Perdomo v. Holder et al

Filing 18

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 10/31/14. (SAC )

FILED
2014 Oct-31 PM 04:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
SANTOS A. PERDOMO,

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) Case No.: 4:14-cv-00973-WMA-JHE
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Petitioner,
v.
ERIC H. HOLDER, JR., et al.,
Respondents.

MEMORANDUM OPINION
Petitioner Santos A. Perdomo (“Perdomo”) instituted this action on May 23, 2014, filing a
petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. 1). On July 22, 2014, Respondents
answered the Court’s order to show cause, seeking summary dismissal of Perdomo’s petition for
failure to exhaust administrative remedies. (Doc. 10). On September 22, 2014, Perdomo responded
with an affidavit. (Doc. 14). Thereafter, Respondents filed a status report, indicating that, contrary
to Perdomo’s assertion he had moved for bond redetermination, the immigration court had no record
of the motion. (Doc. 15). In response, Perdomo filed a second affidavit and a motion seeking time
to investigate and file additional affidavits. (Docs. 16-17). For the reasons stated more fully below,
Perdomo’s petition, (doc. 1), is due to be DISMISSED WITHOUT PREJUDICE for failure to
exhaust his administrative remedies.
I. Procedural History
Perdomo is a native and citizen of El Salvador. (Doc. 10-1 at ¶ 2). At some point , he
entered the United States illegally near Phoenix, Arizona. (Id.). United States Immigration and
Customs Enforcement (“ICE”) took Perdomo into custody on February 11, 2011, and served him
with a Notice to Appear. (Id. at ¶ 11). He was denied bond and ordered into the custody of the

Department of Homeland Security. (Id.). He subsequently requested a redetermination of his
custody by an immigration judge, and the immigration judge granted bond in the amount of $4,000.
(Id. at ¶ 12). Upon posting bond, Perdomo was released on April 22, 2011. (Id. at ¶ 13).
On January 27, 2012, Perdomo failed to appear for his removal proceedings and was in
absentia ordered removed from the United States to El Salvador. (Id. at ¶ 15). He successfully
moved to reopen his removal proceedings. (Id. at ¶ 16-17). On September 3, 2013, he was once
again in absentia ordered removed from the United States to El Salvador in removal proceedings in
Miami, Florida. (Id. at 18). On September 16, 2013, ICE took Perdomo into custody in Miami, (id.
at 19), and transferred him to the ICE facility in Gadsden, Alabama, where he is currently being
detained, (doc. 1 at 16).
On September 23, 2013, Perdomo appealed his removal order to the Board of Immigration
Appeals (“BIA”), where his appeal remains pending. (Doc. 10-1 at ¶ 20; doc. 1 at 3; doc. 14 at 3).
On May 23, 2014, Perdomo filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241,
seeking a bond redetermination and the review of the lawfulness of his detention. (Doc. 1).
Perdomo also asserts he movedfor a bond hearing in the immigration court in Miami, Florida,
on August 20, 2014, (doc. 14 at 4; doc. 17 at 1), but Respondents confirmed with that court that no
such motion had been filed, (doc. 15-1 at ¶¶ 3-4). Perdomo requests this Court give him sixty days
to investigate the issue and file additional affidavits. (Doc. 16).
II. Analysis
Perdomo seeks an order granting him a bond determination or declaring his continued
detention illegal. (Doc. 1). However, Perdomo is not entitled to relief from this Court because he
has failed to exhaust his administrative remedies. “The requirement of exhaustion may arise either
from explicit statutory language or an administrative scheme that provides for agency relief,”
Sequeira-Balmaceda v. Reno, 79 F. Supp. 2d 1378, 1381 (N.D. Ga. 2000) (citing Kennedy v. Empire
Blue Cross & Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993)), and it “serves the twin purposes of

protecting administrative agency authority and promoting judicial efficiency,” Sundar v. I.N.S., 328
F.3d 1320, 1323 (11th Cir. 2003) (quoting Kurfees v. INS, 275 F.3d 332, 336 (4th Cir. 2001)). “If
a party fails to exhaust administrative remedies before seeking redress in the federal courts, the Court
should dismiss the action because it lacks jurisdiction over the subject matter.” Id. (citing
Perez–Perez v. Hanberry, 781 F.2d 1477, 1478 (11th Cir. 1986) (holding the district court lacked
jurisdiction over habeas petitions challenging parole determinations because the petitioners had not
exhausted their administrative remedies under the statutory and regulatory procedures)).
First, this Court must determine what administrative remedies apply to a detainee in
Perdomo’s situation. Because an order of removal is not final while an appeal is pending before the
BIA, see 8 C.F.R. § 1241.1(a) (“An order of removal . . . shall become final [u]pon dismissal of an
appeal by the Board of Immigration Appeals . . . .”), Perdomo’s detention is controlled by the preremoval provision of 8 U.S.C. § 1226(a), giving the Attorney General discretion to continue
detaining the alien or to release him on bond or conditional parole. The Code of Federal Regulations
creates a procedure for determining whether an alien detainee receives bond and for that detainee to
appeal any adverse decision. See 8 C.F.R. § 1236.1(c)(8)-(11) (authorizing officers to grant release
on bond); id. § 1236.1(d) (detailing appeals of that decision to an immigration judge and the BIA).
In his petition and subsequent affidavits, Perdomo acknowledges he has a pending appeal before the
BIA on his order of removal and further asserts he is attempting to obtain a redetermination of his
bond. (Doc. 1 at 3; doc. 14 at 3-4; doc. 17 at 1). Although Respondents have noted the immigration
court has not received such a motion, it is clear Perdomo has either failed to seek redetermintion of
his bond or is currently in the process of doing so. Under either circumstance, he has not exhausted
his administrative remedies and, therefore, is not yet entitled to federal habeas relief.
Perdomo’s argument based on Zadvydas v. Davis, 533 U.S. 678 (2001), (doc. 1 at 13), is
similarly premature. Because his order of removal is not final, the 90-day period of detention
allowed by 8 U.S.C. § 1231(a)(1) and addressed in Zadvydas, 533 U.S. at 701, does not apply to

Perdomo. See 8 U.S.C. § 1231(a)(1)(B)(i) (“The removal period begins on the latest of the
following: (i) The date the order of removal becomes administratively final . . . .”).
As Perdomo seems to have acknowledged, his current avenue for relief is to seek a bond
determination through the administrative process. (See doc. 17 at 1-2) (“I wanted to exhaust my
administrative remedies to be released from immigration detention. So, I mailed the [August 2014]
Bond petition to the Miami Immigration Court and was awaiting their responds [sic].”). Because
he has not exhausted his administrative remedies, his petition for writ of habeas corpus is premature
and due to be DENIED.1
III. Conclusion
Based on the foregoing, it is ORDERED, ADJUDGED, and DECREED:
1. Respondents’ request for summary dismissal, (doc. 10), is GRANTED;
2. Predomo’s petition for habeas corpus pursuant to 28 U.S.C. § 2241, (doc. 1), is
DISMISSED WITHOUT PREJUDICE; and
3. Perdomo’s motion requesting extension of time or continuance of proceedings, (doc. 16),
is DENIED.
DONE this 31st day of October, 2014.
_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

1

Perdomo’s motion requesting an extension of time or continuance of proceedings, (doc. 16),
is also due to be DENIED. As previously noted, his failure to exhaust his administrative remedies
deprives this Court of jurisdiction, and, in any event, there is no danger of circumstances causing this
dismissal without prejudice from depriving him of properly bringing his claims again in the future.