Saldana Chacon v. Lynch et al

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 3/8/2016. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MORRIS ENRIQUE SALDANA CHACON,
A# 206304738,
Petitioner,
vs.

Case No. 3:16-cv-00236-DRH

LORETTA LYNCH, JEH JOHNSON,
RICARDO A. WONG, 1 and WARDEN OF
IMMIGRATION DETENTION FACILITY,
Respondents,
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Morris Enrique Saldana Chacon is currently imprisoned at the
Pulaski County Detention Center in Ullin, Illinois (Doc. 1). Proceeding pro se,
Chacon filed the instant petition for a writ of habeas corpus under 28 U.S.C.
§ 2241 to challenge his continued detention.
Petitioner is a native and citizen of El Salvador. He has lived in the United
States since 1995.
Petitioner was found in violation of section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). (Doc. 1 at 3.) On
November 13, 2014, petitioner was taken into custody by Immigration & Customs

1

The Clerk will be directed to add the Warden of Pulaski County Detention Center as a
respondent. The petition refers to the Warden as a respondent and contains “Warden of
Immigration Detention Facility” in its caption.

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Enforcement (ICE). He has remained in custody ever since. Petitioner’s custody
status was reviewed for the first time on June 23, 2015, and he was ordered to
remain in detention. ICE, however, has been unable to effectuate his removal.
Petitioner has cooperated with ICE’s efforts to remove him. He has provided
the agency with the date and location of his birth.
Petitioner asserts that under Zadvydas v. Davis, 533 U.S. 678 (2001), six
months is the “presumptively reasonable period” during which ICE may detain an
alien in order to effectuate his removal. The Zadvydas ruling also applies to
inadmissible aliens, pursuant to the Supreme Court’s decision in Clark v.

Martinez, 543 U.S. 371 (2005). Petitioner’s presumptive six-month period has
ended. Petitioner claims his removal to El Salvador or any other country is not
likely to occur in the reasonably foreseeable future. Therefore, he claims, he
should be entitled to release from custody. (Doc. 1 at 4-6.) He also asserts that
statutory, as well as substantive and procedural due process violations have
occurred. (Id. at 5-6.)
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) 2 of the RULES GOVERNING SECTION 2254 CASES

IN

UNITED STATES DISTRICT

COURTS, and a response shall be ordered.
However, petitioner has named several respondents who are not proper in a
§ 2241 action. In Kholyavskiy v. Achim, 443 F.3d 946, 952-53 (7th Cir. 2006), the
2

Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus
cases, such as this action brought under § 2241.

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Seventh Circuit held that an immigration detainee raising substantive and
procedural due process challenges to his “confinement while awaiting removal”
may only properly name the person who has immediate custody of him during his
detention, and not high-level ICE officials or the Attorney General. Accordingly, all
defendants (other than the Warden of the Pulaski County Detention Center, who
the Clerk will be directed to add to this case) shall be dismissed from this case.
Disposition
IT IS HEREBY ORDERED that the Clerk shall ADD as a respondent to
this action the Warden of the Pulaski County Detention Center.
IT IS FURTHER ORDERED that Attorney General Loretta Lynch, Jeh
Johnson (presumably Department of Homeland Security Secretary Jeff Charles
Johnson), and ICE Field Office Director Ricardo A. Wong be DISMISSED from
this action.
IT IS FURTHER ORDERED that the Warden of the Pulaski County
Detention Center shall answer the petition within thirty days of the date this order
is entered (on or before April 7, 2016).3 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 Warden, Pulaski
County Detention Center, 20 Justice Drive, Ullin, Illinois, 62992 shall constitute
sufficient service.
Pursuant to Federal Rule of Civil Procedure 4(i), the CLERK is DIRECTED
3

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only.

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to send a copy of the letter constituting service, petition, and this Order to the
United States Attorney for the Southern District of Illinois, 750 Missouri Avenue,
East St. Louis, and to send a copy of the letter constituting service, petition, and
Order via registered or certified mail to the United States Attorney General in
Washington, D.C., and to the United States Department of Homeland Security.
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
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.
Signed this 8th day of March, 2016

Digitally signed by
Judge David R.
Herndon
Date: 2016.03.08
11:54:05 -06'00'
United States District Judge
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