Opinion
4:22-CV-159-CDL-MSH 28 U.S.C. § 2241
01-30-2023
S.C., Petitioner, v. Warden, STEWART DETENTION CENTER, Respondent.
REPORT AND RECOMMENDATION
STEPHEN HYLES, MAGISTRATE JUDGE
Pending before the Court is Respondent's Motion to Dismiss Petitioner's pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF Nos. 9, 1). For the reasons explained below, it is recommended that Respondent's motion to dismiss be granted.
BACKGROUND
Petitioner, a native and citizen of Jamaica, was initially admitted into the United States on October 28, 2014, pursuant to a B2 temporary visitor visa, and later gained lawful permanent residency. Resp't's Mot. to Dismiss Ex. A, at 2-3, ECF No. 9-2. United States Immigration and Customs Enforcement (“ICE”) first encountered Petitioner on or about July 13, 2021, and he was served with a notice to appear (“NTA”) before an immigration judge (“IJ”), charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for an aggravated felony.Aguilar Decl. ¶ 6, ECF No. 9-1; Resp't's Mot. to Dismiss Ex. C, at 2-5, ECF No. 9-4.
Petitioner was convicted of conspiracy to import with intent to distribute five or more kilograms of cocaine and one hundred or more kilograms of marijuana in in the United States District Court for the Middle District of Florida and was sentenced to 60 months imprisonment. Resp't's Mot. to Dismiss Ex. B, at 2-11, ECF No. 9-3.
Petitioner applied for asylum, and a merits hearing was held before an IJ on January 21, 2022. Aguilar Decl. ¶ 7. The IJ denied Petitioner's asylum application, sustained the charge of removability, and ordered Petitioner removed. Resp't's Mot. to Dismiss Ex. D, at 2-4, ECF No. 9-5. Petitioner entered ICE custody on February 14, 2022, and timely appealed the IJ's order to the Board of Immigration Appeals (“BIA”). Aguilar Decl. ¶¶ 8-9. The BIA dismissed his appeal, making the removal order final on June 7, 2022. Resp't's Mot. to Dismiss Ex. E, at 2-7, ECF No. 9-6; see 8 C.F.R. § 1241.1(a).
ICE Enforcement and Removal Operations (“ERO”) approved Petitioner for removal on June 9, 2022, and requested a travel document from the Jamaican consulate on June 24, 2022. Aguilar Decl. ¶¶ 10-11. Petitioner filed a Petition for Review (“PFR”) and a Motion for Emergency Stay of Removal with the Eleventh Circuit Court of Appeals, which was denied on July 25, 2022. Id. ¶ 13; Petition, Coote v. U.S. Att'y Gen., No. 22-12212-J (11th Cir. July 25, 2022). He filed a Motion to Reopen with the BIA on September 8, 2022, which remains pending. Aguilar Decl. ¶ 15. ICE/ERO's travel document request remains pending with the Jamaican consulate. Id. ¶ 11. Respondent asserts Petitioner's removal is likely to occur in the reasonably foreseeable future. Id. ¶ 17.
The Court received Petitioner's habeas application (ECF No. 1) on October 18, 2022. After receiving an extension to file a comprehensive response, Respondent filed a motion to dismiss on November 18, 2022 (ECF No. 9). Petitioner replied to Respondent's motion to dismiss on December 15, 2022 (ECF No. 11), and Respondent replied on December 29, 2022 (ECF No. 12). Petitioner filed a surreply on January 12, 2023 (ECF No. 13). Respondent's motion to dismiss is ripe for review.
DISCUSSION
In his motion to dismiss, Respondent argues Petitioner's habeas application should be dismissed for three reasons. First, he argues the petition is premature under Zadvydas v. Davis, 533 U.S. 678, 699-700 (2001). Resp't's Mot. to Dismiss 3-5, ECF No. 9. Second, he argues the Court lacks jurisdiction to grant Petitioner a stay of his removal or a permanent injunction. Id. at 5-8. Finally, he argues the Court lacks jurisdiction over a challenge to the IJ's removal order. Id. at 8-10. The Court agrees and recommends that Petitioner's habeas application be dismissed.
