Singh v. Choate et al

Filing 16

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS. ORDERED: The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 1 , filed by Petitioner Gagandeep Singh, is DENIED as unripe and this action is dismissed without prejudice, by Judge William J. Martinez on 8/8/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1324-WJM-KMT
GAGANDEEP SINGH,
Plaintiff,
v.
JEFF SESSIONS, Attorney General,
JEFFREY LYNCH, U.S. Field Office Director for the Colorado Field Office,
ELAINE DUKE,1 U.S. Secretary of Homeland Security,
JOHNNY CHOATE, Warden of GEO Group Inc. Aurora,
Defendants.

ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

The matter before the Court is a petition for habeas corpus pursuant to 28
U.S.C. § 2241 (the “Petition,” ECF No. 1), filed by Petitioner Gagandeep Singh. The
Respondents2 filed a response on July 25, 2017. (ECF No. 13.) Petitioner filed an
untimely reply on August 3, 2017. (ECF No. 14.) Petitioner seeks immediate release
from custody, asserting that his continued detention pending removal has exceeded the
six-month period considered presumptively reasonable, and further, that his removal is
not reasonably foreseeable. For the reasons stated below, the Court denies without

1

Elaine C. Duke became the Acting Secretary of the Department of Homeland Security
on July 31, 2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Elaine Duke
is automatically substituted for John Kelly as the defendant in this suit.
2

The Court notes at the outset that the only proper Respondent in a habeas corpus
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]”); see also
Jimenez v. State of Utah, 665 F. App’x 657, 658 n.2 (10th Cir. 2016) (citing Braden v. 30th Jud.
Cir. Ct. of Ky., 410 U.S. 484, 494–95 (1973)).

prejudice Petitioner’s request for relief.
I. BACKGROUND
Petitioner is a native and citizen of India. (ECF No. 1 ¶ 9.) Petitioner asserts
that he “was forced to flee India due to the persecution he suf fered on the basis of his
religion, political opinion, and membership in a particular social group.” (Id. ¶ 10.) On
November 3, 2015, he entered the United States at the port of entry in Nogales,
Arizona. (Id. ¶ 9.) On November 4, 2015, the Department of Homeland Security
(“DHS”) issued a notice to appear, “designating Petitioner as an arriving alien, and
charging him as inadmissible to the United States under 8 U.S.C. § 1182(a)(7)(A)(I).”
(ECF No. 13 at 2.) Petitioner was detained shortly thereafter and has “remained in [the
continuous custody of Immigration and Customs Enforcement (‘ICE’)] since that date.”
(Id.) The Respondents represent that he is currently being held at the Denver Contract
Detention Facility in Aurora, Colorado. (Id.)
On November 8, 2016, an Immigration Judge found Petitioner removable and
ordered him removed. (ECF No. 1 ¶ 15; ECF No. 13 at 3.) Petitioner timely appealed
that decision to the Board of Immigration Appeals (“BIA”). (ECF No. 1 ¶ 16; ECF No.
13 at 3.) On April 26, 2017, “his appeal was dismissed.” (Id.) On May 17, 2017,
Petitioner appealed the Board’s decision by filing a petition for review in the United
States Court of Appeals for the Tenth Circuit. (ECF No. 1 ¶ 17.) Petitioner also filed an
emergency motion to stay deportation pending his appeal, which was denied on May
22, 2017. (ECF No. 13 at 3.)
Petitioner contends that his continued detention is unconstitutional and f urther

