Rombot v. Moniz

Filing 37

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the foregoing reasons, the motion to dismiss (Docket No. 11 ) is DENIED with respect to Rombot's detention challenge. Rombot shall file with this Court a motion to substitute the appropriate custodian from Bristol County House of Corrections. See Order for Details. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
TERRY HELMUTH ROMBOT,
)
)
Petitioner,
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v.
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Civil Action
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No. 17-11577-PBS
ANTONE MONIZ,
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Respondent.
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___________________________________)

MEMORANDUM AND ORDER
October 25, 2017
Saris, C.J.
INTRODUCTION
Petitioner Terry Rombot, an Indonesian citizen who has
lived in the United States for approximately 16 years, filed a
petition for habeas corpus under 28 U.S.C. § 2241, seeking
release from detention. Rombot challenges the legality of his
detention, arguing that Immigration and Customs Enforcement
(“ICE”) violated its own policies and procedures when it denied
his application for stay and took him into custody, despite his
compliance with all conditions of his Release Notification and
Order of Supervision. Respondent Antone Moniz, Superintendent of

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the Plymouth County Correctional Facility, moved to dismiss the
petition under Fed. R. Civ. P. 12(b)(1) (Docket No. 11).1
Petitioners/Plaintiffs in the related case, Devitri et al.
v. Cronen et al., 1:17-cv-11842-PBS, including Rombot, request a
temporary stay of their removal from the United States. Rombot
also raises a due process challenge to his detention in that
related case.
After an evidentiary hearing, the Court DENIES the
Government’s motion to dismiss (Docket No. 11).
FACTUAL BACKGROUND
The factual background is taken from the allegations in
Rombot’s habeas petition. The allegations are assumed to be true
for purposes of the motion to dismiss.
Rombot is an Indonesian citizen who first came to the
United States on a visa 16 years ago. Rombot was a member of the
Christian minority in Indonesia, the largest Muslim-majority
country in the world. He overstayed his visa in the United
States and applied for asylum. His application was denied, and
in 2008, Rombot was ordered removed from the United States.
In August 2010, ICE initiated “Operation Indonesian
Surrender” in New Hampshire. As part of that program, Rombot

