Velasquez-Mendoza v. Longshore

Filing 17

ORDER to Dismiss in Part and to File Amended Application in Part by Judge Lewis T. Babcock on 5/6/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00196-GPG
MARIA CRISTINA VELASQUEZ-MENDOZA,
Applicant,
v.
JOHN LONGSHORE, U.S. DHS-ICE,
Respondent.

ORDER TO DISMISS IN PART AND
TO FILE AMENDED APPLICATION IN PART

I. Background
Applicant initiated this action on January 29, 2015 by filing, pro se, an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 challenging the ICE’s threat of
arrest and deportation based on Applicant’s failure to attend an asylum proceeding that
was held without her and her counsel being noticed. Applicant paid the $5.00 filing fee.
Within six days, Applicant filed an Amended Application that appears to assert the same
claims.
On February 12, 2015, Magistrate Judge Gordon P. Gallagher ordered
Respondent to file a Preliminary Response to the Application addressing any
jurisdictional issues, and the affirmative defense of exhaustion of administrative
remedies. ECF No. 4. Respondent filed a Preliminary Response on March 5, 2015.
ECF No. 9. On March 26, 2015, counsel made an appearance on behalf of Applicant,
and requested an extension of time to file a Reply. The Court granted the extension
and allowed counsel thirty days to reply. The time now has run, and counsel has failed

to reply. The Court, therefore, will proceed to review the Preliminary Response.
II. Claims
In the § 2241 Application, Applicant asserts that the ICE has violated her due
process and equal protections rights, international laws, the Supremacy Clause of the
Constitution, and the UN Declaration on Rights of Indigenous People, the United States
Indian Child Welfare Act in failing to notify her or her attorney of the asylum hearing and
then threatening arrest and confinement within twenty days, the taking of her children,
and deportation. Applicant seeks no further “face-to-face” with the ICE until further
order of the Court and the dissolution of “unlawful prior orders where juris allows.”
Respondents assert that, when Applicant failed to appear for the hearing on her
reasonable fear proceeding, the immigration judge terminated the proceeding without
prejudice. ECF No. 9 at 2. Because Applicant has not sought to reopen or reinstate the
proceedings, nor request another hearing, the order of removal is now enforceable. Id.
III. The “In Custody” Requirement
An individual may seek habeas relief under § 2241 only if he or she is “in
custody” under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). A
final order of removal subjects an alien to a restrain on liberty sufficient to place the
alien in “custody.” See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001)
(“Although the petitioners in this case are not being ‘detained,’ they are ‘in custody’ for
habeas purposes because they are subject to final deportation orders”); Galaviz-Medina
v. Wooten, 27 F.3d 487, 493 (10th Cir.1994) (“[T]here is general consensus that an
alien whose liberty is restricted pursuant to an order emanating from the INS is ‘in
custody’ for purposes of satisfying the prerequisites for habeas review.”). Accord Jones

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v. Cunningham, 371 U.S. 236 (1963) (parolee still “in custody” of the parole board for
purposes of habeas corpus relief because the parole order imposed conditions that
“significantly confine[d] and restrain[ed] his freedom”).
Besides the asserted threats of a final order of removal, the taking of her
children, and arrest, Applicant is subject to an order of supervision, which requires a
“check-in” with her assigned deportation officer. See Am. Application, ECF No. 3, at 6.
Applicant’s current status appears to satisfy the “in custody” requirement of § 2241.
IV. Challenges to a Removal Order
To the extent that Applicant may be subject to a removal order and is asserting
the removal order violates due process, international laws, the Supremacy Clause of the
Constitution, and the UN Declaration on Rights of Indigenous People, the United States
Indian Child Welfare Act, none of these allegations may be pursued in a § 2241
proceeding. Under the Real ID Act, petitions for review filed with the court of appeals
are “the sole and exclusive means” of review of most administrative orders of removal,
deportation, or exclusion. 8 U.S.C. § 1252(a)(5).
The statute defines “order of removal” as an administrative order concluding that
an alien is removable or ordering removal. 8 U.S.C. § 1101(a)(47)(A). The Real ID Act,
however, did not eliminate a district court’s jurisdiction to review habeas petitions
challenging an alien’s detention. 8 U.S.C. § 1252(a)(1). Accordingly, if Applicant is
subject to a removal order the Court lacks subject matter jurisdiction to consider any
challenges to the removal order.

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V. ICE’s Unconstitutional Conduct
In the § 2241 Application, Applicant asserts that the “ICE Bully Team” threatened
to arrest her, put her in jail, deport her, and take away her children. ECF No. 3 at 2-3.
These allegations do not tend to show that the conditions of Applicant’s supervised
release violate due process or other federal statute or treaty. The critical inquiry under
the habeas corpus statute is whether the petitioner’s custody violates the Constitution,
laws or treaties of the United States. 28 U.S.C. § 2241(c). Whether Applicant’s
allegations of objectionable conduct by ICE agents would support a claim pursuant
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971), against individual immigration officers, or a state law tort claim, are not
appropriate issues to be resolved in this federal habeas corpus action. Accordingly,
these allegations are subject to dismissal.
VI. Claims Challenging Conditions of Release
An alien subject to a final order of removal may be released, pending removal, on
conditions set forth in regulations prescribed by the Attorney General. See Zadvydas v.
Davis, 533 U.S. 678, 695-96 (2001), citing 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.5.
If an alien fails to comply with the conditions of release, he or she will be subject to
criminal penalties, including detention. Id.
As relevant here, the regulations require, inter alia, that the alien “appear before
an immigration officer periodically for identification.” Kalombo v. Shanahan, No. 07 Civ.
11350(PKC), 2009 WL 1788589, at *4 (S.D.N.Y. Jun. 23, 2009); see 8 C.F.R.
§ 241.5(a)(1) (providing that an order of supervision should include that “the alien report
to a specified officer periodically and provide relevant information under oath as