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asserts that the Respondents have failed to comply with applicable federal statutes
governing the detention of aliens. (See ECF No. 1 at 6–11.) Petitioner requests an
order directing the Respondents to release him immediately from custody. (Id. at 12.)
II. STANDARD OF REVIEW
An application for habeas corpus pursuant to 28 U.S.C. § 2241 m ay only be
granted if the petitioner “is in custody in violation of the Constitution, or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction
to examine the statutory and constitutional bases for an immigration detention unrelated
to a final order of removal. See Demore v. Kim, 538 U.S. 510, 517–18 (2003); see also
Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (f inding district court properly
exercised jurisdiction over alien’s habeas petition challenging his continued detention
without bond or a bond hearing); Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir.
2004) (“Challenges to immigration detention are properly brought directly through
habeas.” (citing Zadvydas v. Davis, 533 U.S. 678, 687–88 (2001))).
“[F]or habeas petitions challenging present physical confinement, jurisdiction lies
only in one district: the district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 443
(2002); see also United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986) (“A
§ 2241 petition for a writ of habeas corpus must be addressed to the federal district
court in the district where the prisoner is confined.”). Because Petitioner is detained in
Aurora, Colorado, his § 2241 petition was filed properly in this Court.

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III. ANALYSIS
A.

Detention under 8 U.S.C. § 1226(c)—Mootness
Petitioner challenges the Respondents’ authority to detain him under 8 U.S.C.

§ 1226(c) and the constitutionality of his detention under that statute. Respondents
maintain that Petitioner’s claim challenging the legality of his detention under 8 U.S.C.
§ 226 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, 92 (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 Cnty.
Bd. of Comm’rs, 568 F.3d 784, 794 (10th Cir. 2009).
Under 8 U.S.C. § 1226, the Attorney General may arrest and detain an alien
pending a determination of whether the alien is to be removed from the United States.
Detention during this “pre-removal period” is considered definite because it terminates
upon the immigration court’s removal decision. Demore, 538 U.S. at 529. Upon entry
of a final removal order, the matter enters the “removal period,” and the statutory
authority for detention shifts to 8 U.S.C. § 1231. Section 1231 def ines the removal
period as beginning on the latest of: (i) the date the order of removal becomes
administratively final;3 (ii) the date of the court’s final order if the removal order is
3

An order of removal becomes administratively final upon “a determination by the BIA
affirming such order.” 8 U.S.C. § 1101(a)(47)(B)(i).

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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.
In this case, the first clause of § 1231(a)(1)(B) applies such that the removal
period for Petitioner commenced on April 26, 2017 when the order of removal became
administratively final.4 Accordingly, on April 26, 2017, the Respondents’ 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 e.g., 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 is moot when removal period starts and
detention authority shifts to 8 U.S.C. § 1231); Ufele v. Holder, 473 F. App’x 144, 146
(3d Cir. 2012) (stating that when BIA’s order became administratively final, petitioner’s
detention switched from § 1226 to § 1231, thereby rendering moot his claim challenging
the lawfulness of his detention under § 1226); Oyelude v. Chertoff, 170 F. App’x 366,
368 (5th Cir. 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.”).
At this time, there is no remedy the Court could issue concerning the legality of

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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.
§ 1231(a)(1)(B)(ii). As noted above, Petitioner has filed (under seal) a petition in the Tenth
Circuit to review the BIA’s decision. See Gagandeep v. Sessions, No. 17-9520 (10th Cir. May
17, 2017). However, on May 22, 2017, the Tenth Circuit denied Petitioner’s motion for a stay of
removal. Id. Thus, all requirements of the second clause have not been met. Cf. Novitskiy v.
Holm, 2013 WL 229577, at *3 n.12 (D. Colo. Jan. 23, 2013) (noting that the second clause
does not apply because “petitioner did not request a stay of removal from the Tenth Circuit”).
Lastly, the third clause does not apply because Petitioner is not in custody on a nonimmigration matter.

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Petitioner’s detention during the pre-removal period. 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.”). Accordingly, the Court lacks jurisdiction over Petitioner’s claim challenging the
legality of his detention prior to April 26, 2017.
B.

