Orellana Brito v. Chief Director of the Department of Homeland Security et al

Filing 15

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/18/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JAIME LEONEL ORELLANA BRITO,
Petitioner,
vs.

Case No. 3:15-cv-00820-DRH

CHIEF DIRECTOR OF THE
DEP’T OF HOMELAND SECURITY,
DIRECTOR OF THE CHICAGO
FIELD OFFICE OF IMMIGRATION
CUSTOMS ENFORCEMENT,
ATTORNEY GENERAL,
WARDEN OF MCHENRY
COUNTY JAIL,
WARDEN OF KENOSHA
COUNTY DETENTION CENTER,
WARDEN OF BRASIL
DETENTION CENTER,
WARDEN OF ALEXANDRIA
DETENTION CENTER,
WARDEN OF GINA
DETENTION CENTER,
WARDEN OF PUERTO ISABEL
DETENTION CENTER,
WARDEN OF TRI-COUNTY
DETENTION CENTER,
Respondents,
MEMORANDUM AND ORDER
HERNDON, District Judge:
Jaime Leonel Orellano Brito is currently being held at the Tri-County
Detention Center in Ullin, Illinois. (Doc. 7.) Proceeding pro se, Brito has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging his
detention by Immigration & Customs Enforcement officials since August 22,

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2014. (Doc. 13 at 2) Brito insists that his detention is improper because he has
been detained pending removal for longer than the six months that is
presumptively allowed under Zadvydas v. Davis, 533 U.S. 678 (2001), and there
is no likelihood of removal in the reasonably foreseeable future.
This matter is now before the Court for a preliminary review of the petition.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District
Courts provides that, upon preliminary review of the petition by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.” Rule 1(b) of those Rules
gives this Court the authority to apply the rules to other habeas corpus cases,
such as this action.
Background
Brito is a native citizen of Honduras who has lived in the United States for
almost eleven years. (Doc. 13 at 2.) On August 22, 2014, he was taken into
custody by Immigration and Customs Enforcement officials in Shelbyville County,
Indiana. (Id.) His custody status was first reviewed on November 22, 2014; that
review led to a written decision ordering Brito’s ongoing detention.

(Id.)

On

January 6, 2015, an immigration judge ordered that Brito be removed from the
United States. (Id.) To date, Brito has not yet been removed from the United
States, and he remains in detention pending removal. (Id.)

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On July 2, 2015, Brito filed a petition for writ of habeas corpus in the
Northern District of Illinois, challenging his ongoing detention. (Doc. 1.) On July
27, 2015, the Northern District transferred Brito’s petition to this Court because
Brito had been moved from the McHenry County Jail in Woodstock, Illinois to the
Tri-County Detention Center in Ullin, Illinois. (Doc. 7.)
Discussion
Brito’s habeas petition alleges that his ongoing detention violates certain
constitutional provisions and 8 U.S.C. § 1231(a)(6).

The Court’s preliminary

review of Brito’s petition suggests that his overall petition cannot be dismissed at
the screening stage, so the petition will proceed past preliminary review.
However, Brito has named a number of defendants that are not proper in a §
2241 action. In Kholyavskiy v. Achim, 443 F.3d 946, 952-53 (7th Cir. 2006), the
Seventh Circuit held that an immigration detainee raising substantive and
procedural due process challenges to his “confinement while awaiting removal”
could only name the person who has immediate custody of him during his
detention, and not high-level Immigration and Customs Enforcement officials or
the Attorney General. Accordingly, all defendants other than the Warden of the
Tri-County Detention Center will be dismissed from this case.
Disposition
IT IS HEREBY ORDERED that Brito’s petition for a writ of habeas corpus
shall proceed past preliminary screening.
IT IS FURTHER ORDERED that the Chief Director of the Department of

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Homeland Security, the Director of the Chicago Field Office of Immigration
Customs Enforcement, the Attorney General, the Warden of the McHenry County
Jail, the Warden of the Kenosha County Detention Center, the Warden of the
Brasil Detention Center, the Warden of the Alexandria Detention Center, the
Warden of the Gina Detention Center, and the Warden of the Puerto Isabel
Detention Center are hereby DISMISSED from this action.
IT IS FURTHER ORDERED that the Warden of the Tri-County Detention
Center shall answer Brito’s petition within thirty days of the date this order is
entered. 1 This order to respond does not preclude the respondent from making
whatever waiver, exhaustion, or timeliness arguments it may wish to present to
the Court. Service upon the Administrator, Tri-County Detention Center, 1026
Shawnee College Road, Ullin, Illinois, 62992 shall constitute sufficient service.
Out of an abundance of caution, and pursuant to Federal Rule of Civil
Procedure 4(i), the CLERK is DIRECTED to send a copy of the petition and this
Order to the United States Attorney for this District, and to send a copy of the
petition and Order via registered or certified mail to the United States Attorney
General in Washington, D.C., to the United States Department of Homeland
Security, and to the United States Immigration & Customs Enforcement.

The

CLERK is also DIRECTED to not terminate counsel who entered designations in
this case prior to the case’s transfer to this Court at this early stage.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
The response date ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only.
1

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cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This
notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs.

Digitally signed by
David R. Herndon
Date: 2015.08.18
16:39:45 -05'00'

IT IS SO ORDERED.
DATED: August 18, 2015

United States District Judge

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