Novitskiy v. Warden of Aurora I.C.E. Processing Center et al
Filing
18
Opinion and ORDER Denying Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241. Order granting 14 Motion to Permit Late-Filing Due to Excusable Neglect. Petition for Writ of Habeas Corpus (# 1 ) is DENIED and this action is DISMISSED WITHOUT PREJUDICE. By Chief Judge Marcia S. Krieger on 1/22/2013. (klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORAD0
Hon. Marcia S. Krieger
Civil Action No. 12-cv-00965-MSK
SERGEY GENAD’YEVICH NOVITSKIY,
Petitioner,
v.
MATT HOLM, Warden of I.C.E. Processing Center,
CARL ZABAT, and
LYNN DOBLE-SALICRUP,
Respondents.
OPINION AND ORDER DENYING APPLICATION
FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
THIS MATTER comes before the Court on Petitioner Sergey Genad’yevich Novitskiy’s
Petition for Writ of Habeas Corpus (# 1). The Government1 filed a Response (# 8) and a
Supplement to Response (# 12), to which Petitioner replied (## 13, 14).2 Having considered the
same, the Court FINDS and CONCLUDES the following.
I. Jurisdiction
1
The Court notes at the outset that the only proper Respondent in a habeas action is the Petitioner’s
custodian. See 28 U.S.C. § 2242 (providing that the proper respondent to a habeas petition is “the person who has
custody over [the petitioner]”); Rumsfeld v. Padilla, 542 U.S. 426, 447 (2004) (“Whenever a § 2241 habeas
petitioner seeks to challenge his present physical custody within the United States, he should name his warden as
respondent”); see also Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Matt Holm, the warden of the
Aurora ICE processing center, where Petitioner is detained, is Petitioner’s custodian. Carl Zabat, the Senior
Detention and Deportation Officer, and Lynn Doble-Salicrup, Assistant Chief Counsel, are not Petitioner’s
custodians and, therefore, are not proper Respondents to this action.
2
Petitioner’s Reply to the Government’s Response is attached as Appendix C to a “Motion to Permit LateFiling Due to Excusable Neglect.” (# 14). The Court will grant the motion to file a late Reply.
This Court asserts jurisdiction pursuant to 28 U.S.C. §§ 2241 and 1331.
II. Background
Petitioner is a native of Azerbaijan and citizen of the former Soviet Union. (# 1, at 1 of
52). He was admitted to the United States as a refugee in 1993 and became a Legal Permanent
Resident in 1994. (Id. at 3). In 2002, Petitioner pleaded guilty in the District Court of Arapahoe
County, Colorado, to trespass of an automobile with intent to steal a thing of value and to
possession of burglary tools. (Id.). See also Novitskiy v. Ashcroft, No. 04-9530, 120 F. App’x
286, 288 (10th Cir. Jan. 24, 2005) (unpublished)). Petitioner was sentenced to 18 months’
imprisonment. (# 8-2, at 4). As a result of the criminal conviction, Immigration and Customs
Enforcement (“ICE”) issued a Notice to Appear charging that Petitioner was removable3 under 8
U.S.C. § 1227(a)(2)(A)(iii)4 because he committed an aggravated felony. (# 1, at 3-4). In 2003,
the Immigration Judge found that Petitioner was removable as an aggravated felon. (# 1, at 4).
Petitioner applied for asylum and withholding of removal. (Id.). The Immigration Judge denied
the former because of Petitioner’s conviction,5 but granted the latter,6 and Petitioner was
released. (Id.).
3
“The terms removable and deportable are synonymous.” Hamilton v. Gonzales, 485 F.3d 564, 566 n.1(10th
Cir. 2007). They are synonymous because Congress amended the relevant statutes in 1996 with the Illegal
Immigration Reform and Immigrant Responsibility Act by replacing the term “order of deportation” with the term
“order of removal” in most, but not all, of the United States Code. Id. (citations omitted).
4
The Notice to Appear referred to section 236 of the Immigration and Naturalization Act (“INA”). For the
sake of convenience, the Court will refer to the INA as codified in this Order.
5
An alien convicted of an aggravated felony is ineligible for asylum. 8 U.S.C. § 1158(b)(2)(A)(ii) (alien
convicted of “particularly serious crime” ineligible for asylum), 8 U.S.C. § 1158(b)(2)(B)(i) (defining an
aggravated felony as a “particularly serious crime”).
6
Petitioner was granted withholding of removal based on the Immigration Judge’s finding that Petitioner’s
life or freedom would be threatened because of his race, religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. § 1231(b)(3)(A).
