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Mukantagara v. US Department of Homeland Security.

No. 21-4144. 5/16/2023. D.Utah. Judge Carson. US Refugee Status—Termination of Refugee Status—Removal Proceedings—8 USC § 1252(b)(9).

May 16, 2023

Plaintiffs Mukantagara and her son Shyaka are Rwandan citizens who escaped to the United States after the 1994 Rwandan genocide. Mukantagara was admitted to the United States as a refugee based on past persecution, and Shyaka was granted derivative refugee status as Mukantagara’s minor child. Plaintiffs later applied for lawful permanent resident status with US Citizenship and Immigration Services (USCIS). But after Mukantagara traveled to Kenya, the government paroled her for further inspection. USCIS later alleged that Mukantagara did not meet the refugee definition at her admission because she had participated in the genocide. It terminated Mukantagara’s refugee status, and that termination necessarily terminated Shyaka’s derivative refugee status. The Department of Homeland Security then initiated removal proceedings against plaintiffs. An immigration judge concluded that the administrative court lacked authority to review the termination of plaintiffs’ refugee status but granted Mukantagara’s new asylum application. Shyaka conceded his removability, because he was over 21 years old, and the immigration judge denied his application and ordered him removed to Rwanda. Shyaka appealed the denial to the Board of Immigration Appeals (BIA), and the government appealed the grant of Mukantagara’s application. The BIA affirmed as to Shyaka but it remanded Mukantagara’s claims. On remand, the immigration judge granted her application. The government again appealed to the BIA, which is a separate pending appeal. Plaintiffs then filed this suit for review of the termination of their refugee status. The district court granted defendants’ motion to dismiss, concluding that it lacked jurisdiction pursuant to 8 USC § 1252(b)(9).

On appeal, plaintiffs argued that the district court erred in ruling that it did not have subject matter jurisdiction under the Immigration and Nationality Act’s jurisdiction-stripping “zipper clause,” 8 USC § 1252(b)(9). This statute is narrowly tailored to bar review of claims arising from actions or proceedings brought to remove an alien, and it channels review of decisions concerning deportation to the courts of appeal following issuance of a removal order. Here, the district court determined that plaintiffs’ claims fell within § 1252(b)(9) because they challenged the decision “to seek removal.” The court viewed the decision to terminate refugee status as a decision to seek removal, reasoning that the regulation governing refugee status termination requires USCIS to launch removal proceedings upon termination. The court then determined that plaintiffs’ claims fell within the scope of § 1252(b)(9) because it interpreted the mandate to seek removal as linking the decision to terminate a noncitizen’s refugee status to the decision to seek removal. However, the regulation’s removal commencement mandate does not convert the decision to terminate refugee status into an action taken to remove an alien, and plaintiffs did not challenge their removal proceedings. Rather, they challenged USCIS’s determination to terminate their refugee status. Thus, the zipper clause does not bar plaintiffs’ challenge and the district court erred.

The order was reversed and the case was remanded.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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