Fuentes-De Canjura v. McAleenan

          MEMORANDUM OPINION AND ORDER

          DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

         Presently 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.

         I. BACKGROUND

         Petitioner is a citizen of El Salvador who is currently being detained by Respondents in El Paso, Texas.^[1] McAleenan is the Acting Secretary of the Department of Homeland Security ("DHS").^[2] Albence is the Acting Director of United States Immigration and Customs Enforcement ("ICE").^[3] Macias is the Former Director of the El Paso Field Office Director for ICE.^[4] Jackson is the Assistant Director of the El Paso Field Office Director for ICE.^[5]

         Petitioner 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.^[6] Petitioner reentered the United States on October 31, 2017 and was convicted for illegal reentry in violation of 8 U.S.C. § 1326.^[7] 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.^[8]

         While 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.^[9] 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.^[10] 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.^[11] DHS issued another Decision to Continue Detention on June 19, 2018, based on the same grounds.^[12] 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.^[13] 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 ("CAT").^[14]

         Petitioner appealed.^[15] 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.^[16] 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.^[17] The BIA declined to address the IJ's denial of protection under CAT.^[18]

         On 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.^[19] 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.^[20] Petitioner again appealed the IJ's decision to the BIA in May 17, 2019.^[21] To date, the appeal remains pending before the BIA, and thus, the reinstated removal order has not yet been executed.^[22] 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.^[23] That same day, Petitioner filed the instant Petition.

         II. STANDARD

         Summary 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)).

         Procedurally, 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).

         If the 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).

         III. DISCUSSION

         A. Jurisdiction Under Section 2241

         As an 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.").

         Further, § 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.

         B. Motion to Dismiss

         Respondents 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.

         Generally, 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.

         Currently, 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).

         Respondents 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.

         C. Motion for Summary Judgment

         Respondents 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 violation. Id.

         1. Reasonableness of a Prolonged Detention under 8 U.S.C. § 1231

         As a 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.^[24] 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 § 1231.^[25]

         Petitioner 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).^[26] 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 . § 241.4(k).

         While 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).^[27] See Id . at 696.

         Accordingly, 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 ...