Rodriguez-Guardado v. Smith
Judge Richard G. Stearns: ORDER entered finding as moot 16 Motion to Dismiss for Lack of Jurisdiction in light of the Amended Motion; granting 18 Motion to Dismiss for Lack of Jurisdiction. "For the foregoing reasons, the governments motion to dismiss is ALLOWED. The Clerk will enter the order of dismissal and close the case." (RGS, int2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-10300-RGS
YOLANDA SMITH 1
MEMORANDUM AND ORDER
ON THE GOVERNMENT’S MOTION TO DISMISS
September 22, 2017
By way of a petition for writ of habeas corpus, Francisco RodriguezGuardado (Rodriguez) challenges the legality of his detention 2 since July 13,
2017, by Immigration and Customs Enforcement (ICE). The government
Respondent is the superintendent of the Suffolk County House of
Correction, where petitioner is currently detained.
Under the Real ID Act of 2005, “[n]otwithstanding any other
provision of law (statutory or nonstatutory) . . . 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 Act . . . .” 8 U.S.C. § 1252(a)(5).
A district court retains jurisdiction over “‘pure’ habeas petitions” that
challenge an alien’s detention independent of removal. Parinejad v. U.S.
Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec., 501 F. Supp.
2d 280, 282 (D. Mass. 2007); see also Hernandez v. Gonzales, 424 F.3d 42,
42-43 (1st Cir. 2005).
moves to dismiss the petition. In reaching its decision, the court has carefully
considered the parties’ briefs, petitioner’s motion for a temporary restraining
order (TRO) (including the arguments presented at the TRO hearing), as well
as the amicus brief filed by the American Civil Liberties Union of
Rodriguez, a citizen of El Salvador, illegally entered the United States
in 2006. In 2011, the Bureau of Immigration Appeals (BIA) affirmed the
denial of Rodriguez’s application for asylum, and issued a final order of
removal. Rodriguez did not seek further review from the Tenth Circuit Court
of Appeals. From 2012 until 2016, ICE four times granted a one-year
discretionary stay of deportation. Rodriguez’s most recent one-year stay
expired in March of 2017. In June of 2017, ICE denied a fifth request for a
discretionary stay and ordered Rodriguez to present himself at ICE’s Boston
office on July 13, 2017, with a prepaid plane ticket to El Salvador in hand.
On July 11, 2017, Rodriguez filed motions with the BIA seeking to reopen his
removal proceeding and for an emergency stay of deportation. On July 13,
2017, when Rodriguez reported to the ICE office with a plane ticket showing
a September departure date, he was taken into custody. Later that same day,
Rodriguez filed the instant habeas petition with this court.
thereafter, the BIA allowed Rodriguez’s motion to stay removal pending the
resolution of his motion to reopen.
As of the date of this decision,
Rodriguez’s motion to reopen is still pending before the BIA and he remains
in ICE custody.
The government avers, without opposition, that ICE detained
Rodriguez on July 13, 2017, with the intent of executing the final order of
removal. But for judicial intervention, ICE would have transferred petitioner
out of the District of Massachusetts on July 17, 2017, for removal to El
Salvador three days later, on July 20, 2017. See Marfissi Decl., Dkt. # 17-1.
The government contends that Rodriguez’s detention is authorized by 8
U.S.C. § 1231(a)(2), which mandates that “the Attorney General shall detain
the alien” for 90 days (the so-called “removal period”) to effectuate a removal
Petitioner and amicus argue that § 1231(a)(2) does not authorize
petitioner’s current detention because the removal period has long ago
expired. Section 1231(a)(1)(B) defines the “removal period” to begin on the
latest of three discrete events. The only event applicable to Rodriguez is
“[t]he date the order of removal becomes administratively final.” 3 8 U.S.C.
The other two events for determining the beginning of the “removal
§ 1231(a)(1)(B)(i). Rodriguez’s order of removal became administratively
final on July 18, 2011. According to petitioner and amicus, the 90-day
removal period, computed from that date, expired in October of 2011.
Petitioner also asserts that the presumptively reasonable detention window
of six months, as delineated by the Supreme Court in Zadvydas v. Davis, 533
U.S. 678, 700-701 (2001), has also lapsed.
