Malm v. United States of America

Filing 41

MEMORANDUM AND ORDER on 25 MOTION Release from custody, 36 MOTION for Appointment of Counsel, 18 MOTION Release from Custody, 30 MOTION to Dismiss, 35 MOTION for Judgment, 34 MOTION for Judgment, 33 MOTION to Dismiss 29 Memorandum and Order Supplemental Motion to Dismiss, and 26 MOTION for Release from Custody. (Signed by Judge Ewing Werlein, Jr) Parties notified.(kcarr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JONAS MALM,
A96 032 108,
Petitioner,
v.

§
§
§
§
§
§
§

ERIC HOLDER, et al.,
Respondents.

CIVIL ACTION NO. H-11-2969

MEMORANDUM AND ORDER OF DISMISSAL
Before the Court is a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241 filed on August 8, 2011, by
alien detainee Jonas Malm.

(Docket Entry No.1).

currently

Bureau

detained

by

the

of

Petitioner is

Immigration

and

Customs

Enforcement (“ICE”) in Houston, Texas, pending the completion of
removal
custody.

proceedings.

(Id.).

Petitioner

seeks

release

from

(Docket Entries No.25, No.26).

On March 12, 2012, the Court dismissed Petitioner’s claims
over removability issues for want of jurisdiction.
No.29).

(Docket Entry

The Court retained Petitioner’s claims regarding his

continued detention and requests to be released from custody, and
ordered

respondents

to

file

a

verified

supplemental

record.

(Id.).

On May 3, 2012, Respondents filed a Supplemental Motion

to Dismiss, Reply to Petitioner’s Response, Alternatively, Motion
for

Summary

Judgment.

(Docket

Entry

No.33).

In

response,

Petitioner has filed a “Motion to Dismiss Respondant [sic] Motion
and Demand for Judgment.”

(Docket Entry No.35).

Petitioner has

also

filed

a

Memorandum

supplements to the motion.

in

support

of

the

motion

and

two

(Docket Entries No.38, No.39, No.40).

For the reasons to follow, the Court will grant Respondent’s
motion to dismiss and deny Petitioner federal habeas relief.
BACKGROUND
Petitioner is a citizen and a native of Ghana.
Entry No.1-1, page 2).

(Docket

He was admitted to the United States on

February 4, 2001, as a non-immigrant B2 visitor on a temporary
permit.

(Id.).

On January 6, 2003, Petitioner was convicted in

an undisclosed court of interfering with the duties of a police
officer and sentenced to three days confinement.
No.1-1, page 2).
citizen.

(Docket Entry

The same year Petitioner married an American

(Docket Entry No.4).

Petitioner filed an I-130 visa

application, in which he sought a change in status from alien to
permanent resident based upon his marriage.
2, pages 1-2).
denied.

(Docket Entry No.33-

In June 2009, the I-130 visa application was

(Id., page 1). On July 10, 2009, Petitioner filed,

through counsel, a motion to reopen the I-130 visa application
decision.
2010.

(Id., pages 3-4).

The motion was denied on April 8,

(Id., pages 3, 5-6).

In late February 2010, Petitioner was arrested while at work
on an allegation that he had engaged in a fight.
No.7).

(Docket Entry

On March 31, 2010, Petitioner was inter-viewed by ICE

officials while detained in the Harris County Jail, awaiting
2

trial on the charge. (Docket Entry No.1-1, page 2).

On August

19, 2010, Petitioner was convicted of assault with bodily injury
in a Harris County District Court in case number 050788538.

He

was sentenced to 350 days confinement in the Harris County Jail.
(Docket Entries No.1, page 3; No.1-1, page 2).
Thereafter, on September 19, 2010, Petitioner was remanded
to ICE custody in Houston, Texas, pending a hearing with an
immigration judge (“IJ”).
Notice

to

237(a)(1)(B)

(Docket Entry No.1-1, page 2).

Appear

alleging

of

Immigration

the

issued the same day.1

deportability
and

under

Nationality

Act

(Docket Entry No.14-2, page 1).

