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Khedri v. Sedlock

October 20, 2009

ALI A. AL KHEDRI, PETITIONER,
v.
DANIEL J. SEDLOCK, JR., CHIEF OF CORRECTIONS, MCHENRY COUNTY DETENTION CENTER; RICARDO WONG, DIRECTOR, CHICAGO FIELD OFFICE, IMMIGRATION AND CUSTOMS ENFORCEMENT; TIMOTHY WILLARD, PORT DIRECTOR, CUSTOMS AND BORDER PROTECTION; AND JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, RESPONDENTS.



The opinion of the court was delivered by: Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

Petitioner Ali A. Al Khedri is currently in the custody of Immigration and Customs Enforcement, and an Order of Expedited Removal has been issued against him. His Emergency Petition for Habeas Corpus and Writ of Mandamus and Emergency Motion for Stay of Removal are before us. For the reasons discussed below, we dismiss the Petition for lack of subject matter jurisdiction.

I. BACKGROUND

Al Khedri is a citizen of Yemen. (Emer. Pet. ¶ 12.) He married Peggy Nobles, a U.S. citizen, in April 2001, and has lived in the United States since then; they are still married. (Id. ¶ 18.) In late 2001 he obtained U.S. conditional permanent residence status. (Id. ¶ 19.) As required by law, Al Khedri and his wife filed a joint Petition to Remove the Conditions on Residence in 2003, which-if granted-would have made him a legal permanent resident. (Id. ¶ 20--21.) While that Petition remained pending, Al Khedri left for a trip to Yemen on March 15, 2009. (Id. ¶ 23.) He traveled with a temporary I-551 stamp in his passport, evidencing his status as a permanent resident. (Id.) On March 31, 2009, while Al Khedri was in Yemen, the U.S. Citizenship and Immigration Services ("CIS") notified him that they intended to deny his Petition, (id. ¶ 24), and they did so on May 27, 2009, based on the fact that his divorce certificate from a prior marriage appeared invalid, (id. ¶ 26). Al Khedri attempted to re-enter the U.S. on or about August 25, 2009, at which time he was detained for expedited removal based on his status as an inadmissible alien. (Id. ¶¶ 28--29.) On October 14, 2009, he appeared before an immigration judge, who determined that he was not a lawful permanent resident and ordered the case returned to the Department of Homeland Security for his removal. (Id. ¶ 30.)

Al Khedri asks us to stay his expedited removal and order the Department of Homeland Security to initiate removal proceedings under 8 U.S.C. § 1229a. He makes two arguments. First, he claims he is entitled to habeas relief because he was improperly subjected to the expedited removal process under 8 U.S.C. § 1225. Second, he claims he is entitled to mandamus relief because he has a right to a review of the denial of his Petition to Remove the Conditions on Residence in a 1229a removal proceeding. We do not have jurisdiction over either request.

II. DISCUSSION

Judicial review of expedited removal orders is governed by 8 U.S.C. § 1252. Section 1252(a)(2)(A) states:

Notwithstanding any other provision of law (statutory or non-statutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review-

(I) except as provided in subsection (e) of this section, any individual determination or to entertain any cause or claim arising from or relating to the implementation or operation of an order of removal pursuant to section 1225(b)(1) [expedited removal] of this title, [or]

(ii) except as provided in subsection (e) of this section, a decision by the Attorney General to invoke the provisions of such section, . . . .

8 U.S.C. § (a)(2)(A). Subsection (e) permits review through habeas corpus proceedings, but limited to "determinations of-

(A) whether the petitioner is an alien,

(B) whether the petitioner was ordered removed [by expedited order], and (c) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence . . . ."

8 U.S.C. ยง 1252(e)(2). When a court is determining "whether an alien has been ordered removed" under 1252(e)(2)(B), section 1252(e)(5) further limits review to only "whether such an order in fact was issued and whether it relates to the petitioner. There shall be no review of whether the alien is ...


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