I. Petitioner's Habeas Application is Premature
Petitioner argues he should be released pending review of his habeas petition because he has been in ICE custody for longer than the presumptively reasonable removal period under Zadvydas, and because “he has raised a good faith challenge in opposition of the Government's case to remove him.” Pet. 10-11. Respondent argues, however, that Petitioner's habeas application is premature under Zadvydas and Eleventh Circuit precedent. The Court agrees.
Because a removal order has been entered, Petitioner's case is governed by 8 U.S.C. § 1231(a). Under section 241(a) of the INA, 8 U.S.C. § 1231(a), “when an alien is ordered removed,” the Attorney General “shall” remove the alien within ninety days. 8 U.S.C. § 1231(a)(1)(A). This removal period begins to run on the latest of:
(i) The date the order of removal becomes administratively final.
(ii) If the removal order is judicially reviewed and if a court orders a stay of the removal of the alien, the date of the court's final order.
(iii) If the alien is detained or confined (except under an immigration process), the date the alien is released from detention or confinement.8 U.S.C. § 1231(a)(1)(B). Detention during the ninety-day removal period is mandatory. 8 U.S.C. § 1231(a)(2). Moreover, there is a provision allowing for continued detention if the Government is unable to remove the alien during the ninety-day period. It 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 [§ 1231(a)(3)]. 8 U.S.C. § 1231(a)(6).
By its explicit terms, § 1231(a)(6) does not limit the length of detention for an alien detained under that section. In Zadvydas, however, the United States Supreme Court applied the doctrine of constitutional avoidance to “read an implicit limitation into the statute.” 533 U.S. at 689. The Supreme Court held that § 1231(a)(6) authorizes post-removal-order detention only for a period “reasonably necessary” to accomplish the alien's removal from the United States. Id. at 699-700. The Court recognized six months as a presumptively reasonable period to allow the government to accomplish such removal. Id. at 701. The Court of Appeals for the Eleventh Circuit has explained that, to be entitled to release under Zadvydas, an alien must show: “(1) that the six-month period, which commences at the beginning of the statutory removal period, has expired when the § 2241 petition is filed; and (2) evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Gozo v. Napolitano, 309 Fed.Appx. 344, 346 (11th Cir. 2009) (per curiam) (quotation marks omitted); see also Akinwale v. Ashcroft, 287 F.3d 1050, 1052 (11th Cir. 2002) (per curiam) (“[I]n order to state a claim under Zadvydas the alien . . . must show post-removal order detention in excess of six months [and] also must provide evidence of a good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.”).
To determine if the six-month requirement under Zadvydas has been satisfied, the Court must determine when the statutory removal period begins. Here, Petitioner entered his removal period when the BIA dismissed his appeal on June 7, 2022, rendering his removal order administratively final. Resp't's Mot. to Dismiss Ex. E, at 2-7; see 8 U.S.C. § 1231(a)(1)(B)(i); 8 C.F.R. § 1241.1(a) (providing that removal order becomes final “[u]pon dismissal of an appeal by the [BIA]”). Petitioner filed his habeas petition on October 18, 2022, nearly two months short of the six months required to state a claim under Zadvydas. Moreover, even if Petitioner's claims were not premature, he has not met his burden of showing that there is no “reasonable likelihood of removal” in the foreseeable future. Zadvydas, 533 U.S. at 701. ICE/ERO applied for a travel document from the Jamaican consulate on June 24, 2022, and Petitioner participated in an interview with them on September 28, 2022, less than a month prior to filing his petition. Aguilar Decl. ¶¶ 11, 16. Further, once the consulate issues travel documents, removal is likely to occur. Id. ¶ 17. Jamaica is currently accepting citizens and nationals, there are frequently scheduled charters, and detainees are routinely removed to Jamaica. Id. Since the six-month period had not expired when he filed his petition, and Petitioner cannot show there is no “reasonable likelihood of removal” in the foreseeable future, he fails to state a claim under § 2241. Zadvydas, 53 U.S. at 689, 701; see also Akinwale, 287 F.3d at 1052; and Themeus v. U.S. Dep't of Justice, 643 Fed.Appx. 830, 833 (11th Cir. 2016).
