United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
Rosenthal, Chief United States District Judge.
petitioner, Tafawa Jefferally, is an immigration detainee in
the custody of the United States Department of Homeland
Security, Immigration and Customs Enforcement, awaiting his
removal from the United States. Jefferally, a native and
citizen of Guyana, entered the United States as a lawful
permanent resident in December 1999. He was convicted of
several Texas felony offenses, including a September 2016
conviction for possessing cocaine, for which he served a
four-year sentence. In October 2018, Jefferally received
notice that he was subject to removal under §
237(a)(2)(B)(i), 8 U.S.C. § 1226(c). Removal proceedings
were initiated in February 2019. Jefferally's initial
hearing before an immigration judge was postponed so that he
could seek counsel. He filed this habeas petition in April
2019. His hearing before the immigration judge is set for the
end of August.
filed a writ of habeas corpus in April 2019, claiming that
his detention violates the Fifth Amendment and that his lack
of access to a doctor violates the Eighth Amendment. The
government has moved to dismiss for lack of subject-matter
jurisdiction. (Docket Entry No. 4). Based on the motion, the
response, the reply, the record, and the governing law, the
court grants the motion and, by separate order, dismisses
this case. The reasons are set out below.
The Applicable Law
must be dismissed if the court lacks subject-matter
jurisdiction. Fed.R.Civ.P. 12 (b) (i). In ruling on a motion
to dismiss for lack of subject-matter jurisdiction, courts
may evaluate: (1) the petition alone; (2) the petition
supplemented by undisputed facts evidenced in the record; (3)
the petition supplemented by undisputed facts plus the
court's resolution of disputed facts. Williams v.
Wynne, 533 F.3d 360, 365 n.2 (5th Cir. 2008); Den
Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d
420 (5th Cir. 2001). The plaintiff has the burden of proving
by a preponderance of the evidence that the court has
jurisdiction. Ballew v. Contl. Airlines, Inc., 668
F.3d 777, 781 (5th Cir. 2012); Vantage Trailers, Inc. v.
Beall Corp., 567 F.3d 745, 748 (5th Cir. 2009);
Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908,
910 (5th Cir. 2002).
survive a Rule 12(b)(6) motion, a petitioner must plead facts
that, taken as true, state a plausible claim for relief.
Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007).
“Factual allegations must raise a right to relief above
the speculative level, ” and complaints that are no
more than “labels and conclusions” or are a
“formulaic recitation of the elements of a cause of
action will not do.” Ashcroft v. Iqbal, 129
S.Ct. 1937 (2009). A court may consider certain documents
attached or referred to in the complaint or the motion to
dismiss, and critical to the claims, without converting a
Rule 12(b)(6) motion into one for summary judgment.
Tellabs, Inc. v. Makor Issued & Rights, 551 U.S.
judgement under Rule 56(c) is appropriate when the pleadings
and evidence demonstrate that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Materiality is
determined from the governing substantive law. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Factual disputes are “material” if they
may affect the case outcome, and disputes are
“genuine” if the evidence allows a reasonable
jury to return a verdict for the nonmoving party.
Id. at 248-49. If the moving party meets its burden
of proving no material factual disputes and entitlement to
judgment as a matter of law, the nonmoving party must show a
triable issue of material fact. Celotex, 477 U.S. at
322; Anderson, 477 U.S. at 256.A.
Detention under 8 U.S.C. §§ 1226 (a) and
detention of aliens subject to removal proceedings is
governed by 8 U.S.C. § 1226. See, e.g., Jennings v.
Rodriguez, 138 S.Ct. 830, 837 (2018) (“Section
1226 [of title 8] generally governs the process of arresting
and detaining [deportable] aliens pending their
removal.”). Aliens who have committed certain criminal
offenses are generally subject to mandatory detention under 8
U.S.C § 1226(c) while their removal proceedings remain
open. See Jennings, 138 S.Ct. at 837. Other aliens
may be detained under 8 U.S.C. § 1226 (a), which gives
the Secretary of Homeland Security the discretion to detain
or release the alien on bond or conditional parole. See
Jennings, 138 S.Ct. at 837-38.
detained alien is subject to a final removal order, the
statutory basis for detention is § 1231, which requires
the Secretary of Homeland Security to “remove the alien
from the United States within a period of 90 days.” 8
U.S.C. § 1231(a)(1)(A). Detention is mandatory during
the 90-day removal period. See 8 U.S.C. §
1231(a)(1)(A) and (2). Criminal aliens, as well as those
determined to be a risk to the community or unlikely to
comply with their removal order, may be detained longer than
90 days. See 8 U.S.C. § 1231(a)(6).