Detention under 8 U.S.C. § 1231(a)(2)—Ripeness
Petitioner also challenges the Respondents’ authority to detain him under

8 U.S.C. § 1231(a). Specifically, Petitioner contends that “[h]e has been detained f or a
period of time that is over the presumptively reasonable period of six months and
statutorily permitted 90–day period for ordinary circumstances.” (ECF No. 1 ¶ 42.)
Further, Petitioner argues that his “removal to India, or any other country, is not
significantly likely to occur in the reasonably foreseeable future as he just filed a petition
for review of his case with the Tenth Circuit on May 17, 2017.” (Id.)5 Respondents

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To support this argument, Petitioner asserts that his “deportation cannot be
effectuated by ICE” (ECF No. 1 ¶ 24), because he refuses to sign an I-229(a) form, and as a
result “his removal is not reasonably foreseeable” (ECF No. 14 at 2–3). Respondents maintain
that “Petitioner has continuously failed to comply with ICE’s removal efforts.” (ECF No. 13 at 3.)
Specifically, Petitioner has been served with “an application for travel documents to sign for his
removal” (referencing the I-229(a) form) but that he refuses to sign these documents and the
“Government of India will not issue travel documents for [Petitioner’s] removal until [Petitioner]
completes the application for travel documents.” (Id. at 3–4.)
In Abiodun v. Mukasey, 264 F. App’x 726, 729 (10th Cir. 2008), the Tenth Circuit faced
a similar situation in which the petitioner asserted that he was facing an indefinite detention
lasting beyond the six-month period. However, the Tenth Circuit noted that “[t]he main reason
[petitioner] still remains in the United States is his repeated court challenges to removal and
refusal to cooperate with ICE officials in obtaining a Nigerian passport and other necessary
travel documents. For example, on April 30, 2007, [petitioner] refused to accept or
acknowledge ICE Form I-229(a), which is required by ICE officials to assist in removing an
unlawful alien.” Id.
Thus, the Court disagrees with Petitioner, and finds at this time that he has failed to
demonstrate that without his refusal to sign Form I-229(a) his removal would not otherwise be
reasonably foreseeable.

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contend that the Petitioner’s challenge is not yet ripe for judicial review.
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). 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 & Referendum Inst. v. Walker, 450 F.3d 1082,
1097 (10th Cir. 2006).
After an order of removal becomes administratively final, the Attorney General
“shall detain the alien” during the 90-day removal period established under 8 U.S.C.
§ 1231(a)(2). See Zadvydas, 533 U.S. at 683; see also Morales-Fernandez v. INS, 418
F.3d 1116, 1123 (10th Cir. 2005). Generally, the government is required to remove the
alien held in its custody within the 90-day removal period. See 8 U.S.C.
§ 1231(a)(1)(A)–(B). While the government may detain an inadmissible alien beyond
the statutory removal period, see id. § 1231(a)(6), the government may not detain such
an alien indefinitely. Zadvydas, 533 U.S. at 699. Instead, the detention of an alien
subject to a final order of removal for up to six months is presumptively reasonable in
view of the time required to accomplish removal. Id. at 701. Beyond that period, if the
alien shows that there is “no significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence sufficient to rebut that

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showing.” Id. Furthermore, as the period of detention grows, “what counts as the
‘reasonably foreseeable future’ conversely would have to shrink.” Id. The six-month
presumption does not mean that every alien must be released after that time, but rather
an alien may be detained “until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id.
Under Zadvydas, Petitioner’s detention of a little over three months following
entry of his final order of removal on April 26, 2017, is presumptively reasonable and
does not trigger constitutional concerns. See, e.g., Novitskiy, 2013 WL 229577, at *6
(citing Chance v. Napolitano, 453 F. App’x 535, 536 (5th Cir. 2011) (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)); see
also Akinwale v. Ashcroft, 287 F.3d 1050, 1051–52 (11th Cir. 2002). According ly, the
Court finds premature Petitioner’s claim challenging the constitutionality of his current
detention under 8 U.S.C. § 1231. If necessary, Petitioner may file a new petition after
expiration of the six-month period.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS that the Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1), f iled by Petitioner
Gagandeep Singh, is DENIED as unripe and this action is dismissed without prejudice.

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Dated this 8th day of August, 2017.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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