A

section
(“INA”)
Peti-

tioner was charged with removal “in that after admission as a
nonimmigrant

under

Section

101(a)(15)

of

the

Immigration

and

Nationality Act, he remained in the United States longer than
permitted and committed crimes in violation of the Act and other
laws of the United States.”

(Docket Entry No.20, page 2).

On September 27, 2010, Petitioner had the first of numerous
appearances before an IJ, who at Petitioner’s request continued
his case to allow him to obtain counsel, to file for asylum, and
to

await

decision

on

a

later-filed

(Docket Entry No.33-1, page 1).

I-130

visa

application.

Petitioner also sought release

1

Section 237(a)(1)(B) of the INA provides that “[a]ny alien who is present in
the United States in violation of this chapter or any other law of the United
States, or whose nonimmigrant visa (or other documentation authorizing admission
into the United States as a nonimmigrant) has been revoked under section 1201(I)
of this title, is deportable.” 8 U.S.C. §1227(a)(1)(B).

3

on bond, which was refused.

(Docket Entry No.20, pages 1-2).

On

October 21, 2010, the IJ denied Petitioner’s request for a change
in custody status and noted that he was a “risk to abscond.”
(Docket Entries No.1-1, page 14; No.33-2, page 7).
reserved his appeal.
On

January

18,

Petitioner

(Docket Entry No.33-2, page 7).
2011,

Petitioner’s

another I-130 visa application.

putative

(Id., page 8).

wife

filed

On April 18,

2011, Petitioner’s I-130 visa application was denied for failure
to establish a bona fide marriage.
appeal

was

filed

Jennifer Malm.
1).

dated

May

13,

(Id., pages 10-11).
2011,

purportedly

A visa

signed

by

(Docket Entries No.33-2, page 12; No.39-1, page

Petitioner was granted numerous continuances in removal

hearings pending adjudication of his new I-130 visa application
and the appeal from its denial.
1-2).

(Docket Entry No.33-1, pages

Petitioner reports that the Board of Immigration Appeals

(BIA) informed him that this month, on June 5, 2012, his appeal
from the denial of the I-130 visa application was dismissed.
(Docket Entry No.39, page 1).
On

May

15,

2012,

Petitioner

filed

a

motion

determination of the IJ’s decision to deny him bond.
Entry No.40-1, pages 1-8).

for

re-

(Docket

The IJ again denied Petitioner’s

request for change in custody and noted that there were “no
changed circumstances.”

(Id., page 10).

Petitioner indicates

that he has not filed an appeal from this order because

4

he

believed

that

exhausting

redetermination

would

his

be

administrative

futile

due

to

remedies

his

on

indigent

bond

status.

(Docket Entry No.38, page 1).
Petitioner complains in the present action that he is not
subject to mandatory detention because his assault conviction is
not a removable offense.

(Docket Entry No.17, page 1).

He seeks

an order directing Respondent to release him from custody, and a
preliminary and permanent injunction enjoining Respondent from
further

unlawful

proceedings.

detention

pending

resolution

of

removal

habeas

action

(Id., pages 1-2).

Respondents

move

to

dismiss

the

present

pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of
Civil Procedure on grounds that the Court lacks subject matter
jurisdiction and Petitioner has failed to state a claim that his
detention is unauthorized under § 1226(a) and violates the Due
Process Clause.

(Docket Entry No.33).

Alternatively, they seek

summary judgment under Rule 56 on the same grounds.

(Id.).

ANALYSIS
A

party

seeking

a

temporary

restraining

order

or

a

preliminary injunction must prove each of the following elements:
(1) that there is a substantial likelihood that the movant will
prevail on the merits; (2) that there is a substantial threat
that

irreparable

harm

will

result

if

the

injunction

is

not

granted; (3) that the threatened injury outweighs the threatened
5

harm

to

the

defendant;

and

(4)

that

the

granting

of

the

preliminary injunction will not disserve the public interest.
Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987).

Petitioner

cannot meet this standard for the reasons set out more fully
below.

