Ventura v. Mumford

Filing 9

MEMORANDUM. Signed by Judge James K. Bredar on 9/14/2017. (c/m 9/15/17 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOSE RUBEN VENTURA, A#208-248-630,

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Petitioner

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v.

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WARDEN GARY MUMFORD

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Respondent

Civil Action No. JKB-17-1426

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MEMORANDUM

Petitioner Jose Ruben Ventura, a citizen of Mexico, filed this habeas action pursuant to
28 U.S.C. § 2241, challenging his detention in immigration custody pending completion of
proceedings seeking his removal from this country. Ventura seeks immediate release and argues
the length of his detention surpasses the presumptively reasonable period of time for detention
pending removal under Demore v. Kim, 538 U.S. 510 (2003). ECF 1.
Respondent, the Warden of the Worcester County Detention Center, through counsel,
argues that Ventura has received all the due process and relief to which he is entitled and seeks
dismissal of the petition for lack of subject matter jurisdiction and for failure to state a claim
upon which relief can be granted. ECF 5. Ventura has filed an opposition response to the
motion (ECF 7), and respondent has filed a reply. ECF 8. A hearing is not needed to resolve the
case. See Loc. Rule 105.6 (D. Md. 2016). For reasons stated herein, the petition shall be
DENIED and DISMISSED without prejudice.
Background
The following facts are uncontested.

Ventura entered the United States without

permission and is now the subject of removal proceedings pursuant to § 212(a)(6)(A)(i) of the
Immigration and Nationality Act (INA). In January of 2016, the Circuit Court for Wicomico

County charged VenturA with assault, reckless endangerment, possession of a firearm while
under the age of 21, and related charges. See State of Maryland v. Ventura, Case No. 22-K-16000019 (Cir. Ct. Wico. Co.). ECF 5-1 at pp. 3-9.1 On February 6, 2016, while appearing in
Circuit Court for a preliminary hearing on his criminal charges, Ventura was taken into custody
by Immigration Customs Enforcement (ICE) personnel. ECF 5-1 at p. 2. At his March 9, 2016,
initial bond hearing before an Immigration Judge (IJ), Ventura was ordered to remain in custody
because he did not meet his burden of showing that he is not a danger to the community. ECF 51 at p. 10.
On April 26, 2016, Ventura was transferred to Wicomico County custody to adjudicate
his state criminal charges. ECF 5-1 at p. 9. Ventura pleaded guilty to possession of a firearm
while being under the age of 21 and was sentenced to 14 months in jail. Id. at pp. 3, 6. Because
he was in state custody serving his criminal sentence, his removal proceedings before the
immigration court were administratively closed on May 16, 2016. ECF 5-1 at p. 11.
After serving his state sentence, Ventura was returned to ICE custody on September 12,
2016. ECF 5-1 at p. 12. Ventura has spent nearly one year in immigration custody under 8
U.S.C. § 1226(a), pending the completion of his removal proceedings. Following counseled
proceedings held on March 9, 2016, and September 21, 2016, an IJ denied bond and ordered that
Ventura remain in detention based on his threat to the community.2 ECF 5-1, pp. 11, 14. At a
master calendar hearing on November 30, 2016, Ventura again moved for a bond hearing and
advised the IJ that on November 25, 2016, he had applied for a U-visa3 with the United States

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2

This Memorandum cites to pagination assigned through the Court’s electronic filing system.
Ventura does not seek review of the denial of bond in the context of this action. See ECF 7 at p. 1.

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The U-visa, or United States Citizenship and Immigration Services’ (―USCIS‖) determination of a visa application
request is an administrative process separate from the immigration court’s removal proceedings.

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Citizenship and Immigration Services4 (―USCIS‖). ECF 1 at p. 7; ECF 5-1 at p. 16. The IJ
granted Ventura’s request for continuance of the removal proceedings, but on December 13,
2016, again denied his motion for a bond hearing because Ventura did not show changed
circumstances to warrant re-determination of bond. ECF 5-1 at p. 16.
On May 31, 2017, the IJ ordered Ventura removed from the United States to Mexico.
ECF 5 -1 at p. 17. Ventura’s counseled appeal of the removal order remains pending before the
Board of Immigration Appeal (―BIA‖). ECF 5-1, pp. 19-20, 23-25.
Analysis
Administrative review of a removal order becomes final either (1) upon a determination
by the BIA affirming the IJ’s order of removal, or (2) after expiration of the period during which
the alien is permitted to seek review of an order of removal by the BIA.

See 8 U.S.C.

