Chagala v. Beth

Filing 6

ORDER signed by Judge Rudolph T. Randa on 5/13/2015. 2 Petitioner's MOTION for Leave to Proceed in forma pauperis GRANTED. Immigration Courts, Immigration Customs Enforcement, Attorney General, and Department of Homeland Security DISMISSED fro m this action. By 6/12/2015 Beth to file answer showing cause as to why writ should not issue with regard to Abrajan Chagala's petition for writ of habeas corpus. (cc: via mail to Adrian Abrajan Chagala, US Attorney EDWI, Beth; via certified mail to US Atty General, ICE, DHS) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ADRIAN ABRAJAN CHAGALA,
Petitioner,
-vs-

Case No. 15-C-531

DAVID G. BETH,1
Warden of the Kenosha County Detention Center,
Respondent.

DECISION AND ORDER
Abrajan Chagala is currently being detained by Beth at the Kenosha
County Detention Center pursuant to a final order of removal for deportation
to Mexico, and he has filed a petition for relief under 28 U.S.C. § 2241.2 (ECF
No. 1). Abrajan Chagala cites Zadvydas v. Davis, 533 U.S. 678, 701 (2001),
and he asserts that he should be released because he has been in custody
since August 18, 2014, and the order of removal became final on October 21,

Pro se Petitioner Adrian Abrajan Chagala (“Abrajan Chagala”) named multiple
Respondents in the action: the Department of Homeland Security, United States
Immigration and Customs Enforcement (“ICE”), the “Immigration Courts,” the Attorney
General, and the Warden of the Kenosha County Detention Center. The only proper
Respondent is David G. Beth (“Beth”), the Kenosha County Sheriff who oversees the
Kenosha County Detention Center, because he has day-to-day control over Abrajan
Chagala. See Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004); Kholyavskiy v. Achim,
443 F.3d 946, 953 (7th Cir. 2006). The Department of Homeland Security, ICE, the
“Immigration Courts,” and the Attorney General are dismissed from this action.
1

Earlier this year, Abrajan Chagala filed a similar action in this District,
Abrajan Chagala v. Department of Homeland Security, et al., Case No. 15-C-479 (E.D.
Wis.). On April 27, 2015, that action was dismissed without prejudice for lack of
jurisdiction because he failed to name a proper respondent. (Id., ECF Nos. 6-7.)
2

2014.3 (Pet. ¶ 11.) If Abrajan Chagala’s allegations are true, his removal
detention period has exceeded the presumptive 6-month period. See id.
(stating “[a]fter this 6-month period, once the alien provides good reason to
believe that there is no significant likelihood of removal in the reasonably
foreseeable future, the Government must respond with evidence sufficient to
rebut that showing”).
Abrajan Chagala alleges that although he has cooperated fully with
ICE, it has been unable to remove him to Mexico or any other country and
that there is good reason to believe that his removal will not be secured in the
foreseeable future. He also alleges that he has exhausted his administrative
remedies. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004)
(requiring that a § 2241 applicant exhaust administrative remedies). Abrajan
Chagala maintains that his continued custody violates 8 U.S.C. § 1231(a)(6)4

3Abrajan Chagala also states that this action arises under the United States
Constitution, Immigration and Naturalization Act (“INA”) as amended by the Illegal
Immigration Reform and Responsibility Acts of 1996 (“IIRIRA”), 8 U.S.C. § 1101 et seq.,
Administrative Procedure Act (“APA”), 5 U.S.C. § 705 et seq., and that Court may grant
relief under § 2241, the APA, and the All Writs Act, 28 U.S.C. § 1651. (Pet. ¶¶ 2-3.)
4

Section 1231(a)(6) states:
An alien ordered removed who is inadmissible under
section 1182 of this title, removable under section 1227
(a)(1)(C), 1227 (a)(2), or 1227 (a)(4) of this title or who has
been determined by the Attorney General to be a risk to the
community or unlikely to comply with the order of removal,
may be detained beyond the removal period and, if released,
shall be subject to the terms of supervision in paragraph
(3).

-2-

as interpreted by Zadvydas.
This matter is before the Court on Abrajan Chagala’s motion for leave
to proceed in forma pauperis (“IFP”) and preliminary review. In order to

authorize a litigant to proceed IFP, the Court must make two
determinations: first, whether the litigant is unable to pay the costs of
commencing this action; and second, whether the action is frivolous or
malicious. 28 U.S.C. §§ 1915(a) and (e)(2)(B)(i). The Court must deny a
request to proceed IFP if (1) the allegation of poverty is untrue; (2) the
action is frivolous; (3) the action fails to state a claim; or (4) the action
seeks monetary relief against an immune defendant. 28 U.S.C. §
1915(e)(2).
Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts5 provides that the Court is to make a preliminary review and
“[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.”
Abrajan Chagala’s certified resident account statement discloses that

No rules have been promulgated specifically for § 2241 applications. Rule 1 of
the Rules Governing Section 2254 Cases in the United States District Courts states that
the district court may apply any or all of the § 2254 rules to a habeas corpus petition not
specifically covered by those rules. Civil Local Rule 9(a)(2) (E.D. Wis.) also states that
the Court may apply any of the Rules Governing Section 2254 Cases in the United
States District Courts to an application for release from custody pursuant to 28 U.S.C. §
2241.
5

-3-

his current balance is $5.01. While it is a close question since he receives basic
necessities from the detention center, the Court concludes that Abrajan
Chagala is unable to pay the $5 filing fee for his petition.
Abrajan Chagala is in custody pursuant to the detention he now
challenges, and he raises arguable constitutional claims. At this stage of the
proceedings, the Court cannot conclude that the writ sought by Abrajan
Chagala should not issue or that the application is plainly without merit.
Accordingly, the Court will require Beth to file an answer showing cause why
the application should not be granted.
Abrajan Chagala also seeks appointment of counsel and has provided
financial information demonstrating that he unable to retain counsel. The
Court will address whether to appoint counsel after the answer has been filed.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT:
Abrajan Chagala’s motion for leave to proceed in forma pauperis (ECF
NO. 2) is GRANTED;
The United States Department of Homeland Security, ICE, the

“Immigration Courts,” and the Attorney General are DISMISSED from this
action;
On or before June 12, 2015, Beth MUST FILE AN ANSWER showing
cause, if any, why this writ should not issue with respect to Abrajan Chagala’s

-4-

petition for a writ of habeas corpus. The answer should contain the
information required by Rule 4 of the Rules Governing Section 2254 Cases in
the United States District Courts;
The Clerk of Court is DIRECTED TO SERVE the petition and a copy
of this Order upon Beth; and
Pursuant to Fed. R. Civ. P. 4(i), the Clerk of Court is DIRECTED to
send a copy of the petition and this Order to the United States Attorney for
this District; and to send a copy of the petition and Order via registered or
certified mail to the United States Attorney General in Washington, D.C.,
ICE, and the United States Department of Homeland Security.
Dated at Milwaukee, Wisconsin, this 13th day of May, 2015.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

-5-