John Doe v. Smith et al

Filing 41

District Judge Leo T. Sorokin: ORDER entered denying 14 Respondent's Motion to Dismiss; terminating 26 Petitioner's Motion to Dismiss. The parties shall file a joint status report within seven days (10/26/2017) of this Order: 1) advising of the status of the pending appeal of the IJ's decision in Doe's case, and of any changes to Doe's custody status; and 2) proposing an expedited schedule to govern proceedings in this Court. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN DOE,
Petitioner,
v.
YOLANDA SMITH et al.,
Respondents.

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Civil No. 17-11231-LTS

ORDER ON MOTION TO DISMISS (DOC. NO. 14)
October 19, 2017
SOROKIN, J.
John Doe,1 a citizen of Kenya presently detained at the Suffolk County House of
Corrections in Boston, Massachusetts, has filed a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. Doc. No. 1. The respondents seeks dismissal of the petition, arguing this
Court lacks jurisdiction to entertain Doe’s claims. Doc. Nos. 14, 15. Doe has opposed the
respondents’ motion, urging that his petition articulates constitutional challenges to his detention
which are properly subject to federal habeas review.2 Doc. No. 33. Because Doe is correct, the
motion to dismiss is DENIED.

At the petitioner’s request, the Court has permitted the petitioner to proceed in this action under
a pseudonym. Doc. Nos. 3; Doc. No. 15 at 5 n.3; Doc. No. 17.
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After the petition was filed, the Court allowed Doe’s motion seeking appointment of counsel.
Doc. No. 22. Before he learned that pro bono counsel had entered an appearance, Doe filed
documents responding to the motion to dismiss. Doc. Nos. 26, 27, 28. To the extent Doe’s pro
se filings related to the motion to dismiss were styled as a motion, Doc. No. 26, the Clerk is
directed to administratively terminate them. Because he is now represented by counsel, who had
the opportunity to review any arguments Doe made in his pro se filings (which were accessible
to counsel via the electronic docket in this case), the Court has considered only the counseled
memorandum in opposition to the motion to dismiss. Doc. No. 33.
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I.

BACKGROUND
Doe came to the United States from Kenya as a high-school student, then returned in

2008 to attend Yale University. Doc. No. 1 at ¶ 10. He went back to Kenya in 2010 and
subsequently became involved in a project seeking justice for post-election violence victims. Id.
He resumed his studies at Yale in 2013, graduated in 2014, and has remained in the United States
since then. Id.
In 2009 and 2014, Doe was arrested and faced criminal charges, but neither arrest
resulted in a conviction. Id. ¶ 11. In November 2016, Doe was charged in New Hampshire with
possessing marijuana and driving without a valid license. Id. He was released by the New
Hampshire courts on bond, and those charges remain pending. Id.
On December 19, 2016, Doe was taken into custody by Immigration and Customs
Enforcement (“ICE”). Id. ¶ 9. He was denied bond on January 11, 2017, after an Immigration
Judge (“IJ”) found he was a danger to the community. Doc. No. 15-1 at 5. Doe appealed. Id. at
3. On March 16, 2017, the IJ denied Doe’s application for asylum but granted withholding of
removal on two grounds – pursuant to section 241(b)(3) of the Immigration and Naturalization
Act (“INA”), and under the Convention Against Torture (“CAT”).3 Doc. No. 33-1 at 2. The
Department of Homeland Security (“DHS”) appealed. Doc. No. 33-4. On May 10, 2017,
despite the IJ’s ruling in Doe’s favor as to the removal question, the Board of Immigration
Appeals (“BIA”) affirmed the IJ’s order denying bond, reasoning that Doe’s “lengthy record of
arrests, including for the violent offense of assault, demonstrates a disregard for the laws of the
United States.” Doc. No. 15-1 at 3.

