Sienkiewicz v. Holder

Filing 12

ORDER granting in part 8 Motion to Dismiss and dismissing the 1 Petition in its entirety. Signed by Judge Victor A. Bolden on 3/9/2016. (Dearing, S.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
PAWEL SIENKIEWICZ,
Plaintiff,
v.
LORETTA LYNCH,
United States Attorney General1,
Defendant.

:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.:
3:15-cv-1871 (VAB)

RULING ON MOTION TO DISMISS AND
PETITION FOR WRIT OF HABEAS CORPUS
Pawel Sienkiewicz, who is currently in the custody of Immigration and Customs
Enforcement (“ICE”), has filed a habeas petition pro se under 28 U.S.C. §2241. Petition, ECF
No. 1. Construing the Petition liberally, Mr. Sienkiewicz (1) seeks a stay of his removal and (2)
challenges the constitutionality of the length of his detention under the Due Process Clause,
citing Zadvydas v. Davis, 533 U.S. 678 (2001). Petition 1-2, ECF No. 1; see also Matias v.
Artuz, 8 F. App’x 9, 11 (2d Cir. 2001) (construing a habeas petition filed pro se liberally) (citing,
among others, Williams v. Kullman, 722 F.2d 1048, 1050-51 (2d Cir. 1983)). Under 28 U.S.C.
§2241, generally speaking, the federal courts have jurisdiction to grant habeas corpus relief to
aliens when they are in custody in violation of the Constitution or laws of the United States.
Henderson v. I.N.S., 157 F.3d 106, 122 (2d Cir. 1998) (citation omitted).
Loretta Lynch moves to dismiss the Petition for lack of jurisdiction under Federal Rule
of Civil Procedure 12(b)(1). Mot. to Dismiss, ECF No. 8. She argues that Mr. Sienkiewicz has

1

Mr. Sienkiewicz initially named Eric Holder as the Respondent. Petition, ECF No. 1. Under Federal Rule of Civil
Procedure 25(d), the name of the current United States Attorney General, Loretta Lynch, is automatically substituted
as the proper Respondent. The Clerk is directed to adjust the case caption accordingly.

1

named the wrong Respondent and that the Court lacks jurisdiction over the proper Respondent,
the warden of the facility where he is confined in Massachusetts. Def.’s Br. 5-6, ECF No. 8-1.
She also argues, in the alternative, that the Court lacks jurisdiction to stay Mr. Sienkiewicz’s
removal. Id. at 6-8. For the reasons that follow, the Court agrees that it lacks jurisdiction to stay
Mr. Sienkiewicz’s removal. Accordingly, Ms. Lynch’s Motion to Dismiss is GRANTED IN
PART. The remainder of Mr. Sienkiewicz’s Petition is DISMISSED, because the Court finds
that his continued detention is constitutional.
DISCUSSION
Mr. Sienkiewicz is originally from Poland. Petition 1, ECF No. 1. He entered the United
States on a tourist visa and has outstayed the authorized term of that visa. Id. Mr. Sienkiewicz
was taken into ICE custody on December 17, 2014, where he remains as of the date of this
ruling. Id. at 2-3; Beaumont Decl. ¶5, ECF No. 8-1. He has a final order of removal pending
against him. Petition ¶4, ECF No. 1; see also Beaumont Decl. ¶4, ECF No. 8-1; Sienkiewicz v.
Holder, 400 F. App’x 599 (2d Cir. 2010). Mr. Sienkiewicz is currently detained in
Massachusetts.
The Real ID Act, 8 U.S.C. §1252, eliminated this Court’s habeas corpus jurisdiction to
review removal orders. See Moreno-Bravo v. Gonzales, 463 F.3d 253, 261 (2d Cir. 2006)
(identifying 8 U.S.C. §1252(a)(5) as “a jurisdiction-stripping provision, particularly as it relates
to habeas jurisdiction”); De Ping Wang v. Dep’t of Homeland Security, 484 F.3d 615, 616 (2d
Cir. 2007) (noting that “district courts may no longer review removal orders via habeas corpus”);
see also Saavedra De Barreto v. I.N.S., 427 F. Supp. 2d 51, 54-55 (D. Conn. 2006). The relevant
provision of the Act provides that “[n]otwithstanding any other provision of law… including
section 2241 of Title 28…. a petition for review filed with an appropriate court of appeals…

2

shall be the sole and exclusive means for judicial review of an order of removal.” 8 U.S.C.
§1252(a)(5). This provision also “strips” this Court of its jurisdiction to stay an alien’s removal.
Scott v. Napolitano, 618 F. Supp. 2d 186, 191 (E.D.N.Y. 2009) (citations omitted); Al-Garidi v.
Holder, No. 09-CV-6160L, 2009 WL 1439216, at *1 (W.D.N.Y. May 15, 2009) (“This Court
and other district courts throughout this country have routinely held that because district courts
have no jurisdiction to review final orders of removal, they have no jurisdiction to review
requests for stays of removal.”) (collecting cases). Accordingly, this Court lacks jurisdiction to
stay Mr. Sienkiewicz’s removal, and the aspect of his Petition seeking a stay is dismissed.
With respect to Mr. Sienkiewicz’s constitutional challenge to the length of his detention,
the Supreme Court has indicated that a six-month detention, while awaiting removal, is a
“presumptively reasonable period of detention.”

Zadvydas, 533 U.S. at 700-01. After this six-

month period, an alien’s detention is unlawful “if (1) an alien demonstrates that there is no
significant likelihood of removal in the reasonably foreseeable future and (2) the government is
unable to rebut this showing.” Wang v. Ashcroft, 320 F.3d 130, 146 (2d Cir. 2003) (citing
Zadvydas, 533 U.S. at 701). “[A]s the period of prior postremoval confinement grows, what
counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” Zadvydas, 533
U.S. at 701.
In one of his replies to the Government’s Motion to Dismiss, Mr. Sienkiewicz indicates
that he is scheduled to be removed from the United States on March 10, 2016. Emergency Mot.
to Stay 2, ECF No. 11. Because he claims that his removal will occur in a few days, Mr.
Sienkiewicz cannot show that there is “no significant likelihood of removal in the reasonably
foreseeable future.” Wang, 320 F.3d at 146 (holding that detaining an alien for more than six
months without a bond hearing after a final order of removal was constitutional because removal

3

was “imminent”); see also Zadvydas, 533 U.S. at 701 (petitioner must “provide[ ] good reason to
believe that there is no significant likelihood of removal in the reasonably foreseeable future...”).
Thus, the Court has no basis to conclude that Mr. Sienkiewicz’s continued detention is
constitutionally improper. Accordingly, the remainder of his Petition, claiming that the length of
his confinement is unconstitutional, is dismissed.
CONCLUSION
For all of the foregoing reasons, Mr. Sienkiewicz’s Petition, ECF No. 1, is DISMISSED.
The Clerk is directed to substitute Loretta Lynch as the Respondent in this case under Federal
Rule of Civil Procedure 25(d), enter judgment for the Respondent, and close the case.

SO ORDERED at Bridgeport, Connecticut this 9th day of March 2016.
/s/ Victor A. Bolden
VICTOR A. BOLDEN
UNITED STATES DISTRICT JUDGE

4