Coreas v. Lucero et al
Filing
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MEMORANDUM OPINION Re: 5 MOTION to Dismiss for Lack of Jurisdiction by Enrique Lucero, Janet Napolitano, Ernest L. Toney and 6 MOTION for Summary Judgment by Enrique Lucero, Janet Napolitano, Ernest L. Toney. Signed by District Judge James C. Cacheris on 11/2/2011. (stas)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MANUEL COREAS
Petitioner,
v.
ENRIQUE LUCERO, et al.,
Respondents.
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M E M O R A N D U M
1:11cv00898 (JCC/TRJ)
O P I N I O N
This matter is before the Court on Respondents’ Motion
to Dismiss [Dkt. 5] and Motion for Summary Judgment [Dkt. 6].
For the following reasons, the Court will grant Respondents’
Motion to Dismiss and deny Respondents’ Motion for Summary
Judgment as moot.
I. Background
This case arises out of the detention by Immigration
and Customs Enforcement (“ICE”) of Petitioner Manuel Coreas
(“Petitioner”) following a third driving under the influence
(“DUI”) offense within ten years.
Respondents are Enrique
Lucero, District Director for Interior Enforcement at ICE, Janet
Napolitano, Secretary for the Department of Homeland Security
(“DHS”), and Ernest Toney, Superintendent of Piedmont Regional
Jail (collectively, the “Respondents”).
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A.
Factual Background
Petitioner is a citizen of El Salvador and a lawful
permanent resident of the United States.
(“Pet.”) ¶¶ 12-13.)
(Petition [Dkt. 1]
Petitioner was placed in removal
proceedings after an immigration judge (“IJ”) on September 30,
2009 found him removable based on a petit larceny conviction
dated April 26, 2001.
(Pet. ¶ 12.)
The IJ released petitioner on $2,000 bond pursuant to
Petitioner’s motion for release.
(Pet. ¶ 13.)
On October 1,
2009, Petitioner posted bond and was released from custody.
(Pet. ¶ 14.)
On November 21, 2010, Petitioner was arrested for DUI
in Loudon County.
bond.
(Id.)
(Id.)
The General District Court denied
On March 15, 2011, Petitioner was indicted by a
grand jury on a felony charge of a third DUI offense within ten
years.
(Id.)
The Circuit Court ordered Defendant to be held
without bond on April 11, 2011.
(Id.)
As a result of Petitioner’s arrest, ICE lodged a
detainer.
(Id.)
On April 11, 2011, Petitioner pleaded guilty
to one count of a third DUI offense within ten years.
15.)
(Pet. ¶
On May 26, 2011, Petitioner was sentenced to five years,
with the sentence suspended except for time served, and placed
on supervised probation for a period of two years.
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(Id.)
Petitioner was then transferred to ICE custody pursuant to the
detainer.
(Id.)
B.
Procedural Background
On August, 22, 2011, Petitioner filed a petition for a
writ of habeas corpus (the “Petition”).
[Dkt. 1.]
Petitioner
first argues that the $2,000 bond granted by the IJ prior to his
DUI remains in effect, and that ICE is without statutory or
regulatory authority to detain him.
(Pet. ¶¶ 19-20, 34.)
Second, Petitioner argues that his detention by ICE violates the
Due Process Clause of the Fifth Amendment.
38.)
(Pet. ¶¶ 30-32, 36-
Petitioner seeks a declaration that ICE’s conduct exceeds
its statutory and regulatory authority and requests immediate
release.
On September 22, 2011, Respondents filed their Motion
to Dismiss [Dkt. 5] and Motion for Summary Judgment [Dkt. 6].
Petitioner filed an opposition on October 5, 2011 [Dkt. 9] to
which Respondents replied on October 11, 2011 [Dkt. 10].
Respondents’ Motions are before the Court.
II. Standard of Review
A.
Rule 12(b)(1)
Pursuant to Rule 12(b)(1), a claim may be dismissed
for lack of subject matter jurisdiction.
12(b)(1).
Fed. R. Civ. P.
Defendants may attack subject matter jurisdiction in
one of two ways.
First, defendants may contend that the
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complaint fails to allege facts upon which subject matter
jurisdiction may be based.
See Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); King v. Riverside Reg’l Med. Ctr., 211 F.
Supp. 2d 779, 780 (E.D. Va. 2002).
In such instances, all facts
alleged in the complaint are presumed to be true.
Adams, 697
F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540
(E.D. Va. 1995).
Alternatively, defendants may argue that the
jurisdictional facts alleged in the complaint are untrue.
Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780.
In that
situation, “the Court may ‘look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been
submitted on the issue to determine whether in fact subject
matter jurisdiction exists.’”
Virginia v. United States, 926 F.
Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188,
191 (7th Cir. 1993)); see also Velasco v. Gov’t of Indonesia,
370 F.3d 393, 398 (4th Cir. 2004) (holding that “the district
court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment”) (citations
omitted).
