Singh v. Sessions et al

Filing 18

ORDER DENYING Application for writ of habeas corpus 6 and denying 17 Motion for Order as moot by Judge Daniel D. Domenico on 6/12/19.(pglov)

IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
Case No. 17-cv-03057-DDD
GAGANDEEP SINGH,
Petitioner,
v.
WILLIAM BARR,1 in his capacity as Attorney General of the United States,
JEFFREY LYNCH, in his capacity as Field Office Director of ICE in Colorado,
KEVIN MCALEENAN, in his capacity as Secretary of Homeland Security,
JOHNNY CHOATE, in his capacity as Warden of GEO Aurora ICE Detention,
JASON MIKESELL, in his capacity as Teller County Sheriff,
Respondents.
ORDER

This matter is before the Court on a Petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. (Pet., Doc. 6.) Petitioner Gagandeep Singh entered
the United States illegally and applied for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture. In his campaign to

1

William Barr became the Became the Attorney General and Kevin McAleenan
became the Secretary of Homeland Security during the pendency of this action.
Pursuant to Federal Rule of Civil Procedure 25(d), these parties are
automatically substituted for Jeff Sessions and Kirstjen Nielsen as the
defendants in this suit.
Even so, the Court notes 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)).

remain in this country, he has proceeded through an immigration judge, the Board
of Immigration Appeals, the United States Court of Appeals for the Tenth Circuit,
and previously through this Court. He now renews his Petition here. For the
reasons that follow, the Court DENIES the Petition with prejudice.
I.

BACKGROUND
The facts are not in dispute, and many of them have been previously

addressed by the Court.2 Petitioner Gagandeep Singh, a native and citizen of India,
contends he was “forced to flee India due to the persecution he suffered on the basis
of his religion (Petitioner is a Sikh while the predominant religion in India is
Hinduism); political opinion, and membership in a particular social group.” (Id. ¶¶
10–11.) On November 3, 2015, he entered the United States at the port of entry in
Nogales, Arizona. (Id. ¶10.) On November 4, 2015, the Department of Homeland
Security (DHS) issued him a notice to appear, “charging him as removable pursuant

2

As discussed below, this is Singh’s second petition to obtain a writ of habeas
corpus here. See Singh v. Sessions, No. 17-CV-1324-WJM-KMT, 2017 WL
3397337 (D. Colo. Aug. 8, 2017).
Following the filing of the instant Petition, Judge Christine M. Arguello, to
whom this case was initially assigned, ordered Respondents to file a statement
regarding their position, which they did on March 6, 2018. (Doc. 12; Doc. 14.)
Judge Arguello further permitted Singh to file a reply within fourteen days of
that response. (Doc. 12.) More than a year has passed since Respondents filed
their response, with no reply by Singh. After this matter was reassigned upon
the undersigned’s appointment, Singh filed a document styled a “Status Report,”
which is essentially a slightly updated version of his Petition. (Compare Doc. 6
with Doc. 16.) But notably, even in this “Status Report,” Singh does not dispute
any facts contained in the response or the affidavit of the supervising detention
and deportation officer attached thereto. (See Doc. 14, at 17–19.) Therefore, the
factual content contained therein remains unrebutted.
2

to section 8 U.S.C. § 1182(a)(7)(A)(i)(I)” of the Immigration and Nationality Act.3
(Id. ¶ 12.) On November 13, 2015, Singh was transferred to the Immigration and
Customs Enforcement (ICE) contract detention facility in Aurora, Colorado, where
he remains to this day.4 (Pet. Resp. at 17, Doc. 14; Doc. 16 ¶ 8.)
Following continuances at Singh’s request, he had a hearing on the merits of
his pleas for asylum, withholding of removal, and pursuant to the Convention
Against Torture5 on September 26 and October 6, 2016, in front of an immigration
judge. (Pet. ¶ 15; Pet. Resp. at 17.) On November 8, 2016, the immigration judge
found Singh’s testimony not credible, denied his requests, and ordered his removal
back to India. (Pet. ¶ 16; Pet. Resp. at 17.) Singh sought Board of Immigration
Appeals (BIA) review of the denial, but on April 26, 2017, the BIA dismissed the
appeal, finding that the immigration judge’s decision was not made in clear error.
(Pet. ¶ 17.) On May 17, 2017, Singh appealed the BIA’s decision by filing a petition
for review with the United States Court of Appeals for the Tenth Circuit.