Respondent further asserts Petitioner's Zadvydas period was tolled due to his alleged failure to cooperate by refusing to interview with the Jamaican consulate despite having interviews scheduled on July 8 and August 11, 2022. Aguilar Decl. ¶¶ 12, 14. Respondent states this tolling period ended when Petitioner finally interviewed with the consulate on September 28, 2022. Id. ¶ 16. Petitioner, however, claims he arrived for the interview on July 8, but was told it was postponed by ERO while they investigated Petitioner's potential receipt of an S-Visa. Pet'r's Resp. to Mot. to Dismiss 2, ECF No. 11. Regardless of whether this alleged failure to comply- or even Petitioner's various motions and appeals-tolled the Zadvydas period, his petition is still premature. Even if Petitioner's Zadvydas period was not tolled at all in the time since his removal order became final on June 7, 2022, only four months passed until he filed his habeas petition on October 18, 2022, which is short of the six-month requirement to state a claim for relief.
Petitioner makes two unreconcilable arguments in his response. First, he argues he challenges the constitutionality of the detention and removal process, “not just the length of such process and detention.” Pet'r's Resp. to Mot. to Dismiss 1. As such, he asserts “he is seeking relief under the ‘state-created danger' doctrine, not Zadvydas.” Id. At the same time, Petitioner argues his claim is not premature because the six-month Zadvydas period has now expired. Pet'r's Resp. to Mot. to Dismiss 2. Under Zadvydas, however, the six month-period must have expired at the time the petition was filed, regardless of whether it expires while the petition is under review. Akinwale, 287 F.3d at 1052. As discussed more thoroughly below, Petitioner cannot choose whether his case is governed by Zadvydas and § 1231(a) or some other legal standard. Thus, Petitioner's claims are premature and subject to dismissal.
II. The Court Lacks Jurisdiction to Grant a Stay
Respondent argues the Court lacks subject matter jurisdiction under 8 U.S.C. § 1252 to address Petitioner's request that the Court grant him a stay of removal or a permanent injunction. Resp't's Mot. to Dismiss 5-8. The Court agrees. To the extent Petitioner asks the Court to stay his removal proceedings or to grant a permanent injunction, his claim is barred by the REAL ID Act of 2005 (“Act”), 8 U.S.C. § 1252. The Act provides:
Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision[,] a petition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter[.]8 U.S.C. § 1252(a)(5). Further, the Act contains a consolidation provision that states:
Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section. Except as otherwise provided in this section, no court shall have jurisdiction, by habeas corpus under section 2241 of Title 28 or any other habeas corpus provision, by section 1361 or 1651 of such title, or by any other provision of law (statutory or nonstatutory), to review such an order or such questions of law or fact.8 U.S.C. § 1252(b)(9). Under these jurisdiction-stripping provisions, “district courts lack habeas jurisdiction to entertain challenges to final orders of removal. Instead, a petition for review filed with the appropriate court is now an alien's exclusive means of review of a removal order.” Themeus, 643 Fed.Appx. at 832 (internal citations and quotation marks omitted). Further, a district court is barred from such review regardless of how the attack on the removal order is characterized. See Mata v. Sec'y of Dep't of Homeland Sec., 426 Fed.Appx. 698, 700 (11th Cir. 2011) (per curiam).
The Supreme Court has made clear that § 1252 precludes review of “three discrete actions that the Attorney General may take: her decision or action to commence proceedings, adjudicate proceedings, or execute removal orders.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999) (internal quotations omitted) (emphasis in original). Here, Petitioner asks the court to stay or permanently enjoin his removal; however, the Court is expressly precluded from reviewing such requests. 8 U.S.C. § 1252(b)(9) (“Judicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States . . . shall be available only in judicial review of a final order under this section[.]”). Further, by requesting a stay of removal, Petitioner clearly seeks to challenge “the decision or action by the Attorney General to . . . execute [his]removal order[.]” 8 U.S.C. § 1252(g). Given the clear text of § 1252, the Court lacks jurisdiction to stay or enjoin Petitioner's removal, and his claim should be dismissed. See, e.g., C.B.M. v. Warden, Stewart Det. Ctr., No. 4:19-cv-44-CDL, 2019 WL 5243067, at *1 (M.D. Ga. Aug. 30, 2019) (finding that the Court lacks jurisdiction to stay removal under § 1252(a)(5)).
