Carmenate-Pozo v. Smith
Filing
22
DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS HEREBY ORDERED that the petitioner's 1 petition for writ of habeas corpus is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that petitioner's 9 Motion to Strike, 18 Motion for an Evidentiary Hearing, and 20 Second Motion for an Evidentiary Hearing are DENIED. (cc: all counsel, via US mail to Petitioner) (blr)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
RODOSVALDO CARMENATE-POZO,
Petitioner,
v.
Case No. 18-CV-693
DALE SMITH,
Respondent.
DECISION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS AND DISMISSING CASE
Rodosvaldo Carmenate-Pozo, a citizen of Cuba subject to a final order of removal and
currently detained at the Dodge County Jail pending actual removal, filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Carmenate-Pozo alleges his continued detention
beyond six months is contrary to Zadvydas v. Davis, 533 U.S. 678 (2001). He seeks a writ ordering his
immediate release. For the reasons stated below, the petition is denied.
BACKGROUND
The history of Carmenate-Pozo’s immigration proceedings is taken from the declaration of
Michael Landmeier, a Deportation Officer for the Enforcement and Removal Office (“ERO”),
Immigration Customs Enforcement (“ICE”), of the Department of Homeland Security. CarmenatePozo is a citizen of Cuba who entered the United States on the “Mariel Boat Lift,” a mass flotilla
of refugees that departed Mariel Harbor in Cuba and landed in Florida on June 3, 1980. (Declaration
of Deportation Officer Landmeier (“Landmeier Decl.”) ¶ 6, Docket # 12.) Carmenate-Pozo was
ordered removed by an Immigration Judge on April 5, 1993. That order remains final. (Id. ¶ 7.) On
June 21, 1995, Carmenate-Pozo was convicted in LaCrosse County, Wisconsin, for Manufacture
and Delivery of a Schedule I Controlled Substance and sentenced to 25 years in prison. (Id. ¶ 8.)
Because of Carmenate-Pozo’s method of entry into the United States and his criminal
conviction, Carmenate-Pozo is eligible for repatriation to Cuba pursuant to an agreement reached
between the United States and Cuban governments on January 12, 2017. (Id. ¶ 9.) Carmenate-Pozo’s
order of removal could not be effectuated prior to the agreement between the United States and
Cuban governments. (Id. ¶ 10.) As such, Carmenate-Pozo has been reporting to ERO on an order
of supervision over the years. (Id.)
Carmenate-Pozo was taken into ICE custody when he reported to ERO on his order of
supervision on April 5, 2018, as he is now eligible for repatriation to Cuba pursuant to the January
12, 2017 agreement. (Id. ¶ 11.) ERO has been processing the necessary paperwork with the Cuban
government and will be notified by the Cuban government on or around August 15, 2018 whether
Carmenate-Pozo is approved for repatriation. (Id. ¶ 12.) In the meantime, ERO has completed a
custody review of Carmenate-Pozo’s case and offered to release him on June 21, 2018 on an order
of supervision with a $5,000.00 supervision bond. (Id. ¶ 13.) To date, Carmenate-Pozo has not paid
the bond. (Id.) Carmenate-Pozo will be repatriated to Cuba as soon as the Cuban government gives
its approval, on or around August 15, 2018. (Id. ¶ 14.)
ANALYSIS
A federal court may grant habeas relief to a detainee who “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(a), (c)(3). In determining
whether to grant such relief, the court may consider affidavits and documentary evidence such as
records from any underlying proceeding. §§ 2246–2247.
-2-
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).
In Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (emphasis in original), 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.
-3-
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 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.
Carmenate-Pozo argues that “there is no such Cuba [and] U.S. deportation agreement. None
whatsoever.” (Docket # 17 at 2.) Carmenate-Pozo includes printed information, copyrighted 2011,
from the Heartland Alliance’s National Immigrant Justice Center, that lists Cuba as a country that
will not accept the deportation of its citizens. (Docket # 17-1 at 1-2.) Carmenate-Pozo also asserts
that Deportation Officer Landmeier told him on April 5, 2018 that it would be difficult to obtain
travel papers from the Cuban Embassy, thus evidencing that his removal remains impossible.
(Docket # 6 at 3.)
Under Zadvydas, even after the six month presumptively reasonable period of detention has
expired, Carmenate-Pozo must still provide good reason to believe that there is no significant
-4-
likelihood of removal in the reasonably foreseeable future. 533 U.S. at 701. As the court explained
in Mancera v. Kreitzman, No. 16-CV-89, 2016 WL 1249600, at *3 (E.D. Wis. Mar. 29, 2016):
Zadvydas involved challenges to § 1231(a)(6) by aliens ordered removed but not actually
removed given the lack of any country willing to accept them or the lack of an
extradition treaty or repatriation agreement with the would-be receiving country. 533
U.S. at 684. The aliens argued the government would never be able to remove them
and they therefore would be permanently confined in civil immigration detention,
which would violate due process. Id. at 685–86.
While Carmenate-Pozo argues that there is no agreement between Cuba and the United
States regarding repatriation of its citizens, he is incorrect. On January 12, 2017, Cuba and the
United States issued a joint statement in which Cuba agreed to repatriate 2,746 citizens who arrived
via the Port of Mariel in 1980 and were found by the competent authorities of the United States to
have tried to irregularly enter or remain here in violation of United States law. See Joint Statement
between Government of the United States and Cuba, Department of Homeland Security,
https://www.dhs.gov/publication/joint-statement-between-government-united-states-and-cuba (last
visited Aug. 8, 2018). See Bova v. U.S. Bank, N.A., 446 F. Supp. 2d 926, 931 (S.D. Ill. 2006) (“The
Court may of course judicially notice public records and government documents, including those
available from reliable sources on the Internet.”).
Thus, while it is possible Carmenate-Pozo will be denied repatriation, I cannot conclude that
there is no significant likelihood of Carmenate-Pozo’s removal in the reasonably foreseeable future.
Furthermore, even if removal was no longer reasonably foreseeable and detention was no longer
authorized by statute, 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.” Zadvydas, 533 U.S. at 699-700.
Carmenate-Pozo was ordered released in a Notice of Custody Determination dated June 25, 2018
-5-
with a $5,000.00 supervision bond. (Landmeier Decl. ¶ 13; Docket # 17-1 at 5.) While CarmenatePozo has not yet paid the bond, he will be released upon posting of the bond. Therefore, CarmenatePozo’s continued detention is authorized under § 1231(a)(6) as construed by the Supreme Court in
Zadvydas. For these reasons, Carmenate-Pozo’s petition for a writ of habeas corpus is denied without
prejudice.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that the petitioner’s petition for a writ
of habeas corpus (Docket # 1) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that petitioner’s motion to strike (Docket # 9), motion for
evidentiary hearing (Docket # 18), and second motion for evidentiary hearing (Docket # 20) are
DENIED.
IT IS FURTHER ORDERED that the Clerk of Court will enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 9th day of August, 2018.
BY THE COURT
s/Nancy Joseph
NANCY JOSEPH
United States Magistrate Judge
-6-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?