The government contends that, even if the start of the removal period
is properly dated to July of 2011, 4 § 1231 authorized Rodriguez’s continued
detention. Section 1231(a)(1)(C) expands the removal period beyond 90 days
“if the alien fails or refuses to make timely application in good faith for travel
or other documents necessary to the alien’s departure or conspires or acts to
(ii) If the removal order is judicially reviewed and if a court
orders a stay of the removal of the alien, the date of the court’s
(iii) If the alien is detained or confined (except under an
immigration process), the date the alien is released from
detention or confinement.
8 U.S.C. § 1231(a)(1)(B)(ii)-(iii). Petitioner did not seek judicial review of his
removal order, nor has he been detained other than in an immigration
The government suggests that because § 1231(a)(1)(B) is silent as to
the effect of a discretionary administrative stay on the start of the removal
period, the court should defer to ICE’s interpretation of the statute that the
discretionary stay tolls the start of the removal period. See Garcia v.
Sessions, 856 F.3d 27, 39 (1st Cir. 2017) (deferring to the BIA’s reasonable
interpretation of ambiguities in an immigration statute).
prevent the alien’s removal subject to an order of removal.” (Emphasis
added). Seeking and securing a discretionary stay unquestionably prevents
Petitioner and amicus rely on Arevalo v. Ashcroft, 260 F. Supp. 2d 347
(D. Mass. 2003),5 for the proposition that only acts tainted by “bad faith,
dishonesty, or improper behavior” come within the ambit of § 1231(a)(1)(C).
Id. at 349. The court in Arevalo, applying the interpretive canon of noscitur
a sociis – a word is known by the company it keeps – reasoned that because
“acts” follows immediately after the word “conspires,” a term connoting
secret, improper, or unlawful action, the term “acts” necessarily
encompasses only steps taken in bad faith. See id. If that premise is
accepted, and given that Rodriguez pursued relief legitimately and in good
faith, it follows that the discretionary stays did not operate to extend his
This court respectfully disagrees with Arevalo’s syllogism.
disjunctive juxtaposition of “conspires or acts” more naturally captures a
distinction between collusive conduct and personal action. To the extent that
the use of the word “conspires” suggests an illegitimate purpose, it connotes
Arevalo was subsequently vacated on mootness grounds. 386 F.3d
19 (1st Cir. 2004).
a collaborative effort to thwart the execution of a removal order, the stated
purpose of § 1231 (entitled “Detention and removal of aliens ordered
removed”). It is impossible to overlook that Congress, in setting out the first
conditional of the subsection, incorporated a good faith requirement (“fails
or refuses to make timely application in good faith”), and could have easily
inserted a like qualification in the second conditional (“conspires or acts in
bad faith”), but did not. “We do not lightly assume that Congress has omitted
from its adopted text requirements that it nonetheless intends to apply, and
our reluctance is even greater when Congress has shown elsewhere in the
same statute that it knows how to make such a requirement manifest.” Jama
v. Immigration & Customs Enf’t, 543 U.S. 335, 341 (2005). Consistent with
this common-sense reading of § 1231(a)(1)(C), numerous courts, including
the First Circuit, have found delays attributable to an alien’s legal challenges
to a removal order to extend the 90-day removal period. See, e.g., Lawrence
v. Gonzales, 446 F.3d 221, 227 (1st Cir. 2006) (“Lawrence’s continued
detention here occurred pursuant to his own procuring of stays incident to
his legal challenges to the removal order.”); Roach v. Holder, 344 Fed. App’x.
945, 947 (5th Cir. 2009) (“[R]epeated filings with the BIA constituted acts to
prevent  removal.”); Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th
Cir. 2002) (a stay of deportation pending judicial review extended the
removal period). 6
Moreover, even assuming that the “removal period” had for some
reason expired, the government plausibly maintains that it has statutory
authority to hold Rodriguez under 8 U.S.C. § 1231(a)(6).
provides that “[a]n alien ordered removed who is inadmissible under [8
U.S.C.] section 1182 . . . may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph (3).” 8
U.S.C. § 1231(a)(6). Rodriguez does not dispute that that he has been
ordered removed and is therefore inadmissible under § 1182(a)(6)(A)(i).
