Vasquez-Rivera v. Johnson et al
Filing
13
MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 11/16/2015. Copy mailed to Petitioner. (walk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
GEOVANI WILBER
VASQUEZ-RIVERA,
Petitioner,
v.
JEH JOHNSON, et al.,
Respondents.
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IOV I 7 2015
CLERK, U.S. ft.•s·: :w ·r COUflT
RICHt/.o:m. Vf\
Civil Action No. 3:15cv433-HEH
MEMORANDUM OPINION
(Denying 28 U.S.C. § 2241 Petition)
This matter is before the Court pursuant to Petitioner Geovani Wilber VasquezRivera's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
("§ 2241 Petition," ECF No. 1.) Respondents have filed a response. (ECF No. 12.)
In the § 2241 Petition, Petitioner, an alien detainee in the custody of the United
States Immigration and Customs Enforcement ("ICE"), asserts that he "has been detained
longer than the six month period which is presumptively valid under Zadvydas v. Davis,
533 U.S. 678, 701 (2001)" and should therefore be released from custody. (§ 2241 Pet.
1.) Respondents assert that the Court lacks subject matter jurisdiction over the § 2241
Petition because no final order of removal has been entered in Petitioner's deportation
proceedings. (Resp. 7-11.) Respondents further argue, in the alternative, that Petitioner
is not entitled to relief under Zadvydas. (Id. at 11-13.) For the following reasons,
Petitioner's§ 2241 Petition (ECF No. 1) will be denied.
I.
PROCEDURAL HISTORY
Petitioner is a native and citizen of El Salvador. (§ 2241 Pet.~ 3.) He was
lawfully admitted to the United States for permanent residence on December 3, 2005.
(Id.) On August 4, 2010, Petitioner was convicted of Misdemeanor Received Stolen
Goods in the General District Court for Prince William County. (Resp. Ex. 3 ("Teamer
Deel.")~
6, ECF No. 12-3.) He was sentenced to 90 days of imprisonment. (Id.) On
June 16, 2011, Petitioner was convicted of Grand Larceny in the Circuit Court for the
City of Virginia Beach.
(Id.~
7.) He was sentenced to 15 years of imprisonment. (Id.)
ICE brought Petitioner into custody on January 21, 2014. (Id.
~
8.) On January
23, 2014, the Department of Homeland Security ("DHS") filed a Notice to Appear,
charging Petitioner as a removable alien under the Immigration and Nationality Act. (Id.
~
9.) During his initial interview, Petitioner "revealed that he is an active MS-13 gang
member."
(Id.~
11.)
On February 20, 2014, Petitioner appeared via video for his initial hearing. (Id.
~
12.) At that time, Petitioner's counsel "filed a Form 1-589, Application for Asylum,
Withholding of Removal, and Protection under the Convention Against Torture." (ld.) 1
The Immigration Judge ("IJ") set a hearing on Petitioner's request for deferral of removal
1
An alien seeking relief under the Convention Against Torture must demonstrate that it is "more
likely than not that he or she would be tortured if removed to the proposed country of removal."
8 C.F .R. § 208.16(c )(2). Petitioner has asserted that he would more likely than not be tortured if
removed to El Salvador because of his associations with MS-13. (Resp. Ex. I ("Sept. 23, 2014 IJ
Decision"), at 5.)
2
under the Convention Against Torture ("CAT") for April 2014. (/d.) 2 On April 7, 2014,
the DHS lodged an additional charge of removability, on the grounds that Petitioner had
been "convicted of two crimes involving moral turpitude after the date of his admission."
(Id.~
13.)
On April 10, 2014, Petitioner's attorney withdrew over an objection by DHS. (Id.
~
14.) The IJ continued the matter for Petitioner to prepare his case. (Id.) After new
counsel appeared for Petitioner, the IJ scheduled the merits hearing for June 5, 2014. (Id.
~
15.) On May 29, 2014, Petitioner's counsel requested a continuance in order to have
time to retain a new expert. (Id.
~
16.) The IJ granted the motion that same day. (Id.)
On August 21, 2014, the parties appeared before the IJ for the merits hearing. (Id.
~
17.) On September 23, 2014, the IJ issued a written decision denying Petitioner's
application for relief under the CAT and ordering that Petitioner be removed to El
Salvador. (Id.
~
18; see also Resp. Ex. I ("Sept. 23, 2014 IJ Decision"), at 11.)
Petitioner, through counsel, filed a Notice of Appeal with the Board of Immigration
Appeals ("BIA"). (Teamer Deel.~ 19.) On December 18, 2014, the BIA issued a written
decision, remanding the matter to the IJ "for a new written decision with additional
factual findings and analysis." (Id.
