Morales v. Sessions et al
MEMORANDUM OPINION AND ORDER; 1)Respondent's 11 Motion to Dismiss is granted; 2)Petitioner's 1 Petition for a Writ of Habeaus Corpus and a Judicial Order for Release from detention is dismissed; 3)This action is dismissed and stricken from the Court's active docket. Signed by Judge David L. Bunning on 8/6/2018. (LST)cc: COR Modified text on 8/6/2018 (LST).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 17-225-DLB-HAI
EDGAR MORALES, et al.
MEMORANDUM OPINION AND ORDER
JEFF SESSIONS, in his capacity as the
Attorney General of the United States, et al.
This matter is before the Court upon a Motion to Dismiss, wherein Respondents
seek dismissal of Petitioner Edgar Morales’s petition for a writ of habeas corpus. (Doc. #
11). The Motion is fully briefed (Docs. # 13 and 14), and ripe for the Court’s review. For
the reasons stated herein, Respondents’ Motion to Dismiss is hereby granted.
FACTUAL AND PROCEDURAL BACKGROUND
Edgar Morales is a native and citizen of Guatemala. (Doc. # 1 at 3). He unlawfully
entered the United States in January of 2006. (Doc. # 11-1). In March of 2006, an
immigration officer encountered Morales and charged that he was removable under the
Immigration and Nationality Act (“INA”). Id. After Morales was served with a Notice to
Appear (“NTA”), dated March 21, 2006, Morales signed a Stipulated Request for a
Removal Order and waived his right to a hearing before an Immigration Judge. (Doc. #
11-2). He agreed, in pertinent part, that: the factual allegations contained in the NTA
were true; that he was deportable/inadmissible as charged in the NTA; and that he did
not wish to apply for relief from removal. Id. The Stipulation, written in both English and
Spanish, set forth further acknowledgements, including that Morales had read the
document, understood his rights and the consequences of the Stipulation, and that he
was requesting removal voluntarily, knowingly, and intelligently. Id. An Immigration
Judge granted the Stipulated Request and ordered Morales removed on March 24, 2006.
(Doc. # 11-3). Morales did not seek review of the Stipulated Removal Order and was
removed from the United States on March 29, 2006. (Doc. # 11-4).
Since his first removal in 2006, Morales has unlawfully reentered the United States
five times. (Docs. # 11-4; 11-5; 11-6; 11-7; 11-8). Upon his apprehension by immigration
officials the first four times, Morales was served with a Notice of Intent to Reinstate the
March 2006 Stipulated Removal Order, declined to make a statement contesting the
reinstatement determination, and was subsequently removed from the country. Id.
Most recently, Morales was apprehended by immigration officials in northern
Kentucky.1 (Doc. # 1 at 4). In the early morning hours of December 7, 2017, immigration
officials situated themselves on Banklick Street in Covington, Kentucky, and conducted
surveillance in an attempt to apprehend Morales.
When Morales’s vehicle
approached the residence, immigration officials stopped the car, but then discovered that
Morales’s wife—Aracelia DeLeon—was operating the vehicle. Id. The parties dispute
the details of this encounter.
While the Respondents claim that Aracelia DeLeon
consented to the officers’ entry into the home (Doc. # 11 at 4), the Petitioners claim that
without consent, the officers obtained Aracelia DeLeon’s keys to the residence and then
According to the Record of Deportable Inadmissible Alien, during his time in the United States,
Morales has amassed fifteen convictions, including convictions for public order crimes, traffic offenses,
disorderly conduct, and illegal reentry. (Doc. # 11-9 at 2-3). Since his most recent unlawful reentry in
February of 2012, Morales has been convicted of a public order crime, in addition to two driving-under-theinfluence convictions. Id.
entered and searched the residence. (Doc. # 1 at 4-5). The conclusion of the encounter,
however, is uncontested—officers located Morales in a bedroom with his four children, a
scuffle ensued when the officers attempted to handcuff Morales, and after restraining him,
the immigration officers took Morales into custody and removed him from his home.
Morales has been continuously detained since December 7, 2017.
