United States District Court, W.D. Texas, El Paso Division
MEMORANDUM OPINION AND ORDER
C. GUADERRAMA, UNITED STATES DISTRICT JUDGE
before the Court is Respondents Kevin McAleenan, Matthew
Albence, Adrian P. Macias, Frances M. Jackson's
"Motion to Dismiss and Motion for Summary Judgment"
("Motion") (ECF No. 11) filed on July 22, 2019.
Therein, Respondents ask the Court to dismiss Petitioner
Salome Del Socorro Fuentes-De Canjura's
("Petitioner") "Petition for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241"
("Petition") (ECF No. 1) on the grounds that none
of them are proper respondents and Petitioner's
constitutional claims are meritless. For the reasons that
follow, the Court GRANTS IN PART and
DENIES IN PART Respondents' Motion.
is a citizen of El Salvador who is currently being detained
by Respondents in El Paso, Texas. McAleenan is the Acting
Secretary of the Department of Homeland Security
("DHS"). Albence is the Acting Director of
United States Immigration and Customs Enforcement
("ICE"). Macias is the Former Director of the
El Paso Field Office Director for ICE. Jackson is the
Assistant Director of the El Paso Field Office Director for
originally entered the United States on February 15, 2006,
was ordered removed in absentia by an Immigration
Judge ("IJ") on July 17, 2006, and was removed to
El Salvador on March 17, 2017. Petitioner reentered the
United States on October 31, 2017 and was convicted for
illegal reentry in violation of 8 U.S.C. §
1326. After she was released from prison for
time served, ICE reinstated the prior removal order on
November 1, 2017, and took custody over Petitioner on
December 20, 2017.
in custody, Petitioner expressed fear of returning to El
Salvador and was interviewed by an asylum officer pursuant to
8 C.F.R. § 208.31. The asylum officer determined that
Petitioner had established a reasonable fear of prosecution
or torture, and referred the case to an IJ for
withholding-only proceedings on January 30,
2018. On April 2, 2018, DHS issued a
Decision to Continue Detention stating that Petitioner would
remain in custody pending her withholding-only hearing before
the immigration court because of her prior removal from the
United States. DHS issued another Decision to
Continue Detention on June 19, 2018, based on the same
grounds. On July 12, 2018, Petitioner's
hearing before the IJ on the merits was continued because her
application for relief did not contain the required
declaration from the Petitioner. On July 25, 2018, the
IJ denied Petitioner's application for withholding of
removal under 8 U.S.C. § 1231(b)(3), as well as her
application for withholding or deferral under the United
Nations Convention Against Torture and Other Forms of Cruel,
Inhuman or Degrading Treatment or Punishment
appealed. On September 24, 2018, and January
7, 2019, DHS issued two more Decisions to Continue Detention
stating that Petitioner would remain in ICE custody pending a
Board of Immigration Appeals' ("BIA") ruling on
her case. On February 27, 2019, the BIA
reversed the IJ's finding that Petitioner did not suffer
past persecution, and remanded the case back to the IJ to
determine whether DHS carried its burden of proof in
rebutting the regulatory presumption that Petitioner's
life or freedom would be threatened on the basis of the
original claim. The BIA declined to address the
IJ's denial of protection under CAT.
March 15, 2019, Petitioner submitted a request to the IJ for
a bond hearing-which the IJ denied on April 2, 2019,
reasoning that he lacked jurisdiction over her request for
bond because her case was governed by 8 U.S.C. §
1231. On April 26, 2019, the IJ issued his
Decision and Order of the Court Following Remand, denying
once again Petitioner's application for withholding of
removal and protestation under CAT. Petitioner again
appealed the IJ's decision to the BIA in May 17,
2019. To date, the appeal remains pending
before the BIA, and thus, the reinstated removal order has
not yet been executed. On June 10, 2019, the Deportation
Officer generated Petitioner's 450-day post-custody
review ("POCR") and forwarded it to the Supervisory
Detention and Deportation Officer for review before
submission to Headquarters POCR Unit for revision and
decision. That same day, Petitioner filed the
judgment is appropriate when "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 of fact exists
when evidence is sufficient for a reasonable jury to return a
verdict for the non-moving party, and a fact is material if
it 'might affect the outcome of the suit.'"
Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir.
2014) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986))). In deciding whether a genuine dispute
as to any material fact exists, a trial court considers all
of the evidence in the record and "draw[s] all
reasonable inferences in favor of the nonmoving party"
but "refrain[s] from making credibility determinations
or weighing the evidence." Turner v. Baylor
Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)
(citation and internal quotation marks omitted). Instead, the
court "only 'give[s] credence to the evidence
favoring the nonmovant [and] that evidence supporting the
moving party that is uncontradicted and unimpeached, at least
to the extent that that evidence comes from disinterested
witnesses.'" Orr v. Copeland, 844 F.3d 484,
490 (5th Cir. 2016) (second alteration in original) (quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150-51 (2000)).
the party moving for summary judgment "bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of [the
record] which it believes demonstrate the absence of a
genuine issue of material fact." KE.O.C. v. LHC
Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)
(alterations in original) (quotation marks and citation
omitted). When the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy this
responsibility by "point[ing] out the absence of
evidence supporting the nonmoving party's case."