~
21; see also Resp. Ex. 5 ("Dec. 18, 2014 BIA
Decision"), at 4.)
On May 7, 2015, the parties appeared before a different IJ. (Teamer Deel.~ 29.)
However, that IJ "notified the parties that he was not the proper judge to hear the case,
since the BIA remanded for a written decision by the previous judge." (Id.) That IJ told
2
Because of Petitioner's grand larceny conviction, he was barred from relief in the form of
withholding of removal. (Teamer Deel.~ 12.)
3
the parties that he had given Petitioner's file to the correct IJ. (Id.) On June 3, 2015, the
first IJ issued a written decision denying Petitioner's application for deferral of removal
under the CAT and ordering that he be removed to El Salvador. (Id. ~ 32; see also Resp.
Ex. 2 ("June 3, 2015 IJ Decision"), at 6.)
Petitioner appealed the IJ's decision to the BIA. (Teamer
Deel.~
33.)
Subsequently, the BIA issued a briefing schedule, directing both parties to submit their
briefs by August 31, 2015.
(Id.~
34.) Upon Petitioner's counsel's request, the BIA
granted an extension and directed the parties to file their briefs by September 21, 2015.
(Id.~
35.) Around September 3, 2015, the BIA issued a notice rejecting Petitioner's
appeal because the BIA could not determine what Petitioner intended to appeal. (Id.
~
36; see also Resp. Ex. 6, at 1.) The BIA allowed Petitioner 15 days from the date of the
notice, or by September 18, 2015, to resubmit a corrected appeal. (Resp. Ex. 6, at 1.)
Petitioner's appeal was still pending before the BIA as of September 24, 2015. (Teamer
Deel.~
37.)
II.
STATEMENT OF JURISDICTION
Under 28 U.S.C. § 2241, federal courts are authorized to hear cases in which an
alien claims that he or she is being detained in violation of the United States Constitution
or federal law. See 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 687 (2001).
III.
A.
ANALYSIS
Detention After a Final Order of Removal
The key question in this matter is whether there is a final order of removal in
Petitioner's removal proceeding. Such an order would allow this Court to consider
4
Petitioner's claim that his continued detention is unconstitutional under Zadvydas. As
explained below, because no final order of removal has been entered, Petitioner's claim
for relief under Zadvydas is premature.
Title 8 U .S .C. Section 123 1 governs the detention of aliens after administrative
orders of removal have been entered. "During the removal period, the Attorney General
shall detain the alien." 8 U.S.C. § 123 l(a)(2). The "removal period" is the 90-day period
of time that follows the entry of a final order of removal. 8 U.S.C. § 123 l(a)(l)(A).
Usually, if an "alien does not leave or is not removed within the removal period, the
alien, pending removal, shall be subject to supervision under regulations prescribed by
the Attorney General." 8 U.S.C. § 123 l(a)(3). Detention may continue, however,
"beyond the removal period" for inadmissible or criminal aliens. 8 U.S.C. § 123 l(a)(6).
This statute and the Constitution do not permit indefinite detention. Section
123 l(a)(6), "read in light of the Constitution's demands, limits an alien's post-removalperiod detention to a period reasonably necessary to bring about that alien's removal
from the United States." Zadvydas v. Davis, 533 U.S. 678, 689 (2001). The Supreme
Court has recognized a period of six months of detention as presumptively reasonable
under§ 123 l(a)(6). Id. at 701.
Thus, under Zadvydas, an alien detained while awaiting removal cannot
obtain habeas relief from continued confinement unless he meets a two
prong standard. The alien must show (i) that he is being held beyond the
presumptively reasonable six-month period, and (ii) that there is no
significant likelihood of removal in the foreseeable future.
Menghua Wan v. Crawford, No. 1:13CV1473 (JCCffRJ), 2014 WL 970180, at *3
(E.D.Va. Mar. 12, 2014) (citing Phillippe v. Willett, No. 1:08cvl 167 (JCC), 2009 WL
5
416053, at *4 (E.D.Va. Feb. 18, 2009)). If the alien makes these primafacie showings,
the burden shifts to the government to provide evidence in rebuttal. See Zadvydas, 533
U.S. at 701.
Commencement of the removal period is governed by 8 U.S.C. § 123 l(a)(l)(B).
Under that provision,
The removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a
stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration
process}, the date the alien is released from detention or
confinement.