Petitioner and amicus fault ICE, however, for failing to follow its own
regulations providing for a post-removal-period custody determination; see
8 C.F.R. § 241.4 (e)-(f) (listing the criteria for post-removal period release),
and contend that Rodriguez would qualify to be released with conditions if
such a custody determination were made. 7 But the regulations do not require
The court also agrees with the government that petitioner’s preferred
reading of the statute would lead to an incongruent (and perhaps
unintended) result. If the government in granting discretionary relief to an
alien foreswears its ability to later detain an alien as part of the removal
mechanism, then the government would have every incentive to abstain from
any favorable exercise of discretion.
The court has no cause to doubt the representation that Rodriguez is
an outstanding member of his community and a good family man.
a determination hearing when, as here, the execution of a removal order is
impending. See 8 C.F.R. § 241.4(g)(4) (“The Service will not conduct a
custody review under these procedures when the Service notifies the alien
that it is ready to execute an order of removal.”). The fact that petitioner’s
motion to reopen the removal proceedings remains pending does not lead to
a different result. See 8 C.F.R. § 241.4(b)(1) (“An alien who has filed a motion
to reopen immigration proceedings for consideration of relief from removal
. . . shall remain subject to the provisions of this section unless the motion to
reopen is granted.”).
Nor is there any traction to Rodriguez’s argument that his continued
detention without a release determination amounts to a denial of due
process. The Supreme Court in Zadvydas fixed a presumptively reasonable
removal detention duration of six months. 8
533 U.S. at 700-701.
petitioner has been detained for approximately two months as of this date,
the length of his detention does not offend due process.
Finally, petitioner presses an ineffective assistance of counsel (IAC)
claim. Petitioner faults his prior attorneys for failing to inform him of the S-
Petitioner’s contention that the Zadvydas clock runs while he is not
in custody “defies common sense.” Chen v. Holder, 783 F. Supp. 2d 1183,
1192 (N.D. Ala. 2011).
visa program (explained below) when, in 2006, he provided material
assistance to law enforcement, or subsequently when he applied for asylum,
and then finally, when he sought BIA review of the denial of his asylum
application. Assuming without deciding that this court has jurisdiction,9 I
agree with the government that petitioner has not pled a viable IAC claim.
Effective assistance of counsel in the usual sense is a right conferred by
the Sixth Amendment on defendants in criminal proceedings.
While aliens have no constitutional right to counsel in removal
proceedings, they are entitled to due process. See Lozada v.
INS, 857 F.2d 10, 13 (1st Cir. 1988). Thus, ineffective assistance
of counsel in a removal proceeding may constitute a denial of due
process if (and to the extent that) the proceeding is thereby
rendered fundamentally unfair. Id.
The REAL ID Act stripped district courts of jurisdiction to review “by
habeas corpus,” “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.” 8 U.S.C. § 1252(b)(9). The government contends that, because the
relief ultimately sought by petitioner through his IAC claim is the
nullification of his removal order (the execution of which authorizes his
detention), this court lacks jurisdiction to review the claim. Petitioner
counters that because the IAC claim arose prior to his removal proceedings,
it is independent of the removal order. See, e.g., Singh v. Gonzalez, 499 F.3d
969, 979 (9th Cir. 2007) (district court has jurisdiction over “narrow” IAC
claim resulting from attorney’s failure to timely file an appeal of a removal
order because petitioner’s only remedy would be “nothing more than”
another appeals period).
Guerrero-Santana v. Gonzales, 499 F.3d 90, 93 (1st Cir. 2007). Fatal,
however, to petitioner’s IAC claim is the long-accepted rule that “[d]ue
process rights do not accrue to discretionary forms of relief.” Ticoalu v.
Gonzales, 472 F.3d 8, 11 (1st Cir. 2006). In Ticoalu, the First Circuit held
that the petitioner did not state a cognizable due process claim with respect
to the one-year time constraint to apply for asylum because asylum is a form
of discretionary relief. Id. The same is true for the grant of an S-visa.