Latimer v. Smithkline & French Labs., 919 F.2d
301, 303 (5th Cir. 1990); see also Boudreaux v. Swift
Transp. Co., 402 F.3d 536, 544-45 (5th Cir. 2005).
moving party succeeds, "the onus shifts to the nonmoving
party to go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial." LHC Grp.,
773 F.3d at 694 (internal quotation marks and citation
omitted). However, the nonmoving party "cannot defeat
summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence." Davis
v. Fort Bend Cty., 765 F.3d 480, 497 n.20 (5th Cir.
2014) (quotation marks and citation omitted).
Jurisdiction Under Section 2241
initial matter, the Court notes that it has proper
jurisdiction to consider this matter. Aliens subject to a
removal order may file a habeas corpus petition under 28
U.S.C. § 2241 when they wish to challenge their
post-removal-period detention on constitutional grounds.
See Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001).
On May 11, 2005, Congress enacted the REAL ID Act, stripping
district courts of jurisdiction over § 2241 petitions
attacking removal orders. See 8 U.S.C. § 1252
(B)(ii). Nevertheless, district courts may exercise habeas
jurisdiction to review challenges to post-removal-period
detentions that do not attack removal orders. See I.N.S
v. St. Cyr, 533 U.S. 289, 312-13 (2001); Baez v.
Bureau of Immigration & Customs Enft, 150
F.App'x 311, 312 (5th Cir. 2005) (per curiam)
("Section 106(a) of the [REAL ID] Act does not, however,
preclude habeas review of challenges to detention that are
independent of challenges to removal orders.").
§ 2241 grants district courts "the authority to
grant writs of habeas corpus 'within their respective
jurisdictions.'" See Lee v. Wetzel, 244
F.3d 370, 373 (5th Cir. 2001) (citing 28 U.S.C. § 2241).
Hence, a district court has jurisdiction to entertain an
alien's habeas petition under § 2241 if that alien
is detained within that court's district. Id. at
374-75. Petitioner is currently detained at the El Paso
Processing Center, within the Western District of Texas, and
she is challenging her post-removal-detention on
constitutional grounds via § 2241. Therefore, the Court
may exercise its habeas jurisdiction over her petition.
Motion to Dismiss
move to dismiss McAleenan, Albence, Macias, and Jackson on
the basis that they are improper parties under Rumsfeld
v. Padilla, 542 U.S. 426 (2004). Mot. at 8.
a writ of habeas corpus "shall be directed to the person
having custody of the person detained." 28 U.S.C. §
2243. Thus, the Supreme Court in Padilla explained,
the "default rule" is that the proper respondent is
the party in charge of the facility where the petitioner is
being detained, "not the Attorney General or some other
remote supervisory official." Padilla, 542 U.S.
at 435. But the Court declined to resolve the question of
whether the default rule applied to "a habeas petition
filed by an alien detained pending deportation."
Id. at 435 n.8.
circuit courts are split on whether the Attorney General may
be a proper respondent in this kind of cases, and the Fifth
Circuit has not yet provided an answer. See Nken v.
Napolitano, 607 F.Supp.2d 149, 158 (D.D.C. 2009)
(collecting cases); Gutierrez-Soto v. Sessions, 317
F.Supp.3d 917, 927 (W.D. Tex. 2018); Davis v.
Gonzales, 482 F.Supp.2d 796, 799 (W.D. Tex. 2006)
("[T]he Supreme Court noted a circuit court split with
respect to this very issue-a Split on which the Fifth Circuit
has not yet taken a position."). Further, several
district courts have held that even the Secretary of DHS may
be a proper respondent in immigration cases where petitioners
challenge their detention "[d]ue to his ... level of
oversight over ICE and the deportation process and removal
determinations." See Farez-Espinoza v.
Chertoff, 600 F.Supp.2d 488, 495 (S.D.N.Y. 2009);
Jarpa v. Mumford, 211 F.Supp.3d 706, 724-25 (D. Md.
2016); Carmona v. Aitken, 14-CV-05321, 2015 WL
1737839, at *4 (N.D. Cal. Apr. 10, 2015); Bogarin-Flores
v. Napolitano, 12-CV-0399, 2012 WL 3283287, at *2 (S.D.
