Opinion
Civil Action 3:20-CV-00505
03-17-2021
JOSE CARLOS GOMES, Petitioner, v. CLAIR DOLL, Warden of York County Prison, Respondent.
MANNION, D.J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK UNITED STATES MAGISTRATE JUDGE
In March 2020, Brazilian native and citizen Jose Carlos Gomes, an immigration detainee currently held at York County Prison (YPC), filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 challenging his continued detention. (Doc. 1). He seeks (1) an order releasing him on his own recognizance or into parole or other reasonable conditions of supervision; and (2) an individualized bond hearing. (Doc. 1, at 8). Respondent Clair Doll, YCP's Warden, responded to the petition in April 2020, and Gomez filed a traverse in May 2020. (Doc. 6; Doc. 8). Accordingly, Gomes's petition is ripe for review and disposition.
For the following reasons, it is recommended that Gomes's petition be denied and DISMISSED WITHOUT PREJUDICE.
I. Background
On June 18, 2019, the United States Department of Homeland Security (DHS) placed Gomes in removal proceedings and later charged him as deportable under Immigration and Nationality Act (INA) § 212(a)(6)(A)(i) (pertaining to aliens present in the United States without having been admitted or paroled). (Doc. 8, at 1; Doc. 6-1, at 3, 5, 7). DHS had encountered Gomes during a routine interview at a Delaware correctional facility, where Gomes was being held following his June 17, 2019 arrest for driving under the influence (DUI), endangering the welfare of a child, harassment, terroristic threatening, and motor vehicle violations. (Doc. 6-1, at 4; Doc. 8, at 1). Those charges are still pending. (Doc. 6-1, at 4; Doc. 8, at 2).
This was not Gomes's first arrest. From 2005 to 2007, he was arrested (but not convicted) of simple assault in New Jersey, arrested and convicted of DUI in Pennsylvania, and arrested (but not convicted) of assault in New Jersey. (Doc. 6-1, at 5; Doc. 8, at 2-3).
When DHS took custody of Gomes, a Supervisory Detention and Deportation Officer determined that he would remain in custody - and not released on bond - pending a final administrative determination in his case. (Doc. 6-1, at 9). Gomes appealed, and on July 3, 2019, Immigration Judge Kuyomars Q. Goldparvar determined that based on Gomes's history of DUI offenses, Gomes posed a danger to the community and should not be released on bond until his order of removal became administratively final. (Doc. 6-1, at 10). Gomes appeared at a master calendar meeting on August 1, 2019, and his merits hearing was scheduled for October 17, 2019, and continued to December 9, 2019, at Gomes's request. (Doc. 6-1, at 11-12). At the merits hearing, Immigration Judge Brandon L. Hart ordered Gomes removed to Brazil and denied his applications for asylum, withholding removal, and INA § 240A(b)(1) cancellation. (Doc. 8, at 2; Doc. 6-1, at 16, 23). On February 20, 2020, Gomes appealed to the Board of Immigration Appeals (BIA) and shortly thereafter requested an extension of the briefing schedule. (Doc. 1, at 5; see Doc. 6-1, at 39-40).
Gomez filed his instant petition on March 20, 2020, alleging that was being subject to an unconstitutionally prolonged detention under 8 U.S.C. § 1226(c) (providing circumstances under which the Attorney General must take an alien into custody). (Doc. 1, at 7). Gomes asked that he be released in order to fight his pending state criminal charges. (Doc. 8, at 1-3). Although unclear, Gomes appears to argue that DHS deprived him of his due process rights by ordering him removed based on charges for which he has not been convicted, while at the same time denying him release, thereby preventing him from contesting the very same charges upon which release was denied. (Doc. 8, at 2-4).
Records of the Executive Office for Immigration Review reflect that the BIA dismissed Gomes's appeal of his removal order on June 5, 2020.
See https://portal.eoir.justice.gov/InfoSystem/Form?Language=EN.
II. Discussion
Gomes's challenges to his pre-final order of removal and corresponding detention under 8 U.S.C. § 1226(c) are moot given the BIA's dismissal of his appeal in June 2020, which is when his order of removal became final under 8 C.F.R. § 1241.1(a). See 8 C.F.R. § 1241.1(a) (“An order of removal made by the immigration judge at the conclusion of proceedings . . . shall become final . . . [u]pon dismissal of an appeal by the Board of Immigration Appeals[.]”); Rodney v. Mukasey, 340 Fed.Appx. 761, 764 (3d Cir. 2009) (“[I]nsofar as Rodney challenged the lawfulness of his detention pursuant to 8 U.S.C. § 1226(c), and he is no longer in custody pursuant to this statute, his appeal is moot. Under Article III of the Constitution, a federal court may adjudicate ‘only actual, ongoing cases or controversies.'” (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990))). “The injury alleged [by Gomes], unreasonably long pre-final order of removal detention under 8 U.S.C. § 1226(c), can no longer be redressed by a favorable judicial decision.” See Rodney, 340 Fed.Appx. at 764.
While Gomes cites to 8 U.S.C. § 1226(c) as the basis for detention, the record before the Court does not reflect whether Gomes was mandatorily detained under § 1226, as opposed to discretionarily detained under § 1226(a). However, because Gomes is now being held pursuant to 8 U.S.C. § 1231 based on his final order of removal, his petition is moot regardless of whether he was held, pre-final order, under § 1226(a) or § 1226(c).
Accordingly, the undersigned recommends that Gomes's request for release or a bond hearing under § 1226 be denied.
Moreover, to the extent Gomes challenges his final order of removal, the Court lacks jurisdiction to entertain his claims. Under the Real ID Act, the “exclusive remedy for challenging an order of removal is a petition for review filed with ‘the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.'” Portes-Ortiz v. Mukasey, No. 1:CV-08-1321, 2008 WL 2973016, at *1 (M.D. Pa. Aug. 4, 2008) (noting the Court's lack of “subject matter jurisdiction to entertain [a] petition for review [of a final order of removal] or to transfer it to the appropriate court of appeals . . .”) (citing 8 U.S.C. § 1252(a)(5); Jordon v. Attorney Gen., 424 F.3d 320, 326 (3d Cir. 2005); Kolkevich v. Attorney Gen., 501 F.3d 323, 329 (3d Cir.2007)); see also DAJuste v. Pennsylvania, No. 3:CV-12-0958, 2012 WL 2930213, at *4 (M.D. Pa. May 25, 2012) (“Nor can this Court grant the relief Petitioner requests, i.e. to stay his removal from the United States” and “find his removal order invalid . . .”), report and recommendation adopted, No. 3:12-CV-958, 2012 WL 2930301 (M.D. Pa. July 18, 2012).
III. Recommendation
Based on the foregoing, it is recommended that Gomes's petition (Doc. 1) be denied and DISMISSED WITHOUT PREJUDICE and that the Clerk of Court be directed to CLOSE THIS CASE.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 17, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.