Penate Diaz v. Moniz
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER(Hohler, Daniel)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
SUPERINTENDENT ANTONE MONIZ, et )
Civil Action No.
MEMORANDUM AND ORDER
For the reasons set forth below, the Court dismisses this
action without prejudice.
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
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
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.
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
A custody review was performed on December 26,
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
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.”
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
For the reasons stated below, the Court denies the
petition and dismisses this action.
Section 1231 of Title 8 provides that the Attorney General
shall remove aliens who have been ordered removed within ninety
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).
days, and that he may detain the alien during this “removal
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
Under 8 U.S.C. § 1231(a)(6), certain classes of aliens may
be detained beyond the ninety-day removal period.
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.”
Zadvydas, 533 U.S. at
For the sake of uniformity, the Court adopted a six-month
period as the presumptively reasonable time period for
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
Here, Penate-Diaz, by his own admission, has been in
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).
immigration detention awaiting removal for less than six months.3
Therefore, under Zadvydas, his continued detention is
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).
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.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
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).
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