Pacheco Santos v. Bounds

Filing 11

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 4/11/2018. (kns, Deputy Clerk)(c/m 4/12/18)

t.

_FIlED
_LOGGED

-ENTERED
_RECEIVED

UNITED STATES DISTRICT COURT
THE DISTRICT OF MARYLAND

APR 12 2018
ClERK, AT GREENB

DI_~U.S. D/S"rn EtT

ANGEL DE ,JESUS PACHECO
A#070-0 1-1964
Petitioner,

SANTOS,

By

*

W'"/crOF~gRr

*

* CIVIL ACTION NO. PWG-17-2895

v.
DONNA BOUNDS, WARDEN
Respondent.

*
*
*****
MEMORANDUM

On September 29, 2017, self-represented

OPINION
Petitioner Angel De Jesus Pacheco Santos

("Pacheco Santos") tiled a habeas corpus petition pursuant to 28 U.S.C.

S 2241.

ECF NO.1. He

claims that he is improperly detained by the Department of Homeland Security ("DHS").
Pacheco Santos states that he was denied bail and found to be a "'danger to society" based upon
his traffic infractions

1

and a November 22, 2016 state circuit court conviction for assault.

He

argues that he was "unfairly asked to remember exact dates and events that happened over 20
years ago and was badly advised and represented by [his] attorney."

2

Pet. 7.

Pacheco Santos

requests that his custody review be reopened and that he be granted bail. ld.
Respondent filed a motion to dismiss and response to the Court's show cause order, ECF
NO.5, along with cleven exhibits containing Pacheco Santos's legal records, ECF Nos. 5-1 - 511.

The records establish that, at an April 17, 2017, proceeding Pacheco Santos tiled two

applications: (1) an application for suspension of deportation or special rule cancellation of

Pacheco Santos was convicted of driving under the influence (DUI) in November of2016 in the
Circuit Court for Anne Arundel County. State Cl. Docs., ECF No. 1-2.
2 All citations reference electronic pagination.
1

removal, which was supplemented on July 5, 2017; and (2) an application for cancellation of
removal and adjustment of status for certain non-permanent residents. Recs., ECF No. 5-9, at 337. An individual removal hearing was held and on July 24, 2017, Immigration Judge Elizabeth
Kessler denied both applications and ordered Pacheco Santos removed to EI Salvador.

Recs.,

ECF No. 5-10, at 3-4. Santos appealed the judge's decision to the Board of Immigration Appeals
("BlA") on August 25, 2017. Recs., ECF No.5-II,

at 1-4.

On January 25,2018, Respondent filed anothcr motion to dismiss, arguing the petition is
moot.3

ECF NO.8.

Respondent attached the BlA's January 18, 2018 affirmance of the

immigration judge's removal order and dismissal of Santos's appeal. ECF NO.8-I.

Respondent

argues that, as Santos is no longer in pre-removal-order

9

custody under 8 U.S.C.

1226 and

subject to bond or bail review hearings, his claim is moot and "his detention is now governed by
8 U.S.c.

9

1231, which starts a new period of dctention."

Resp.'s Mot. 3.

Analysis
Article II! of the Constitution
controversies."
Thc

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (citations omitted).

"case-or-controversy"

proceedings.

limits the judicial power to "actual, ongoll1g cases or

requirement

subsists

through

all

stages

of

federal judicial

Id. Thus, an actual controversy must exist "at all stages of review, not merely at

the time the complaint is filed."

Arizonans for Official English v. Arizona, 520 U.S. 43, 67

On February 5, 2018, 1 issued a letter order which dismissed Respondent's original motion to
dismiss as moot. L1r. Order, ECF No. 10. Further, pursuant to the dictates of Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), on January 30, 2018, the Clerk of Court informed Santos
that Respondent had filed a motion to dismiss; that he had seventeen days in which to file a
written opposition to the motion; and that if Santos failed to respond, his petition could be
dismissed without further notice. ECF NO.9. My Letter Order also directed Santos to respond
to the new motion to dismiss as explained in the Clerk's January 30, 2018 letter. L1r. Order.
Although twice placed on notice of his right to do so, Pacheco Santos has not filed a response.

3

2

(1997) (internal quotation marks and citations omitted).

A case becomes moot when the issues

presented are "no longer 'live' or the parties lack a legally cognizable interest in the outcome."
Cily of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quoting COl/nly of Los Angeles v. Davis,
440 U.S. 625, 631 (J 979)) (alterations in original).

Plainly, there has been a change in Pacheco

Santos's immigration custody status in that he is no longer held in pre-removal custody, and his
original due process claim regarding his custodial status under 8 U.S.C.

S

1226 is now moot.

Respondent's motion to dismiss IS GRANTED.
Insofar as Pacheco Santos may challenge, under
continued detention following the January

S

1231, the reasonableness

10, 2018 removal order, Respondent

of his

accurately

summarized the relevant case law from Zadvydas v. Davis, 533 U.S. 678 (2001):
In Zadvydas, the Supreme Court interpreted S 1231(a)(6) to limit post-removalperiod detention to a period "reasonably necessary to bring about the alien's
removal from the United States." ld. at 689. The Supreme Court held that it was
presumptively reasonable for the government to detain an alien for six months. ld.
at 701. Beyond the six months, if removal is no longer reasonably foreseeable, the
statute does not authorize continued detention. ld. The Supreme Court made clear
that after the expiration of the presumptively reasonable six-month detention
period, the alien, not the government, bears the burden to show that his removal is
no longer reasonably foreseeable. ld. at 701. If the alien carries this burden, then
the government must provide evidence to rebut that showing - such that if it can
show there is a significant likelihood of removal in the reasonably foreseeable
future, the government may continue to detain the alien. Id. at 700-0 I.
Resp's Mot. 5-6. Because this presumptively reasonable six-month period has not expired, any
such challenge would be premature.
287 FJd

See Zadvydas, 533 U.S. at 700-0 I; Akinwale v. Ashcroji,

1050, 1052 (J lth Cir. 2002) (six-month

period of post-removal-order

recognized by Supreme Court must have expired at the time the
to state a claim under Zadvydas).

S 2241

detention

petition is filed in order

Thus, Pacheco Santos's current detention violates ncither

procedural nor substantive due process.
3

Conclusion
Pacheco Santos's

challenge to his pre-removal

Respondent's motion to dismiss shall be granted.4

detention has been rendered moot.

The Pe . 'on or writ of habeas corpus shall

otherwise be dismissed. A separate Order follows.

Date:

..4G...u-d, -=....::'k..•.....•
(~'----

__

To the extent that Pacheco Santos wishes to attack his post-removal order detention, he may file
a future S 2241 petition.
4

4