In either circumstance, the burden of proving subject
matter jurisdiction falls on the plaintiff.
McNutt v. Gen.
Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697
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F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F.
Supp. 2d 560, 566 (E.D. Va. 2009) (holding that “having filed
this suit and thereby seeking to invoke the jurisdiction of the
Court, Plaintiff bears the burden of proving that this Court has
subject matter jurisdiction”).
B.
Summary Judgment
Summary judgment is appropriate only if the record
shows that “there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co.,
80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted).
The
party seeking summary judgment has the initial burden of showing
the absence of a material fact.
U.S. 317, 325 (1986).
Celotex Corp. v. Catrett, 477
A genuine issue of material fact exists
“if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.”
Anderson, 477 U.S. at 248.
Once a motion for summary judgment is properly made
and supported, the opposing party must come forward and show
that a genuine dispute exists.
See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
The
party opposing summary judgment may not rest upon mere
allegations or denials.
Rather, the non-moving party “must set
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forth specific facts showing that there is a genuine issue for
trial.”
Anderson, 477 U.S. at 250 (quotation omitted).
Unsupported speculation is not enough to withstand a
motion for summary judgment.
See Ash v. United Parcel Serv.,
Inc., 800 F.2d 409, 411-12 (4th Cir. 1986).
Summary judgment is
appropriate when, after discovery, a party has failed to make a
“showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.”
Celotex, 477 U.S. at 322.
In reviewing the record on summary judgment, the court “must
draw any inferences in the light most favorable to the nonmovant” and “determine whether the record taken as a whole could
lead a reasonable trier of fact to find for the non-movant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th
Cir. 1991) (citations omitted).
III. Analysis
A.
Subject Matter Jurisdiction
Respondents argue that the Petition must be dismissed
because after Petitioner was detained by ICE, he appeared before
an IJ who declined to alter Petitioner’s custody status.
(Memorandum in Support [Dkt. 7] (“Mem.”) at 8.)
According to
Respondents, this exercise of discretion is not reviewable by
this Court under the Immigration and Nationality Act (“INA”).
(Mem. at 6-7).
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Specifically, Respondents argue that the Court lacks
jurisdiction to review discretionary decisions by the Attorney
General exercised pursuant to Section 236 of the INA, 8 U.S.C. §
1226.1
Section 1226(a) provides that “[o]n a warrant issued by
the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from
the United States.”
8 U.S.C. § 1226(a).
Unless detention is
mandatory (the parties agree it is not here), the Attorney
General may either (1) continue to detain the arrested alien or
(2) release the alien on bond or conditional parole.
Id.
Section 1226(b) goes on to state that “[t]he Attorney General at
any time may revoke a bond or parole authorized under subsection
(a) of this section, rearrest the alien under the original
warrant, and detain the alien.”
8 U.S.C. § 1226(b).
Finally,
section 1226(e) provides that:
The Attorney General’s discretionary
judgment regarding the application of this
section 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).
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IJ’s are officers within the Department of Justice. Hence, courts have held
that the statutes cited infra, which refer to the Attorney General, preclude
judicial review of discretionary decisions by IJ’s, such as discretionary
bond determinations. See, e.g., Hatami v. Chertoff, 467 F. Supp. 2d 637,
639-41 (E.D. Va. 2006).
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Respondents also contend that Section
1252(a)(2)(B)(ii) of the INA deprives this Court of
jurisdiction.
That section provides that:
Notwithstanding any other provision of law
(statutory or nonstatutory), . . . and
regardless of whether the judgment,
decision, or action is made in removal
proceedings, no court shall have
jurisdiction to review-(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).2
The Court need not reach these questions because,
under the circumstances, the Court declines to find that the IJ
made a discretionary decision regarding Petitioner’s custody
status.
While Respondents maintain that the IJ “implicitly
upheld ICE’s detention decision” (Mem. at 8), they also concede
that Petitioner neither requested the IJ to reinstate his
previous bond nor requested a new bond.3
2
(Mem. at 4.)
Moreover,
In a footnote, Respondents point to another provision, 8 U.S.C. §
1252(b)(9), which they claim divests district courts of jurisdiction over
custody redeterminations by an IJ. (Mem. at 8 n.2.) That section provides
that judicial review of legal and factual questions arising in removal
proceedings rests with the circuit courts of appeals. See Hatami, 467 F.
Supp. 2d at 641-42.
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In fact, when Petitioner’s counsel stated his position, raised before this
Court, that ICE lacked authority to revoke Petitioner’s bond, the IJ
responded “[t]hat’s neither here nor there.” (Master Calendar Hearing Tr.
dated Aug. 24, 2011 [Dkt. 11-1] at 2:16-20.)
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the hearing at which Petitioner appeared before the IJ was a
master calendar hearing, not a bond redetermination hearing.
(Opposition [Dkt. 9] (“Opp.”) at 14 n.11.)