Therefore,

his

request

for

equitable

relief

will

be

denied.
Release on Bond
Respondents urge the court to decline to exercise habeas
jurisdiction unless Petitioner first exhausts his administrative
remedies by filing a motion for bond redetermination with an IJ
and then, if denied bond, appealing the IJ’s decision to the BIA.
(Docket Entry No.33, page 2).
A challenge to the Court’s subject matter jurisdiction is
governed

by

Procedure.

Rule

12(b)(1)

of

the

Federal

When

reviewing

a

motion

to

Rules

dismiss

of

Civil

under

Rule

12(b)(1), a district court may dismiss the action based upon:
(1)

the

complaint

alone;

(2)

the

complaint

supplemented

by

undisputed facts evidenced in the record; or (3) the complaint
supplemented by undisputed facts plus the Court's resolution of
disputed facts.
Cir. 2008).

Williams v. Wynne, 533 F.3d 360, 365 n. 2 (5th

A motion to dismiss under Rule 12(b)(1) should not

be granted “unless it appears certain that the petitioner cannot
prove any set of facts in support of [his] claim which would
entitle [him] to relief.”

Saraw Partnership v. United States, 67
6

F.3d 567, 569 (5th Cir. 1995).

The party who invokes federal

court jurisdiction bears the burden of showing that jurisdiction
is proper.

Hartford Ins. Group v. Lou-Con Inc., 293 F.3d 908,

910 (5th Cir. 2002).
The

Immigration

and

Naturalization

Act

(“INA”)

sections that allow for the detention of aliens.

has

two

Title 8 U.S.C.

§ 1226(c) makes it mandatory for the Attorney General to detain
any

alien

felonies.

who

has

been

convicted

of

a

class

of

enumerated

Title 8 U.S.C. § 1226(a) gives the Attorney General

the discretion to arrest and detain an alien pending a decision
on whether the alien is to be removed from the United States.

It

also gives the Attorney General the discretion to continue to
detain the alien or release the alien on bond of no less than
$1,500 or conditional parole.

8 U.S.C. § 1226(a)(1)-(2).

Petitioner contends that he has not been convicted of any of
the crimes referred to in § 1226(c) and, therefore, he should not
be

detained

under

§

1226(c).

Petitioner,

however,

has

been

charged with removal pursuant to 8 U.S.C. § 1227(a)(1)(B) because
he overstayed his visa, and not because of his assault conviction.

(Docket Entry No.1-1, page 3).

Therefore, Petitioner has

been detained pursuant to the Attorney General’s discretionary
judgment under § 1226(a), not § 1226(c).
Section

1226(e)

provides

that

“[t]he

Attorney

General's

discretionary judgment regarding the application of this section

7

shall not be subject to review.

No court may set aside any

action or decision by the Attorney General under this section
regarding the detention or release of any alien or the grant,
revocation, or denial of bond or parole.”

8 U.S.C. § 1226(e).

In 2003, the Supreme Court observed, however, that § 1226(e)
“contains no explicit provision barring habeas review.”
v. Kim, 538 U.S. 510, 517 (2003).
§

1252(a)(5),

which

provides,

in

Demore

Thereafter, Congress added
part,

that

for

purposes

of

Chapter 12, of which § 1226 is part, the terms “judicial review”
and

“jurisdiction

to

review”

include

habeas

corpus

review

pursuant to 28 U.S.C. § 2241 or any other habeas provision,
sections 1361 and 1651 of such title, and review pursuant to any
other provisions of law.
CV-0800-XR,

2007

WL

Kambo v. Poppel, Civil Action No.SA-07-

3051601,

n.4

(W.D.

Tex.

Oct.

18,

2007).

Therefore, “by operation of section 1252(a)(5), section 1226(e)
now applies to habeas corpus review.”

Id.