The following day—on December 8, 2017—an immigration officer reinstated
Morales’s 2006 Stipulated Removal Order. (Doc. # 11-8). Upon receiving the Notice of
Intent/Decision to Reinstate Prior Order, Morales did not indicate whether he wished to
make a statement contesting the reinstatement determination but noted that he “Refused
To Sign” instead of signing his name. Id. On December 13, 2017, immigration officials
transferred Morales to state custody for service of active bench warrants. (Doc. # 11-10
at 12). The following week—on December 22, 2017—the United States filed a federal
criminal complaint against Morales. United States v. Morales-Chun, No. 2:18-cr-3-DLBCJS (E.D. Ky. 2017) (Doc. # 1 therein). On January 11, 2018, a federal grand jury
returned an Indictment against Morales, charging him with unlawfully re-entering the
United States as a previously removed alien, in violation of 8 U.S.C. § 1326(a), (b)(1). Id.
(Doc. # 6 therein). Morales was returned to the custody of the immigration officials on
January 17, 2018. (Doc. # 11-10 at 12). And two days later—on January 19, 2018—the
federal arrest warrant was executed and the United States Marshals took Morales into
custody. United States v. Morales-Chun, No. 2:18-cr-3-DLB-CJS (E.D. Ky. 2017) (Doc.
# 13 therein).
The instant action was filed on December 8, 2017—the same day that Morales’s
Stipulated Removal Order was reinstated. (Doc. # 1). Represented by counsel, the
Petitioners are purported to be: Edgar Morales, Aracelia DeLeon, and their four children.
Id. Named as Respondents are: Jeff Sessions, in his capacity as the Attorney General
of the United States; Kristjen Nielsen, in her capacity as Secretary of Homeland Security;
and Robert M. Duncan, Jr.,2 in his capacity as the United States Attorney for the Eastern
District of Kentucky. The petition is styled as a “Petition for a Writ of Habeas Corpus and
a Judicial Order for Release from Detention by the United States Department of
Homeland Security” and asserts that the Court has jurisdiction under the habeas corpus
statute, 28 U.S.C. § 2241, as well as federal-question jurisdiction pursuant to 28 U.S.C.
§ 1331. Id. at 1-3. After setting forth the basis for the petition, Petitioners pray for the
following six types of relief:
1. A Writ of Habeas Corpus pursuant to 28 U.S.C. [§] 2241 and upon a
hearing on the said to issue a judicial order for [his] person be brought
before this Honorable Court, and the production for a complete
2. An Order of release from unlawful detention and for the termination of all
proceeding [sic] to remove and deport Edgar Morales;
3. An [sic] declaratory judgment that the entry and search of Petitioner’s
and Aracelia DeLeon’s home are violations of the Fourth Amendment to the
United States Constitution;
4. A declaratory judgment that the arrest and detention are violations of the
Fourth and Fifth Amendments to the United States Constitution;
5. A grant of all emergency relief that [the] court sees appropriate at law or
6. All other relief at law and equity including costs and attorney fees.
Id. at 7-8.
On February 16, 2018, the Respondents filed a Motion to Dismiss the petition
pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), arguing that the Court
lacks subject-matter jurisdiction and that the petition fails to state a claim upon which relief
Although the Petition names Carlton Shier as the representative for the United States Attorney’s
Office for the Eastern District of Kentucky, Robert M. Duncan, Jr. was sworn in as the United States Attorney
for the Eastern District of Kentucky on November 21, 2017.
can be granted. (Doc. # 11). The Petitioners having filed their Response in opposition to
the Motion (Doc. # 13), and Respondents having filed their Reply (Doc. # 14), the Motion
to Dismiss is fully briefed and ripe for review.
Standards of Review
Dismissal for Lack of Subject-Matter Jurisdiction
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for the dismissal of
an action for lack of subject-matter jurisdiction.3 In a Rule 12(b)(1) motion, the plaintiff
has the burden of proving that the Court has subject-matter jurisdiction. RMI Titanium
Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1135 (6th Cir. 1996). A motion under
Rule 12(b)(1) can attack a complaint in two ways: facially and factually. Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). A facial attack on the subjectmatter jurisdiction alleged by the complaint “merely questions the sufficiency of the
pleading.” Id. Thus, in reviewing a facial attack, the district court “takes the allegations
in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to
When a court reviews a factual attack on subject-matter jurisdiction,
however, there is no presumption of truthfulness. Id. Instead, if the facts presented “give
rise to a factual controversy, the district court must … weigh the conflicting evidence” to
determine if subject-matter jurisdiction exists. Id. When resolving a factual attack, the
district court “has wide discretion” to rely on affidavits or documents and can even conduct
“a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id.