3

That provision states: “Except as otherwise specifically provided in this chapter,
any immigrant at the time of application for admission--(I) who is not in
possession of a valid unexpired immigrant visa, reentry permit, border crossing
identification card, or other valid entry document required by this chapter, and a
valid unexpired passport, or other suitable travel document, or document of
identity and nationality if such document is required under the regulations
issued by the Attorney General under section 1181(a) of this title . . . is
inadmissible.” 8 U.S.C. § 1182(a)(7)(A)(i)(I).

4

According to the truncated communication attached to the “Status Report,” ICE
continues its attempt to deport Singh, but as of March 21, 2019, “[he] was not
able to be removed.” (Doc. 16-1.)

5

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Apr. 18, 1988, 1465 U.N.T.S. 85.
3

Simultaneously, he filed an emergency petition to stay deportation pending that
appeal. (Id. ¶ 18–19; Pet. Resp. at 18.) On May 22, 2017, the Tenth Circuit denied
the stay (Pet. Resp. at 18), and on January 8, 2018, it formally denied Singh’s
petition for review. Singh v. Sessions, 712 F. App’x 819, 824 (10th Cir. 2018). In
doing so, the Tenth Circuit made clear it would not undermine the decisions below:
We uphold the adverse credibility ruling. The [immigration
judge] gave specific, cogent, and detailed reasons. And the
BIA highlighted many of the inconsistencies, omissions
and embellishments that the [immigration judge]
identified. No reasonable adjudicator would be compelled
to reach a different conclusion.
Id. The circuit court also noted that the parties agreed that Singh was not entitled to
relief on any of his claims in the absence of credible testimony. Id.
Both before and after the Tenth Circuit’s denials of the stay, on at least
fifteen separate occasions, Singh refused to complete an application for travel
documents for submission to the Consulate of India. (Pet. Resp. at 18.) On June 30
and October 10, 2017, he was served with formal notices of failure to comply
pursuant to 8 C.F.R. § 241.4(g). (Id. at 18–19.) As of March 6, 2018, according to
ICE, India will not repatriate Singh until he completes an application for travel
documents. ICE maintains that there are no additional impediments to Singh’s
deportation other than his noncompliance with this process. (Id. at 19.)
While the Tenth Circuit decision denying review remained pending, Singh
filed an initial petition for habeas corpus in this Court, challenging his detention
under 8 U.S.C. §§ 1226 and 1231 (hereinafter, Section 1226 and Section 1231). See
generally Singh v. Sessions, No. 17-CV-1324-WJM-KMT, 2017 WL 3397337 (D.
4

Colo. Aug. 8, 2017) (hereinafter, Singh I). In that matter, the Court found Singh’s
Section 1226 claim to be moot because his removal was administratively final per
the decision of the BIA, and Respondents’ authority for detention was therefore
governed by Section 1231. Id. at *2–*3. Further, the Court found that his claims
under Section 1231 were not ripe because his detention of three months following
his final order of removal was well within the presumptively reasonable six-month
time-period announced by the Supreme Court. Id. at *3–*4 (discussing Zadvydas v.
Davis, 533 U.S. 678 (2001)). Therefore, on August 8, 2017, the Court dismissed the
petition without prejudice as premature and permitted Singh to re-file at the close
of the six-month period. Id. at *4.
II.

STANDARD OF REVIEW
An application for habeas corpus pursuant to 28 U.S.C. § 2241 may 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. See Demore v. Kim, 538 U.S. 510, 517–18 (2003); see also Ferry v.
Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (finding 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, 533 U.S. at 687–88). “[F]or habeas
petitions challenging present physical confinement, jurisdiction lies only in one

5

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 Section 2241 Petition was filed properly in this Court.
III.