In Kambo, the court found that under 8 U.S.C. §§ 1226(e),
1252(a)(2)(B)(ii),2

2

and

the

Fifth

Circuit’s

decision

in

Section 1252(a)(2)(B)(ii) provides the following, in pertinent part:
(B)

Denials of discretionary relief

Notwithstanding
any
other
provision
of
law
(statutory
or
nonstatutory), including section 2241 of Title 28, or any other
habeas corpus provision, and sections 1361 and 1651 of such title,
and except as provided in subparagraph (D), and regardless of
whether the judgment, decision, or action is made in removal
proceedings, no court shall have jurisdiction to review-*

*

*

8

*

*

Loa-

Herrera v. Trominski, 231 F.3d 984 (5th Cir. 2002), it lacked
jurisdiction

to

review

the

decision

to

deny

release

on

bond

itself or the Attorney General’s discretionary judgment regarding
the application of § 1226(a),
that

discretionary

judgment

“‘including the manner in which
is

exercised,

and

whether

the

procedural apparatus supplied satisfies regulatory, statutory,
and constitutional constraints.’”

Kambo, 2007 WL 3051601 at *10

(quoting Loa-Harrera, 231 F.3d at 991).

Likewise, this Court

finds

review

that

it

has

no

jurisdiction

to

the

Attorney

General’s discretionary judgment regarding his application of the
release

and

bond

provisions

of

§

1226(a)

as

to

Petitioner.

Federal courts are courts of limited jurisdiction, and Congress
could not have been more clear in its 2005 legislation expressly
denying jurisdiction to this Court to review under habeas or
otherwise the Attorney General’s discretionary authority to deny
bond in a case such as this.

Petitioner’s claims seeking review

of the denial of bond must therefore be dismissed for lack of
jurisdiction.

(ii)

any other decision or action of the Attorney General or the
Secretary of Homeland Security the authority for which is
specified under this subchapter to be in the discretion of the
Attorney General or the Secretary of Homeland Security, other
than the granting of relief under section 1158(a) of this
title.

8 U.S.C § 1252(a)(2)(B)(ii).

9

Due Process
To

the

extent

that

Petitioner

seeks

to

raise

a

consti-

tutional challenge to his length of detention under § 1226(a),
the

court

exhaustion

may
of

exercise

jurisdiction

administrative

without

remedies.

first

See

requiring

Kambo,

2007

WL

3051601 at *13; Fuller v. Gonzales, Civil Action No.3:04-CV2039SRU, 2005 WL 818614 at *2 (D. Conn. Apr. 8, 2005) (holding
petitioner’s claim that § 1226(c) was unconstitutional as applied
to

her

was

within

the

court’s

jurisdiction

and

need

not

be

exhausted); see also Bravo v. Ashcroft, 341 F.3d 590, 592 (5th
Cir.

2003)

jurisdiction

(recognizing
to

review

that

federal

statutory

and

courts

“retain

constitutional

habeas

claims”);

Demore, 538 U.S. at 517-18 (analyzing challenge to mandatory
detention under 8 U.S.C. § 1226(c)); Oyelude v. Chertoff, 125
Fed. App’x 543, 546 (5th Cir. 2005) (addressing challenge to
discretionary detention under 8 U.S.C. § 1226(a)).
Respondents

maintain

that

Petitioner

“does

not

expressly

couch his challenge to the continued detention under § 1226(a),
as a due process claim”; instead, he “suggested his cause of
action

had

constitutional

dimensions

was deprived of an alleged bond.”

in

asserting

that

he

(Docket Entry No.33, page 4).

Respondents maintain that such claim “does not raise claims of
constitutional concern as pled in the habeas petition.

Nor does

Petitioner’s assertion that he was denied a bond raise a claim of
10

constitutional magnitude.”

(Id., page 5).

They seek dismissal

under Rule 12(b)(6), and alternatively under Rule 56(a) of the
Federal Rules of Civil Procedure, on the ground that Petitioner
has failed to state a claim.

(Docket Entry No.33).

In ruling on a 12(b)(6) motion, the Court may not go outside
the pleadings, including the complaint and documents appended
thereto.

If any matters outside the pleadings are considered,

the motion is converted to one for summary judgment.

See Murphy

v. Inexco Oil Co., 611 F.2d 570, 573 (5th Cir. 1980).

Rule 12(d)

provides that “[i]f, on a motion under Rule 12(b)(6) or 12(c),
matters outside the pleadings are presented to and not excluded
by the court, the motion must be treated as one for summary
judgment under Rule 56.