Even when subject-matter jurisdiction is contested, the Court undoubtedly has the authority to
determine whether it has jurisdiction. Atkinson v. Morgan Asset Mgmt., Inc., 658 F.3d 549, 552 (6th Cir.
2011) (holding that “the court has the ‘adjudicatory power … to determine its own jurisdiction to deal further
with the case’”) (quoting Kircher v. Putnam Funds Tr., 547 U.S. 633, 643-44 (2006)).
Dismissal for Failure to State a Claim
For motions to dismiss, on the other hand, the familiar rules of 12(b)(6) apply.4 To
survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”5 Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). Put another way, “the plaintiff must allege facts that
state a claim to relief that is plausible on its face and that, if accepted as true, are sufficient
to raise a right to relief above the speculative level.” Wesley v. Campbell, 779 F.3d 421,
427 (6th Cir. 2015) (quoting Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir.
2012); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Although “plaintiffs need not meet a ‘probability requirement’ … they must show
‘more than a sheer possibility that a defendant has acted unlawfully.’” Wesley, 779 F.3d
at 427-28 (quoting Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011)).
“In ruling on the issue, a district court must ‘construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences
in favor of the plaintiff.’” Id. at 428 (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th
Generally, motions to dismiss are not compatible with habeas corpus procedures. See Browder v.
Dir., Dep’t of Corrs. of Ill., 434 U.S. 257, 269 n.14 (1978) (“Respondent’s conception … seems to have
been that a Rule 12(b)(6) motion is an appropriate motion in a habeas corpus proceeding, and that upon
denial of such a motion, the case should proceed through answer, discovery and trial. This view is
erroneous … The custodian’s response to a habeas corpus petition is not like a motion to dismiss. The
procedure for responding to the application for a writ of habeas corpus … is set forth in the habeas corpus
statutes and, under Rule 81(a)(2), takes precedence over the Federal Rules.”). That said, Rules 11 and
12 of the Rules Governing § 2254 Cases (which apply to habeas petitions under § 2241), and Federal Rule
of Civil Procedure 81(a) permit the application of federal civil rules in habeas cases, “to the extent that they
are not inconsistent” with any statutory provision or the Habeas Rules. See White v. Lewis, 874 F.2d 599,
602-03 (9th Cir. 1989); Purdy v. Bennett, 214 F. Supp. 2d 348, 353 (S.D.N.Y. 2002); see also Williams v.
Holloway, No. 2:14-cv-2652-STA, 2016 WL 1058017, at *4 n.2 (W.D. Tenn. Mar. 14, 2016). Moreover, 28
U.S.C. § 2243 authorizes federal courts to “dispose” of habeas corpus matters “as law and justice require.”
“When a court is presented with a Rule 12(b)(6) motion, it may consider the Complaint and any
exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached
to defendant’s motion to dismiss so long as they are referred to in the Complaint and are central to the
claims contained therein.” Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008).
Cir. 2007)). After all, under Rule 12(b)(6), the “defendant has the burden of showing that
the plaintiff has failed to state a claim for relief.” Id.
The Removal and Reinstatement Process
“The Government of the United States has broad, undoubted power over the
subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387,
394 (2012). The federal government has exercised that power and established an
“extensive and complex” system of immigration enforcement. Id. at 395. Within that
comprehensive scheme, “Congress has specified which aliens may be removed from the
United States and the procedures for doing so.” Id. at 396. “Aliens may be removed if
they were inadmissible at the time of entry, have been convicted of certain crimes, or
meet other criteria set by federal law.” Id. (citing 8 U.S.C. § 1227).
“Removal is a civil, not criminal, matter” and a “principal feature of the removal
system is the broad discretion exercised by immigration officials.” Id. “Federal officials,
as an initial matter, must decide whether it makes sense to pursue removal at all.” Id.
When removal is pursued, statutes and regulations dictate the details of the removal
If “an alien is suspected of being removable, a federal official issues an
administrative document called a ‘Notice to Appear.’” Id. at 407. “The form does not
authorize an arrest”; instead, “[t]he federal statutory structure instructs when it is
appropriate to arrest an alien during the removal process.” Id. “For example, the Attorney
General can exercise discretion to issue a warrant for an alien’s arrest and detention,
‘pending a decision on whether the alien is to be removed from the United States.’” Id.
