Montoya v. Department of Homeland Security et al

Filing 4

SCREENING ORDER signed by Judge J.P. Stadtmueller on 12/20/2017. Respondents Department of Homeland Security and Immigration and Customs Enforcement DISMISSED from action. Petitioner's claims PERMITTED to proceed against Respondent Sheriff Dal e J. Schmidt; Clerk of Court DIRECTED to effect service of the Petition and this Order upon Respondent. Within 30 days of receipt of service, Respondent to file motion to dismiss or answer Petition. IF RESPONDENT FILES ANSWER, briefing to proceed a s follows: Petitioner's brief in support of his Petition due within 30 days of filing of Respondent's answer; Respondent's opposition brief 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 Pascual Soler Montoya at Dodge County Detention Facility)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PASCUAL SOLER MONTOYA,
Petitioner,

v.

DEPARTMENT OF HOMELAND
SECURITY, IMMIGRATION AND
CUSTOMS ENFORCEMENT, and
SHERIFF DALE J. SCHMIDT,

Case No. 17-CV-1706-JPS

ORDER

Respondents.

1.

INTRODUCTION
On December 7, 2017, Pascual Soler Montoya (“Montoya”) 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 Montoya’s petition
under Rule 4 of the Rules Governing Section 2254 Proceedings, which
requires the Court to promptly examine the petition and dismiss it “[i]f it
plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief[.]”1
2.

FACTUAL BACKGROUND
According to the allegations of the petition, Montoya is a native

and citizen of Cuba. (Docket #1 at 2). He lawfully entered the United
States in 1980. Id. His last criminal conviction was in 1990, when he was

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.
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convicted in Wisconsin of a drug offense. Id. Until 2017, he “was living a
normal life here in America[.]” Id.
On March 22, 2017, the Department of Homeland Security issued a
warrant for Montoya’s detention for possible deportation to Cuba.
(Docket #1-1). On July 7, 2017, an immigration judge ordered Montoya
deported. (Docket #1-2). This has not yet occurred. (Docket #1 at 3). On
September 26, 2017, Immigration and Customs Enforcement notified
Montoya that it would continue his detention because it expected him to
be deported in the reasonably foreseeable future. (Docket #1-4). Montoya
has made a number of attempts to inquire about the status of his
deportation, but those have not borne fruit. (Docket #1-3; Docket #1-5;
Docket #1-6).
Montoya remains detained at the Dodge County Detention Center
in Juneau, Wisconsin. (Docket #1 at 1). He asserts that there is no
significant likelihood that he will be deported in the near future because
the United States and Cuba lack a repatriation agreement. Id. He requests
that the Court order his immediate release from custody and placement
on supervision pending his removal. Id. at 4.
3.

LEGAL STANDARDS
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.
4.

ANALYSIS
In this case, the Court cannot say that Montoya’s petition is plainly

without merit. Although the presumptively reasonable period of
detention following an order of removal has not yet elapsed (he has been
detained just over five months), Montoya 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. Thus, 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
Montoya’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 argument as to why there is no significant likelihood
of removal”).2 Consequently, the Court will order Respondent Sheriff Dale
It is not clear from the face of his petition whether Montoya has
exhausted his administrative remedies. 8 C.F.R. § 212.12; 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 that or any other procedural issues should they have merit.
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J. Schmidt (“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 Montoya’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.”).
Montoya’s case is clearly one asserting that his present physical
confinement is unlawful, and so the only proper respondent is Schmidt,
the Dodge County Sheriff 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 that person.

Section 2243 purports to set out a specific timeline for briefing and ruling
upon 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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Accordingly,
IT IS ORDERED that Respondents Department of Homeland
Security and Immigration and Customs Enforcement 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 Sheriff Dale J.
Schmidt 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:
1.

Within 30 days of receipt of service of the petition,

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
2.

If Respondent files an answer, then the parties should abide

by the following briefing schedule:
a.

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
accepted as true except to the extent that the judge finds from the
evidence that they are not true.”
b.

Respondent shall file an opposition brief, with

reasons why the writ of habeas corpus should not be issued, within
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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.
c.

Petitioner may then file a reply brief, if he wishes to

do so, within 10 days after Respondent has filed a response brief.
3.

If Respondent files a motion in lieu of an answer, then the

parties should abide by the following briefing schedule:
a.

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.
b.

Respondent shall have 15 days following the filing of

Petitioner’s opposition brief within which to file a reply brief, if
any.
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.
Dated at Milwaukee, Wisconsin, this 20th day of December, 2017.
BY THE COURT:

___________________________________________

J. P. Stadtmueller
U.S. District Judge

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