Hernandez et al v. Carlson
ORDER ENTERED: Respondent's motion 85 for leave to file exhibits under seal is granted. Respondents' motion 84 to dismiss is granted. Petitioner Hernandez-Arenado's petition for writ of habeas corpus is dismissed as moot. Petiti oner Hernandez-Carrera's petition is dismissed and all relief denied. Signed by Senior District Judge Richard D. Rogers on 6/21/2011. (Mailed to pro se parties Santos Hernandez-Carrera and Pablo Santiago Hernandez-Arenado by regular mail.) (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SANTOS HERNANDEZ-CARRERA, and
PABLO SANTIAGO HERNANDEZ-ARENADO,
CASE NO. 05-3051-RDR
KEN CARLSON, Field Office Director,
Immigration and Customs Enforcement,
Department of Homeland Security, and
E.J. GALLEGOS, Warden of the United
States Penitentiary at Leavenworth, Kansas
O R D E R
Before the court are two consolidated habeas petitions seeking
relief under 28 U.S.C. § 2241 from each petitioner’s continued
detention in a federal facility.
The two petitioners are natives
and citizens of Cuba who illegally entered the United States in the
Mariel boatlift in 1980, and are classified as inadmissible aliens.
Each petitioner was granted immigration parole in the United States
that was later revoked.
Immigration judges issued exclusion and
deportation orders for each petitioner, based upon each petitioner’s
lack of entry documents and their convictions for crimes of moral
turpitude. Petitioners have been detained thereafter in the custody
of Immigrations and Customs Enforcement (ICE) in the Department of
Petitioners filed petitions for habeas corpus relief under 28
U.S.C. § 2241 to seek their release on supervision with appropriate
conditions to protect public safety.
Petitioners challenged their
continued detention pursuant to 8 U.S.C. § 1213(a)(6), a statute
providing for the detention of aliens after their removal from the
241.14(f), a regulation providing for the continued detention of
aliens found to pose a special danger to the public.
argued that their detention pursuant to 8 U.S.C. § 1231(a)(6) as
interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678
unconstitutional, and that the Attorney General’s promulgation of 8
C.F.R. § 241.14(f) unlawfully exceeded statutory authority.
court found this argument had legal merit, and ordered petitioners’
release without addressing petitioners’ further claim that the
regulatory procedures applicable to their continued detention were
insufficient to satisfy the Due Process Clause.
The Tenth Circuit Court of Appeals reversed. Hernandez-Carrera
v. Carlson, 547 F.3d 1247 (10th Cir.2008), cert. denied, 130 S.Ct.
Citing and applying National Cable & Telecommunications Ass’n
v. Brand X Internet Services, 545 U.S. 967, 982 (2005), the circuit
court found the Attorney General’s construction of 8 U.S.C. §
1231(a)(6) to promulgate 8 C.F.R. § 241.14(f) was owed deference if
8 U.S.C. § 1231(a)(6) “was ‘silent or ambiguous’ regarding the
Attorney General’s authority to detain certain classes of aliens
construction of th[at] statue represents a ‘permissible reading of
Hernandez, 547 F.3d at 1244-45 (quoting Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 843 (1984)).
It then found both of these conditions were
interpretations of the statute in Zadvydas and Martinez, id at 124551, and further found the agency’s interpretation of § 1231(a)(6)
was permissible and reasonable, raised no serious constitutional
question, and thus was entitled to Chevron deference, id. at 125156.
Now before the court is respondents’ motion to dismiss the
The court grants this request.1
challenge to his immigration detention was rendered moot by his
The court agrees.
See Spencer v. Kemna, 523 U.S. 1,
7-8 (1998). The petition filed by Hernandez-Arenado is dismissed as
because the Tenth Circuit’s decision defeats petitioner’s challenge
to the legality of 8 C.F.R. § 241.14(f), and because HernandezCarrera is properly detained pursuant to that regulation. The court
In detailing the procedures to be followed for the continued
detention of an alien whose removal to another country was not
significantly likely to occur in a reasonably foreseeable future,
specifically provided for the continued detention under “special
circumstances” of removable aliens who pose a special danger to the
public because of their proven history of violent criminal activity
Respondents’ motion for leave to file exhibits under seal
(Doc. 85) is granted.
and mental illness.
See 8 C.F.R. 241.14(f).2
Mental health professionals have consistently determined that
petitioner Hernandez-Carrera posed a special danger to public safety
Nonetheless, the court previously granted habeas
corpus relief on the basis that 8 C.F.R. § 241.14(f) provided no
lawful authority for petitioner’s continued detention beyond the 90
day period in § 2136(a)(6).
The Tenth Circuit reversed that legal
determination, and further found application of the regulation with
periodic assessment of petitioner’s continued confinement raised no
Accordingly, the court finds petitioner’s challenge to the
legality of his continued detention pursuant to 8 C.F.R. § 241,14(f)
has no legal merit, and concludes this action should be dismissed
8 C.F.R. § 241.14(f)(1) provides that the Government shall
detain an alien if the alien’s release “would pose a special danger
to the public” because (1) he previously committed one or more
crimes of violence; (2) he is likely to engage in acts of violence
in the future due to a mental condition or personality disorder and
behavior associated with that condition or disorder; and (3) no
conditions of release can reasonably be expected to ensure the
safety fo the public.
Petitioner’s criminal history includes convictions for rape
with force and bodily injury, battery, and indecent exposure.
Petitioner has been diagnosed with schizophrenia and has a history
of refusing medication. Mental health evaluators have concluded
that if petitioner were released he would likely engage in future
violence, and would need a high level of security and structure with
24 hour supervision.
Respondents document that petitioner was released in April 2008
under an Order of Supervision that required petitioner to
periodically report to immigration officials and to reside in a
designated homeless assistance residence in compliance with all
residential rules and regulations. Within six weeks petitioner was
designated an absconder. After some sixteen months he was located,
confined, and remains in custody.
A psychiatrist evaluating
petitioner in August 2010 found there were no conditions of release
available to ensure the safety of the public.
because the remaining petitioner makes no showing that “[h]e is in
custody in violation of the Constitution or laws or treaties of the
28 U.S.C. § 2241(c)(3).
IT IS THEREFORE ORDERED that respondents’ motion for leave to
file exhibits under seal (Doc. 85) is granted.
IT IS FURTHER ORDERED that respondents’ motion to dismiss (Doc.
84) is granted, that petitioner Hernandez-Arenado’s petition for a
writ of habeas corpus is dismissed as moot, and that petitioner
Hernandez-Carrera’s petition is dismissed and all relief denied.
IT IS SO ORDERED.
This 21st day of June 2011, at Topeka, Kansas.
s/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge
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