DaSilva v. Holder et al

Filing 20

MEMORANDUM OPINION. Signed by Judge Robert B Propst on 9/4/2014. (AVC)

FILED
2014 Sep-04 PM 03:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
MAURICIO DASILVA,
Petitioner,
v.
ERIC HOLDER, Attorney General, et. al,
Respondents.

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4:12-cv-04137-RBP

MEMORANDUM OPINION
This is an action on a pro se petition for a writ of habeas corpus filed pursuant to 28
U.S.C. § 2241, in which Petitioner Mauricio DaSilva challenges his detention pending his
removal from the United States pursuant to the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1101 et seq. (Doc.1 1 (“Petition” or “Pet.”)). Petitioner has been granted leave to
proceed in forma pauperis. Upon consideration, the court finds that the Petition is due to be
summarily denied.
I.

BACKGROUND
Petitioner is a native and citizen of Brazil. (Smith Dec. at ¶ 8)2. He attempted to enter

the United States at Dulles Airport in Washington, D.C., on March 6, 2004, using a fraudulent
passport. (Id. at ¶ 2). He was arrested by Customs and Boarder Protection officers. (Id.) He
was subsequently convicted on March 8, 2004, in the United States District Court for the Eastern
District of Virginia for visa fraud under 18 U.S.C. § 1546(a).
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References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the Court to the
pleadings, motions, and other materials in the court file, as reflected on the docket sheet in the court’s Case
Management/Electronic Case Files system.

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Citations to “Smith Dec. at ¶ ___” are to the numbered paragraphs of the declaration of Gerald Smith, ICE
Assistant Field Office Director, found in the defendants’ response at exhibit 1.

DaSilva was issued a Notice and Order of Expedited Removal on March 31, 2004. (Id. at
¶ 4). He was then removed from the United States.
At some unknown time and place, DaSilva illegally reentered the United. States. He was
arrested by Massachusetts State Police in Brockton, Massachusetts, for cocaine trafficking. (Id.
at ¶ 6). The charge was dismissed on December 7, 2011. (Id.)
DaSilva was taken into ICE custody and again ordered removed from the United States to
Brazil on February 7, 2012. (Id. at ¶ 8). ICE requested the necessary travel documents from the
Consulate General of Brazil on February 10, 2012. (Id. at ¶ 9). DaSilva was served with a Form
I-229(a), warning him of the consequences of failing to depart the United States. (Id. at ¶ 10).
He was interviewed by the Consulate General of Brazil on March 23, 2012. DaSilva refused to
sign for his travel document. (Id. at ¶ 11). The Consulate General has informed ICE that
DaSilva’s travel document cannot be issued unless he voluntarily signs for it. (Id. at ¶ 12).
DaSilva was served with a “Notice of Failure to Comply,” informing him of the consequences of
not cooperating. (Id. at ¶ 13).
On April 20, 2012, DaSilva was given a “Post Order Custody Review” by ICE. A
decision continuing his detention was issued. ICE also submitted an assistance request to ICE
Headquarters Travel Document Unit. (Id. at ¶ 14). On May 7, 2012, another notice regarding the
consequences of a failure to depart was provided to DaSilva. (Id. at ¶ 15).
On June 12, 2012, DaSilva again was interviewed by the Consulate General of Brazil.
DaSilva once again refused to sign for his travel document. (Id. at ¶ 16).
In July 2012, ICE submitted another assistance request to the Travel Document Unit. (Id.
at ¶ 17). DaSilva was served with another notice concerning the consequences of a failure to
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comply. (Id. at ¶ 18). On August 10, 2012, he was served with another warning concerning the
consequences of a failure to depart. At that time, he informed ICE personnel that he would not
sign for his Brazilian Travel Document. (Id. at ¶ 19).
He was served with additional notices of the consequences of a failure to comply and
with warnings concerning the consequences of failing to depart the United States on August 15,
2012, October 3, 2012, October 15, 2012, December 2, 2012, and December 19, 2012. However,
DaSilva again told ICE officials that he would not sign for his Brazilian Travel Document on
October 3, 2012, and December 2 and 19, 2012. (Id. at ¶¶ 20-24).
On December 20, 2012, DaSilva filed the present petition asserting that he is being
illegally detained. (Doc. 1). The court entered an order requiring the defendants to appear and
show cause why the requested relief should not be granted. (Doc. 2). The defendants filed their
response on February 4, 2013. (Doc. 4). DaSilva was afforded an opportunity to respond. (Doc.
5). He filed an affidavit, stating the evidence against him is “fictitious” and cannot be
substantiated. (Doc. 6 at 3). He also asserts that “he has sign[ed] and accepted every document
given to him by ICE DHS.” (Id.)
On June 13, 2014, the court entered an order requiring the respondents to provide DaSilva
with any necessary forms that he needs to complete and/or sign for his travel document. (Doc. 12
at 2). After doing so, they were required to inform the court whether DaSilva completed the
necessary documents. (Id.)
On June 20, 2014, the respondents reported to the court that on June 18, 2014, ICE
interviewed DaSilva, with the assistance of a telephonic translator who verbally read the contents
of the ICE Form I-229(a), Warning for Failure to Depart and Instruction Sheet. (Doc. 14 at 2).
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He was then presented with a form from the Brazilian Government authorizing the issuance of a
travel document for his removal. DaSilva “adamantly refused to sign his application for a
Brazilian Travel Document.” (Id.) He advised ICE that he believed the form to be fraudulent
and he wanted to contact the Brazilian Consulate General to verify the authenticity of the Travel
Document application. On June 19, 2014, ICE emailed the Consulate of Brazil requesting an
interview for DaSilva. (Id.) The Consulate stated that they had the travel document application
packet and would speak with DaSilva telephonically. (Id. at 2-3). On the same day, ICE
contacted the Vice Consular for the Consulate General of Brazil. He telephonically interviewed
DaSilva. (Id. at 3). After the interview, the Vice Consular informed ICE that a travel document
could not be issued due to the fact that DaSilva stated that he would not sign for his travel
document. He confirmed this in an email to ICE.3 (Id.)
DaSilva filed a response to the respondents’ status report to the court. (Doc. 15). He
states that the respondents have not complied with the court’s order and have conducted an
illegal electronic surveillance. Specifically, he states he was brought into a dark room. He was
confused and disoriented, he was not given his Miranda rights, and he was not told he was being
videotaped. (Id. at 2). Additionally, according to DaSilva, he was provided a fake Travel
Document. (Id.) He has also filed a motion to suppress the video recordings. (Doc. 18).
II.

