Rranxburgaj v. Nielsen

          ORDER GRANTING RESPONDENTS' MOTION TO DISMISS [#8]

          Denise Page Hood Chief Judge

         I. BACKGROUND

         On June 8, 2018, Plaintiff Ded Rranxburgaj (“Rranxburgaj”) filed a petition for the issuance of a writ of mandamus in order to compel Respondents Kristjen Nielsen (“Nielsen”), Jefferson Sessions, III (“Sessions”), Rebecca Adducci (“Adducci”), and Thomas D. Homan (“Homan”) (collectively, “Respondents”) to adjudicate on the merits his application for a stay of removal or deferral of removal. (Doc # 1) This matter is before the Court on Respondents' Motion to Dismiss for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(1) and (6), filed on August 31, 2018. (Doc # 8) Rranxburgaj filed a Response on October 12, 2018. (Doc # 12) Respondents filed their Reply on October 26, 2018. (Doc # 13)

         At the time of this hearing, Nielsen was the acting Secretary of the United States Department of Homeland Security. Nielsen was responsible for the administration and enforcement of the immigration and naturalization laws pursuant to section 402 of the Homeland Security Act of 2002, 107 Pub. L. 296, 116 Stat. 2135 (Nov. 25, 2002). Nielsen was the ultimate legal custodian of the Petitioner, and was being sued by Rranxburgaj in her official capacity.

         Sessions was the Attorney General of the United States. At the time this lawsuit was filed Sessions was responsible for administering and enforcing the immigration laws pursuant to section 103 of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1103(a). Rranxburgaj was suing Sessions in his official capacity to the extent that 8 U.S.C. § 1103(g) vested him with authority over the immigration laws.

         Adducci is the Field Office Director of the Immigration and Customs Enforcement (“ICE”) (Department of Homeland Security) office in Detroit, Michigan. Adducci oversees custody determinations made by ICE within the metropolitan Detroit and greater Michigan region. Rranxburgaj is suing Adducci in her official capacity.

         Homan was the acting Director of ICE. Homan was responsible for the administration and enforcement of the immigration laws pursuant to section 402 of the Homeland Security Act of 2002, 107 Pub. L. 296, 116 Stat. 2135 (Nov. 25, 2002). Rranxburgaj is suing Homan in his official capacity.

         The facts are as follows. Rranxburgaj, a native of Albania, has been on Order of Supervision since 2010. (Doc # 1, Pg ID 2, 6) He was initially a derivative beneficiary on his wife, Flora Rranxburgaj's I-589 application for asylum, withholding of removal, and CAT relief. (Doc # 1, Pg ID 3) An Immigration Judge denied this application on June 13, 2006. (Id.) Mrs. Rranxburgaj's appeal to the Board of Immigration Appeals was dismissed in a decision dated May 5, 2009. (Id.)

         ICE has allowed Rranxburgaj to remain in the United States so that he could tend to his ill wife. (Id. at 2-3.) Mrs. Rranxburgaj has also been on Order of Supervision, along with the couple's son, who is currently a Deferred Action for Childhood Arrivals grantee. (Id. at 3.) ICE has not asked Mrs. Rranxburgaj to depart the United States because her medical condition prevents her from being able to travel. (Id.)

         On or about December 8, 2017, Rranxburgaj applied for a stay of removal. (Doc # 1-1) ICE denied Rranxburgaj's stay request as moot on January 17, 2018, because on that date, Rranxburgaj failed to report to ICE as mandated by his Order of Supervision. (Doc # 1-3) Rranxburgaj's January 17, 2018 report date was his last report date prior to his scheduled deportation. (Doc # 1, Pg ID 7) Before Rranxburgaj's scheduled deportation date, he went into sanctuary at a local Detroit church out of fear that he would be detained if he reported to ICE. (Id.) ICE was fully informed of Rranxburgaj's whereabouts and location when he entered sanctuary. (Id.) Rranxburgaj and his family currently reside in the church that he entered in January 2018. (Doc # 1, Pg ID 9)

         Rranxburgaj sought reconsideration of the stay denial by letter on January 23, 2018. (Doc # 1-4) On January 24, 2018, Robert Lynch (“Lynch”), Deputy Field Office Director, verbally affirmed the denial of Rranxburgaj's reconsideration request over the phone, and alleged that Rranxburgaj is a fugitive. (Doc # 1, Pg ID 8) Rranxburgaj sought further reconsideration of ICE's verbal affirmance, and sent Lynch a follow up letter dated February 21, 2018. (Doc # 1-5) On April 20, 2018, after having received no response to this inquiry, Rranxburgaj's attorney, George P. Mann (“Mann”) emailed Adducci and asked for a response. (Doc # 1-6) ICE Deputy Field Office Director, Todd Shanks called Mann on April 23, 2018, and explained that ICE's denial of Rranxburgaj's stay request would not be reversed. (Doc # 1, Pg ID 9)

         Rranxburgaj now seeks from this Court a merits adjudication of his application for a stay of removal. (Id.) Rranxburgaj argues that he is entitled to a merits adjudication pursuant to 5 U.S.C. § 706. (Id. at 18.) Rranxburgaj contends that he would be successful if his stay request was adjudicated on the merits because he believes that ICE wrongly categorized him as a fugitive. (Id.)

         II. ANALYSIS

         A. ...