United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER GRANTING SUMMARY
R. MARTINEZ, DISTRICT JUDGE
day, the Court considered Petitioner Kumar Ashok's
"Petition for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 and Complaint" (ECF No. 1)
[hereinafter "Petition"] filed on June 12, 2019;
Respondents Corey Price, Ronald D. Vitiello, Kevin McAleenan,
and William Barr's "Motion to Dismiss, or in the
Alternative, Motion for Summary Judgment" (ECF No. 8)
[hereinafter "Motion"] filed on August 2, 2019;
Petitioner's subsequent "Petition for Writ of Habeas
Corpus" (ECF No. 15) [hereinafter "Subsequent
Petition"] filed on August 23, 2019; and
Respondents' "Reply to Petitioner's Objection to
Respondent's Motion to Dismiss or, in the Alternative,
Motion for Summary Judgment" (ECF No. 16) [hereinafter
"Reply"] filed on August 30, 2019, in the above
States Immigration and Custom Enforcement [hereinafter
"ICE"] currently holds Petitioner at the El Paso
Service Processing Center [hereinafter "SPC"] in El
Paso, Texas. Pet. 4. Petitioner seeks habeas corpus relief,
alleging that the length of his detention violates the
pertinent immigration statute and regulations, and
substantive and procedural due process pursuant to the Fifth
Amendment. Pet. 11-15. In their responsive briefing,
Respondents move for a motion to dismiss for lack of subject
matter jurisdiction on claims against Respondents Vitiello,
McAleenan, and Barr, or in the alternative summary judgment
in favor of Respondents Vitiello, McAleenan, Barr and Price.
After affording Petitioner's and Respondents'
arguments due consideration, the Court concludes that it will
grant summary judgment in favor of Respondents because there
is a significant likelihood ICE will remove Petitioner in the
reasonably foreseeable future.
is a native and citizen of India. Pet. 5; Mot. 1. He first
entered the United States in late July or early August, 2018.
Pet. 8; Mot. Attach. D. Petitioner was denied asylum and
placed in removal proceedings. Pet. 8; Mot. 2. On December 6,
2018, an Immigration Judge ordered that Petitioner be removed
from the United States to India. Pet. 5, 8; Mot. 2.
Petitioner waived his right to appeal the removal order. Mot.
2. ICE is holding Petitioner at SPC while he awaits removal.
January 10, 2019, ICE received a travel document for
Petitioner from the government of India. Mot. 2. On or about
February 8, 2019, several Indian nationals other than
Petitioner held at SPC participated in a hunger strike.
See Subsequent Pet. 2 (indicating Petitioner did not
go on hunger strike); Reply 2 (describing annotations for
Indian nationals that "generically reflec[t] a hunger
strike"). ICE initially scheduled Petitioner for removal
on February 8, 2019, with three other Indian nationals, but
cancelled the removal because the "other three Indian
nationals were not medically cleared to travel, " due to
the hunger strike.
February 27, 2019, the El Paso Deputy Field Officer Director
of ICE, Joe M. Sifuentez, issued a Post Order Custodial
Review [hereinafter "POCR"] decision letter
regarding Petitioner. Pet. 8; Mot. Attach. C. An officer
served Petitioner with the letter on March 7, 2019. Mot. 2.
The POCR letter indicated that Petitioner would continue to
remain in detention pending travel documents requested from
India, and that if Petitioner had not been released or
removed from the United States by June 4, 2019, his case
would be transferred to ICE's Headquarters Removal and
International Unit [hereinafter "HQRIO"]. Mot.
March, 2019, Petitioner's original travel document
expired before ICE could place him on a charter flight for
removal to India. Mot. 2. ICE Deportation Officer Jorge
Zuzunagha then requested new travel documents on March 27,
2019. Reply Ex. 2 at 2. Officer Zuzunagha personally sent
communications to an Indian government representative
regarding this request on May 16, 2019. Id. The
government of India responded to this communication on May
20, 2019, acknowledging receipt. Id. at 3. Therein,
a government representative stated the travel request
remained pending, but gave no indication on when it would be
5, 2019, ICE HQRIO Chief Nicole D. Wright issued a 180-day
"Decision to Continue Detention" POCR letter
regarding Petitioner. Mot. Attach. D. An officer served
Petitioner with the letter on June 17, 2019. Mot. 2. The
letter indicated that Petitioner would remain in ICE Custody
because "ICE is currently working with the government of
India to secure a travel document for your removal from the
United States, " and that "[a] travel document is
expected." Mot. Attach. D.
Officer Zuzunagha sent five additional communications to the
government of India requesting Petitioner's new travel
document. Reply Ex. 2 at 3. The government of India replied
to four of these communications, each time acknowledging
receipt, indicating the request remained pending, and failing
to indicate when the request would be approved. Id.
On or before September 24, 2019, ICE received
Petitioner's new travel document from the government of
India. Advisory to Ct., Sept. 24, 2019, ECF No. 17 at 2.
should grant summary judgment "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). A genuine dispute regarding a material
fact exists if there are "any genuine factual issues
that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either
party." Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
motion for summary judgment, "[t]he moving party bears
the initial burden of showing that there is no genuine issue
for trial; it may do so by 'point[ing] out the absence of
evidence supporting the nonmoving partis case."'
Nat'l Ass'n of Gov't Emps., 40 F.3d 698,
712 (5th Cir. 1994) (quoting Latimore v. Smithkline
French Labs., 919 F.2d 301, 303 (5th Cir. 1990)). If the
moving party has satisfied its initial burden, the nonmovant
must then come forward with "specific facts showing that
there is a genuine issue for trial." Matsushita
Elec. Indus. Co. u. Zenith Radio Corp., 475 U.S. 574,
587 (1986). "This burden is not satisfied with 'some
metaphysical doubt as to the material facts, '
Matsushita, 475 U.S. at 586, 'conclusory
allegations, ' Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990),
'unsubstantiated assertions, ' Hopper v.
Frank, 16 F.3d 92 (5th Cir. 1994), or only a
'scintilla' of evidence, Davis v. Chevron U.S.A.,
Inc., 14 F.3d 1082 (5th Cir. 1994)." Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
conducting a summary judgment analysis must "review the
facts drawing all inferences most favorable to the party
opposing the motion." Reid v. State Farm Mat. Auto.
Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). Thus, a
court should "resolve factual controversies in favor of
the nonmoving party, but only when there is an actual
controversy, that is, when both parties have submitted
evidence of contradictory facts." Little, 37
F.3d at 1075. A court should not, "in the absence of any
proof, assume that the nonmoving party could or would prove
the necessary facts." Id. (citing
Lujan, 497 U.S. at 888).
habeas corpus petitioner must show that they are "in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2241(c).
"As a general principle, Rule 56 of the Federal Rules of
Civil Procedure, relating to summary judgment, applies with
equal force in the context of ...