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Saeku v. Johnson

United States District Court, N.D. Texas, Abilene Division

September 14, 2017

SOMSAK SAEKU, (No. A039065507) Petitioner,
JIMMY JOHNSON, [1] Warden, Prairieland Detention Center, Respondent.



         Before 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.[2]


         On 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.

         During 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).[3]

         While 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 immigration judge”).

         On May 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.


         In his 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 § 2241.


         The 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.

         Further, 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 August 2016

         Once 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.

         In 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. ยง 1231(a). That statute affords ICE a 90-day period within which to remove the alien from the ...

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