Cal. Aug. 10, 2012); see also 6 U.S.C. §§
202(3), 251(2) (describing the DHS Secretary's authority
to affect the detention and removal of alien detainees).
But see Nken, 607 F.Supp.2d at 159-60 (concluding
that the Secretary of DHS is not a proper respondent to a
habeas petition filed by an alien detained pending
deportation); Zhen Yi Guo v. Napolitano, 09-CV-3023,
2009 WL 2840400, at *5 (S.D.N.Y. 2009) (rejecting the
reasoning in Farez-Espinoza).
have not offered the Court any other binding case law or
persuasive reason why it should dismiss the four Respondents
beyond citing to Padilla, which, as mentioned,
explicitly declined to address whether its holding equally
applies to a habeas petition filed by an alien detained
pending deportation. See Gutierrez-Soto, 317
F.Supp.3d at 927 (citing Padilla, 542 U.S. at 435
n.8). As such, the Court finds that Respondents, as movants,
have failed to carry their burden of proving that dismissal
of all four respondents is proper. Therefore, the Court
declines to dismiss the four Respondents at this time.
Respondents' Motion to Dismiss McAleenan, Albence,
Macias, and Jackson as improper party respondents is denied.
Motion for Summary Judgment
argue that summary judgment should be granted against
Petitioner because she fails to show no significant
likelihood of removal in the reasonably foreseeable future
pursuant to the framework established by the Supreme Court in
Zadvydas v. Davis, 553 U.S. 678, 701 (2001). Mot. at
6. Hence, Respondents argue, there is no constitutional
Reasonableness of a Prolonged Detention under 8 U.S.C. §
preliminary matter, the Court notes that the parties agree
that Petitioner's reinstated removal order is final.
See Mot. at 10; Resp. 5 n.1. They further agree that
Petitioner is an alien detained pursuant to 8 U.S.C. §
1231-not 8 U.S.C. § 1226. See Mot. at
9-12, 12 & n.l; Resp. 9 (distinguishing Demore v.
Kim, 538 U.S. 510, 527 (2003) on the ground that it
tackled the issue of mandatory detention under §
1226(c), but Petitioner here has a final administrative order
of removal). Therefore, the Court will analyze the
reasonableness of Petitioner's detention under §
is detained pursuant to 8 U.S.C. § 1231 because she is
an alien subject to a reinstated removal order. Section
1231(a)(5) states that an alien who illegally reenters the
United States after having been removed or having voluntarily
departed, while under a removal order, shall be removed by
reinstating the removal order from its original date.
See 8 U.S.C. § 1231(a)(5); see also 8
C.F.R. § 241.8(a). The statute authorizes the Government
to detain aliens ordered to be removed and gives the
Government ninety days to remove them from the United
States-the "removal period." Id. §
1231(a)(1)-(2). After the removal period expires, the
Government can either continue to detain these aliens or
release them under supervision. See Demore, 538 U.S.
at 527 (citing 8 U.S.C. § 1232(a)(6)). The Government
may detain these aliens beyond the removal period so long as
the district director conducts a post-order custody review
("POCR") before the ninety-day removal period
expires and the aliens' removal will not be accomplished
during the removal period. See 8 C.F.R. §
241.4(k)(1)(i). If the district director decides
that the aliens should remain in custody pending removal, DHS
must continue to provide periodic reviews for as long as the
aliens remain in custody pending removal. See Id .
the Government may continue to detain aliens under §
1231 after the removal period expires-pursuant to the
above-mentioned procedures, the aliens can still challenge
their detention under the framework established by the
Supreme Court in Zadvydas v. Davis, 533 U.S. 678,
687-88 (2001). In Zadvydas, the Supreme Court
concluded that indefinite detention under § 1231
presents a "serious constitutional problem" when
the statute's goal-"assuring the alien's
presence at the moment of removal"-no longer bears a
"reasonable relation" to the alien's detention
when removal was "a remote possibility at best."
Zadvydas, 533 U.S. at 690. Therefore, the Supreme
Court held that the Government's authority to detain an
alien under § 1231 ends "once removal is no longer
reasonably foreseeable." Id. at 699. But even
in such cases where the Government cannot continue to detain
the alien, the alien is still subject to supervision under
§ 1231(a)(3). See Id . at 696.
the Supreme Court recognized that a six-month detention was
"presumptively reasonable" under the statute.
Id. at 689. For the detention to remain reasonable,
"as the period of prior postremoval confinement grows,
what counts as the 'reasonably foreseeable future'
conversely would have to shrink." Id. This
presumption applies uniformly to all categories of aliens
covered by § 1231. See Tran v. Mukasey, 515
F.3d 478, 482 (5th Cir. 2008) (citing Clark v.
Martinez, 543 U.S. 371, 378 (2005)). However, the Supreme