Doe asserts he lost loved ones to post-election violence in Kenya, and later was arrested and
tortured himself for his activism in support of victims of such violence. Doc. No. 1 at ¶ 10.
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On June 26, 2017, Doe placed his pro se habeas petition in the prison mailing system,
Doc. No. 1 at 14, and it was received and docketed by this Court a week later. His petition
includes substantive and procedural due process claims arising under the United States
Constitution. Id. at 11-12. He seeks release from custody and injunctive relief. Id. at 13.
On July 7, 2017, the DHS asked the BIA to expedite the appeal in Doe’s case. See Doc.
No. 15-2 (seeking an expedited decision “[d]ue to [Doe’s] continuing detention at government
expense and the pending [federal habeas] litigation concerning [Doe’s] continued detention”).
Two weeks later, the DHS filed a motion requesting “a bond redetermination” for Doe, stating he
was “eligible for a custody redetermination hearing,” presumably in light of the IJ’s ruling in his
favor. Doc. No. 33-7 at 3. According to the DHS, such a hearing had been requested by Doe
after the IJ’s March ruling, but had not been scheduled previously because, “[t]hrough
inadvertence,” DHS had filed a form “incorrectly indicat[ing] that [Doe] had been released from
ICE custody.” Id.
In August 2017, the BIA ordered both parties to submit appellate briefs by September 13,
2017. Doc. No. 33-6. Also in August, the IJ held a custody redetermination hearing. Doc. No.
33 at 7; Doc. No. 33-8. On September 11, 2017, the IJ again denied bond, explaining:
While the Court recognizes that [Doe] has been detained for a considerable amount
of time, the duration of detention is not a factor that the Court may consider when
determining if [Doe] should be released from custody. As the Court is unable to
find that [Doe] does not pose a danger to the community, his request for release
from custody will be denied.
Doc. No. 36-1 at 5. The IJ’s decision reflects that, in both of his bond hearings, Doe bore the
burden of proving he was not a danger to the community. Id. at 2-3.
Both parties now have submitted appellate briefs to the BIA, Doc. No. 40 at 5; nothing in
the record or the law sheds light on when the appeal might be argued or resolved. Should DHS

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prevail, however, the matter would be remanded to the IJ for further proceedings, during which
Doe alleges he is likely to remain detained.
The respondents have moved to dismiss Doe’s federal habeas petition, arguing he has
failed to state a claim that is within this Court’s jurisdiction to consider. Doc. No. 14. With pro
bono counsel appointed, Doe opposed the motion. Doc. No. 33. Reply and sur-reply briefs have
been filed, Doc. Nos. 36, 40, and the motion is now ripe for resolution.
II.

DISCUSSION
The respondents characterize Doe’s petition as seeking “review of the IJ’s individual

discretionary custody determination and/or the BIA’s affirmance of the IJ ‘no bond’ order,” and
they assert that such determinations are “judicially unreviewable.” Doc. No. 15 at 4. This
argument relies upon 8 U.S.C. § 1226(e), which states: “The Attorney General’s discretionary
judgment regarding the application of this section shall not be subject to review. No court may
set aside any action or decision by the Attorney General under this section regarding the
detention or release of any alien or the grant, revocation, or denial of bond or parole.”
The respondents are correct that, under § 1226(e), this Court would lack jurisdiction to
review the merits of the IJ’s bond decision, or the BIA’s affirmance thereof. But even if parts of
Doe’s petition appear to request such review, it does not stop there. Doe specifically invokes his
procedural and substantive due process rights. Doc. No. 1 at ¶¶ 21-27. Indeed, the facts set forth
in the petition, as well as the legal development of the claims provided in Doe’s briefing, plainly
assert two due process challenges, both of which are properly presented in a § 2241 petition and
are within this Court’s jurisdiction to consider. See Carranza v. I.N.S., 277 F.3d 65, 71 (1st Cir.
2002) (“Federal courts . . . retain subject matter jurisdiction over habeas petitions brought by

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aliens facing removal to the extent that those petitions are based on colorable claims . . . that an
alien’s statutory or constitutional rights have been violated.”).
First, Doe alleges he “has not received a constitutionally adequate bond hearing.” Doc.
No. 1 at ¶ 13. Specifically, as to his first bond determination, he claims he “was prevented from
presenting his case for a full and fair bond hearing,” “was not provided with the evidence” upon
which the IJ relied, and was not permitted to speak or present his own evidence. Id. Although
some of Doe’s initial allegations may be less pertinent now that he has had a second bond
proceeding, his submissions raise at least one lingering due process challenge to the adequacy of
both bond hearings – the allocation of the burden of proof. His petition reflects, and the written
bond decisions of the IJ and the BIA confirm, that the IJ placed the burden of proof on Doe to
show “that he was neither a danger to the community nor a flight risk.” Id.; see Doc. No. 15-1 at
3 (reflecting BIA’s view on appeal of first bond decision that the IJ had “properly determined
that [Doe] did not meet his burden to establish that he does not pose a danger to the
community”); Doc. No.36-1 at 2-3 (reflecting IJ’s view that Doe “did not prove that he is not a
danger to the community” during his first bond hearing, and placing burden on Doe in second
hearing to “establish to the Court’s satisfaction that he does not pose a danger to persons or
property, is not a threat to national security, and does not pose a flight risk”).
This Court is empowered, through federal habeas review, to consider whether the IJ’s
bond determinations were the result of a constitutionally infirm process, either because Doe was
denied adequate notice and an opportunity to be heard, or because the burden of proof imposed
by the IJ failed to comport with due process. See Doc. No. 40 at 9 (urging that the Court has
“equitable habeas power” to award relief including an order that Doe receive a bond hearing
“employing a burden of proof that passes constitutional muster”); Doc. No. 1 at ¶¶ 16, 18 (citing

