Mamadjonova v. Barr

          MEMORANDUM OF DECISION DENYING MOTION FOR TEMPORARY RESTRAINING ORDER [ECF NO. 2] AND DISMISSING AMENDED MOTION FOR RELIEF UNDER 28 U.S.C. § 2241 [ECF NO. 22]

          Hon. Vanessa L. Bryant United States District Judge

         Petitioners Madina S. Mamadjonova and Bakhodir S. Madjitov (collectively “Petitioners”) bring this motion for temporary restraining order (“TRO”) and petition for habeas relief under 28 U.S.C. § 2241, asserting that despite Petitioner Madjitov being subject to a final order of removal from the United States, he has a constitutional due process right to complete the “provisional unlawful presence waiver of inadmissibility” process, which might allow him to remain in the United States. [ECF Nos. 2, 22].^[1]

         For the following reasons, the Petitioners' Motion for TRO and petition for habeas relief are DENIED.

         Background

         On March 12, 2006, Mr. Madjitov, a native of Uzbekistan, properly entered the United States pursuant to a P-3 Visa. [ECF No. 23-1 at 3]. Mr. Madjitov's stay expired on or around July 20, 2006, but he remained in the United States beyond his authorized stay. Id. On December 12, 2006, Mr. Madjitov filed for asylum, which was denied by an immigration judge on August 31, 2011. Id.^[2] Because the transcript of the immigration judge's (“IJ”) hearing was incomplete, the Board of Immigration Appeals (“BIA” or “Board”) remanded the case to the IJ to prepare a complete transcript for the Board's review. AR775.

         The IJ did so and denied Mr. Madjitov's petition for asylum a second time on May 17, 2013, issuing a final order of removal. [ECF No. 23-1 at 4]. In his Decision, the IJ made an adverse credibility assessment of Mr. Madjitov, finding his testimony and written submissions contradictory, and several of his explanations regarding his departure from Uzbekistan not credible. AR683-708. Petitioner Madjitov appealed, and on July 24, 2014 the BIA affirmed the IJ's findings that there were “numerous inconsistencies between the respondent's testimony, his asylum applications, his asylum interview with the Department of Homeland Security (“DHS”), and the evidence of record.” AR588-90. The BIA also denied a follow-on motion for reconsideration on October 31, 2014. [ECF No. 23-1 at 4].

         While pursuing his asylum petition, Mr. Madjitov married Petitioner Mamadjonova on September 14, 2010. [ECF No. 22-9]. On September 15, 2012, Ms. Mamadjonova filed a Form I-130 Petition for Alien Relative, which establishes that an alien is a spouse of a permanent United States resident, which Ms. Mamadjonova was at that time. [ECF No. 22-4]. The petition was approved on September 16, 2013. Id.

         On December 21, 2017, Magistrate Judge Sarah Merriam signed out a criminal Complaint charging Petitioner Mamadjonova's brother, Sidikjon Mamadjonov, with unlawful procurement of naturalization in violation of 18 U.S.C. § 1425, false statements on a naturalization application, in violation of 18 U.S.C. § 1015, and false oath or declaration under penalty of perjury in violation of 18 U.S.C. § 1546. United States v. Mamadjonov, No. 3:18-cr-00034-VAB, ECF No. 1 (D. Conn. Dec. 21, 2017). The false statements allegedly concerned lies about his alleged association with a member of a known terrorist organization, Petitioner Mamadjonova and Sidikjon Mamadjonov's brother, Saidjon Mamadjonov. Id. at 5. When questioned by the FBI about flying to Turkey to meet with Saidjon, Sidikjon Mamadjonov stated that he took $20, 000 in cash with him to make amends with his brother, and that his brother likely had gone to Dubai to start a business, when in fact Sidikjon Mamadjonov knew that his brother Saidjon had been killed in May or June 2013 fighting in Syria with the “Nusra” group, which was affiliated with ISIS. Id. at 7. Sidikjon Mamadjonov was arrested one day after being charged in the Complaint, on December 22, 2017.