While it may have
been possible for Petitioner to challenge his detention at this
hearing, the fact remains that he did not.
And an IJ is
required to follow certain procedures in making a determination
concerning custody status or bond, which Respondents do not
suggest were followed.
See 8 C.F.R. § 1003.19(f) (requiring
such determinations to be “entered on the appropriate form at
the time such decision is made” and the parties to be “informed
orally or in writing of the reasons for the decision”).
Respondents’ position that the IJ made a decision regarding
Petitioner’s custody status is also inconsistent with their
subsequent argument that Petitioner should be required to
exhaust his administrative remedies and ask the IJ to release
him.
For these reasons, the Court rejects Respondents’
contention that the Court lacks jurisdiction based on a custody
decision made by the IJ.
B.
Exhaustion of Administrative Remedies
Respondents next argue that the Court should dismiss
the Petition because Petitioner failed to exhaust his
administrative remedies.
Under the immigration laws, exhaustion
is not statutorily required when a petitioner challenges
decisions on bond.
Galvez v. Lewis, 56 F. Supp. 2d 637, 644
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(E.D. Va. 1999) (citations omitted).
But even without a
statutory mandate, courts often require exhaustion as a matter
of “sound judicial discretion.”
140, 144 (1992).
McCarthy v. Madigan, 503 U.S.
“As a general rule, in the absence of
exceptional circumstances where the need for the remedy afforded
by the writ of habeas corpus is apparent, courts require
exhaustion of alternative remedies before a prisoner can seek
federal habeas relief.”
Timms v. Johns, 627 F.3d 525, 530-31
(4th Cir. 2010) (internal quotation marks and alteration
omitted).
Exhaustion serves the twin purposes of protecting
administrative agency authority and promoting judicial
efficiency.
McCarthy, 503 U.S. at 145.
The Court agrees that Petitioner should first exhaust
his administrative remedies before requesting habeas relief.
Petitioner may challenge his ICE detention by seeking a custody
redetermination by the IJ.
1003.19(c)(1)-(3).
8 C.F.R. §§ 1236.1(d)(1),
The IJ’s decision may then be appealed to
the Bureau of Immigration Appeals (“BIA”).
8 C.F.R. §§
1236.1(d)(3), 1003.38(b).
As discussed above, Petitioner never challenged his
custody status or requested bond when he appeared before the IJ.
Respondents’ counsel even notified Petitioner that it would not
object should he request a bond redetermination hearing -– an
offer which Petitioner turned down.
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(Mem. at 10.)
Other courts
have concluded that a petitioner should be required to exhaust
administrative remedies before filing a habeas challenge to ICE
detention.
See, e.g., Hamada v. Gillen, 616 F. Supp. 2d 177,
183-84 (D. Mass. 2009); Mutebi v. Mukasey, No. 07-cv-02654, 2008
WL 4297035, at *6 (D. Colo. Sept. 11, 2008).
None of the factors which counsel against the
exhaustion requirement are present here.
at 146-48.
See McCarthy, 503 U.S.
Petitioner does not suggest that exhaustion would
subject him to an unreasonable or indefinite time frame for
administrative action.
Indeed, Petitioner is currently
scheduled to appear before the IJ on November 14, 2011, at which
point he can ostensibly challenge his detention by ICE.
(Master
Calendar Hearing Tr. dated Aug. 24, 2011 [Dkt. 11-1] at 6:1519.)
Nor is there reason to believe exhaustion would be futile
under these circumstances.
discretionary here.
The parties agree that bond is
Because the propriety of Petitioner’s
detention by ICE was not squarely raised before the IJ, it
cannot be said that he has predetermined the issue.
Moreover, a decision as to whether Petitioner’s bond
was properly revoked or Petitioner should be released falls
directly within the IJ’s statutory authority.
See 8 U.S.C. §
1226(a); see also McCarthy, 503 U.S. at 145 (“Exhaustion
concerns apply with particular force . . . when the agency
proceedings in question allow the agency to apply its special
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expertise.”)
And a bond redetermination hearing would moot
Petitioner’s concern that he has been detained by ICE without
additional findings by the IJ.
See Reeder v. Phillips, No.
1:07cv138, 2008 WL 2434003, at *2 (N.D. W.Va. June 12, 2008)
(noting that the exhaustion requirement may promote judicial
efficiency by mooting judicial controversies) (citing McKart v.
United States, 395 U.S. 185, 195 (1969)).
Accordingly, the Court concludes that under these
circumstances Petitioner must exhaust his administrative
remedies prior to seeking habeas relief.
therefore dismissed without prejudice.
This action is
Having granted
Respondents’ Motion to Dismiss, the Court denies Respondents’
Motion for Summary Judgment as moot.
IV.
Conclusion
For these reasons, the Court will grant Respondents’
Motion to Dismiss and deny Respondents’ Motion for Summary
Judgment as moot.
November 2, 2011
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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