de Souza Neto v. Smith et al

Filing 14

Judge Richard G. Stearns: ORDER entered granting 11 Motion to Dismiss. "For the foregoing reasons, the government's 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. 17-11507-RGS
JUCELIA DE SOUZA NETO
v.
YOLANDA SMITH and
STEVEN W. TOMPKINS 1
MEMORANDUM AND ORDER
ON THE GOVERNMENT’S MOTION TO DISMISS
September 27, 2017
STEARNS, D.J.
The issue in this case is straightforward: Does an unreviewable
reinstated removal order, held in abeyance pending a withholding-only
proceeding, constitute an “administratively final” order authorizing the
detention of an alien under 8 U.S.C. § 1231(a)?2 The facts underlying Jucelia
de Souza Neto’s habeas corpus petition are not in dispute. De Souza Neto, a
Brazilian national, entered the United States illegally in December of 2004.
She was apprehended by Border Patrol agents and required to appear before

Respondent Smith is the superintendent of the Suffolk County House
of Correction, where petitioner is currently detained. Respondent Tompkins
is the sheriff of Suffolk County.
1

2

This appears to be a matter of first impression in the First Circuit.

an Immigration Judge (IJ) in Harlington, Texas. When she failed to appear
as instructed at the February of 2005 hearing, an order for her removal was
issued in abstentia. In 2007, after de Souza Neto was arrested and charged
with prostitution and possession of marijuana (charges that were later
dismissed), Immigration and Custom Enforcement (ICE) detained her and
deported her from the United States.
A few weeks later, de Souza Neto unlawfully re-entered the United
States and took up residence in Massachusetts. In March of 2017, de Souza
Neto was arrested for driving with a suspended license and for refusing to
provide identification (these charges were also subsequently dismissed). ICE
took custody of de Souza Neto on April 5, 2017, and served her with a Notice
of Intent to reinstate the 2005 removal order.
On June 1, 2017, while in custody, de Souza Neto was interviewed by
an asylum officer after she expressed a fear of returning to Brazil. The
asylum officer determined that de Souza Neto reasonably feared being killed
by members of a drug gang that had targeted her family and murdered her
brother and uncle. De Souza Neto was then granted a hearing before an IJ
on September 13, 2017, to determine whether she is eligible for withholding
of removal to Brazil.

There being no information from the parties to the

contrary, the court will assume that the withholding hearing has been
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concluded.

De Souza Neto’s counsel states that the IJ’s decision on

withholding may take several months to issue.
On June 29, 2017, after the meeting with the asylum officer, de Souza
Neto requested a custody hearing. The IJ ruled that the Immigration Court
does not have jurisdiction to conduct a bond hearing for detainees in
withholding-only proceedings. De Souza Neto appealed that decision to the
Bureau of Immigration Appeals (BIA). That appeal remains pending.
By way of introduction to the statutory framework, 8 U.S.C. § 1226(a)
governs the detention of an alien “pending a decision on whether the alien is
to be removed from the United States.” Section 1226(a) and its attendant
regulations permit the release of a qualifying alien subject to a bond and
conditions. If an alien illegally returns to the United States after departing
(voluntarily or involuntarily) 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 the reentry.” 8 U.S.C. § 1231(a)(5).

Section 1231(a)(2)

mandates that “the Attorney General shall detain the alien” for 90 days (the
so-called “removal period”) to effectuate the removal order.

Section

1231(a)(1)(B) defines the “removal period” to begin on the latest of three
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discrete events. The only relevant event here is “[t]he date the order of
removal becomes administratively final.”

