de Souza Neto v. Smith et al
Judge Richard G. Stearns: ORDER entered dismissing petition and denying 2 Motion for Order to Show Cause. (RGS, int2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11979-RGS
JUCELIA DE SOUZA NETO
YOLANDA SMITH and
STEVEN W. TOMPKINS
MEMORANDUM AND ORDER
ON THE GOVERNMENT’S MOTION TO DISMISS
October 16, 2017
This is Jucelia de Souza Neto’s second habeas corpus petition
challenging her detention by Immigration and Customs Enforcement (ICE).
The undisputed facts were previously described in the court’s decision
dismissing de Souza Neto’s first petition, see de Souza Neto v. Smith, 2017
WL 4287543, at *1 (D. Mass. Sept. 27, 2017), and will be repeated here only
to the extent relevant to this petition. In 2007, de Souza Neto, a Brazilian
national, was deported from the United States pursuant to a final order of
removal. She unlawfully re-entered the United States a few weeks later. She
was arrested in March of 2017 for motor vehicle related infractions (later
dismissed) and transferred to ICE custody on April 5, 2017. Pursuant to 8
U.S.C. § 1231(a)(5), ICE reinstated the prior removal order. 1 While in ICE
custody, de Souza Neto initiated withholding proceedings. An immigration
officer determined that she had expressed a reasonable fear of returning to
An immigration judge (IJ) held a hearing on de Souza Neto’s
withholding claim on September 13, 2017, but has yet to issue a decision on
De Souza Neto’s second petition contends that because her detention
has now surpassed six months, the presumptively reasonable period for
custody pending removal, see Zadvydas v. Davis, 533 U.S. 678, 700-701
(2001), this court should order her release or order ICE to conduct a bond
hearing. The court recently held, in Rodriguez-Guardado v. Smith, 2017 WL
4225626, at *2 (D. Mass. Sept. 22, 2017), that an alien’s availment of avenues
of relief from removal (in Rodriguez-Guardado’s case seeking and obtaining
from ICE a discretionary stay) constitutes an “act to prevent the alien’s
removal subject to an order or removal” that operates to extend the removal
period beyond the statutorily mandated 90 days. 8 U.S.C. § 1231(a)(1)(C).
Adhering to its holding in Rodriguez-Guardado, the court rules that de
Souza Neto’s initiation of withholding proceedings extends the time for the
Where, as here, an alien re-enters the United States illegally after
departing pursuant to a final order of removal, the prior order is reinstated
as of the original date and is not subject to being reopened or reviewed.
government to execute the reinstated removal order. 2,3 Accordingly, de
Souza Neto’s petition is DISMISSED. The Clerk will close this case.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Although de Souza Neto alleges that ICE did not provide her with a
Notice of Failure to Comply under 8 C.F.R. § 241.4(g)(1)(ii) that her removal
period has been extended, the lack of notice “shall not have the effect of
excusing the alien’s conduct.” 8 C.F.R. § 241.4(g)(5)(iv).
If the IJ affords de Souza Neto withholding relief and the government
is unable to remove de Souza Neto to an alternate country within the
extended removal period, she may at that time be eligible for the postremoval-period custody determination process set out in 8 C.F.R. § 241.4.
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