8 U.S.C. § 123l(a)(l}(B). Only subsection (i) is applicable here. An order of removal
becomes final in accordance with 8 [C.F.R. §] 1241.1." 8 C.F.R. § 241.1. That
regulation states:
An order of removal made by the immigration judge at the
conclusion of proceedings under section 240 of the Act shall become final:
(a) Upon dismissal of an appeal by the Board of Immigration
Appeals;
(b) Upon waiver of appeal by the respondent;
(c) Upon expiration of the time allotted for an appeal if the
respondent does not file an appeal within that time;
(d) If certified to the Board or Attorney General, upon the date of the
subsequent decision ordering removal;
(e) If an immigration judge orders an alien removed in the alien's
absence, immediately upon entry of such order; or
(f) If an immigration judge issues an alternate order of removal in
connection with a grant of voluntary departure, upon overstay of the
voluntary departure period, or upon the failure to post a required
voluntary departure bond within 5 business days. If the respondent
has filed a timely appeal with the Board, the order shall become final
upon an order of removal by the Board or the Attorney General, or
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upon overstay of the voluntary departure period granted or reinstated
by the Board or the Attorney General.
8C.F.R. § 1241.1. Here, only§ 1241.l(a)isrelevanttotheCourt'sanalysis.3
No final order of removal has been entered in Petitioner's case. As noted above,
on September 23, 2014, the IJ issued a written decision denying Petitioner's application
for relief under the CAT and ordering that Petitioner be removed to El Salvador.
(Teamer Deel.~ 18; see also Sept. 23, 2014 IJ Decision at 11.) Subsequently, on
December 18, 2014, the BIA issued a written decision remanding the matter to the IJ "for
a new written decision with additional factual findings and analysis." (Teamer Deel.
~
21; see also Dec. 18, 2014 BIA Decision at 4.) On June 3, 2015, the IJ issued a new
written decision, again denying Petitioner's application for deferral of removal under the
CAT and ordering that he be removed to El Salvador. (Teamer Deel. ~ 32; see also June
3, 2015 IJ Decision at 6.) Petitioner's appeal of that decision is still pending before the
BIA. (Teamer Deel.~ 37.)
Petitioner cites Pierre v. Holder, 738 F.3d 39, 47 (2d Cir. 2013), Batubara v.
Holder, 733 F.3d 1040, 1042-43 (10th Cir. 2013), andAlmutairi v. Holder, 722 F.3d 996,
I 00 I (7th Cir. 2013) in support of his argument that a final order of removal has been
entered. (§ 2241Pet.4.) In Pierre, the BIA had "affirmed the IJ's determination of
Pierre's removability, but reversed the IJ's denial of relief under CAT." 738 F.3d at 47.
The United States Court of Appeals for the Second Circuit found that the BIA's order
3
Petitioner did not waive his appeal, and he filed an appeal within the time allotted.
Furthermore, nothing in the record suggests that Petitioner's matter has been certified to either
the Board or the Attorney General. Moreover, the IJ did not order Petitioner removed in
Petitioner's absence, and Petitioner has not been granted voluntary departure.
7
was a final order of removal because "deferral of removal under CAT offer[ ed] Pierre
only limited protection from removal, lasting only until such time, if any, as the threat of
torture is removed; the denial of Pierre's claim of citizenship, however, which if accepted
would permanently protect him from removal, reaffirms his removability, and thus
constitutes an order of removal that we may review." Id. In Batubara, the parties, in
their briefing, agreed that the BIA's order "was not a final order of removal because
petitioners were not actually removable pending the IJ's decision regarding voluntary
departure." 733 F.3d at 1042. The United States Court of Appeals for the Tenth Circuit
disagreed, concluding that the order was a final order of removal because "neither the IJ's
voluntary departure advisals, nor any IJ order on remand relating to voluntary departure,
could alter the BIA's decision upholding the !J's finding of removability and denial of
petitioners' requests for asylum, withholding of removal, and CAT relief." Id (citation
omitted). In Almutairi, the United States Court of Appeals for the Seventh Circuit noted
that "an order from the BIA resolving everything except an issue relating to voluntary
departure satisfies the finality rules of the INA." 722 F .3d at 1001 (citations omitted).
However, Batabura and Almutairi are easily distinguishable from Petitioner's
matters, as both of those concerned voluntary departures rather than claims for relief
under Zadyvdas. Moreover, the Court finds the Second Circuit's reasoning in Pierre to
be unpersuasive as it cannot be reconciled with pertinent Fourth Circuit precedent. The
United States Court of Appeals for the Fourth Circuit has held that an order of removal
"becomes final 'upon the earlier of (i) a determination by the Board of Immigration
Appeals affirming such order; or (ii) the expiration of the period in which the alien is
8
permitted to seek review of such order by the Board of Immigration Appeals."' Alam v.