8 U.S.C. § 1231(a)(1)(B)(i).

Section 1231(b)(3)(A) further provides that “[n]otwithstanding paragraphs
(1) and (2), the Attorney General may not remove an alien to a country if the
Attorney General decides that the alien’s life or freedom would be threatened
in that country because of the alien’s race, religion, nationality, membership
in a particular social group, or political opinion.” Consistent with this
provision, an alien may be eligible for withholding of removal to a specific
country if the alien is determined to have a reasonable fear of persecution
under 8 C.F.R. § 208.31. The alien may, however, be removed to an available
third country. See 8 U.S.C. § 1231(b)(1)(C).
Relying on a Second Circuit opinion, Guerra v. Shanahan, 831 F.3d
59 (2d Cir. 2016), de Souza Neto argues that because the decision whether
she will be physically removed from the United States has not been finally
made in the withholding proceeding, she falls under the bond determination
provisions of 8 U.S.C. § 1226(a). In this regard, the Second Circuit reasoned
that, since the language of § 1226(a) broadly refers to “a decision . . . to be
removed,” it is not limited to the pendency of a removal proceeding brought
pursuant to 8 U.S.C. § 1229(a).
The statute does not speak to the case of whether the alien is
theoretically removable but rather to whether the alien will
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actually be removed. An alien subject to a reinstated removal
order is clearly removable, but the purpose of withholding-only
proceedings is to determine precisely whether “the alien is to be
removed from the United States.” 8 U.S.C. § 1226(a).
Guerra, 831 F.3d at 62.
The government, for its part, relies on a more recent Ninth Circuit
decision, Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir. 2017). The Ninth
Circuit holds, and this court agrees, that a reinstated removal order is
“administratively final” and authorizes removal detention under 8 U.S.C. §
1231(a) independent of any withholding proceeding.
First, a removal order undoubtedly is administratively final when
it first is executed; if it is reinstated from its original date, it
stands to reason that it retains the same administrative finality
because section 1231(a)(5) proscribes any challenge that might
affect that status. Second, the reinstatement provision is located
in the same section of the Act, tellingly entitled “Detention and
removal of aliens ordered removed,” id. § 1231 (emphasis
added), as the detention authority that the government claims in
this case. This placement suggests that Congress meant for the
detention of aliens subject to reinstated removal orders to be
governed by that section, which would require that such orders
be administratively final. The fact that the reinstatement
provision appears among section 1231(a)’s detention and
supervision provisions further bolsters this inference. Id. §
1231(a)(2)-(3),(6).
Padilla-Ramirez, 862 F.3d at 885.

That a removal order may not be

executed until the conclusion of the withholding proceeding has no impact
on its finality.

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Withholding-only proceedings do not, however, purport to
override section 1231(a)(5)’s prohibition on reopening or
reviewing a reinstated order. . . . At most, a grant of withholding
will only inhibit the order’s execution with respect to a particular
country. Even if [petitioner] were to prevail on his application,
he still would be subject to removal pursuant to the reinstated
order – the government simply would have to seek an alternate
country to receive him.
Id. at 886.
De Souza Neto counters that a withholding determination, for all
intents and purposes, is a decision on whether she may be removed from the
United States at all. She points out that the reinstated removal order does
not designate a country of removal other than Brazil. While the statute in
theory permits removal to a third country, “[i]n practice, however, noncitizens who are granted restrictions on removal are almost never removed
from the U.S.” Kumarasamy v. Att’y Gen. of U.S., 453 F.3d 169, 171 n.1 (3d
Cir. 2006), as amended (Aug. 4, 2006), quoting Weissbrodt, David & Laura
Danielson, Immigration Law and Procedure 303 (5th ed. 2005).
The Padilla-Ramirez Court answered this contention by way of an
analogy to Zadvydas v. Davis, 533 U.S. 678 (2001).
There, an alien (Zadvydas) had been ordered removed and was
detained pursuant to section 1231(a). See id. at 683-684. As it
turned out, none of the available countries of removal were
willing to accept him. Id. at 684. Zadvydas then challenged his
continuing detention, which appeared at that point to be
potentially permanent. Id. at 684-685. The Supreme Court,
relying on the canon of constitutional avoidance, held that the
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government’s detention authority under section 1231(a)
terminates “once removal is no longer reasonably
foreseeable.” Id. at 699. But even in such a circumstance,
section 1231(a) still controls: although the government cannot
detain the alien, the alien is subject to supervision under section
1231(a)(3). See id. at 696.
Like Zadvydas, [petitioner] is subject to an order of removal that
is, by all appearances, administratively final. Like Zadvydas, the
only obstacles to petitioner’s removal from the United States are
potential individualized determinations that he cannot be
removed to specific countries. . . . [T]he touchstone of section
1226 is the nature of the decision to be made, . . . and the decision
to be made in this case is the same as in Zadvydas: whether
[petitioner]’s removal order may be executed with respect to
particular countries. The fact that Zadvydas was detained
pursuant to section 1231(a) even while the government cycled
through the list of possible removal countries indicates that such
country-specific determinations are not “decision[s] on whether
the alien is to be removed from the United States.” 8 U.S.C. §
1226(a). Accordingly, section 1226(a) has no application here.
Padilla-Ramirez, 862 F.3d at 886-887.
De Souza Neto’s remaining argument, that she should be released
under Zadvydas because her removal is not reasonably foreseeable, is
prematurely made. The Supreme Court in Zadvydas fixed a presumptively
reasonable removal detention duration of six months. 533 U.S. at 700-701.
Petitioner’s detention does not yet exceed six months. In addition, seeking
withholding relief may well constitute an “act[] to prevent the alien’s removal
subject to an order of removal” that operates to extend the removal period. 8

7

U.S.C. § 1231(a)(1)(C).

See Rodriguez-Guardado v. Smith, 2017 WL

4225626, at *2 (D. Mass. Sept. 22, 2017).
ORDER
For the foregoing reasons, the government’s motion to dismiss is
ALLOWED. The Clerk will enter the order of dismissal and close the case.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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