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Ashok v. Price

United States District Court, W.D. Texas, El Paso Division

September 26, 2019

KUMAR ASHOK, Petitioner,
COREY PRICE, ICE Field Director, RONALD D. VITIELLO, Acting Director of Immigration and Customs Enforcement, KEVIN MCALEENAN, Acting Secretary of DHS, and WILLIAM BARR, U.S. Attorney General, in their official capacities, Respondents.



         On this 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 captioned cause.

         United 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.

         1. BACKGROUND

         Petitioner 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. Id.

         On 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.[1]

         On 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. Attach. C.

         In late 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 approved. Id.

         On June 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.

         Subsequently, 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.


         A court 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).

         In a 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).

         A court 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).

         A 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 ...

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