(quoting 8 U.S.C. § 1226(a)). “And if an alien is ordered removed after a hearing, the
Attorney General will issue a warrant.” Id. at 408 (citing 8 C.F.R. § 241.2(a)(1)). “If no
federal warrant has been issued, those officers have more limited authority.” Id. (citing 8
U.S.C. § 1357(a)). Without a warrant, the officer “may arrest an alien for being ‘in the
United States in violation of any immigration law or regulation, for example, but only where
the alien is ‘likely to escape before a warrant can be obtained.’” Id. (quoting 8 U.S.C. §
1357(a)(2)) (internal alterations omitted).
After an arrest, immigration officers’ attention turns toward detention. “When an
alien has been found to be unlawfully present in the United States and a final order of
removal has been entered, the Government ordinarily secures the alien’s removal during
a subsequent 90-day statutory ‘removal period,’ during which time the alien normally is
held in custody.” Zadvydas v. Davis, 533 U.S. 678, 682 (2001). When the 90-day period
begins to run depends on the alien’s status. 8 U.S.C. § 1231(a)(1)(B). Typically, the
“removal period begins on the latest” of either: (i) the date the order of removal becomes
administratively final or (ii) the date of the court’s final order if the removal order is
judicially reviewed and removal is stayed during the pendency of such review. 8 U.S.C.
§ 1321(a)(1)(B)(i)-(ii). But, if the “alien is detained or confined” pursuant to criminal
process,” the 90-day removal period does not begin until the “alien is released from
detention or confinement.” 8 U.S.C. § 1321(a)(1)(B)(iii).
If an alien unlawfully reenters the United States after having been removed, like
the situation presented here, a different procedure—reinstatement, rather than removal—
If the Attorney General finds that an alien has reentered the United States
illegally after having been removed or having departed voluntarily, under an
order of removal, the prior order of removal is reinstated from its original
date and is not subject to being reopened or reviewed, the alien is not
eligible and may not apply for any relief under this chapter, and the alien
shall be removed under the prior order at any time after reentry.
8 U.S.C. § 1231(a)(5). Under this provision, Congress established “a process to remove
[the alien] under the prior order at any time after the reentry” and removal is virtually
Fernandez-Vargas v. Gonzales, 548 U.S. 30, 44 (2006).
reinstatement process and the removal process have important and intentional
First, the reinstatement regulations provide that the alien “has no right to a hearing
before an immigration judge.” 8 C.F.R. § 241.8(a). “To find that an alien is subject to
removal through reinstatement, the immigration officer must determine: (1) that the alien
has been subject to a prior order of removal; (2) that the alien is in fact an alien who was
previously removed or who departed voluntarily; and (3) that the alien unlawfully reentered the United States.” Villegas de la Paz v. Holder, 640 F.3d 650, 655 (6th Cir.
2010) (citing 8 C.F.R. § 241.8(a)(1)-(3)).
“If an officer determines that an alien it subject to removal” through reinstatement,
the officer “shall provide the alien with written notice of [the] determination.” 8 C.F.R. §
241.8(b). The officer must then “advise the alien that he or she may make a written or
oral statement contesting the determination,” and if the “alien wishes to make such a
statement, the officer” must “allow the alien to do so and” then “consider whether the
alien’s statement warrants reconsideration of the determination.” Id. If not, “the alien
shall be removed under the previous order of exclusion, deportation, or removal.” 8
C.F.R. § 241.8(c). “When reinstating a prior removal order in illegal reentry cases, [the
Department of Homeland Security] does not reissue the prior order (which would restart
the 30-day period within which the alien may file a petition for review) but reinstates the
prior order ‘from its original date.’” Juarez-Chavez v. Holder, 515 F. App’x 463, 466 (6th
Cir. 2013) (citing 8 U.S.C. § 1231(a)(5)). Once the reinstatement determination becomes
final, the 90-day period for removal commences. 8 U.S.C. § 1231(a)(1)(B).
The Court is without jurisdiction to terminate the removal and
deportation proceedings against Morales.
“[T]he primary federal habeas corpus statute, 28 U.S.C. § 2241, confers
jurisdiction upon the federal courts” to hear a petition for a writ of habeas corpus.”