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directed”); see also United States v. Witkovich, 353 U.S. 194, 202 (1957) (finding that
the Attorney General may require deportable aliens periodically to appear before the
agency for identification purposes under Section 242 of the Immigration and Nationality
Act, codified at 8 U.S.C. § 1231(a)(3)).
A. Due Process
Applicant appears to assert that the failure to notify her of the asylum hearing
and to now require in-person reporting violates the Fifth Amendment Due Process
Clause. While the Due Process Clause does apply to aliens within the United States,
Mathews v. Diaz, 426 U.S. 67, 77 (1976), the government enjoys relatively wide latitude
in imposing restrictions on the liberty of such individuals, particularly following the
issuance of a removal order. Demore v. Kim, 538 U.S. 510, 528 (2003) (“when the
Government deals with deportable aliens, the Due Process Clause does not require it to
employ the least burdensome means to accomplish its goal”); see Mathews, 426 U.S. at
78-80 (“In the exercise of its broad power over naturalization and immigration, Congress
regularly makes rules that would be unacceptable if applied to its citizens”). Thus, courts
reviewing the constitutionality of supervision for aliens subject to removal orders have
employed a rational basis standard of review. See Yusov v. Shaughnessey, 671 F.
Supp.2d 523, 530 (S.D. N.Y. 2009); Zavala v. Prendes, No. 3-10-CV-1601-K-BD, 2010
WL 4454055 (N.D. Tex. Oct. 5, 2010); Kalombo, 2009 WL 1788589, at *6 (“The terms of
petitioner's supervision are minimally intrusive and rationally related to that legitimate
interest.”); Nguyen v. B.I. Inc., 435 F. Supp.2d 1109, 1115 (D. Or. 2006) (“Because the
right at stake is not fundamental, the government's action is subject only to rational
basis review,” citing Denmore, 538 U.S. at 528).

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To survive rational basis review, a government action must be rationally related
to some legitimate government purpose. Reno v. Flores, 507 U.S. 292, 305-06 (1993).
“The goals of ‘reducing the number of absconding aliens’ and ‘accounting for and being
able to produce any alien who becomes removable’ are legitimate government
interests.” Yusov, 671 F. Supp.2d at 530 (quoting Nguyen, 435 F. Supp.2d at 1115).
The Fifth Amendment claim appears to lack merit. However, the Court
recognizes that the Application was filed by the Applicant prior to counsel entering an
appearance. Although Applicant’s attorney indicated on the last page of the Application
that he “helped prepare this app.,” it is unclear how much assistance Mr. Salvator gave
to the Applicant in drafting the Application. Accordingly, the Court will afford Applicant,
through counsel, one last opportunity to file an Amended Application that sets forth all
factual allegations and assertions in support of a Fifth Amendment due process claim
challenging the conditions of Applicant’s supervised release. The Amended Application
should not include any claims or allegations that have been dismissed in this Order.
B. Equal Protection
Applicant alleges in the Application that the conditions of her release violate the
Equal Protection Clause because she is being treated differently than similarly situated
individuals. However, conclusory assertions, without supporting factual allegations, are
insufficient to state an equal protection claim. See Straley v. Utah Bd. of Pardons, 582
F.3d 1208, 1215 (10th Cir. 2009) (rejecting bare equal protection claim that failed to
identify an similarly-situated individual that was given more beneficial treatment); see
also Abdulhaseeb v. Calbone, 600 F.3d 1301, 1323 (10th Cir.2010) (holding “vague

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and conclusory allegations, without any specific facts” regarding differential treatment
insufficient to support equal protection claim). Applicant, through counsel, will be
afforded an opportunity to amend the equal protection claim.
VII. Conclusion
For the reasons discussed above, it is
ORDERED that Applicant’s allegations challenging the legality of her reinstated
removal order, as discussed above in Section III are DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction. It is
FURTHER ORDERED that the allegations challenging the conduct of ICE agents
in threatening to detain her and take away her child are DISMISSED WITHOUT
PREJUDICE because the allegations are not cognizable under 28 U.S.C. § 2241. It is
FURTHER ORDERED that Applicant may file an Amended Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241, within twenty-one days of this
Order, challenging only the requirements of Applicant’s supervised release as a
violation of her Fifth Amendment due process and/or equal protection rights. It is
FURTHER ORDERED that if Applicant fails to file an Amended Application within
the time allowed, the remaining claims will be dismissed without further notice, for the
reasons discussed above.
DATED at Denver, Colorado, this

6th

day of

May

, 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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