Dugdale v. United States Customs and Border Protection ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIMOTHY DUGDALE,
Petitioner,
v. Case No. 14-cv-01175 (CRC)
U.S. CUSTOMS AND BORDER
PROTECTION et al.,
Respondents.
OPINION AND ORDER
Pro se habeas petitioner Timothy Dugdale moves for reconsideration of the Court’s
memorandum opinion of March 31, 2015 (ECF 55), and a stay of his removal from the United
States pending his anticipated appeal of that opinion. In the opinion, the Court granted the
government’s motion to dismiss three of the four claims presented in Dugdale’s habeas petition,
which challenged his January 2012 expedited removal from the country by order of Customs and
Border Protection (“CBP”). The Court ruled that Dugdale had not alleged sufficient facts to
support his claims that he was an American citizen or was entitled to lawful permanent resident
status at the time of his removal. The Court also determined that it lacked subject matter
jurisdiction over Dugdale’s claim that the expedited removal system is unconstitutional. The
Court reserved judgment on a fourth claim in Dugdale’s petition—that his removal order was
procedurally defective—and requested supplemental briefing on that issue.
Nine days after the Court issued its opinion, the government vacated Dugdale’s expedited
removal order and granted him discretionary parole to enter the United States on a temporary
basis. In light of these actions, the government suggests that the procedural validity of the order
is no longer in controversy and, therefore, the sole remaining claim before the Court should be
dismissed as moot. Dugdale counters that the claim is not moot because he is still subject to the
whims of CPB’s discretion to grant discretionary parole each time he attempts to cross the
border.
The Court agrees with the government that Dugdale’s final remaining claim was rendered
moot by CBP’s vacatur of the removal order that was the subject of his habeas petition. With the
order no longer in force, Dugdale is returned to the legal position he was in when he was
removed at the border in January 2012. The Court lacks the power, moreover, to order Dugdale
to be paroled into the country as such decisions are committed to the exclusive discretion of the
Attorney General. See 8 U.S.C. §§ 1182(d)(3)(A), 1252(a)(2)(B)(ii). The Court will therefore
grant final judgment in favor of CBP and deny Dugdale’s motion for a stay of the now-vacated
removal order.
One last point bears mentioning concerning Dugdale’s motion for reconsideration. Less
than two weeks after the Court’s opinion, the Supreme Court held that the time limits for
bringing claims under the Federal Tort Claims Act were not jurisdictional because the statute
“provided no clear statement indicating that [28 U.S.C. § 2401(b)] is the rare statute of
limitations that can deprive a court of jurisdiction.” United States v. Wong, 2015 WL 1808750,
at *5 (U.S. Apr. 22, 2015). In light of Wong, Dugdale urges the Court to revisit its holding that 8
U.S.C. § 1252(e)(3)(B)’s 60-day limitations period strips the courts of jurisdiction over his
challenge to the constitutionality of the expedited removal statute. The Court declines to do so.
In American Immigration Lawyers Association v. Reno, 199 F.3d 1352, 1354 (D.C. Cir. 2000)
(“AILA”), the D.C. Circuit affirmed the District Court’s determination that Section
1252(e)(3)(B)’s “60-day requirement is jurisdictional rather than a traditional limitations period.”
Am. Immigration Lawyers Ass’n v. Reno, 18 F. Supp. 2d 38, 47 (D.D.C. 1998). Because the
Supreme Court’s holding in Wong is limited to the Federal Tort Claims Act, AILA remains
binding precedent in this Circuit. The D.C. Circuit must therefore determine in the first instance
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what if any effect Wong has on the continuing validity of its holding in AILA. Dugdale’s
motion for reconsideration will be denied.
For the foregoing reasons, it is hereby
ORDERED that Respondents’ Motion to Dismiss [24] is GRANTED IN FULL.
It is FURTHER ORDERED that Petitioner’s Motion for Reconsideration [57] is
DENIED.
It is FURTHER ORDERED that Petitioner’s Motion for a Stay [61] is DENIED.
It is FURTHER ORDERED that Petitioner’s Emergency Motion to Take Judicial
Notice [66] is DENIED AS MOOT.
It is FURTHER ORDERED that Petitioner’s Motion to Take Judicial Notice [68] is
DENIED AS MOOT.
This is a final, appealable order.
SO ORDERED
Date: May 6, 2015
CHRISTOPHER R. COOPER
United States District Judge
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