Zadvydas, 533 U.S. at 687 (citing 28 U.S.C. § 2241(a)). And, § 2241(c)(3) provides “an
affirmative grant of power to federal courts to issue writs of habeas corpus to prisoners
being held ‘in violation of the Constitution or laws or treaties of the United States.’” Rice
v. White, 660 F.3d 242, 249 (6th Cir. 2011) (quoting 28 U.S.C. § 2241(c)(3)).
In the immigration context, however, Congress has divested district courts of
subject-matter jurisdiction to review orders of removal. Instead, pursuant to the REAL ID
Act of 2005, 8 U.S.C. § 1252, the United States Courts of Appeals have exclusive
jurisdiction to review an order of removal:
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, a petition for review filed with an
appropriate court of appeals in accordance with this section shall be the
sole and exclusive means for judicial review of an order of removal entered
or issued under any provision of this chapter…
8 U.S.C. § 1252(a)(5). Thus, Congress has “eliminated a habeas petition as a means for
judicial review of a removal order,” and the sole method for obtaining review of a removal
order is by filing a petition for review in the appropriate Court of Appeals.6 Jaber v.
Gonzales, 486 F.3d 223, 230 (6th Cir. 2007).
Before review may be sought in the appropriate Court of Appeals, the alien must exhaust “all
administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)(1); Suarez-Diaz v. Holder,
771 F.3d 935, 941 (6th Cir. 2014).
Even when judicial review of an order of removal is possible in the Courts of
Appeals, Congress has carved out certain decisions and actions by the Attorney General
that are insulated from judicial review:
Except as provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, and sections 1361 and 1651 of such title,
no court shall have jurisdiction to hear any cause or claim by or on behalf
of any alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders
against any alien under this chapter.
8 U.S.C. § 1252(g). This provision protects from judicial review “three discrete actions
that the Attorney General may take: [the] ‘decision or action’ to ‘commence proceedings,
adjudicate cases, or execute removal orders.’”
Reno v. American-Arab Anti-
Discrimination Comm. (“AADC”), 525 U.S. 471, 482 (1999). Therefore, the “initiation and
prosecution of various stages in the deportation process are within the Attorney General’s
discretion and not subject to judicial review.” Ene v. Phillips, 99 F. App’x 642, 643 (6th
Cir. 2004) (citing AADC, 525 U.S. at 483).
Another section of the REAL ID Act, described by the Supreme Court as the
“unmistakable zipper clause,” AADC, 525 U.S. at 483, contains an even broader
jurisdictional limitation for review of the legality of final orders of removal:
Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action
taken or proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial review of a final
order under this section. Except as otherwise provided in this section, no
court shall have jurisdiction, by habeas corpus under section 2241 of Title
28 or any other habeas corpus provision, by section 1361 or 1651 of such
title, or by any other provision of law (statutory or nonstatutory), to review
such an order or such questions of law or fact.
8 U.S.C. § 1252(b)(9). “By its terms, [this] provision aims to consolidate all questions of
law and fact that arise from either an action or a proceeding brought in connection with
the removal of an alien.” Hamdi ex rel. Hamdi v. Napolitano, 620 F.3d 615, 626 (6th Cir.
2010) (citing Aguilar v. U.S. Immigration & Customs Enforcement Div. of the Dep’t of
Homeland Sec., 510 F.3d 1, 9 (1st Cir. 2007)).
Thus, “§ 1252(b)(9) ‘is a judicial
channeling provision,” which funnels all questions of law and fact arising from removal
proceedings into the appropriate Court of Appeals, while § 1252(g) is “‘a claim-barring
one.’” Id. (quoting Aguilar, 510 F.3d at 11).
Together, § 1252(a)(5), (b)(9), and (g) establish the exclusive route and the
boundaries for judicial review of orders of removal.7 If an alien properly exhausts his
administrative remedies, he can seek review of the order of removal in the appropriate
Court of Appeals.8 Notwithstanding the limited jurisdiction granted to the circuit courts to
review orders of removal, “§ 1252(a)(2)(D) restores jurisdiction to the circuit courts to
review constitutional claims and questions of law raised in a petition for review of a
removal order.” Serrato-Soto v. Holder, 570 F.3d 686, 688 (6th Cir. 2009). And the same
sort of review applies for reinstated orders of removal. Ovalle-Ruiz v. Holder, 591 F.
