United States District Court, N.D. Texas, Abilene Division
SOMSAK SAEKU, (No. A039065507) Petitioner,
JIMMY JOHNSON,  Warden, Prairieland Detention Center, Respondent.
OPINION AND ORDER
O' CONNOR UNITED STATES DISTRICT JUDGE
the Court is the petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by Petitioner, Somsak
Saeku, a detainee in the custody of Immigration and Customs
Enforcement (ICE) at the Prairieland Detention Center in
Alvarado, Texas. The Respondent filed a response along with
an appendix containing copies of several documents related to
Saeku's underlying convictions, and records of the
removal proceedings before the Board of Immigration Appeals
(BIA). Response, ECF No 5; Appendix to Response, ECF No. 6,
at 1-2; ECF No.6-1, at 1-34. Petitioner then filed a reply
and a supplemental reply. ECF Nos. 7 and 8. Petitioner also
filed two motions to supplement the pleadings; a motion to
update case development (ECF No. 10), and a motion for leave
to file supplemental documents (ECF No. 13). These two
motions will be granted to the extent the Court has reviewed
and considered the supplemental documents. In response to a
Court Order, the Respondent also filed a supplemental
response with appendix. ECF Nos. 14, 15. After considering
the pleadings and relief sought by Petitioner, the response
as supplemented with available records, and the reply as
supplemented, the Court has concluded that the petition
should be denied.
August 15, 2006 United States Immigration and Customs
Enforcement (ICE) initiated removal proceedings against
Somsak Saeku by issuing a Notice to Appear (NTA). App., ECF
No. 6-1, at 1. That document shows that Saeku is a citizen
and native of Thailand, and that he entered the United States
as a lawful permanent resident on April 28, 1985.
Id. The document also shows that Saeku was convicted
of larceny and sentenced to 30 days' imprisonment in
North Carolina state district court on March 28, 2001.
Id. at 3. Subsequently, on May 21, 2002, Saeku was
convicted of two counts of larceny and sentenced to 120
days' imprisonment and 12 months probation. Id.
Saeku was charged with being removable under 8 U.S.C. §
1227(a)(2)(A)(ii) for having committed at least two crimes
involving moral turpitude not arising out of a single scheme
of criminal misconduct. Id. at 3. Saeku failed to
appear for his hearing and was ordered removed in
absentia on February 20, 2007. Id. at 4. Saeku
appealed the order, and on December 31, 2009, the Bureau of
Immigration Appeals (BIA) found that Saeku had not received
proper notice of the removal hearing and remanded the case to
the immigration judge. Id. at 13-14.
this same approximate time period, however, Saeku was found
guilty of two counts of wire fraud, in violation of 18 U.S.C.
§ 1343, and one count of interstate transportation of
stolen property, in violation 18 U.S.C. § 2314, in the
United States District Court for the Eastern District of
North Carolina. App. (Judgment), ECF No. 6-1, at 5-10. On
November 12, 2008, Saeku was sentenced to a term of 108
months' imprisonment in the Bureau of Prisons (BOP).
Id. at 6; see United States v. Saeku, No.
5:07-CR-304-1BO (E.D. N.C. Nov. 12, 2008).
Saeku was serving his federal term of imprisonment, on April
15, 2010, the immigration court held a hearing which was
ordered as a result of the BIA remand. Id. at 15.
The immigration judge again ordered Saeku removed in
absentia. Id. at 16. On February 2, 2016 the BOP
released Saeku to ICE. Id. at 34. The Respondent
reports that on or about March 30, 2016, a bond hearing was
held. The immigration judge denied bond because Saeku was
subject to a final order of removal. After Saeku was released
into ICE custody following the completion of his term of
federal imprisonment, however, ICE recognized that the in
absentia removal order entered in April 2010 needed to
be reopened because Saeku had been in federal custody at the
time of that removal hearing. Id. at 19-20. Even
though he was subject to a removal order, ICE informed the
Immigration Court that it did not want to proceed with the
removal because the removal order was arguably invalid under
8 U.S.C. § 1229a(b)(5)(C) [provision for rescission of
order in removal proceeding if alien was in Federal custody]
and 8 C.F.R § 1003.23(b)(4)(ii) (“An order entered
in absentia pursuant to section 240(b)(5) may be rescinded
upon a motion to reopen filed at any time if … the
alien demonstrates that he or she was in Federal or state
custody and the failure to appear was through no fault of the
alien”). Id. at 20. As a result, on April 1,
2016, ICE filed a motion to reopen the removal proceeding and
to change venue to Dallas, where Saeku was then located.
Id. at 17. The effect of the filing of the motion to
reopen was to automatically stay Saeku's removal.
See 8 U.S.C. § 1229a(b)(5)(C) (“The
filing of the motion to reopen . . .shall stay the removal of
the alien pending disposition of the motion by the
12, 2016 a bond hearing was held. Id. at 31. No bond
was granted because Saeku's detention was mandatory.
