Ocampo Pineda v. Chief Director of the Department of Homeland Security et al

Filing 16

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 9/2/2015.(tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BERNARDO ALBERTO OCAMPO
PINEDA, A206014623,
Petitioner,
vs.

Case No. 3:15-cv-00894-DRH

CHIEF DIRECTOR of the DEPT.
of HOMELAND SECURITY,
DIRECTOR – CHICAGO
FIELD OFFICE of IMMIGRATION
CUSTOMS ENFORCEMENT,
ATTORNEY GENERAL,
WARDEN – MCHENRY CO. JAIL,
WARDEN – TRI-COUNTY
DETENTION CENTER,
Respondents,
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Bernardo Alberto Ocampo Pineda is currently imprisoned at the
Tri-County Detention Center in Ullin, Illinois (Doc. 10).

Proceeding pro se,

Ocampo Pineda filed his petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 in the Northern District of Illinois, while he was housed in the McHenry
County Jail. The case was transferred to this Court on August 12, 2015, after it
was learned that petitioner had been transferred to a facility in this district (Doc.
10).
Petitioner is a citizen of Mexico who has lived in the United States since
June 2000, when he was 14 years old. He challenges his continued detention by

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Immigration & Customs Enforcement officials, who have held him in custody
since November 20, 2013 (Doc. 1, p. 1).

An immigration judge ordered his

removal from the United States, and he claims the removal order became final on
January 30, 2014 (Doc. 1, p. 2). He argues that under Zadvydas v. Davis, 533
U.S. 678 (2001), six months is the “presumptively reasonable period” during
which an alien may be detained by Immigration and Customs Enforcement (“ICE”)
in order to effectuate his removal. This six-month period ended on May 20, 2014,
yet petitioner has not been released or removed (Doc. 1, p. 2).
According to petitioner, his continued detention is improper because he has
been detained pending removal for longer than the six months that is
presumptively allowed under Zadvydas, and there is no likelihood of his removal
in the reasonably foreseeable future.

He also claims that his substantive and

procedural due process rights have been violated.
Without commenting on the merits of petitioner’s claims, the Court
concludes that the petition survives preliminary review under Rule 4 and Rule
1(b) 1 of the Rules Governing Section 2254 Cases in United States District Courts,
and a response shall be ordered.
However, petitioner has named several respondents 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”
1

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus
cases.

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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.
Filing Fee
On July 8, 2015, prior to the transfer of this case to the Southern District,
petitioner’s motion for leave to proceed in forma pauperis (“IFP”) was denied
(Doc. 5). He was ordered to pay the $5.00 filing fee no later than August 5, 2015,
or face dismissal of his case. This fee has never been paid.
In light of the disruption in delivery of mail to petitioner due to his transfer,
he shall be given one more opportunity to comply with the filing fee requirements.
Petitioner is ORDERED to pay the $5.00 filing fee to the Clerk of Court within 14
days of the date of this Order. Failure to pay the fee shall result in the dismissal
of this action. See Fed. R. Civ. P. 41(b).
Pending Motion
The motion for attorney representation (Doc. 4) shall be referred to the
United States Magistrate Judge for disposition.
Disposition
IT IS HEREBY ORDERED that the Chief Director of the Department of
Homeland Security, the Director of the Chicago Field Office of Immigration
Customs Enforcement, the Attorney General, and the Warden of the McHenry
County Jail are DISMISSED from this action.

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IT IS FURTHER ORDERED that the Warden of the Tri-County Detention
Center shall answer the petition within thirty days of the date this Order is
entered. 2 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, to the United States Immigration & Customs Enforcement, and to the
designated attorneys of record in the United States Attorney’s Office for the
Northern District of Illinois. 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
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
The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only.
2

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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. Failure to provide such notice may result in
dismissal of this action. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: September 2, 2015

Digitally signed by
David R. Herndon
Date: 2015.09.02
09:31:08 -05'00'
United States District Judge

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