§ 1101(a)(47)(B). Ventura is exercising the first option and is appealing the IJ’s decision before
the BIA. ECF 1 at p. 7; ECF 1-1 at pp. 10-12. Because his appeal is pending before the BIA, the
removal order is not administratively final.
Insofar as Ventura is raising a constitutional challenge to his continued pre-removal order
of detention, the court shall summarily dismiss the action. Until a final decision is rendered on
Ventura’s removal, his detention is governed by 8 U.S.C. § 1226, which applies to an alien

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Title 8 C.F.R. 214.14, ―Alien victims of certain qualifying criminal activity,‖ provides in part:
(c) Application procedures for U nonimmigrant status -- (1) Filing a petition. USCIS has sole
jurisdiction over all petitions for U nonimmigrant status….
(1)(ii) Petitioners with final orders of removal, deportation, or exclusion. An alien who is the
subject of a final order of removal, deportation, or exclusion is not precluded from filing a
petition for U–1 nonimmigrant status directly with USCIS. The filing of a petition for U–1
nonimmigrant status has no effect on ICE's authority to execute a final order, although the alien
may file a request for a stay of removal [to the ICE, Enforcement and Removal Operations]
pursuant to 8 CFR 241.6(a) and 8 CFR 1241.6(a). If the alien is in detention pending execution
of the final order, the time during which a stay is in effect will extend the period of detention
(under the standards of 8 CFR 241.4) reasonably necessary to brin g about the petitioner's
removal.

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whose removal is sought but not yet determined.

Under § 1226(e), such discretionary

determinations are not subject to federal judicial review. See 8 U.S.C. § 1226(e); Hyacinthe v.
U.S. Attorney General, 215 F. App’x 856, 862 n.7 (11th Cir. 2007) (holding that the court lacks
jurisdiction to review plaintiff’s claims regarding the immigration judge’s denial of bond);
Galvez, 56 F. Supp. 2d at 641 (§ 236e divests this Court of the authority to review discretionary
decisions by the IJ under § 236(a) regarding petitioner’s detention and bond). Having received
all the relief to which he was entitled—individualized bond hearings—his claims are moot. See
Friedman’s Inc. v. Dunlap, 290 F.3d 191, 197 (4th Cir. 2002) (case becomes moot ―when the
claimant receives the relief he or she sought to obtain through the claim‖) (internal citations and
quotations omitted); Watkins v. Napolitano, 2012 WL 4069763 *3 (D. Md. Sept. 14, 2012)
(petition for writ of mandamus is moot because USCIS has already adjudicated plaintiff’s Form
I-130). This court therefore lacks jurisdiction to hear this matter.
Once the removal decision is final, detention during the removal period is governed by 8
U.S.C. § 1231.

However, completion of removal proceedings does not necessarily entitle

Ventura to the relief he seeks, because ICE is permitted to release certain aliens and detain
others, based on mandatory detention language found in 8 U.S.C. § 1226(c). In Demore v. Kim,
538 U.S. 510 (2003), the Supreme Court found that the mandatory detention provision of an
alien under § 1226(c) was a constitutionally permissible part of the removal process for the
―limited period‖ necessary to complete the removal proceedings. Id. at 531. Demore generally
upheld the constitutionality of 8 U.S.C. § 1226, with the caveat that the Attorney General may
detain an alien without conducting an individualized bail hearing where the alien concedes he is
removable within the meaning of 8 U.S.C. § 1226(c)(1)(B). See Demore, 538 U.S. at 522-23,
531.

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The Demore Court distinguished Zadvydas v. Davis, 533 U.S. 678 (2001), a case in
which the Supreme Court held that an alien subject to a final order of removal could not be
indefinitely detained pursuant to 8 U.S.C. § 1231, on the grounds that (1) an alien detained for
the limited period necessary to effect a removal pursuant to § 1226(c) was not detained
indefinitely; and (2) mandatory detention pursuant to 8 U.S.C. § 1226(c) was generally of a
much shorter duration than post-removal–period detention pursuant to § 1231. See Demore, 538
U.S. at 530.
Since the issuance of Demore, courts have looked to the length and duration of an alien’s
mandatory detention under § 1226(c). For example, in Tijani v. Willis, 430 F.3d 1241 (9th Cir.
2005), the Ninth Circuit concluded that § 1226(c) applied to ―expedited‖ removal proceedings
and found that mandatory detention for a period of two years and four months was not
―expeditious.‖

See Tijani, 430 F.3d at 1242; see also Rodriguez v. Robbins, 715 F.3d 1127,

1137-38 (9th Cir. 2013). The Ninth Circuit also concluded that the length of the detention must
be for a reasonable period and the alien must provide good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future.

See Nadarajah v.

Gonzales, 443 F.3d 1069, 1079 (9th Cir. 2006).
At the time this petition was filed, Ventura had received three bond hearings and had
been held in ICE custody for nearly a year, pending completion of removal proceedings. The
court finds no constitutional violation associated with his detention. For these reasons the
28 U.S.C. § 2241 petition shall be dismissed with prejudice. A separate order follows.

Date: September 14, 2017

____________/s/______________
James K. Bredar
United States District Judge

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