Id.; see 8 U.S.C. § 1231(a)(2) (“Under no
circumstances during the removal period shall the Attorney
General release an alien who has been found . . . deportable
under § 1227(a)(2)”). Saeku waived appeal of that
decision. App. ECF No. 6-1, at 31. On August 31, 2016, an
immigration judge granted the motion to reopen and to change
venue. Id. at 32. A master calendar hearing was held
on September 29, 2016. Id. at 33. The case was
re-set to October 25, 2016. Id. In a supplemental
response, the Respondent has informed the Court that on April
10, 2017 an Immigration Judge ordered Saeku removed to
Thailand. Supp. Response, and Appendix, ECF Nos. 14, 15.
Saeku, however, reserved his right to appeal, preventing that
order from becoming final. Id. at 15; see 8
C.F.R. § 1003.39 (decision of the Immigration Judge
becomes final upon waiver of appeal or expiration of time to
appeal). Saeku subsequently timely filed an appeal of the
April 10, 2017 removal order. Because the order of removal is
on appeal, Saeku remains in pre-order mandatory detention.
GROUNDS FOR RELIEF
petition for writ of habeas corpus under 28 U.S.C. §
2241, Somsak Saeku asserts that he is being detained
illegally pending his removal to Thailand. He also claims
that he has cooperated with efforts to remove him, and that
the Thai consulate has refused to issue travel documents. He
also contends that his detention violates Zadvydas v.
Davis, 533 U.S. 678, 689 (2001) and his due process
rights under the Fifth Amendment, and he also contends that
his continued detention is in violation of Demore v.
Kim, 538 U.S. 510, 531 (2003). Saeku seeks release from
detention. Pet., ECF no. 1, at 10-11. A review of the record
shows that his allegations regarding his removal status are
incorrect, and he is not entitled to relief under §
REVIEW and ANALYSIS
Supreme Court has held that an alien does not have a
constitutional right to be released from detention during the
limited period in which removal proceedings are pending.
Demore v. Kim, 538 U.S. 510, 531 (2003). The right
to release, therefore, is a right granted and controlled by
statute. See generally Carlson v. Landon, 342 U.S.
524, 532-36 (1952). Specifically, when and under what
circumstances an alien may be released while removal
proceedings are pending is governed by 8 U.S.C. §
1226(a). Section 1226(a) provides for release in the
discretion of the Attorney General “except as
provided in subsection (c).” 8 U.S.C. §
1226(a) (emphasis added). Subsection 1226(c)(1)(B) requires
detention of an alien who has been convicted of at least two
crimes of moral turpitude. 8 U.S.C. § 1226(c)(1)(B)
(citing 8 U.S.C. § 1227(a)(2)(A)(ii)). As noted above,
Saeku has been convicted of at least two crimes of moral
turpitude and, therefore, his detention is mandatory pending
a final order of removal.
Saeku has not been detained an unreasonable amount of time.
His detention by ICE began on February 2, 2016 when he was
released from BOP. He was in post-removal order detention
until April 1, 2016 when ICE filed the motion to reopen the
case to assure that a legal removal order was obtained. His
detention at that time, therefore, became pre-order
detention. Saeku had been in pre-removal order detention for
only a few months when he filed this § 2241 petition in
the motion to reopen was filed, ICE could not make any
efforts to proceed with his removal until a final order of
removal was entered. 8 U.S.C. § 1229a(b)(5)(c). Indeed,
in Exhibit B to his petition, Saeku admits that the
Immigration and Nationalization Act (INA) § 240(b)(5)(c)
(codified at 8 U.S.C. § 1229a(b)(5)(c)) stays his
removal pending disposition of the motion to reopen. ECF No.
1 at 20. ICE has not removed him because there is no final
order of removal, not because removal efforts have failed.
ICE has not asked Thailand to issue travel documents. Because
there is not a final order of removal, there is no present
basis for ICE to obtain travel documents from Thailand
officials. To the extent Saeku makes assertions to the
contrary, he is mistaken.
Zadvydas v. Davis,533 U.S. 678, the United States
Supreme Court held that section 1231(a)(6) “read in
light of the Constitution's demands, limits an
alien's post-removal-period detention to a period
reasonably necessary to bring about that alien's removal
from the United States. It does not permit indefinite
detention.” Id. at 689. The Court designated
six months as a presumptively reasonable period of post-order
detention, but made clear that the presumption does not mean
that every alien not removed must be released after six
months. Id. at 701. Saeku argues that he is entitled
to relief based on Zadvydas. But Zadvydas
is inapplicable here because it concerns post-order removal.
The authority to detain aliens after the entry of a final
order of removal is set forth in 8 U.S.C. § 1231(a).
That statute affords ICE a 90-day period within which to
remove the alien from the ...