ANALYSIS
Singh’s renewed Petition is substantively identical to the one previously

denied by the Court.6 (Compare Pet. with Singh I, No. 1:17-cv-01324, at Doc. 1.) He
again claims “substantive due process,” “procedural due process,” and statutory
violations, and seeks his immediate release from custody, enjoinment of further
detention, and attorney’s fees and costs. (Pet. at 16–17.) Since his initial petition,
only two circumstances have changed: (1) the Tenth Circuit has denied his petition
for review of the immigration judge’s decision, and (2) more than six months have
passed since his April 26, 2017 order of removal became administratively final.7

6

The changes include updating Respondents’ names and the length of Singh’s
detention. However, the causes of action and the way they are stated remains
identical.

7

As a threshold matter, Respondents submit that Singh still has recourse to
additional administrative review under 8 C.F.R. § 241.13 and his Petition should
therefore be denied under the doctrine of administrative exhaustion. This Court
has, however, previously declined to find that its jurisdiction over aliens already
ordered to be removed turns upon exhaustion of that post-order administrative
process. See Quintana Casillas v. Sessions, No. CV 17-01039-DME-CBS, 2017
WL 3088346, at *8 (D. Colo. July 20, 2017) (“This court concludes that
exhaustion of 8 C.F.R. § 241.13 is not a jurisdictional prerequisite for the
petition in this case.”). While courts have prudentially declined to hear habeas
corpus petitions when a petitioner failed to invoke 8 C.F.R. § 241.13, Singh has
proceeded for years without doing so, has twice filed identical habeas corpus
petitions in this Court, and it is unlikely that the merits of the instant Petition
6

Initially, the Court has already found that Singh is not being detained
pursuant to Section 1226, but Section1231. See Singh I, 2017 WL 3397337, at *2
(outlining that Section 1231 governs detention of aliens ordered removed, while the
Section 1226 pre-removal period terminates upon the immigration court’s removal
decision). Therefore, even though the Petition again submits that Singh’s
“continued detention under 8 U.S.C. § 1226(c)” is unlawful and unconstitutional, the
only cognizable reading of the Petition is a proffering that his confinement pursuant
to Section 1231 is statutorily unsound or represents an as-applied violation of his
constitutional rights.
Section 1231 governs the detention, release, and removal of aliens ordered
removed. 8 U.S.C. § 1231(a)(1)(A). “[W]hen an alien is ordered removed, the
Attorney General shall remove the alien from the United States within a period of
90 days.” 8 U.S.C. § 1231(a)(1)(A). The removal period is usually ninety days, but
[t]he removal period shall be extended beyond a period of
90 days 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) (emphasis supplied); see also 8 C.F.R. § 241.4(g) (requiring
service of a notice of failure to comply). This provision precisely addresses the

would be any different should the Court pause to provide him a third
opportunity to return here. Therefore, the Court will not exercise its prudential
prerogative to decline to address the Petition now.
7

situation here: Per this statute, Singh may remain in detention so long as he
refuses to sign his travel documents.
The Supreme Court has, though, “read significant limitations into [ ]
immigration statutes in order to avoid their constitutional invalidation” that
warrant the Court’s attention. Zadvydas, 533 U.S. at 689. In Zadvydas, the
Supreme Court considered, but rejected, the government’s argument that the
absence of detention time limits in Section 1231 leaves to the Attorney General’s
absolute discretion the length of time for which an alien may be held. Id. at 688–92.
Considering the Fifth Amendment Due Process Clause’s liberty protections, and
noting that removal proceedings are civil in nature, the Supreme Court concluded
that the Constitution demands that once six months have passed after an order of
removal becomes administratively final,
if the alien provides good reason to believe that there is no
significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with
evidence sufficient to rebut that showing. . . . This 6–month
presumption, of course, does not mean that every alien not
removed must be released after six months. To the
contrary, 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.
Id. at 701. Thus, “the onus is on the alien to ‘provide[ ] good reason to believe that
there is no [such] likelihood’ before ‘the Government must respond with evidence
sufficient to rebut that showing.’” Soberanes v. Comfort, 388 F.3d 1305, 1311 (10th
Cir. 2004) (quoting Zadvydas, 533 U.S. at 701).

