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Jefferally v. Barr

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

August 20, 2019

TAFAWA JEFFERALLY, Petitioner,
v.
WILLIAM BARR, United States Attorney General, Respondent

          MEMORANDUM AND OPINION

          Lee H. Rosenthal, Chief United States District Judge.

         The 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.

         Jefferally 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.

         I. The Applicable Law

         A. Rule 12(b)(1)

         A claim 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).

         B. Rule 12(b)(6)

         To 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. 308 (2007).

         C. Rule 56(c)

         Summary 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.

         D. Detention under 8 U.S.C. §§ 1226 (a) and (c)

         The 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.

         Once a 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).

         II. ...


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