App’x 397, 400 (6th Cir. 2014) (the circuit courts “have jurisdiction to review final orders
of removal,” and they “treat reinstatement orders the same as removal orders for
purposes of” jurisdiction). Although a “prior order of removal is reinstated from its original
Despite Petitioners’ claim that “habeas corpus is alive and available,” (Doc. # 13 at 4-5), the Sixth
Circuit has held that the petition-for-review process in the Court of Appeals “provides an adequate and
effective process to review final orders of removal, and thus the elimination of habeas relief does not violate
the Suspension Clause.” Muka v. Baker, 559 F.3d 480, 485 (6th Cir. 2009).
“Additionally, the scope of [the Court of Appeal’s] review is limited to ‘the administrative record on
which the order of removal is based,’ and the standard by which” the Court of Appeals conducts its review
“is as follows: ‘administrative findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Suarez-Diaz, 771 F.3d at 941 (citing 8 U.S.C. § 1252(b)(4)).
date and is not subject to being reopened or reviewed,” the Sixth Circuit has held that “§
1252(a)(2)(D) re-vests the circuit courts with jurisdiction over constitutional claims or
questions of law raised in the context of reinstatement proceedings.” Villegas de la Paz,
640 F.3d at 656.
District courts, however, do not have jurisdiction to review an order of removal or
a reinstated order of removal. Nor do district courts have jurisdiction over “questions of
law and fact that arise from either an action or a proceeding brought in connection with
the removal of an alien.” Hamdi, 620 F.3d at 626. Thus, Petitioners’ § 2241 petition,
which seeks an “order of release from unlawful detention and for the termination of all
proceeding[s] to remove and deport Edgar Morales,” requests relief that this Court is
simply without jurisdiction to grant.
Morales’s detention is not unlawful, and thus, habeas affords him no
Petitioners’ habeas petition also seeks Morales’s release from his alleged
“unlawful detention.” (Doc. # 1 at 7). In their Motion to Dismiss, Respondents argue that
the Court lacks jurisdiction over the unlawful-detention claim because Morales is “no
longer in ICE custody” and further assert that the Petition fails to state a claim upon which
relief can be granted because Morales is detained pursuant to criminal process, and thus
the 90-day removal period has not yet begun. (Doc. # 11 at 7). In response, Petitioners
claim only that the “transfer” of Morales’s “person from one agency to another does not
negate the fact that his liberty has been abridged under [the] authority of federal officers.”
(Doc. # 13 at 3).
As outlined above, “[w]hen an alien has been found to be unlawfully present in the
United States and a final order of removal has been entered, the Government ordinarily
secures the alien’s removal during a subsequent 90-day statutory ‘removal period,’ during
which time the alien normally is held in custody.” Zadvydas, 533 U.S. at 682. Beyond
that initial 90-day period, further detention is permissible if authorized by statute. Id.; 8
U.S.C. § 1231(a)(6).
Despite the elimination of “a habeas petition as a means for judicial review of a
removal order” and the curtailment of district courts’ jurisdiction in the immigration context,
Jaber, 486 F.3d at 230, the United States Supreme Court has held that “§ 2241 habeas
corpus proceedings remain available as a forum for statutory and constitutional
challenges to post-removal-period detention.”
Zadvydas, 533 U.S. at 688.
although post-removal detention can extend beyond the original 90-day period “to a
period reasonably necessary to bring about that alien’s removal from the United States,”
“indefinite detention” is not permitted and “would raise a serious constitutional problem”
under the Fifth Amendment’s Due Process Clause. Id. at 689-90.
But, without determining when the 90-day period commences, the 90-day timeline
and the availability of habeas proceedings mean little. Typically, the “removal period
begins on the latest” of either: (i) the date the order of removal becomes administratively
final, or (ii) the date of the court’s final order if the removal order is judicially reviewed and
removal is stayed during the pendency of such review. 8 U.S.C. § 1321(a)(1)(B)(i)-(ii).
But, if the “alien is detained or confined” pursuant to criminal process, the 90-day removal
period does not begin until the “alien is released from detention or confinement.” 8 U.S.C.
§ 1321(a)(1)(B)(iii). Moreover, when “detention is ordered in a criminal proceeding with
adequate procedural protections,” there is no violation of the Due Process Clause.
Zadvydas, 533 U.S. at 690.
Morales is detained pursuant to criminal process. In fact, on March 12, 2018,
Morales pled guilty and admitted that he had unlawfully re-entered the United States as
a previously removed alien, in violation of 8 U.S.C. § 1326.9 United States v. MoralesChun, No. 2:18-cr-3-DLB-CJS (E.D. Ky. 2017) (Doc. # 28 therein). And on July 19, 2018,
Morales was sentenced to a fifteen-month term of imprisonment. Id. (Doc. # 38 therein).