All parties must be given a reasonable

opportunity to present all material that is pertinent to the
motion.”

FED . R. CIV . P. 12(d).

Respondents

attached

a

copy

of

Petitioner’s

Adjournment

History (Docket Entry No.33-1), the Sworn Declaration of Eleanor
Robinson Gaither, an Assistant United States Attorney for the
Southern

District

of

Texas,

Houston

attachments (Docket Entry No.33-3).

Division,

and

other

To consider these documents,

the Court must consider Respondents’ motion for summary judgment
under Rule 56.
186,

193

(5th

specifically

See Isquith v. Middle S. Utils., Inc., 847 F.2d
Cir.

moved

in

1988).
the

Moreover,

alternative

11

because

for

Respondents

summary

judgment,

Plaintiff had notice and a reasonable opportunity to present all
material he has in opposition.
Rule 56(a) provides, in pertinent part, that “[t]he court
shall grant summary judgment if the movant shows that there is no
genuine

dispute

as

to

any

material

fact

entitled to judgment as a matter of law.”

and

the

movant

is

FED . R. CIV . P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553
(1986).

Once the movant carries this burden, the burden shifts

to the nonmovant to show that summary judgment should not be
granted. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998).

A party opposing a properly supported

motion for summary judgment may not rest upon mere allegations or
denials in a pleading, and unsubstantiated assertions that a fact
issue exists will not suffice.

Id.

“[T]he nonmoving party must

set forth specific facts showing the existence of a ‘genuine’
issue concerning every essential component of its case.”

Id.

In considering a motion for summary judgment, the district
court

must

substantive

view

the

evidentiary

evidence
burden.”

“through
Anderson

the
v.

Inc., 477 U.S. 242, 106 S.Ct. 2505, 2513 (1986).

prism
Liberty

of

the

Lobby,

All justifiable

inferences to be drawn from the underlying facts must be viewed
in the light most favorable to the nonmoving party.

Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct.
1348, 1356 (1986).

“If the record, viewed in this light, could
12

not lead a rational trier of fact to find” for the nonmovant,
then summary judgment is proper.

Kelley v. Price–Macemon, Inc.,

992 F.2d 1408, 1413 (5th Cir. 1993).

On the other hand, if “the

factfinder could reasonably find in [the nonmovant’s] favor, then
summary judgment is improper.”

Id.

Even if the standards of

Rule 56 are met, a court has discretion to deny a motion for
summary judgment if it believes that “the better course would be
to proceed to a full trial.”

Anderson, 106 S.Ct. at 2513.

In his Motion for Release from Custody, Petitioner contends
that

Respondents

have

exhausted

the

time

allowed

by

law

to

justify his continued detention and thereby, have denied him due
process of law under the Fifth Amendment.3

(Docket Entry No.18,

page 1).
In a ruling that frames a standard for analysis in this case
as well, Kambo analyzed a constitutional challenge to detention
under § 1226(a), as follows:

“Freedom from bodily restraint has always been at the
core of the liberty protected by the Due Process Clause
from arbitrary governmental action.” . . .
“In the
substantive
due
process
analysis,
it
is
the
[Government]’s affirmative act of restraining the
individual’s freedom to act on his own behalf-through
incarceration, institutionalization, or other similar
restraint
of
personal
liberty
–
which
is
the
‘deprivation of liberty’ triggering the protections of

3

Petitioner also contends that his criminal conviction is not a deportable
offense, an issue which the Court has already addressed.

13

the Due Process Clause. . . .” Thus, incarceration by
the government triggers heightened, substantive due
process
scrutiny-there
must
be
a
“sufficiently
compelling” governmental interest to justify such
action, either a punitive interest in imprisoning a
convicted criminal or a regulatory interest-that
outweighs the individual’s constitutionally protected
interest in avoiding physical restraint.
The Supreme
Court has already held that detention during removal
proceedings is civil, not criminal.
Therefore the
detention must be supported by an adequate regulatory
interest.
Two regulatory interests generally support
detention
during
removal
proceedings–ensuring
the
alien’s availability for removal if and when a final
order of removal is issued, and protecting the public
from potential harm if the alien is released.