2
The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s order
finding that the trespass offense was a “theft offense” (and, thus, an aggravated felony). (Id.).
Petitioner then filed a petition for review in the United States Court of Appeals for the Tenth
Circuit. (Id.). The Tenth Circuit found that Petitioner was removable because he committed an
aggravated felony and dismissed the petition for lack of jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(C). Novitskiy, 120 F. App’x at 288.
In June 2007, Petitioner was convicted in the District Court of Denver County, Colorado,
of two counts of forgery and one count of possession of a forged instrument in violation of state
law. (# 1, at 5). He was sentenced to consecutive terms of two years of imprisonment for each
of the forgery counts and 18 months for the third count, to run concurrently with the forgery
counts, for a total of four years. (Id.). On January 12, 2010, the Colorado Department of
Corrections released Petitioner into ICE custody. (Id.). ICE released Petitioner the same day on
an Order of Supervision. (Id. at 5, 23).
On July 21, 2011, ICE filed a motion to reopen Petitioner’s removal proceedings with the
Denver Immigration Court, pursuant to 8 U.S.C. § 1231(b)(3)(B)(ii), based on Petitioner’s
aggregate prison sentences of five-and-a-half years for his 2002 and 2007 convictions.7 (See #
7
An alien is not eligible for withholding of removal if he has been convicted of “a particularly serious
crime,” defined as “an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of
imprisonment of at least 5 years.” 8 U.S.C. § 1231(b)(3)(B)(ii). See also 8 C.F.R. § 1208.24(b)(3) (withholding of
removal may be terminated if “[t]he alien has committed any other act that would have been grounds for denial of
withholding of removal under [8 U.S.C. § 1231(b)(3)(B)].”); 8 C.F.R. § 1208(f) (stating that immigration judge or
BIA may reopen a case for the purpose of withholding removal if Government establishes one or more grounds set
forth in paragraphs (a) or (b) of this section).
3
8-2). The Immigration Court granted ICE’s motion, and Petitioner was taken into ICE custody
on September 19, 2011, pursuant to 8 U.S.C. § 1226(c).8 (# 1, at 5; # 8-1, at ¶ 3).
The Immigration Court held a hearing in Petitioner’s reopened removal proceedings on
April 20, 2012. (# 8-1, ¶ 13). The Immigration Judge terminated the prior grant of withholding
of removal and ordered Petitioner removed to Russia . (Id.). Petitioner filed a notice of appeal
with the BIA on April 26, 2012.9 (Id. ¶ 14). On August 22, 2012, the BIA determined that
Petitioner was not eligible for withholding of removal, pursuant to 8 U.S.C. § 1231(b)(3)(B)(ii),
and dismissed Petitioner’s appeal. (# 12-1).
Mr. Novitskiy contends in the Petition that his detention is unlawful under the Fifth and
Eighth Amendments to the United States Constitution. He further asserts that Respondents have
failed to comply with applicable federal statutes governing the detention of aliens. The
Petitioner seeks an order directing the Respondents to release him immediately from custody,
under an order of supervision. In the alternative, he requests termination of the removal
proceeding.
III. Legal Analysis
A. Standard of Review
An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be granted if the
8
On September 28, 2011, the Immigration Court vacated its order reopening the case. (# 1, at 34 ). The
Immigration Judge found that the motion to reopen should have been filed with the BIA because Petitioner’s prior
case had been appealed to the BIA. (Id.). After ICE re-filed the motion to reopen with the BIA on October 4, 2011,
the BIA remanded the case to the Immigration Court on December 23, 2011. (# 1, at 38-39). The BIA founds that
the Immigration Judge’s 2003 decision granting withholding removal did not include an “explicit order of removal”
as required by a 2008 BIA decision and, therefore, the “proceedings in his case [were] unresolved and incomplete.”
(# 1, at 39(citation omitted)). The BIA noted that ICE could lodge additional charges (i.e., charges triggered by the
2007 convictions) during the reopened proceedings. (Id.)
9
The appeal was pending at the time Petitioner filed his § 2241 application.
4
Petitioner “is in custody in violation of the Constitution, or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3).
In considering Petitioner's filings, the Court is mindful of his pro se status, and
accordingly, reads his pleadings liberally. Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
However, such liberal construction is intended merely to overlook technical formatting errors
and other defects in his use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir.1991). Pro se status does not relieve Petitioner of the duty to comply with
the various rules and procedures governing litigants and counsel or the requirements of the
substantive law, and in these regards, the Court will treat Petitioner according to the same
standard as counsel licensed to practice law before the bar of this Court. See McNeil v. U.S., 508
U.S. 106, 113 (1993); Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir.1994).