Accordingly, the 90-day removal period will not commence until Morales is released from
detention or confinement, and Morales’s continued detention does not violate the Due
Process Clause of the Fifth Amendment.
Petitioners’ allegations of an unlawful, warrantless arrest do not change this result.
First, Petitioners’ claim that the warrantless arrest was unlawful “arises” from the
Government’s decision or action to reinstate the 2006 Stipulated Removal Order. And, 8
U.S.C. § 1252(g) deprives this Court of jurisdiction over such a claim. See Kareva v.
United States, 9 F. Supp. 3d 838, 845 (S.D. Ohio 2014). Furthermore, while the “general
rule in a criminal proceeding is that statements and other evidence obtained as a result
of an unlawful, warrantless arrest are suppressible if the link between the evidence and
the unlawful conduct is not too attenuated,” the “mere fact of an illegal arrest has no
bearing on a subsequent deportation proceeding.” I.N.S. v. Lopez-Mendoza, 468 U.S.
1032, 1040-41 (1984). Again, the removal of an alien “is a civil, not criminal, matter.”
Arizona, 567 U.S. at 396. Therefore, Petitioners’ § 2241 petition, which asks the Court to
“release” Morales from his “unlawful detention” and seeks a “declaratory judgment that”
Morales’s “arrest and detention” constitute “violations of the Fourth and Fifth
Although the Sixth Circuit has indicated that the Government “invites judicial scrutiny of any
underlying removal order under § 1326” by charging the alien with the violation of a crime, an element of
which is a valid prior removal order, Morales elected not to challenge his 2006 Stipulated Removal Order
in the criminal matter.
Amendments” (Doc. # 1 at 7), requests relief this Court is without jurisdiction to grant and
fails to state a claim that warrants habeas relief.
Petitioners’ other claims regarding an allegedly unlawful entry and
search of the home do not give rise to habeas relief.
The Petitioners’ habeas petition also seeks a “declaratory judgment that the entry
and search of” Morales and De Leon’s home violated the Fourth Amendment. (Doc. # 1
at 7). Respondents contend that the Petitioners’ requests for declaratory relief must be
dismissed for lack of subject-matter jurisdiction.
(Doc. # 11 at 12).
Respondents claim that Petitioners have alleged nothing more than “past exposure to
illegal conduct … unaccompanied by any continuing present adverse effects,” which is
insufficient to “establish a present case or controversy” and obtain a declaratory
judgment. Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). In response,
Petitioners argue that “[w]ithout a final opinion from this court, Defendants … are apt to
repeat the violations set forth in this action.” (Doc. # 13 at 3).
Respondents’ jurisdictional concerns are well-taken. The Constitution restricts
judicial power “to redress[ing] or prevent[ing] actual or imminently threatened injury to
persons caused by private or official violation of law.” Summers v. Earth Island Inst., 555
U.S. 488, 492 (2009). “The doctrine of standing is one of several doctrines that reflect
this fundamental limitation.” Id. at 493. “It requires federal courts to satisfy themselves
that ‘the plaintiff has alleged such a personal stake in the outcome of the controversy as
to warrant his invocation of federal-court jurisdiction.’” Id. (quoting Warth v. Seldin, 422
U.S. 490, 498 (1975)). Therefore, Petitioners “bear[ ] the burden of showing that [they
have] standing for each type of relief sought.” Id.
“In the context of claims for injunctive or declaratory relief, ‘a plaintiff must show
that he is under threat of suffering “injury in fact” that is concrete and particularized,’ and
that ‘threat must be actual and imminent, not conjectural or hypothetical.’” Sumpter v.
Wayne Cty., 868 F.3d 473, 491 (6th Cir. 2017) (quoting Summers, 555 U.S. at 493).
“‘Past exposure to illegal conduct … unaccompanied by any continuing, present adverse
effects,’ will not suffice to establish ‘a present case or controversy.’” Id. (quoting Lyons,
461 U.S. at 102). “Yet, ‘past exposure to illegal conduct’ is precisely what [Petitioners]
allege here.” Id.
