Casas v. Bonaccorsi-Manno

Filing 34

MEMORANDUM Opinion Signed by the Honorable Sharon Johnson Coleman on 12/17/2015:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSE B. CASAS

)
)
Petitioner,
)
)
v.
)
)
DAVID DEVANE, in his capacity as Chief )
of Corrections of the McHenry County
)
Adult Correctional Facility
)
)
Respondent.
)
)

Case No. 15-cv-8112
Judge Sharon Johnson Coleman

MEMORANDUM OPINION
Jose Casas (“Casas”) filed a petition for a writ of habeas corpus challenging the legality of his
detention at McHenry County Adult Correctional Facility (“McHenry Correctional”) during the
pendency of his immigration removal proceedings. In his petition Casas argued that he is entitled to
a bond hearing where an individualized determination is made as to his dangerousness and risk of
flight. On November 19, 2015, this Court granted the petition (“first habeas ruling”) and ordered
David Devane, Chief of Corrections (“Respondent”), “to release Casas from the custody of
McHenry County Adult Correctional Facility within 30 days . . . unless he receives an order from an
Immigration Judge who has determined after an individualized bond hearing that Casas’ continued
detention is necessary to prevent a risk of flight or a threat to public safety.” Dkt. 25 at 6.
Respondent then moved for reconsideration of the first habeas ruling pursuant to Rule 59(e) and
Rule 60 (b). The Court denied Respondent’s motion for reconsideration in a minute entry on
December 8, 2015. The Court now issues this opinion explaining its reasons for denying the motion
for reconsideration.

Background
Casas is a legal permanent resident of the United States. (Dkt. 18, ¶1; Dkt. 28 at 3.) On August
15, 2007, he was convicted of attempted aggravated battery with a firearm. (Dkt. 18, ¶ 31; Dkt. 28 at
3.) Six years after his release from incarceration on that conviction, Casas was charged removable by
the Department of Homeland Security (“DHS”) under 8 U.S.C. § 1227(a)(2)(A)(iii) because he had
been convicted of an “aggravated felony” as that term is defined in 8 U.S.C. § 1101(a)(43). (Dkt. 18
¶ 31; Dkt 18-1 at 20; Dkt. 28 at 3.) On July 29, 2015, DHS detained Casas pursuant to 8 U.S.C. §
1226(c) (“1226c”), a statute which authorizes confinement without a bond hearing for certain
categories of immigration detainees. (Dkt. 18 ¶1; Dkt. 28 at 3.) Casas was afforded an administrative
hearing before an IJ on whether 1226c had been properly applied to him, and at that hearing the IJ
determined that application of 1226c was proper. (Dkt 18 ¶4; Dkt. 9 at 7-8.) Casas appealed that
determination to the Board of Immigration Appeals (“BIA”). (Dkt 18 ¶5; Dkt. 9 at 8.) The BIA
ruled on Casas’ appeal on December 3, 2015. (Dkt. 30-2 at 2.) In light of this Court’s intervening
ruling on the habeas petition, the BIA remanded the bond proceedings and ordered the IJ to
provide Casas with an individualized bond hearing. Id.
Casas is in the process of challenging the validity of his criminal conviction. However, on
November 17, 2015 an Immigration Judge (“IJ”) determined that the Immigration Court could not
stay the removal proceedings pending Casas’ challenge to his criminal conviction and was required
to consider the conviction as it currently stood (“November 17 immigration ruling”). (Dkt. 30-3 at
11-13.)
Legal Standard
“A Rule 59(e) motion will be successful only where the movant clearly establishes: (1) that the
court committed a manifest error of law or fact, or (2) that newly discovered evidence precluded
entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir. 2013) (internal
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quotations omitted). “Vacating a judgment under Rule 60(b) is permissible for a variety of reasons
including mistake, excusable neglect, newly discovered evidence, and fraud.” Harrington v. City of
Chicago, 433 F.3d 542, 546 (7th Cir. 2006). Although the two rules are similar, the threshold of proof
for the moving party is lower under Rule 59(e) than under Rule 60(b). Cincinnati Life, 722 F.3d at
953. Under either rule, “[r]econsideration is not an appropriate forum for rehashing previously
rejected arguments or arguing matters that could have been heard during the pendency of the
previous motion.” Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.
1996).
Discussion
Respondent first argues that the November 17 immigration ruling demonstrates that a pending
challenge to a conviction cannot serve as a “good-faith basis” for contesting removal because a
pending challenge to a criminal conviction “is not relevant for immigration purposes unless and until
the conviction is vacated.” (Dkt. 28 at 5.) There was nothing barring Respondent from making this
argument when it filed its response to the habeas petition. The IJ did not create new intervening law
when she issued the November 17 immigration ruling; she merely applied existing law that
Respondent failed to put before this Court in its habeas response.
Furthermore, a finding in favor of Respondent on this argument might imply that courts should
reevaluate whether a 1226c immigration detainee was challenging his removal “in good-faith” after
any adverse ruling in the underlying immigration proceedings. Not only would such a rule be
inefficient, it would wrongly equate a good-faith challenge with a challenge that will ultimately be
successful. As this Court suggested in its first habeas ruling, Casas’ likelihood of ultimate success is
only relevant to the extent that an extremely remote likelihood of success could be evidence of a
bad-faith, i.e., facially meritless, challenge. This Court’s determination in the first habeas ruling that

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“Casas’ likelihood of success in challenging his removal is not so minimal as to indicate the challenge
is brought in bad faith” is not altered by the November 17 immigration ruling.
Respondent’s second argument is that this Court should reconsider its ruling because the nature
of Casas’ challenge to his removal is distinguishable from the challenges at issue in the cases this
Court found persuasive, namely, Forbes v. Perryman, 244 F. Supp. 2d 947, 950 (N.D. Ill. 2003)
(Bucklo, J.); Bonsol v. Perryman, 240 F. Supp. 2d 823, 827 (N.D. Ill. 2003) (Castillo, J.); and Vang v.
Ashcroft, 149 F. Supp. 2d 1027, 1038 (N.D. Ill. 2001) (Pallmeyer, J.). Like Respondent’s first
argument, this is an argument that Respondent could have made in its response to the habeas
petition. It is therefore not properly before the Court on a motion to reconsider.
Conclusion
For the foregoing reasons, Defendants’ motion to reconsider was denied.
_____________________________
SHARON JOHNSON COLEMAN
United States District Judge
DATED: December 17, 2015

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