Betharte v. Schmidt
ORDER signed by Judge J.P. Stadtmueller on 11/30/2017. Respondents Jeff Sessions, Elaine Duke, and Ricardo Wong DISMISSED from action. Clerk of Court DIRECTED to effect service of the petition and this Order upon Respondent. Within 30 days, Responde nt to file motion to dismiss or answer petition. IF RESPONDENT FILES ANSWER, briefing to proceed as follows: Petitioner's brief in support of his Petition due within 30 days of filing of Respondent's answer; Respondent's opposition bri ef due within 30 days of service of Petitioner's brief or 45 days of this Order if Petitioner does not file a brief; Petitioner's reply due within 10 days of filing of Respondent's brief. IF RESPONDENT FILES MOTION, briefing to proceed as follows: Petitioner's brief in opposition due within 30 days of filing of Respondent's motion; Respondent's reply due within 15 days of filing of Petitioner's brief. Civil L.R. 7(f) governs page limitations. See Order for further details. (cc: all counsel, via mail to Jorge Castillo Betharte at Dodge County Detention Facility)(jm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JORGE CASTILLO BETHARTE,
Case No. 17-CV-1590-JPS
JEFF SESSIONS, ELAINE DUKE,
RICARDO WONG, and DALE
On November 14, 2017, Jorge Castillo Betharte (“Betharte”), a state
prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging his detention in connection with removal proceedings.
(Docket #1). As an initial matter, the Court must screen Betharte’s motion
under Rule 4 of the Rules Governing Section 2254 Proceedings, which
requires the Court to promptly examine the motion and dismiss it if it
plainly appears from the petition, any attached exhibits, and the record of
prior proceedings that the petitioner is not entitled to relief.1
FACTS AND PROCEDURAL HISTORY
Betharte is a native of Cuba. He came to the United States in 1980 as
a political refugee. In 1985, he was convicted of delivery of a controlled
substance. In 1994, after his release from custody on that conviction, he
was taken into custody by U.S. Immigration and Customs Enforcement
(“ICE”). In 1995, Betharte was released under an order of supervision.
Rule 1(b) of those Rules and Civil Local Rule 9(a)(2) give this Court the
authority to apply the rules to other habeas corpus cases, including the rule
permitting screening of the petition.
According to Betharte, he has complied with all conditions of release since
Then, on August 7, 2017, ICE issued Betharte a notice of revocation
of his release and took him back into custody. He was interviewed on or
around November 1, 2017, after which the reviewing official determined
that detention should continue. A written decision continuing his review
further was issued on November 1, 2017. The order stated that travel
documents required for him to be removed to Cuba had been requested
and were “expected.”
To Betharte’s knowledge, and despite his continued cooperation
with efforts to remove him to Cuba—including providing ICE with
fingerprints—the Cuban government still has not issued travel documents
for him, and ICE has given no indication that those documents will be
forthcoming in the reasonably foreseeable future. He remains detained at
the Dodge County Detention Center in Juneau, Wisconsin. He requests
that the Court order his immediate release from custody and placement
on supervision pending his removal.
An alien ordered removed from this country generally must be
removed within ninety days. 8 U.S.C. § 1231(a)(1)(A). This is called the
“removal period.” Id. During that period, the alien must be detained. Id. §
1231(a)(2). If not removed within the removal period, the alien is normally
to be released under the government’s supervision. Id. § 1231(a)(3).
However, the Attorney General may continue to detain him beyond the
removal period if the alien presents a risk to the community or is unlikely
to comply with the order of removal. Id. § 1231(a)(6).
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In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court
addressed “whether [the] post-removal-period statute authorizes the
Attorney General to detain a removable alien indefinitely beyond the
removal period or only for a period reasonably necessary to secure the
alien’s removal.” The Court determined that the latter was the appropriate
standard. Id. at 689. To find that the statute permitted indefinite detention
would, in the Court’s view, raise serious due process concerns. Id. at 690.
Although the text of the statute says nothing about reasonableness, the
Court read that limitation into it to avoid a collision with the Constitution.
See id. at 690–98.
Thus, the Court concluded that “once removal is no longer
reasonably foreseeable, continued detention is no longer authorized by
statute.” Id. at 699. In such a case, “the alien’s release may and should be
conditioned on any of the various forms of supervised release that are
appropriate in the circumstances, and the alien may no doubt be returned
to custody upon a violation of those conditions.” Id. at 699–700. Further, if
removal is reasonably foreseeable, “the habeas court should consider the
risk of the alien’s committing further crimes as a factor potentially
justifying confinement within that reasonable removal period.” Id. at 700.
To provide clarity to later courts, the Court specified that a
presumptively reasonable period of detention for purposes of removal
should not exceed six months. Id. at 701. Once that period expires, and
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.” Id. The alien need not show “the absence of any prospect of
removal—no matter how unlikely or unforeseeable,” but merely that
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removal is not reasonably foreseeable. Id. at 702. Similarly, the
government cannot rest solely on assertions of good-faith efforts to secure
removal. Id. As the period of post-removal confinement grows, “what
counts as the ‘reasonably foreseeable future’ conversely would have to
shrink.” Id. at 701. However, the six-month presumption “does not mean
that every alien not removed must be released after six months. To the
contrary, an alien may be held in confinement until it has been determined
that there is no significant likelihood of removal in the reasonably
foreseeable future.” Id.