The so-called “S visa” derives from 8 U.S.C. § 1101(a)(15)(S),
which gives the Attorney General authority to grant a
nonimmigrant visa to a person “in possession of critical reliable
information concerning a criminal organization or enterprise . . .
[who] . . . has supplied such information to Federal or State law
enforcement authorities or a Federal or State court; and whose
presence in the United States the Attorney General determines is
essential to the success of an authorized criminal investigation
. . . .” . . . A request for an S visa “may only be filed by a federal or
state [law enforcement agency]” through the filing of a Form I854, which is then submitted for discretionary approval by the
proper government officers as detailed in 8 C.F.R. § 214.2(t)(4).
Morgan v. Gonzales, 495 F.3d 1084, 1088-1089 (9th Cir. 2007) (emphasis
added). That ends the due process-IAC discussion. 10
The government also argues that petitioner has not adequately
alleged facts to infer that he is reasonably likely to succeed on the prejudice
prong of the IAC claim. See Wang v. Ashcroft, 367 F.3d 25, 28 (1st Cir. 2004)
(“[I]n order to demonstrate ineffective assistance of counsel, the alien client
must demonstrate that counsel’s action or inaction rendered the
immigration proceeding ‘so fundamentally unfair that the alien was
prevented from reasonably presenting his case,’ and that there is a
reasonable probability that counsel’s conduct resulted in actual prejudice to
Because petitioner has not identified a procedural deprivation, he
cannot sustain a due process claim. 11
the case.” (citation omitted)). Petitioner does not allege that the law
enforcement agency with whom he cooperated would have agreed to seek an
S-visa on his behalf. In any event, only 250 S-visas may be issued in a fiscal
year, 8 U.S.C. § 1184(k)(1), making it an exceedingly rare form of relief. See
1 Immigr. Law and Defense § 3:129 (29 S-visas were approved in fiscal year
2013). The government additionally seeks the dismissal of the IAC claim
because Rodriguez did not comply with the procedural requirements set out
in Matter of Lozada, 19 I & N Dec. 637, 639 (BIA 1988) (“A motion based
upon a claim of ineffective assistance of counsel should be supported by an
affidavit of the allegedly aggrieved respondent attesting to the relevant
facts.”). See Lawrence, 446 F.3d at 226 (declining to review an IAC claim for
failure to comply with Lozada).
Petitioner relies on Hamama v. Adducci (multiple opinions) for the
further argument that ICE’s attempt to detain and expeditiously remove him
violates the Suspension Clause (which provides that “[t]he Privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.” U.S. Const. Art. 1 §
9, cl. 2). In Hamama, the court found that the REAL ID Act as applied under
the circumstances presented resulted in a Suspension Clause violation
because the detainees’ efforts to seek legal assistance against immediate
removal were “significantly impeded by the Government’s successive
transfers of many detainees across the country, separating them from their
lawyers and the families and communities who can assist in those legal
efforts.” Hamama v. Adducci, 2017 WL 3124331, at *1 (E.D. Mich. Jul. 24
2017). “The totality of these facts leads to the conclusion that casting
Petitioners out of this court without a stay – in the extraordinary context of
this case – would ignore the reality that the process for judicial review
provided for in the Real ID Act would not be adequate or effective in
protecting their habeas rights.” Hamama v. Adducci, 2017 WL 2953050, at
*12 (E.D. Mich. July. 11, 2017).
For the foregoing reasons, the government’s motion to dismiss is
ALLOWED. The Clerk will enter the order of dismissal and close the case.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Accepting arguendo the holding of Hamama, Rodriguez does not
present the “extraordinary context” that the Hamama petitioners found
themselves in. In contrast to Hamama, Rodriguez received ample notice of
ICE’s intent to carry out his removal order and has taken the opportunity to
pursue available administrative remedies by lodging a motion to reopen with
the BIA and securing a stay during the pendency of the motion. The
government has represented that it will not transfer Rodriguez out of this
judicial district until the conclusion of these proceedings. This court has
considered petitioner’s habeas contentions on their merits. Petitioner’s
articulated concern that he cannot adequately pursue further appellate
review, should the BIA deny his motion to reopen and he is deported, is at
best speculative, and in any event, a matter for the Court of Appeals to
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