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Rombot is now detained at the Bristol County House of
Corrections. See Docket No. 28. Rombot shall substitute the
appropriate custodian.
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voluntarily surrendered to ICE officials and was put on an Order
of Supervision. The Order of Supervision required him to check
in periodically with ICE and stated that Rombot’s “failure to
comply with the terms of [the] order may subject [him] to a
fine, detention, or prosecution.” Docket No. 1-6. Rombot filed a
Form I-246 application for stay of removal in November 2010, and
ICE denied the application more than one year later on December
12, 2011.
Rombot did not leave the United States after his stay
application was denied. The United States Attorney for New
Hampshire brought charges against him for failure to depart the
United States. At his sentencing in front of Judge Barbadoro,
Rombot’s significant health problems, including a heart attack,
were discussed. In his judgment, Judge Barbadoro included a
message regarding Rombot’s immigration status, which read:
“Court recommends deportation stay be granted based on medical
history.” Docket No. 1-4.
In May 2015, Rombot was put on an airplane in New York City
to leave the United States. Rombot was taken off that plane,
however, when ICE officials in Washington, D.C. overruled the
local office and decided that Rombot should be allowed to stay
in the United States.
On May 28, 2015, Rombot received a “Release Notification”
from ICE. The Release Notification stipulated that “[a]
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violation of one of [sic] more of [its] conditions, or of any
local, state or federal law may result in [Rombot’s] being taken
back into custody and any bond that [he] may have posted being
forfeited.” Docket No. 1-5. Rombot at all times has complied
with the requirements of his Release Notification and Order of
Supervision. Significantly, the Release Notification also said
that Rombot would “be given an opportunity to prepare for an
orderly departure” when he had to depart the United States. Id.
(emphasis added).
Rombot has filed applications for stays of removal since
May 2015, and those applications were approved by ICE up until
August 1, 2017. On that date at approximately 10:30 a.m.,
Rombot’s counsel filed a new application for stay of removal at
ICE’s Burlington, Massachusetts headquarters office. In the
application, Rombot noted that he had had a heart attack and had
an upcoming doctor’s appointment. On August 2, 2017, Rombot’s
counsel received a notice from the Manchester, New Hampshire ICE
office that was dated August 1, 2017 and denied the application
for stay. No reason was stated. Rombot claims that the same-day
decision on his August 1, 2017 application for stay shows that
“ICE has violated its policies and procedures for considering
and deciding on stay applications.” Docket No. 1 ¶ 21.
Also on August 1, 2017, Rombot reported to the Manchester
ICE office pursuant to the Order of Supervision and was
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detained, placed in shackles, and later given a “Notice of
Revocation of Release.” He is now detained at the Bristol County
House of Corrections’ ICE detention center. See Docket No. 28.
He previously was detained by ICE in 2013 and 2015 for
approximately 86 days.
The Government concedes Rombot at all times complied with
the requirements of the Release Notification. The Court finds
Rombot was not given “an opportunity to prepare for an orderly
departure” as promised by ICE.
DISCUSSION
The REAL ID Act, passed in 2005, stripped federal district
courts of jurisdiction to review aliens’ challenges to their
final orders of removal. See 8 U.S.C. § 1252(a)(5) (“[A]
petition for review filed with an appropriate court of
appeals . . . shall be the sole and exclusive means for judicial
review of an order of removal.”); id. § 1252(b)(9)
(consolidating “review of all questions of law and fact,
including interpretation and application of constitutional and
statutory provisions,” arising from a removal action in the
statute’s judicial review procedure). In addition, the statute
states that “no court shall have jurisdiction to hear any cause
or claim by or on behalf of any alien arising from the decision
or action by [ICE] to commence proceedings, adjudicate cases, or
execute removal orders.” Id. § 1252(g). This provision
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completely removes federal habeas jurisdiction with respect to
ICE’s discretionary decisions in these three categories. See
id.; Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471,
482–83 (1999) (limiting reach of provision to “three discrete
actions”).
Even after the REAL ID Act, however, the district court
holds jurisdiction to review habeas challenges to unlawful
immigration detention. See Aguilar v. U.S. Immigration and
Customs Enforcement Div. of Dep’t of Homeland Sec., 510 F.3d 1,
11 (1st Cir. 2007) (“[D]istrict courts retain jurisdiction over
challenges to the legality of detention in the immigration
context.”). Subject-matter jurisdiction over detention
challenges extends to petitions regarding the “availability of
bail.” Id. In order to bring a habeas petition, an individual
must be in custody. 28 U.S.C. § 2241(c). In his petition, an
alien petitioner “must name as the respondent his immediate
custodian, that is, the individual having day-to-day control
over the facility in which he is being detained.” Vasquez v.
Reno, 233 F.3d 688, 696 (1st Cir. 2000). A district court may
only grant a petitioner relief when the court is located in the
“district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426,
443 (2004).
Here, Rombot is being detained in the Bristol County House
of Corrections, which is located in the District of
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Massachusetts. The proper respondent with day-to-day control
over that facility will be substituted pursuant to this order.
Thus, Rombot has met the threshold jurisdictional requirements
for 28 U.S.C. § 2241. This Court has subject-matter jurisdiction
over Rombot’s habeas petition. See Aguilar, 510 F.3d at 11.
ORDER
For the foregoing reasons, the motion to dismiss (Docket
No. 11) is DENIED with respect to Rombot’s detention challenge.
Rombot shall file with this Court a motion to substitute the
appropriate custodian from Bristol County House of Corrections.

SO ORDERED.

/s/ PATTI B. SARIS
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Patti B. Saris
Chief United States District Judge

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