In this case, the Court cannot say that Betharte’s petition is plainly
without merit. Although the presumptively reasonable period of
detention following an order of removal, six months, has not yet elapsed
(he has been detained approximately four months), Betharte has alleged
that his removal will not be effected in the near future because there is no
repatriation agreement between the United States and Cuba. Based on
Betharte’s representations that he is fully cooperative in the effort to effect
his removal, and that the removal does not appear to be moving forward
in any meaningful fashion, the Court finds—as a preliminary matter of
screening only—that he has proffered sufficiently good reasons to believe
that his removal is not reasonably foreseeable. Under Zadvydas, the
burden must now rest with the government to justify Betharte’s continued
detention. See Cesar v. Achim, 542 F. Supp. 2d 897, 903 (E.D. Wis. 2008) (the
burden shifts to the government “if the alien can offer any legitimate
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argument as to why there is no significant likelihood of removal”).2
Consequently, the Court will order Schmidt to respond to the petition and
will set a briefing schedule. See Rule 4(b) of the Rules Governing
Section 2254 Cases.3
Although Betharte’s claims may proceed, the Court must dismiss
certain of the respondents as improvidently named. A Section 2241 habeas
petition is properly lodged against “the person who has custody” over the
petitioner. 28 U.S.C. § 2242; id. § 2243 (“The writ, or order to show cause
shall be directed to the person having custody of the person detained.”).
In “core” habeas cases—those in which the prisoner challenges his present
physical confinement—this will be the warden of the prison where he is
being held. Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004). The Supreme
Court instructs that in such cases, the respondent should “not [be] the
Attorney General or some other remote supervisory official.” Id.; see also
Kholyavskiy v. Achim, 443 F.3d 946, 949 (7th Cir. 2006) (“[T]he immediate
custodian [is] the individual having ‘day-to-day control’ over the facility
in which a prisoner is housed.”).
Betharte’s case is clearly one asserting that his present physical
confinement is unlawful, and so the only proper respondent is Dale
Further, it appears that Betharte has received all the administrative
review to which he is entitled under Immigration and Naturalization Service
(“INS”) regulations on the matter. See 8 C.F.R. § 241.4. Thus, on the Court’s
preliminary review, it does not plainly appear that he has failed to exhaust his
administrative remedies. See Araujo-Cortes v. Shanahan, 35 F. Supp. 3d 533, 538
(S.D.N.Y. 2014). The Court will leave it to the government to argue otherwise.
Section 2243 sets out a specific timeline for Section 2241 petitions, but the
Court’s prerogative over scheduling embodied in Rule 4 of the Rules Governing
Section 2254 Proceedings controls. Bleitner v. Welborn, 15 F.3d 652, 653–54 (7th
Cir. 1994); Kramer v. Jenkins, 108 F.R.D. 429, 432 (N.D. Ill. 1985).
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Schmidt (“Schmidt”), the Dodge County Sherriff and the day-to-day
overseer of the Dodge County Detention Center. The other named
respondents will be dismissed for the present, but if Schmidt reports that
there is some obstacle to granting complete relief because of a failure to
name some other respondent, the Court will entertain a request to join
IT IS ORDERED that Respondents Jeff Sessions, Elaine Duke, and
Ricardo Wong be and the same are hereby DISMISSED from this action;
IT IS FURTHER ORDERED that the Clerk of the Court shall effect
service of the petition and this Order upon Respondent pursuant to Rule 4
of the Rules Governing Section 2254 Cases; and
IT IS FURTHER ORDERED that the parties shall proceed in
accordance with the following schedule:
Within 30 days of entry of this Order, Respondent shall file
either an appropriate motion seeking dismissal of this action or answer
the petition, complying with Rule 5 of the Rules Governing Section 2254
Cases, and showing cause, if any, why the writ should not issue; and
If Respondent files an answer, then the parties should abide
by the following briefing schedule:
Petitioner shall have 30 days after the filing of
Respondent’s answer within which to file a brief in support of his
petition, providing reasons why the writ of habeas corpus should
be issued. Petitioner is reminded that, in accordance with 28 U.S.C.
§ 2248, unless he disputes allegations made by the respondent in
his answer or motion to dismiss, those allegations “shall be
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accepted as true except to the extent that the judge finds from the
evidence that they are not true.”
Respondent shall file an opposition brief, with
reasons why the writ of habeas corpus should not be issued, within
30 days of service of Petitioner’s brief, or within 45 days from the
date of this order if no brief is filed by Petitioner.
Petitioner may then file a reply brief, if he wishes to
do so, within 10 days after Respondent has filed a response brief.
If Respondent files a motion in lieu of an answer, then the
parties should abide by the following briefing schedule:
Petitioner shall have 30 days following the filing of
Respondent’s dispositive motion and accompanying brief within
which to file a brief in opposition to that motion.
Respondent shall have 15 days following the filing of
Petitioner’s opposition brief within which to file a reply brief, if
Pursuant to Civil Local Rule 7(f), the following page limitations
apply: briefs in support of or in opposition to the habeas petition or a
dispositive motion filed by Respondent must not exceed thirty pages and
reply briefs must not exceed fifteen pages, not counting any caption, cover
page, table of contents, table of authorities, and/or signature block.
Because Petitioner’s filings will be electronically scanned and
entered on the docket upon receipt by the clerk, Petitioner need not mail
to counsel for Respondent copies of documents sent to the Court.
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Dated at Milwaukee, Wisconsin, this 30th day of November, 2017.
BY THE COURT:
J. P. Stadtmueller
U.S. District Judge
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