B. Mootness
The Court first addresses the threshold question of its subject matter jurisdiction.
Respondents maintain that Petitioner’s claim challenging the legality of his detention under
8 U.S.C. § 1226 is moot because his current detention is based on 8 U.S.C. § 1231.
Under Article III of the Constitution, federal courts may only adjudicate live
controversies. Alvarez v. Smith, 558 U.S. 87, 130 S.Ct. 576, 580 (2009). An “actual controversy
must be extant at all stages of review, not merely at the time the complaint is filed.” Id. (internal
quotation marks and citations omitted). “If, during the pendency of the case, circumstances
change such that [a party’s] legally cognizable interest in a case is extinguished, the case is moot,
and dismissal may be required.” Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 794
(10th Cir. 2009) (internal quotation marks and citation omitted); see also Lane v. Simon, 495
5
F.3d 1182, 1186 (10th Cir. 2007) (stating that once the controversy ceases to exist, the action is
moot and this court lacks jurisdiction) (citation omitted).
During removal proceedings but before an order of removal is final, an alien’s detention
is governed by 8 U.S.C. § 1226. The alien may be released on bond or paroled. See Zadvydas v.
Davis, 533 U.S. 678, 683 (2001); 8 U.S.C. § 1226(a) (stating that Attorney General may detain
alien pending decision whether to remove alien from United States); 8 U.S.C. § 1226(c) (stating
that Attorney General shall take into custody any alien who is inadmissible by reason of having
committed any offense covered in § 1182(a)(2)); 8 U.S.C. § 1182(a)(2)(B) (“Any alien convicted
of 2 or more offenses (other than purely political offenses), . . . , for which the aggregate
sentences to confinement were 5 years or more is inadmissible.”).
After entry of a final removal order but during the 90-day removal period, aliens must be
held in custody pursuant to 8 U.S.C. § 1231(a)(2).10 Id.; see also Morales-Fernandez v. I.N.S.,
418 F.3d 1116, 1123 (10th Cir. 2005). Section 1231 defines the “removal period” as beginning
on the latest of: (i) the date the order of removal becomes administratively final;11 (ii) the date of
the court’s final order if the removal order is judicially reviewed and the court orders a stay of
removal; or (iii) the date an alien is removed from detention, if that detention is not under an
immigration process (for example, if serving a criminal sentence). 8 U.S.C. § 1231(a)(1)(B).
10
8 U.S.C. § 1231(a)(2) states:
During the removal period, the Attorney General shall detain the alien. Under no circumstance
during the removal period shall the Attorney General release an alien who has been found
inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title or deportable under section
1227(a)(2) or 1227(a)(4)(B) of this title.
11
An order of removal becomes administratively final upon “a determination by the Board of Immigration
Appeals affirming such order.” 8 U.S.C. § 1101(a)(47)(B).
6
In this case, the first clause of § 1231(a)(1)(B) applies and the removal period for Mr.
Novitskiy commenced on August 22, 2012, when the order of removal became administratively
final.12 Accordingly, on August 22, 2012, the Attorney General’s authority to detain Petitioner
shifted from 8 U.S.C. § 1226 to § 1231(a)(2). As such, Petitioner’s claim challenging his
detention under 8 U.S.C. § 1226 is moot. See Jah v. Attorney General of the U.S., No. 07-3921,
2007 WL 4351352, at *1 (3d Cir. Dec. 12, 2007) (“The specific issue presented by Jah’s petition
is now moot in any event. On August 27, 2007, the Board of Immigration Appeals dismissed his
appeal. Jah’s detention pursuant to a final order of removal is authorized by 8 U.S.C.
§ 1231(a)(2).”); Oyelude v. Chertoff, No. 05-10916, 2006 WL 678670, at *1 (5th Cir. Mar. 16,
2006) (“Oyelude’s challenge to his § 1226 detention was mooted on June 23, 2004 when his
final removal order was entered and the Attorney General’s authority to detain him shifted to §
1231 . . . .”); De la Teja v. United States, 321 F.3d 1357, 1364 (11th Cir. 2003) (alien’s habeas
petition challenging detention under 8 U.S.C. § 1226 moot when removal period starts and
detention authority shifted to 8 U.S.C. § 1231); Quezada v. Hicks, 821 F. Supp. 2d 702, 705-708
(D. N. J. 2011) (same). At this time, there is no remedy the Court could grant concerning the
legality of Petitioner’s detention before August 22, 2012. See Spencer v. Kemna, 523 U.S. 1, 18
(1998) (“But mootness, however it may have come about, simply deprives us of our power to
act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the
12
The second clause does not apply because it requires the alien to file a petition for review of the removal
order and to request a stay of removal from the reviewing court. 8 U.S.C. § 1101(a)(47)(B)(ii). Petitioner has filed
(under seal) a Petition in the Tenth Circuit to review the BIA’s decision. See Novitsk[i]y v. Holder, No. 12-9580,
Petitioner’s Opening Brief filed on October 24, 2012 (“Tenth Circuit Petition”). However, Petitioner did not request
a stay of removal from the Tenth Circuit. (Id.). The third clause does not apply because Petitioner is not in custody
on a non-immigration matter.
