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Chande v. Kelly

United States District Court, S.D. Texas, Houston Division

May 10, 2018

HAMIS CHANDE, Petitioner,
v.
JOHN KELLY, Respondent.

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt, United States District Judge

         Petitioner Hamis Chande is a detainee in the custody of the United States Immigration and Customs Enforcement (“ICE”). Chande filed a petition for a writ of habeas corpus challenging his detention. Respondents filed a motion to dismiss the petition, petitioner responded, and respondents replied. Having considered the record, the relevant law, and the arguments of the parties, the Court concludes that the respondents' motion should be granted and the petition should be dismissed.

         I. Background

         The following facts are not in dispute. Petitioner is a native and citizen of Tanzania. He arrived in the United States on a student visa on December 30, 1999. In January 2001, the government determined that Chande was no longer enrolled in college. On March 6, 2006, he was charged as deportable under section 212(a)(6)(A)(I) of the Immigration and Nationality Act, and was issued a Notice to Appear before an immigration judge (“IJ”).

         On May 25, 2006, an IJ issued an order of removal against Chande. On July 19, 2006, the Board of Immigration Appeals (“BIA”) denied Chande's appeal of the removal decision. On August 9, 2008, Chande was granted supervised release.

         On March 1, 2011, Chande was issued a final order of removal. On November 30, 2011, a warrant of removal/deportation was issued.

         On November 10, 2011, while on supervised release, Chande was indicted on a Texas state charge of possession of a controlled substance, cocaine, with intent to deliver. On November 8, 2012, he was sentenced to 15 years imprisonment.

         Chande was released from the Texas Department of Criminal Justice and transferred to ICE custody on December 5, 2016. He was notified that he was found deportable and ordered removable based on his felony conviction and failure to maintain status.

         On March 1, 2017, Chande was issued a Decision to Continue Detention, informing him of ICE's decision to keep him in custody because of his criminal history and limited ties to the community, and because the government considered him a threat to public safety and a flight risk. Chande subsequently filed a motion to reconsider and reopen his removal. An IJ denied his motion on May 22, 2017. On May 23, 2017, Chande appealed the IJ's decision.

         On June 30, 2017, Chande filed this petition for a writ of habeas corpus under 28 U.S.C. § 2241. On September 29, 2017, the government moved to dismiss the petition under Rules 12(b)(1) and (6) of the Federal Rules of Civil procedure. On October 20, 2017, the BIA denied and dismissed Chande's appeal of the IJ decision.

         II. Standard of Review

         Respondents argue that the petition is subject to dismissal under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Rule 12(b)(1) provides for dismissal, in relevant part, when the court lacks subject matter jurisdiction. Rule 12(b)(6) provides for dismissal when the petitioner fails to state a claim upon which relief can be granted.

         A. ...


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