Kambo, 2007 WL 3051601 at *18 (citations omitted).
Petitioner’s pleadings show that on October 21, 2010, the
month after Petitioner was taken into ICE custody, the IJ denied
his

request

for

discretionary

a

factor

change
of

in

flight

Petitioner’s release on bond.
At

the

time

Petitioner

he

had

filed
been

custody

the

which

based
weighed

on

the

against

(Docket Entry No.1-1, page 14).

pending

detained

(Docket Entry No.1, page 5).

risk,

status

petition

without

bond

in
for

August
ten

2011,

months.

Months later on December 21, 2011,

Petitioner invoked the Fifth Amendment in his Motion for Release
from Custody; at that time he had been detained for sixteen
months.

(Docket Entry No.18, page 1).

“This period is well

beyond the short period of detention pending a determination of
removability that the Supreme Court assumed was typical when it

14

decided Kim.4

Petitioner’s . . . present detention is also

longer than the six month presumptively reasonable period of
post-removal

detention

set

forth

by

the

Court

in

Zadvydas.”5

Uritsky v. Ridge, 286 F.Supp.2d 842, 846-47 (E.D. Mich. 2003).
Petitioner’s pleadings and submissions, however, do not show
that Petitioner sought release from his detention by filing a
motion for redetermination of the IJ’s denial of bond until just
last month, in May 2012, or that he has yet filed an appeal from
the

IJ’s

denial

of

a

bond.

The

summary

judgment

evidence

establishes that Petitioner sought, and Immigration Judge Jimmie
Lee Benton granted, a long series of continuances pending the
resolution of Petitioner’s I-130 visa application and the appeal
therefrom,
request

thereby

for

extending

adjustment

of

the

time

status

and

for

resolution

removal

of

his

proceedings.6

4

Demore v. Kim, 538 U.S. 510 (2003).

5

Zadvydas v. Davis, 533 U.S. 678 (2001).

6

Title 8 U.S.C. § 1255(a) provides for the adjustment of status , as follows:
The status of an alien who was inspected and admitted or paroled
into the United States . . . may be adjusted by the Attorney
General, in his discretion and under such regulations as he may
prescribe, to that of an alien lawfully admitted for permanent
residence if (1) the alien makes an application for such adjustment,
(2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an
immigrant visa is immediately available to him at the time his
application is filed.

An alien applies for adjustment of status to that of a lawful permanent resident
on an I–485 form. To be eligible for adjustment of status on the grounds of a
family relationship to a permanent resident or citizen of the United States, the
applicant must have an approved immigrant visa petition, Form I–130. An approved
I–130 filed by the spouse fulfills the requirement that a visa be “immediately

15

(Docket Entries No.33-1, pages 1-2; No.33-3, pages 2-5; No.38,
page 4; No.39, page 1).

Specifically, after being taken into ICE

custody on September 20, 2010, Petitioner’s removal hearing set
before

the

IJ

was

postponed

at

Petitioner’s

own

request

on

September 27, 2010 (to seek representation); October 21, 2010
(same);

November

3,

2010

(same);

November

19,

2010

(for

Petitioner to file for asylum); December 16, 2010 (same); January
4, 2011 (for Petitioner to file other application); January 13,
2011 (to allow for adjudication of pending I-130); February 25,
2011 (same); April 11, 2011 (same); May 20, 2011 (same); July 7,
2011 (same); October 24, 2011 (same); January 9, 2012 (same);
February 21, 2012 (same); April 3, 2012 (same).

It is evident

that Petitioner repeatedly moved to postpone his hearing and,
concomitantly, thereby to extend his own temporary detention, to
await new events that may aid his case.
As observed, Petitioner had removal hearing opportunities
open to him beginning one week after he was taken into custody
and successfully sought postponement of all hearings from that
date until the BIA informed him this month--on June 5, 2012--that

available.” INS v. Miranda, 459 U.S. 14, 15 (1982). Unlike the determination
whether a marriage is a sham, the determination of a petition for adjustment is
discretionary and not subject to judicial review; furthermore the IJ has
exclusive jurisdiction to decide the adjustment of status application.
Thereafter an appeal may be made to the BIA. 8 C.F.R. § 245(a) (1), while only
the INS may adjudicate the underlying I–130 petition.
8 C.F.R. 204.1(e).
Offiiong v. Holder, Civil Action No.H-11-CV-0418, 2012 WL 1038650 (S.D. Tex. Mar.
27, 2012).