7
business of pronouncing that past actions which have no demonstrable continuing effect were
right or wrong.”).
The Petitioner argues, however, that his claim is not moot because there is a reasonable
expectation that he will be subject to detention pursuant to § 1226 in the future under the
following scenario. In his Tenth Circuit Petition, the Petitioner challenged the BIA’s
determination that he was convicted by a final judgment of a particularly serious crime. (# 13, at
8). Specifically, Petitioner asserted that his 2007 state court forgery convictions are not final
because he has appealed the convictions to the Colorado Court of Appeals. (Id.; see also #9, at
2, 30-34 of 43).
Here, the Petitioner maintains that if the Tenth Circuit reverses the BIA’s decision based
on the finality requirement, he will be subject to mandatory detention under § 1226 pending the
remand hearing before the immigration judge. (# 14, at 11). The Petitioner asserts that if he
prevails on remand, his withholding of removal may be reinstated and he will be released. (Id.;
see also #13, at 8). However, if the state appellate court later affirms his 2007 forgery
convictions, the Respondents may file another motion to reopen removal proceedings and he will
be detained once again under § 1226. (# 14, at 11).
A petition may not be dismissed as moot if the issue is deemed to be a wrong capable of
repetition but evading review. See Riley v. INS, 310 F.3d 1253, 1257 (10th Cir. 2002).13 This
exception applies “where the following two circumstances [are] simultaneously present: (1) the
challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,
13
There are three other exceptions to mootness: (1) where secondary or collateral injuries survive after
resolution of the primary injury; (2) where the defendant voluntarily ceases an allegedly illegal practice but is free to
resume it at any time; or (3) where the action is a properly certified class action suit. Riley, 310 U.S. at 1257. The
parties do not argue that any of these exceptions is potentially applicable here and the Court does not find otherwise.
8
and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to
the same action again.” Spencer, 523 U.S. at 18 (brackets in original; quotation marks and
citations omitted).
The Petitioner’s argument that he may be subject to mandatory detention under
§ 1226(c) in the future is based on speculation, rather than a reasonable expectation of future
detention under the statute. See Quezada, 821 F. Supp. 2d at 708 (“the prospect of Quezada
once again being detained under § 1226(c) is too speculative to constitute a “reasonable
expectation that the same complaining party will be subject to the same action again.”).
Furthermore, even if Petitioner was detained again under § 1226, it is not clear that the length of
the detention would make legal challenge impossible to seek review. See Disability Law Ctr. v.
Millcreek Health Ctr., 428 F.3d 992, 997 (10th Cir. 2005) (“If in a future dispute DLC is
concerned its case will become moot because events are moving too quickly, it can request
expedited review.”) (citation omitted).
Accordingly, Petitioner has failed to demonstrate that any exception to mootness applies.
See, e.g., United States ex rel. Hafter v. Spectrum Emergency Card, Inc., 190 F.3d 1156, 1160
(10th Cir. 1999) (“If jurisdiction is challenged, the burden is on the party claiming jurisdiction to
show it by a preponderance of the evidence.”). The Court thus lacks jurisdiction over
Petitioner’s claim challenging the legality of his detention prior to August 22, 2012.
C. Ripeness
With regard to the Petitioner’s detention after August 22, 2012, the Respondents contend
that the Petitioner’s challenge is not ripe for judicial review.
9
Ripeness is a justiciability doctrine “drawn both from Article III limitations on judicial
power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc.