DISCUSSION
Under the general habeas statute, 28 U.S.C. § 2241, federal courts have jurisdiction to

grant habeas relief to a person who claims he is being held “in custody in violation of the

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Counsel for the respondents also informed the court that the June 18 and 19, 2014 events were video
recorded. (Doc. 14 at 3).

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Constitution or law ... of the United States. 28 U.S.C. § 2241(c)(3). However, the INA provides
that the filing of a petition for review in the appropriate court of appeals is “the sole and
exclusive means for judicial review of an order of removal.” 8 U.S.C. § 1252(a)(5).
Petitioner argues that his continued detention violates § 241 of the INA, 8 U.S.C. § 1231,
in light of Zadvydas v. Davis, 533 U.S. 678 (2001), and the Due Process Clause of the Fifth
Amendment. Section 1231 of Title 8 provides for a 90-day removal period calculated from the
time the removal order becomes final, 8 U.S.C. § 1231(a)(1), during which time detention of the
removable alien is mandatory. 8 U.S.C. § 1231(a)(2). Section 1231 further provides that a
removable alien who is not removed during the 90-day removal period may be granted
supervised release. 8 U.S.C. § 1231(a)(3). Further, a removable alien may be detained beyond
the 90-day removal period, as follows:
An alien ordered removed who is inadmissible under [8 U.S.C. § 1182],
removable under [8 U.S.C. §§ 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4)] or who
has been determined by the Attorney General to be a risk to the community or
unlikely to comply with the order of removal, may be detained beyond the
removal period and, if released, shall be subject to the terms of supervision in [8
U.S.C. § 1231(a)(3)].
8 U.S.C. § 1231(a)(6).
In addition, the statute allows that the “removal period shall be extended ... and the alien
may remain in detention during such extended period if the alien fails or refuses to make timely
application in good faith for travel or other documents necessary to the alien’s departure or
conspires or acts to prevent the alien’s removal subject to an order of removal.” 8 U.S.C. §
1231(a)(1)(C). The statutory clock of the removal period starts running on the latest of three
dates, as follows:

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(i)

The date the order of removal becomes administratively final.

(ii)

If the removal order is judicially reviewed and if a court orders a stay of the
removal of the alien, the date of the court’s final order.

(iii)

If the alien is detained or confined (except under an immigration process), the date
the alien is released from detention or confinement.

8 U.S.C. § 1231(a)(1)(B).
In Zadvydas, the Supreme Court construed § 1231(a)(6) so as not to authorize indefinite
detention. Rather, the Court concluded that the statute “contain[ed] an implicit ‘reasonable time’
limitation” subject to federal court review via a § 2241 habeas petition. 533 U.S. at 682. When a
removable alien is detained beyond this reasonable time and “removal is not reasonably
foreseeable, the court should hold continued detention unreasonable.” Id. at 699. The Court
adopted a six month period of presumptive reasonableness. Id. at 701. After the lapse of this six
month period, the burden falls to the alien petitioner to show that his removal is not likely to
occur in the “reasonably foreseeable future.” Id.; Clark v. Martinez, 543 U.S. 371 (2005). The
Court concluded, however, that “an alien may be held in confinement until it has been
determined that there is no significant likelihood of removal in the reasonably foreseeable
future.” 533 U.S. at 701. The Eleventh Circuit, applying Zadvydas, has stated that to assert a
claim an alien must show that six months have lapsed from the beginning of the removal period,
and offer evidence showing that there is “no significant likelihood of removal in the reasonably
foreseeable future.” Akinwale v. Ashcroft, 287 F.3d 1050, 1051-52 (11th Cir. 2002) (per curiam).
With respect to Petitioner’s Zadvydas-based claims, whether statutory or constitutional in
dimension, he has failed to show that he is entitled to relief. It is clear that the United States is
diligently pursing his removal. However, the United States cannot successfully obtain DaSilva’s
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travel documents from Brazil until DaSilva cooperates with authorities. It is DaSilva’s lack of
cooperation and obstruction of the removal process that has extended his detention. He has been
afforded numerous opportunities to effectuate the process, but has declined to do so.
Accordingly, he is entitled to no relief in this action.4
III.

CONCLUSION
Based on the foregoing, DaSilva’s petition for a writ of habeas corpus is due to be denied

and this action dismissed. An appropriate order will be entered.5
DONE, this the 4th day of September, 2014.

ROBERT B. PROPST
SENIOR UNITED STATES DISTRICT JUDGE

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The Clerk of the Court is also directed to term DaSilva’s motion to suppress (doc. 18) as being moot.

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Respondents also correctly argue that the named federal respondents are due to be dismissed as improper
parties. See Rumsfeld v.Padilla, 542 U.S. 426, 439 (2004). However, because the matter is being
dismissed on the merits, no further action is required.

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