DOJ: Only court of appeals has jurisdiction to review challenges

The U.S. Department of Justice moves the federal court to dismiss the court action by Amalia Abo Guanlao, a Filipino mother who has been in the CNMI for 22 years now and has two minor U.S. citizen children but was ruled by U.S. Immigration as removable from the U.S. or the CNMI.

DOJ Office of Immigration Litigation District Court Section senior litigation counsel Kimberly Helvey asserted that Guanlao has only repackaged questions of law and fact relating to her removal order—questions which should go to the court of appeals—and has failed to make the required showing.

Helvey is among the counsels for defendants U.S. Department of Homeland Security Secretary Jeh Johnson, U.S. Attorney General Loretta E. Lynch, U.S. Immigration and Customs Enforcement supervisory detention and deportation officer Gerald Zedde, DHS Enforcement and Removal Operations acting supervisor M. Samaniego, ICE immigration officer G. Andersen, U.S. Citizenship and Immigration Services district director David Gulick, USCIS/DHS Guam/CNMI field office director Stephen P. Green, USCIS/DHS Guam/CNMI acting field office director Irene Adame, USCIS/DHS California Service Center directors Rosemary Langley Melville and Kathy A. Baran, and USCIS/DHS California Service Center acting director Donna P. Campagnolo.

The defendants filed on Friday in the U.S. District Court for the NMI a motion to dismiss Guanlao’s court action. The court will hear the motion on Aug. 3 at 9am.

Guanlao, through counsel Stephen C. Woodruff, recently filed in federal court an amended petition for writ of habeas corpus and complaint for declaratory and injunctive relief against the defendants.

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has stayed pending further court’s order the removal of Guanlao, while the court hears the petition on the merits. Manglona said she is mindful of the sensitive nature of these proceedings and will expedite the process.

In defendants’ motion to dismiss, Helvey said only the Circuit Court of Appeals may stay removal of an alien.

Helvey said the court should dismiss Guanlao’s habeas claim for lack of jurisdiction.

Helvey said petitioner Guanlao has not established that she is in custody sufficient to show habeas jurisdiction.

The lawyer said the statute requires the petitioner to be “in custody” at the time of filing for the federal courts to have habeas jurisdiction.

Helvey said Guanlao asserts only that she is in “constructive custody” because she claims to be “facing imminent involuntary removal” to the Philippines.

Helvey said petitioner has not met her burden to establish that, on the facts of her case, a final order of removal is sufficient to qualify her as “in custody” for habeas review, when she is not detained or otherwise in physical custody.

She said even if Guanlao is “in custody,” the Immigration and Nationality Act bars her from collaterally attacking her removal order in district court.

“The law is clear: only the court of appeals has jurisdiction to review challenges to a final order of removal,” she said.

Helvey said Guanlao’s lawsuit is an attack on her removal order—directly and indirectly—and this court should dismiss for lack of subject-matter jurisdiction.

Helvey said USCIS’ decision to revoke Guanlao’s parole is discretionary and unreviewable, and she cites nothing that would overcome this jurisdictional bar.

Helvey said the ineffective assistance of counsel claims seems to be nothing more than a repackaging of the questions of law and fact that this court lacks jurisdiction to review.

In Guanlao’s amended court action, Woodruff asked the court to rule that Guanlao is entitled to a writ of habeas corpus on account of failure and refusal by respondents to exercise discretion where required by law and/or policy to do so.

Woodruff asserted that Guanlao’s constructive custody for the purpose of her forced physical removal from the U.S. is contrary to statutory right and in derogation of her constitutional right to due process of law.

The lawyer said Guanlao is entitled to declaratory judgment that she was lawfully present in the CNMI as of Nov. 27-28, 2009, and therefore entitled pursuant to the Consolidated Natural Resources Act to continue to live and work in the CNMI at least until June 9, 2011.

Woodruff said his client is entitled to declaratory judgment that she was lawfully present in the CNMI as of Nov. 27-28, 2009, pursuant to the grant of umbrella permit by order of the CNMI Attorney General and therefore entitled pursuant to the CNRA to continue to live and work in the CNMI through Nov. 27, 2011.