Servs., Inc., 509 U.S. 43, 57 n. 18 (1993). The ripeness inquiry “focuses not on whether the
plaintiff was in fact harmed, but rather whether the harm asserted has matured sufficiently to
warrant judicial intervention.” Morgan v. McCotter, 365 F.3d 882, 890 (10th Cir. 2004)
(quotation omitted). In other words, the Court must determine “whether the case involves
uncertain or contingent future events that may not occur as anticipated, or indeed may not occur
at all.” Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1097 (10th Cir. 2006)
(quotations omitted). The “[r]ipeness doctrine addresses a timing question: when in time is it
appropriate for a court to take up the asserted claim.” Kansas Judicial Review v. Stout, 519 F.3d
1107, 1116 (10th Cir. 2008) (citation omitted).
During the ninety-day removal period, which commenced on August 22, 2012, the
Petitioner was detained under 8 U.S.C. § 1231(a)(2). Pursuant to that statute, the Attorney
General is prohibited from releasing an alien, such as Petitioner, who has been convicted of
crimes for which the totaled sentences equal or exceed five years. See 8 U.S.C. § 1231(a)(2)
(stating that “[d]uring the removal period, the Attorney General shall detain the alien,” and that
“[u]nder no circumstances during the removal period shall the Attorney General release an alien
who has been found inadmissible under section 1182(a)(2) or 1182(a)(3)(B) of this title . . . .”);
see also De la Teja, 321 F.3d at 1363 (“The Attorney General unquestionably has the authority
to detain [such aliens], and indeed is statutorily required to do so.”).
Petitioner’s ninety-day removal period ended on November 20, 2012. An alien ordered
removed who is inadmissible under 8 U.S.C. § 1182, “may be detained beyond the removal
10
period and, if released shall be subject to [certain] terms of supervision.” 8 U.S.C. § 1231(a)(6).
Petitioner is detained currently under § 1231(a)(6).
The Petitioner argues that his detention violates Zadvydas because his removal cannot be
effected within a reasonable period, given that the country of his citizenship no longer exists. In
Zadvydas, the aliens had been ordered removed and were being detained beyond the 90-day
removal period pursuant to the Attorney General’s authority under § 1231(a)(6). Zadvydas, 533
U.S. at 684–86. However, the government could not secure their removal because the
designated countries either refused to accept them or did not maintain repatriation agreements
with the United States. Id. Recognizing that “[a] statute permitting indefinite detention of an
alien would raise a serious constitutional problem,” id. at 690, the Court ruled that “once
removal is no longer reasonably foreseeable, continued detention is no longer authorized,” id. at
699. The Court further held that detention lasting six months or less is presumptively
reasonable; detention lasting beyond six months requires the government to rebut the alien's
showing that there is no significant likelihood of removal in the reasonably foreseeable future.
Id. at 701. However, detention beyond six months does not, by itself, mean that the alien must
be released. Id. (“This 6-month presumption, of course, does not mean that every alien not
removed must be released after six months.”); see also Soberanes v. Comfort, 388 F.3d 1305,
1311 (10th Cir. 2004) (upholding continued detention of deportable alien after more than two
years of confinement); Adefemi v. Gonzales, 228 F. App’x. 415, 416 (5th Cir. 2007) (per curiam)
(unpublished) (same).
At this time, it is premature for Petitioner to raise a constitutional challenge to his
detention under 8 U.S.C. § 1231(a)(6). See, e.g., Chance v. Napolitano, No. 11-50200, 453 F.
11
App’x 535, 536 (5th Cir. Dec. 15, 2011) (unpublished) (holding that district court did not err in
finding that petitioner’s challenge to his continued post removal detention was premature where
petitioner had not been in post-removal-order-detention longer than the presumptively
reasonable six-month period set forth in Zadvydas). Moreover, even if Petitioner is stateless, he
may be removed to any other country whose government will accept him. See 8 U.S.C.
§ 1231(b)(2)(E)(vii). Respondents represent that ICE is pursuing the removal options mandated
by Congress. (# 12, at 5 n.4). Accordingly, the Court finds that Petitioner’s claim challenging
his current detention as contrary to Zadvydas is not ripe for judicial decision.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore in forma pauperis status will be denied for
the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Petitioner files a
notice of appeal he must also pay the full $455 appellate filing fee or file a motion to proceed in
forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in
accordance with Fed. R. App. P. 24.
IT IS THEREFORE ORDERED that Petitioner’s Motion to Permit Late-Filing Due to
Excusable Neglect (# 14) is GRANTED. It is
FURTHER ORDERED that Petitioner Sergey Genad’yevich Novitskiy’s Petition for
Writ of Habeas Corpus (#1) is DENIED and this action is DISMISSED WITHOUT
PREJUDICE. It is
12
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
Petitioner may file a motion in the Tenth Circuit.
Dated this 22nd day of January, 2012
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
13
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