United States District Court, E.D. Michigan, Southern Division
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.
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