         That same day, December 22, 2017, Petitioner Madjitov was detained by ICE incident to the final order for his removal, and he remains detained to this day. [ECF No. 22 ¶ 2].

         On January 17, 2018, Mr. Madjitov filed a Motion to Reopen and an Emergency Motion to Stay Removal with the BIA. AR471-543, 544-67. On May 25, 2018, the BIA denied the Motion to Reopen and Emergency Motion to Stay, finding it untimely under 8 U.S.C. § 1229a(c)(7) because it was not filed within 90 days of the final order of removal and because “[t]he motion d[id] not demonstrate an exceptional situation that would warrant the exercise of our discretion to reopen these proceedings under our sua sponte authority.” AR452.

         One week later, on June 1, 2018, Petitioner Madjitov filed another Motion to Reopen and Motion to Stay Removal, noting that the BIA, in its May 25, 2018 denial had failed to consider Petitioner Madjitov's March 5, 2018 Amended Motion to Reopen, which was identical to the present one. AR11-17. In the Motion, Petitioner Madjitov argued that his immigration proceedings should be reopened and his removal stayed because of changed country conditions in Uzbekistan making it more dangerous for him to return there, especially in light of the December 2017 arrest of his brother-in-law, Sidikjon Mamadjonov and Uzbekistan's known increase in world-wide surveillance of those that might have a connection to terrorism. Id. The Motion included greatly expanded exhibits providing information on Uzbekistan's surveillance activities. AR36-449.

         On July 30, 2018, Petitioner Madjitov filed a petition for a writ of habeas corpus in the Northern District of Alabama, challenging the allegedly unconstitutionally overlong period of detention he had suffered and claiming that venue was proper because he was housed in the Etowah detention facility in Gadsden, Alabama. Madjitov v. Hassel, No. 4:18-cv-01188-RDP-HNJ, ECF No. 1 at 6 (N.D. Ala. July 30, 2018). On May 3, 2019, Magistrate Judge Herman N. Johnson, Jr. recommended dismissal without prejudice to refiling at a later, appropriate time, because Mr. Madjitov had contributed to the length of his detention by filing appeals with the BIA and by refusing to sign paperwork authorizing his removal. Id., ECF No. 10 at 5-8.^[3] In response, Mr. Madjitov filed another petition for a writ of habeas corpus, in which he again argued that venue was proper “because the Petitioner is detained at Etowah County Jail in Gadsden, Alabama, ” and in which he again argued that his detention was unconstitutionally overlong. Id., ECF No. 11 at 5-17. On May 21, 2019, the district court adopted the Magistrate Judge's Recommendation and dismissed Petitioner Madjitov's petition without prejudice to refiling at a later, appropriate time. Id., ECF No. 12.

         On May 31, 2019, the BIA denied Petitioner Madjitov's Motion to Stay, because “the Board has concluded that there is little likelihood that the motion [to reopen] will be granted.” [ECF No. 1-5].

         On June 7, 2019, Mr. Majitov filed a petition for review with the Third Circuit seeking review of the BIA's denial of his motion to stay removal. Madjitov. V. Attorney General, No. 19-2327 (3d Cir. June 7, 0219). On June 10, 2019, Third Circuit Judge L. Felipe Restrepo granted the motion to stay removal “temporarily in order to allow a full panel of this Court the opportunity to review and consider Petitioner's motion for stay of removal.” Id. (3d Cir. June 10, 2019). After review by a full panel, the Third Circuit vacated Judge Restrepo's stay because the BIA's denial of Mr. Madjitov's Motion for Stay was not a reviewable final order of removal absent a ruling on Mr. Madjitov's Motion to Reopen immigration proceedings. Id. (3d Cir. July 30, 2019).

         The Third Circuit also noted that “once the BIA rules on his second motion to reopen[, ] . . . [n]othing in this order prevents Petitioner from filing a new petition for review in the Eleventh Circuit, ” which is the place of “proper venue.” Id. (citing 8 U.S.C. § 1252(b)(2), which states that “[t]he petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the ...