Petitioners claim that immigration officers unlawfully entered and searched their
home. But, the immigration officials that allegedly entered and searched Morales and
DeLeon’s residence without consent did so over seven months ago.
Petitioners lack standing to seek a declaratory judgment, and any injury sustained is now
moot. Although Petitioners attempt to circumvent these justiciability issues by suggesting
that the Defendants “are apt to repeat” the alleged constitutional violations, the
Petitioners’ speculation is insufficient to fit their suit into the exception for cases that are
“capable of repetition, yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 149
(1975). First, “that exception cannot cure lack of standing.” Sumpter, 868 F.3d at 491.
Second, “even in the mootness context, it only applies when ‘there is a reasonable
expectation that the same complaining party will be subject to the same action again.’”
Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)).
While Respondents will
undoubtedly continue to enforce the immigration laws, there is no demonstrated
probability that Respondents intend to return and unlawfully enter Morales and DeLeon’s
residence anytime soon. Therefore, Petitioners have failed to establish that they are
entitled to declaratory relief.10
Moreover, even assuming Petitioners had standing and their claim was not moot,
it is far from clear that the Court would have jurisdiction to entertain—or provide a remedy
for—Petitioners’ claim that the immigration officers’ entry and search of Morales and
DeLeon’s residence violated the Fourth Amendment. “The Real ID Act’s limitation on
district court jurisdiction applies to both direct and indirect challenges to orders of
removal.” Ametaj v. Napolitano, No. 09-cv-13417, 2009 WL 3012403, at *2 (E.D. Mich.
Sept. 17, 2009) (citing Nwankoso v. Dep’t of Homeland Sec., No. 9:06-cv-98, 2006 WL
212368, at *1 (N.D.N.Y. Jan. 25, 2006)). Thus, if the Petition, stripped of legal labels, is
nothing more than a challenge to the decision that Morales be removed from the United
States, this Court does not have jurisdiction to entertain Petitioners’ claims.
The Sixth Circuit, however, has directed courts to “be cautious … not to interpret
broadly jurisdiction-stripping provisions in the absence of explicit congressional intent.”
Hamdi, 620 F.3d at 622. As a result, the Sixth Circuit has held that “a complaint brought
by a U.S. citizen child who asserts his or her own distinct constitutional rights and
separate injury does not fall fairly within the ‘on behalf of any alien’ jurisdictional bar in §
1252(g).” Id. at 623. That said, whether such a complaint states a claim upon which relief
can be granted is an entirely separate matter. Thus, “[e]ven though … § 1252(b)(9) does
not bar” those claims “from proceeding under general federal-question subject-matter
jurisdiction, [the Court] must still consider the district court’s ability to grant the remedy
That officers may have unlawfully entered and searched Morales and DeLeon’s home,
“while presumably affording them standing to claim damages against the individual officers and perhaps
against the” government entity, “does nothing to establish a real and immediate threat” that officers would
again enter and search the residence. Lyons, 461 U.S. at 105.
requested.” Id. at 627-28. If the requested relief “is that the federal district court should
review” the order of removal “and, taking proper account of [the plaintiffs’] constitutional
rights, cancel that removal order,” the Petition fails to state a claim upon which relief can
be granted because the requested relief would “run afoul of current precedent interpreting
§ 1252(b)(9),” which prohibits federal district courts from reviewing and vacating a
removal order. Id. at 629. Therefore, Petitioners’ § 2241 petition, which merely seeks
habeas relief from Morales’s removal order and declaratory relief for past exposure to
illegal conduct, must be dismissed for lack of subject-matter jurisdiction and for failure to
state a claim upon which relief can be granted.11
Accordingly, for the reasons stated herein,
IT IS ORDERED as follows:
Respondent’s Motion to Dismiss (Doc. # 11) is granted;
Petitioners’ Petition for a Writ of Habeas Corpus and a Judicial Order for
Release from Detention (Doc. # 1) is dismissed;
This action is dismissed and stricken from the Court’s active docket.
This 6th day of August, 2018.
Although there are conceivable claims that Petitioners could have brought that would permit them
to seek recompense for alleged constitutional violations—like a Bivens claim perhaps—Petitioners, who
are represented by counsel, chose to style their action as a habeas proceeding and requested only habeas
and declaratory relief. Therefore, despite Petitioners’ request that the Court “liberally construe” their petition
(Doc. # 13 at 2), the Court will not conjure allegations or construct claims on Petitioners’ behalf.
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