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cases imposing burden on government at detention proceedings, and asserting hearing violates
due process if burden is placed on petitioner); cf. Neziri v. Johnson, 187 F. Supp. 3d 211, 216-17
n.6 (D. Mass. 2016) (finding discretionary detention pending removal proceedings was
“unreasonably prolonged,” and ordering bond hearing with burden of proof on DHS).
Second, Doe asserts more generally that his detention, which now has lasted ten months,
has become unreasonably prolonged, has no foreseeable end, and therefore violates his due
process rights. Doc. No. 1 at ¶¶ 22-24. In making this claim, Doe is not challenging the merits
of the IJ’s bond determination or the DHS appeal of the decision withholding removal. “Rather,
he is making a constitutional claim based on the length of his detention.” Geegbae v. McDonald,
No. 10-cv-10852, 2010 WL 4292734, at *2 (D. Mass. Nov. 1, 2010). Other sessions of this
Court have entertained – and sometimes found meritorious – such constitutional claims in similar
circumstances. See Neziri, 187 F. Supp. 3d at 217 (granting in part federal habeas petition based
on due process violation arising from prolonged detention of Albanian citizen during pendency
of removal proceedings); Geegbae, 2010 WL 4292734, at *1-2 (granting federal habeas petition
based on due process violation arising from prolonged detention of Liberian citizen during DHS
appeal of IJ ruling in petitioner’s favor); Sengkeo v. Horgan, 670 F. Supp. 2d 116, (D. Mass.
2009) (granting federal habeas petition by Laotian citizen challenging length of detention after
BIA reversed IJ’s grant of asylum and remanded for consideration of an alternative basis for
withholding removal).
Moreover, Doe bases his claims on decisions of the Supreme Court and the First Circuit
regarding the constitutional limits governing detention of non-citizens facing removal
proceedings. See Demore v. Kim, 538 U.S. 510 (2003) (holding “deportable criminal aliens”
may “be detained for the brief period necessary for their removal proceedings,” which “in the

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majority of cases . . . lasts for less than . . . 90 days” and, if an appeal to the BIA is filed, lasts
“an average of four months” longer); Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (holding noncitizens awaiting removal after final orders of removal have entered may constitutionally be
detained only for a “reasonable time” and not indefinitely); Reid v. Donelan, 819 F.3d 486 (1st
Cir. 2016) (finding mandatory detention of criminal aliens under 8 U.S.C. § 1226(c) is
unconstitutional if its duration “exceeds reasonable bounds,” describing factors to consider in
assessing reasonableness, and finding fourteen-month detention unreasonable). This Court may
consider, pursuant to § 2241, whether the duration of Doe’s detention exceeds constitutional
bounds. See Sengkeo, 670 F. Supp. 2d at 121 (“The law is clear that the Court has jurisdiction to
consider [the petitioner’s] habeas petition challenging the length of her pre-removal detention.”).
In sum, Doe’s petition plainly presents two federal constitutional claims. This Court is
empowered – and, indeed, required – to hear them.
III.

CONCLUSION
For the foregoing reasons, the respondent’s motion to dismiss (Doc. No. 14) is DENIED.

Doe’s pro se “Traverse to Motion to Dismiss” (Doc. No. 26) shall be TERMINATED.
The parties shall file a joint status report within seven days of this Order: 1) advising the
Court of the status of the pending appeal of the IJ’s decision in Doe’s case, and of any changes to
Doe’s custody status; and 2) proposing an expedited schedule to govern further proceedings in
this Court.
SO ORDERED.
/s/ Leo T. Sorokin
United States District Judge

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