8

Observing the guidance provided in Zadvydas, the Tenth Circuit has
addressed a claim of “indefinite detention” in circumstances similar to this case. See
Abiodun v. Mukasey, 264 F. App’x 726 (10th Cir. 2008). There, an alien who had
been in federal custody for more than three years and was awaiting final
deportation to Nigeria appealed the district court’s denial of his petition for habeas
corpus. Id. at 729. In finding that the petitioner was not entitled to relief, the
Circuit specifically highlighted the petitioner’s refusal to cooperate with ICE’s
attempts to obtain necessary travel documents and the failure to show that he
would not otherwise be accepted by his homeland of Nigeria. Id. at 729. There, as
here, ICE officials were actively seeking petitioner’s removal and “there [was] no
indication they [would] not succeed.” Id. Although the petitioner had been detained
for longer than six months, that fact standing alone simply did not raise the specter
of indefinite detention. Id.; see also Soberanes, 388 F.3d at 1311 (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; cited in
Abiodun) (same).
Considering the burden-shifting framework contained in these authorities,
Singh has failed to make a showing of entitlement to the relief he requests. His
removal period began on April 26, 2017, the date the order of removal became
administratively final. See Singh I, 2017 WL 3397337, at *2. Singh first states that
his presumptive six-month removal period ended May 3, 2016, and additionally
submits that he is not a flight risk, danger to the community, and his appearance at

9

future court hearings could be ensured by a reasonable bond. But these contentions
are immaterial. Under Zadvydas, even after the passage of six months, the only
relevant consideration is whether Singh has shown the absence of a significant
likelihood of his removal in the reasonably foreseeable future.
The Petition’s sole allegation on the subject is 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.”8 So now that the Tenth Circuit has finished its review, Singh’s only
stated impediment to removal has been eliminated. And, as in Abiodun but unlike
Zadvydas, there is no showing that India would not receive Singh, and his
continued detention is of his own doing. Even though the burden has not shifted to
the government, ICE has provided the Court with testamentary evidence of Singh’s
refusal to complete necessary travel documents and forms on at least fifteen
occasions. ICE has submitted data showing that it accomplished more than 350
removals to India in 2016 alone. Even though he was expressly provided an
opportunity, Singh has not contradicted ICE’s contentions.9 As in Abiodun, while
the inability of ICE to remove Singh in a timely manner is troubling, the Court
finds no reason to believe the government is will not succeed in doing so in the

8

The “Status Report” drops the stated reason of the pending Tenth Circuit ruling
and states only: “Petitioner’s removal to India, or any other country, is not
significantly likely to occur in the reasonably foreseeable future.” (Doc. 16 ¶ 42.)

9

See note 2, supra.
10

reasonably foreseeable future where the only apparent hurdle to it is his own
refusal to cooperate.
Citing a detainee’s right to a custody hearing before an impartial adjudicator,
Singh also argues he was subject to an “erroneous interpretation of the law” by the
immigration judge and BIA. But there is no question that Singh has had
meaningful opportunities to demonstrate the merits of his claim for asylum. To the
extent the Petition questions the findings or neutrality of the immigration courts,
this Court is satisfied that the Tenth Circuit’s thorough opinion approving of those
decisions and denying him further review closes the book on that issue. See Singh v.
Sessions, 712 F. App’x at 824. While the Petition facially sounds in constitutional
violations, Singh has not provided any showing of a violation of a constitutional or
statutory right that is cognizable in this proceeding.
IV.

CONCLUSION
Based on the foregoing, the Court DENIES Singh’s application for writ of

habeas corpus (Doc. 6) and DISMISSES the Petition WITH PREJUDICE. Singh’s
June 11, 2019 “motion for status of Petition” (Doc. 17) is DENIED as moot.

Dated: June 12, 2019.

BY THE COURT:
/s/ Daniel D. Domenico
Daniel D. Domenico
United States District Judge

11