it,” Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996) (internal quotation marks omitted), “argumentative inferences favorable to the party asserting jurisdiction should not be drawn,” Balfour Maclaine, 968 F.2d at 198. DISCUSSION The REAL ID Act of 2005 provides that, “[n]otwithstanding any other provision of law (statutory or nonstatutory),…a petition for review filed with an appropriate court of appeals…shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C. §1252(a)(5). Further, “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States” is “available only in judicial review of a final order under this section. Except as otherwise provided…, no court shall have jurisdiction,…by any…provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.” 8 U.S.C. §1252(b)(9). As the Ninth Circuit has explained, “[t]aken together, §1252(a)(5) and §1252(b)(9) mean that any issue — whether legal or factual — arising from any removal-related activity can be reviewed only through” a petition for review filed with an appropriate court of appeals. J.E.F.M. v. Lynch, 837 F.3d 1026, 1031 (9th Cir. 2016); see 8 U.S.C. §§1252(a)(5), (b)(2). Put differently, Sections 1252(a)(5) and 1252(b)(9) channel all challenges to removal orders and removal proceedings to the courts of appeals. The Second Circuit examined these provisions in Delgado v. Quarantillo, 643 F.3d 52 (2d Cir. 2011). In that case, the plaintiff had already been removed from the country once and reentered without inspection. See id. at 53. Several years later, she married a U.S. citizen and sought permanent resident status; in connection with that effort, she filed a Form I-212, which, if granted, waives the inadmissibility of a previously removed alien and permits him or her to apply for adjustment of status. See id. at 53-54 & n.1. The United States Customs and Immigration Services (“USCIS”) denied Delgado’s I-212 request and her application for adjustment of status and reinstated the order of removal against her. See id. at 54. After unsuccessfully appealing the removal order to the Second Circuit, Delgado brought a mandamus action in the district court “to compel USCIS to make a determination on the merits of her I-212 application, alleging that USCIS denied her application in violation of the [APA].” Id. Holding that Section 1252(a)(5)’s “jurisdictional bar applies…to preclude…an indirect challenge” to an order of removal, and that whether a plaintiff is bringing an indirect challenge turns “on the substance of the relief” sought, the Second Circuit concluded that the district court lacked jurisdiction to hear Delgado’s case. Id. at 55. The Court did so despite acknowledging that granting an I-212 waiver “would not per se prevent [Delgado's] removal.” Id. (internal quotation marks omitted). “Obtaining such a waiver,” the Court reasoned, was “a necessary prerequisite to her ultimate goal of adjustment of status…. [A]n ‘adjustment-of-status challenge is inextricably linked to the reinstatement of [an alien's] removal order,’ because ‘a nunc pro tunc Form I-212 waiver of inadmissibility and the adjustment of status to that of [a lawful permanent resident]‘would render the reinstatement order ‘invalid.’” Id. (quoting Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082-83 (9th Cir. 2010)). Following Delgado, district courts in this Circuit — including this Court — have dismissed a wide variety of indirect challenges to removal orders for lack of jurisdiction. See, e.g., Vidhja v. Whitaker, No. 19-CV-613 (PGG), 2019 WL 1090369, at *3 (S.D.N.Y. Mar. 6, 2019) (petition seeking a stay of removal while a motion to reopen was pending before the BIA); Noor v. Homan, No. 17-CV-1558 (WFK), 2018 WL 1313233, at *3-4 (E.D.N.Y. Feb. 27, 2018) (petition seeking a stay of removal or adjustment of status where “the practical effect of [adjusting] Plaintiff’s status…would be to void the removal order”); Singh v. United States Citizenship & Immigration Servs., No. 15-CV-1411 (JMF), 2016 WL 1267796, at *5 (S.D.N.Y. Mar. 30, 2016) (application for review of USCIS’s denial of an adjustment of status application where a favorable decision would require holding, “at least by implication,” that the removal order underlying USCIS’s denial was invalid), aff’d, 878 F.3d 441 (2d Cir. 2017), as amended (Jan. 9, 2018); Hu v. Holder, No. 11-CV-4747 (FB), 2012 WL 2619185 (E.D.N.Y. June 25, 2012) (petition to compel USCIS to adjudicate an application for permanent residency after the filing of several unsuccessful motions to reopen a removal order); Nieto-Ayala v. Holder, No. 08-CV-8347 (LMM), 2011 WL 3918156 (S.D.N.Y. Aug. 30, 2011) (mandamus action to compel the Government to extend bond until USCIS adjudicated the asylum application of a petitioner who was subject to a final removal order). Barros Anguisica v. Decker, No. 18-CV-7493 (PAE), 2019 WL 3244122 (S.D.N.Y. July 9, 2019), a recent decision by Judge Engelmayer, is particularly instructive here. That case, like this one, involved a due process challenge to an “attempt to remove [a petitioner] pursuant to an allegedly defective NTA.” Id. at *3. The petitioner sought to stay his scheduled removal until after the BIA decided his then-pending motion to reopen the removal order. The petition, he argued, did not constitute a challenge to the removal order itself because the relief it sought would afford him only “a meaningful opportunity for his motion to reopen…to be heard by the BIA and not be deported” in the interim. Barros Anguisaca, 2019 WL 3244122, at *5. Relying on Delgado, Judge Engelmayer rejected that argument, reasoning that the petitioner’s claim indirectly challenged his removal order by implying that the immigration court that issued it despite notice defects had done so unlawfully. Id. Delgado compels the same result here. Plaintiffs’ Complaint and opposition brief are both littered with assertions that the challenged in absentia removal orders were issued in violation of a statute and/or the Constitution, “were not properly entered,” or are otherwise “unlawful.” See, e.g., Compl.