16

his I-130 visa application has been dismissed.

Assuming that

Petitioner seeks no further continuance of his hearing, there is
nothing in the pleadings to suggest that he will be subjected to
an

indefinite

detention.

Indeed,

the

late

Chief

Justice

Rehnquist in Demore v. Kim, 123 S. Ct. 1708, 1721 (2003), held
that the alien’s six months’ of INS custody was not a substantive
due process violation even though it was somewhat longer than
average, and pointed out that the duration of detention was in
part because “respondent himself had requested a continuance of
his removal hearing.”
occasions

during

a

Here, as seen above, Petitioner on fifteen
period

of

more

than

18

months

repeatedly

requested continuances at each of the fifteen settings he was
given for a removal hearing.

Where the delay in conducting an

alien’s

and

removal

proceeding

the

prolongation

of

his

accompanying regulatory detention is self-induced, there is no
substantive due process violation.

In a pleading dated June 8,

2012, Petitioner suggests that because his appeal from the denial
of

the

I-130

visa

application

was

dismissed,

he

himself

now

expects that the IJ will issue an order of removal, in part based
upon the IJ having told Petitioner that he could not deport
Petitioner until a decision regarding the I-130 visa application
was forthcoming.

(Docket Entry No.39, page 1).

In any event,

there is no prospect shown in the pleadings or summary judgment
evidence of an indefinite detention.

17

Petitioner’s
show

that

over

convictions
marriage.

pleadings
several

for

two

and

the

years

criminal

he

summary

judgment

overstayed

acts,

and

his

engaged

evidence

visa,
in

a

had
sham

The record also shows that he has been provided ample

opportunity

to

seek

an

adjustment

of

detained and during his detention.

status

before

he

was

There is no showing in the

record, however, that Respondents lacked an adequate and proper
regulatory interest in his detention.

In fact, Petitioner’s

pleadings and the record support the IJ’s determination that
Petitioner
Respondents

is

a

have

flight
an

risk

adequate

and

support

regulatory

a

interest

finding
of

that

ensuring

Petitioner’s availabilty for removal if and when a final order of
removal is issued.

The delay in his proceedings, and hence in

the length of his detention, is attributable to his own tactical
efforts to avoid deportation that do not constitute a denial of
substantive due process.

Petitioner fails to state a cognizable

constitutional challenge to his detention and the discretionary
judgment

of

the

Attorney

General

to

detain

him

pursuant

to

8 U.S.C. § 1226(a).
Accordingly, Petitioner’s due process claim is subject to
dismissal.

18

CONCLUSION

For the foregoing reasons, it is ORDERED that
1.

Respondent’s Supplemental Motion to Dismiss, Reply
to Petitioner’s Response, Alternatively, Motion
for Summary Judgment (Docket Entry No.33) is
GRANTED.

2.

The present federal habeas action is DISMISSED
with
prejudice,
but
without
prejudice
to
Petitioner filing a new habeas action if--without
further dilatory action on his own part--he is
denied a prompt removal hearing and facts emerge
that demonstrate he may be indefinitely detained
in the future.

3.

Petitioner’s Motions for Release (Docket Entries
No.18, No.25, No.26), Motion to Dismiss (Docket
Entry No.30), Motions for Judgment (Docket Entry
No.34, No.35), and Motion for Appointment of
Counsel (Docket Entry No.36) are DENIED.

4.

All other pending motions, if any, are DENIED.

The Clerk will enter this Order and provide a correct copy
to all counsel of record.
Signed at Houston, Texas, on

June 29

, 2012.

____________________________________
EWING WERLEIN, JR.
UNITED STATES DISTRICT JUDGE

19