Penate Diaz v. Moniz

Filing 6

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
)
)
)
v.
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SUPERINTENDENT ANTONE MONIZ, et )
al.,
)
Respondents.
)
ROLANDO PENATE-DIAZ,
Petitioner,

Civil Action No.
18-10156-NMG

MEMORANDUM AND ORDER
GORTON, J.
For the reasons set forth below, the Court dismisses this
action without prejudice.
I.

Background
On January 26, 2018, immigration detainee Rolando

Penate-Diaz (“Penate-Diaz”), who is confined at the Plymouth
County Correctional Facility, filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in which he seeks immediate
release.

According to the petitioner, he is a native and citizen

of Cuba who arrived in the United States as a refugee in 1980.
In May 1996, he was ordered removed but remained in the United
States.

At some point, the United States tried to remove

Penate-Diaz to Cuba, but his native country would not accept him.
On September 26, 2017, the petitioner was placed in
immigration detention, presumably for purposes of removal.

See 8

C.F.R. § 241.4(l)(2)(iii) (government may revoke release of
certain aliens when “it is appropriate to enforce a removal
order”); 8 C.F.R. § 212.12(h) (providing for revocation of parole
for Mariel Cubans when “appropriate to enforce an order of
exclusion”).

A custody review was performed on December 26,

2016.

Penate-Diaz remained in custody, but he was never informed

why the government would not release him.

He maintains that he

is not a flight risk, that he has been living in Massachusetts
for 30 years, and that he has strong family support and ties to
the community.

He represents that his removal to Cuba is not

reasonably foreseeable because, “Cuba doesn’t recognize its
citizens and I.C.E. has tried to deport [him] in the past.”

Pet.

at 7 (spelling standardized).
The petition has not been served so that the Court may
review the pleading and determine whether the respondent should
be required to reply.

See 28 U.S.C. § 2243 (providing that, if

“it appears from the application [for a writ of habeas corpus]
that the applicant . . . is not entitled [to the writ],” the
district court is not required to serve the petition on the
respondent).1

For the reasons stated below, the Court denies the

petition and dismisses this action.
II.

Discussion
Section 1231 of Title 8 provides that the Attorney General

shall remove aliens who have been ordered removed within ninety

1

See also Rule 4 of the Rules Governing Habeas Corpus Cases
Under Section 2254 (providing that, if it “plainly appears from
the face of the [habeas] petition . . . that the petitioner is
not entitled to relief in the district court,” the Court “must
dismiss the petition”). Rule 4 may be applied at the discretion
of the district court to other habeas petitions. See Rule 1(b)
of the Rules Governing Habeas Corpus Cases Under Section 2254;
see also Phelps v. Reynoso, App. No. 07-1080 (1st Cir. May 16,
2007) (district court acted within its discretion by applying
Rule 4 of the Rules Governing Habeas Corpus Cases Under Section
2254 to § 2241 petition); Boutwell v. Keating, 399 F.3d 1203,
1211 n.2 (10th Cir. 2005) (same).
2

days, and that he may detain the alien during this “removal
period.”

8 U.S.C. § 1231(a)(1),(2).

Given that Penate-Diaz

represents that he was ordered removed in 1996, and he does not
suggest that his immigration case has been reopened, the Court
assumes that the petitioner’s ninety-day removal period expired
long ago.2
Under 8 U.S.C. § 1231(a)(6), certain classes of aliens may
be detained beyond the ninety-day removal period.
§ 1231(a)(6).

See 8 U.S.C.

While § 1231(a)(6) does not explicitly limit the

time period during which the Attorney General may detain an
alien, in Zadvydas v. Davis, the Supreme Court held that due
process considerations mandate that detention under § 1231(a)(6)
be limited “to a period reasonably necessary to bring about that
alien’s removal from the United States.”
689.

Zadvydas, 533 U.S. at

For the sake of uniformity, the Court adopted a six-month

period as the presumptively reasonable time period for
accomplishing removal.

See id. at 701.

After this six-month

period, detention of the alien is no longer permissible if there
is “no significant likelihood of removal in the reasonably
foreseeable future.”

Id.

Here, Penate-Diaz, by his own admission, has been in

2

The removal period starts upon the latest three events:
the date an order of removal becomes final, the date a court
orders a stay of removal, or the date an alien is released from
detention or confinement (except under an immigration process).
See 8 U.S.C. § 1231(a)(1)(B).
3

immigration detention awaiting removal for less than six months.3
Therefore, under Zadvydas, his continued detention is
presumptively reasonable.

Further, despite the petitioner’s

claim that removal to Cuba is impossible, a change in diplomatic
relationships now permits the United States to repatriate some
individuals to Cuba.

See Martinez v. Moniz, C.A. No. 17-12365-

DJC (D. Mass.) (case dismissed after government informed court
that habeas petitioner was removed to Cuba on December 29, 2017);
see also Padron v. Donelan, C.A. No. 17-30176-MGM (D. Mass),
Docket # 9 (respondent’s memorandum in support of motion to
dismiss; respondent sets forth process by which persons may now
be repatriated from the United States to Cuba).
ORDER
In accordance with the foregoing, the petition for a writ of
habeas corpus is DENIED WITHOUT PREJUDICE.

The Clerk shall enter

an order dismissing this action.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated:2/12/2018

3

See Clark v. Martinez, 543 U.S. 371, 376 n.3 (2005) (noting
that, where release of an alien subject to detention under 8
U.S.C. § 1231(a)(6) is revoked to effectuate removal, detention
is once again authorized by that statute).
4