Freire v. U.S. Dep't of Homeland SEC. , 711 F. App'x 58 ( 2018 )

16-868-cv
Freire v. U.S. Dep’t of Homeland Sec.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of February, two thousand eighteen.
PRESENT: JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.
ALTAIR CLAUDIO FREIRE,
Plaintiff-Appellant, 16-868-cv
v.
UNITED STATES DEPARTMENT OF HOMELAND
SECURITY, KIRSTJEN NIELSEN, SECRETARY OF
HOMELAND SECURITY, LEE CISSNA, DIRECTOR, US
CITIZENSHIP AND IMMIGRATION SERVICES
(“USCIS”), JEFFERSON B. SESSIONS, III, ATTORNEY
GENERAL, RON ROSENBERG, CHIEF, USCIS
ADMINISTRATIVE APPEALS OFFICE, EDWARD
NEWMAN, DISTRICT DIRECTOR FOR DISTRICT 2
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USCIS, LEAH VAN WILGEN, DIRECTOR, USCIS
HARTFORD FIELD OFFICE,
Defendants-Appellees.*
FOR PLAINTIFF-APPELLANT: Justin Conlon, Law Offices of Justin
Conlon, Hartford, CT.
FOR DEFENDANTS-APPELLEES: Benjamin C. Mizer, Deputy Principal
Assistant Attorney General (William C.
Peachey, Director; Christopher W.
Dempsey, Assistant Director; and Troy D.
Liggett, Trial Attorney, District Court
Section, Office of Immigration Litigation,
on the brief), Civil Division, U.S.
Department of Justice, Washington, DC.
Appeal from a judgment of March 18, 2016 of the United States District Court for the
District of Connecticut (Alvin W. Thompson, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment be, and it hereby is, VACATED and the
cause REMANDED with an instruction to dismiss the plaintiff’s complaint for lack of subject-
matter jurisdiction.
Plaintiff-Appellant Altair Claudio Freire (“Freire”) appeals the District Court’s judgment
entered in favor of Defendants-Appellees pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure. We assume the parties’ familiarity with the underlying facts and the procedural history of
the case. Freire argues on appeal that the District Court erred in refusing to set aside, pursuant to
section 10(e)(B) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (2012), the decision of
the United States Citizenship and Immigration Services Administrative Appeals Office (“AAO”) to
deny his application for permission to reapply for admission into the United States after deportation
or removal.
We conclude that the District Court lacked subject-matter jurisdiction to review the AAO’s
decision.
*
The Clerk is hereby directed to amend the caption as shown above.
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Section 242(a)(5) of the Immigration and Nationality Act of 1965, as amended, provides that
“the sole and exclusive means for judicial review of an order of removal” is a petition for review
submitted in accordance with the terms of the Act. 8 U.S.C. § 1252(a)(5) (2012). By implication,
section 242(a)(5) also removes jurisdiction from the district courts over any challenge of the denial
of an application for status adjustment of a party who is already subject to a removal order, if the
relief requested in the challenge would invalidate the order; such a challenge is in effect an attempt
to obtain judicial review of the removal order indirectly. Delgado v. Quarantillo, 643 F.3d 52, 55 (2d
Cir. 2011). This bar to jurisdiction precludes indirect review of both reinstated removal orders, see id.,
and initial removal orders that remain pending, see Singh v. USCIS, 878 F.3d 441 (2d Cir. 2017).
Freire’s complaint in the District Court presented exactly the kind of indirect challenge that
Delgado bars. An order of removal was issued against Freire on December 14, 2011 and remains
pending. See J.A. 133–38 (order of removal); Freire v. U.S. Dep’t of Homeland Sec., No. 16-868-cv (2d
Cir. Oct. 30, 2017), ECF No. 104 (order granting motion for stay of removal). In the meantime, like
the plaintiffs in Delgado and Singh, Freire has sought review of an administrative denial of his
application for an adjustment of status that, if it had been granted, would have allowed him to reside
permanently in the United States and would thereby invalidate the removal order. See J.A. 34–44
(Freire’s complaint); id. at 218–21 (Freire’s Form I-485); id. at 266 (Freire’s Form I-266).
CONCLUSION
We therefore VACATE the District Court’s judgment of March 18, 2016 and REMAND
the cause to the District Court with the instruction that it dismiss Freire’s complaint for lack of
subject-matter jurisdiction. The order of October 30, 2017 granting Freire’s motion for a stay of
removal is hereby VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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