Holder, 546 F. App'x 121, 122 (4th Cir. 2013) (quoting 8 U.S.C. § 1101(a)(47)(B)).4 In
Alam, the Fourth Circuit noted that "the [BIA] remanded to the [IJ] for consideration of
Alam's request for withholding of removal or protection under the Convention Against
Torture. Unlike a remand for solely a voluntary departure determination or designation
of a country of removal, the remand in this case potentially affects the underlying
removal order." Id. Here, the issue of whether Petitioner can be removed to El Salvador
without a probability that he will more likely than not be tortured remains unresolved
because Petitioner's appeal is still pending before the BIA. Without resolution, ICE
simply cannot remove Petitioner to the country of removal-El Salvador-designated by
the IJ.
In sum, because the BIA has not yet taken action on Petitioner's appeal, there is no
final order of removal in Petitioner's matter to satisfy 8 C.F.R. § 1241.l(a). See Id.
Given this, Petitioner is not in custody pursuant to a final order of removal, and his claim
for relief under Zadvydas is premature. See Tshiteya v. Crawford, No. 1:13CV894
(JCC/IDD), 2013 WL 6635096, at *3-4 (E.D.Va. Dec. 16, 2013); cf. Ali v. Barlow, 446
F. Supp. 2d 604, 609-10 (E.D.Va. 2006) (finding petitioner's Zadvydas claim to be
premature because the six-month presumptively reasonable period had not yet expired).
4
Unlike in Alam, the Second Circuit in Pierre did not address whether the order of removal at
issue was a final order of removal pursuant to 8 U.S.C. § l IOl(a)(47)(B).
9
B.
Petitioner Is Not Unreasonably Detained
Moreover, even if Petitioner were held under a final order of removal, his
continued detention is constitutional. Here, Petitioner has taken several actions that have
delayed the administrative process. For example, on April 10, 2014, Petitioner's first
attorney withdrew from the case. (Teamer Deel.~ 14.) On April 23, 2014, Petitioner's
new attorney asked for a continuance because he had just received Petitioner's file. (Id.
~
15.) On May 29, 2014, counsel requested a continuance to retain a new expert. (Id.
~
16.) On September 3, 2015, the BIA rejected Petitioner's appeal because the BIA could
not determine what Petitioner intended to appeal. (Id.
~
Petitioner had not yet submitted the corrected appeal.
(Id.~
36.) As of September 24, 2015,
37.) Clearly, Petitioner's
own actions have contributed significantly to the delay in his removal and his continued
detention. See Menghua Wan, 2014 WL 970180, at *4 (holding that "[a]ny delays in [the
petitioner's] departure-and, as such, any continuation of his detention-were caused by
[the petitioner']s request for a stay from the First Circuit" (citing Obikanye v. l.N.S., 78 F.
App'x 769, 772 (2d Cir. 2003))).
Additionally, Petitioner fails to demonstrate there is no significant likelihood of
removal in the foreseeable future. Zadvydas, 533 U.S. at 701. Notably,
[c]ourts have found that removal was not 'reasonably foreseeable' in
situations where no country would accept the detainee, the country of origin
refused to issue proper travel documents, the United States and the country
of origin did not have a removal agreement in place, or the country to
which the deportee was going to be removed was unresponsive for a
significant period of time.
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Tshiteya, 2013 WL 6635096, at *4 (citing Nima v. Ridge, 286 F. Supp. 2d 469, 475
(E.D.Pa. 2003)). Those circumstances are not present here. By contrast, Petitioner's
deportation has been delayed for further consideration of his claim for deferral of
removal under the CAT; if the BIA affirms the IJ's decision denying him CAT relief,
Petitioner stands to be promptly deported to El Salvador.5 Accordingly, even if Petitioner
were subject to a final order of removal, the Court finds that his detention is not
unreasonable. See id. (rejecting similar claim).
IV.
CONCLUSION
For the reasons stated above, Petitioner's § 2241 Petition (ECF No. 1) will be
denied. The action will be dismissed.
An appropriate Order will accompany this Memorandum Opinion.
/s/
HENRY E. HUDSON
UNITED STATES DISTRICT JUDGE
Date: Nof. I(, 201 S
Richmond, Virginia
5
The Government notes that "travel document issuance from the El Salvador Consulate in
Washington, DC occurs quickly, usually within days of the request." (Teamer Deel.~ 40.)
Moreover, "[t]here are scheduled weekly ICE Air flights to El Salvador." (Id. ~ 41.)
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