III. The Court Lacks Jurisdiction over a Challenge of the Removal Order
Finally, Respondent argues the Court lacks jurisdiction to consider Petitioner's claim that the IJ and BIA wrongfully denied his asylum application. Resp't's Mot. To Dismiss 8-10. Once again, the Court agrees that it lacks jurisdiction under the provisions of 8 U.S.C. § 1252. Petitioner cites the state-created danger doctrine and 42 U.S.C. § 1983, stating removal to Jamacia would place him in danger. Pet. 3-4, 7-9. Specifically, Petitioner “contends that although he was denied asylum under [the Convention Against Torture (“CAT”)] at his immigration hearing, the courts did not make an adverse determination on the credibility of his testimony that his life was threatened nor of his stated fear of returning to Jamaica.” Id. at 6. Petitioner claims the IJ erred in its credibility findings; thus, he challenges his removal order.
The Court lacks jurisdiction because Petitioner seeks “judicial review of [a] question[] of law or fact . . . arising from [an] action taken . . . to remove [Petitioner] from the United States.” 8 U.S.C. § 1252(g). Such a claim may only be brought through a petition for review to the court of appeals. See Jean-Pierre v. U.S. Att'y Gen., 500 F.3d 1315, 1321 (11th Cir. 2007) (“The REAL ID Act changed the basic mechanism of federal judicial review; criminal aliens seeking review of an unsuccessful CAT claim may no longer proceed in habeas. Rather, the exclusive mechanism for judicial review is a petition for review filed with the appropriate court of appeals.” (citing 8 U.S.C. § 1252(a)(5))); see also Linares v. Department of Homeland Security, 529 Fed.Appx. 983 (11th Cir. 2013) (per curiam) (holding that a CAT claim was a “claim challenging [a] removal order” and it was proper for the district court to dismiss for lack of jurisdiction).
Petitioner asserts he is not claiming the IJ or BIA erred in its credibility determination, rather that their findings show “the Government's awareness that the removing of Petitioner to Jamaica will most assuredly lead to his death,” which he claims “ris[es] to the level of a Due Process violation.” Pet'r's Resp. to Mot. to Dismiss 4. Despite Petitioner's attempts to recharacterize his claim, however, he still seeks review of his removal order. The IJ and the BIA both addressed Petitioner's CAT claims and ultimately denied him relief. Resp't's Mot. to Dismiss, Ex. D at 2; E at 4-6. Petitioner is correct that the IJ and BIA did not specifically find his testimony uncredible, however, they both denied Petitioner's claims for relief and ordered him removed by concluding that Petitioner had “not met his burden of proof to show it is more likely than not that he would be tortured if he returned to Jamaica[.]” Id. at 6. As discussed above, any challenge to this conclusion cannot be brought in a habeas petition.
Petitioner implores the Court to “construe his pleadings liberally to present the strongest arguments they suggest.” Pet'r's Surreply 2, ECF No. 13. While the Court is required to “‘look behind the label' and determine whether the filing is cognizable under a different legal approach,” Petitioner's filing is not cognizable under any legal approach. See Hall v. Warden, FCC Coleman-USP I, 571 Fed.Appx. 826, 828 (11th Cir. 2014) (per curiam) (quoting United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir.1990)). As an initial matter, Petitioner challenges the actions of federal officials; therefore, he cannot bring a claim pursuant to 28 U.S.C. § 1983. See Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995) (per curiam) (“A § 1983 suit challenges the constitutionality of the actions of state officials[.]” (emphasis added)).
Further, Petitioner's state-created danger doctrine argument lacks merit. Petitioner cites Wang v. Reno, 81 F.3d 808 (9th Cir. 1996) in support of his argument. Pet. 3-4; Pet'r's Resp. to Mot. to Dismiss 5. In Wang, the Ninth Circuit found that the non-citizen plaintiff's Due Process rights were violated when the government brought him into the United States to testify, knowing he had been tortured by a foreign government, then attempted to remove him after he recanted his testimony, knowing he was likely to be executed upon return to that country. Wang, 81 F.3d at 811-12, 818-19. Here, Petitioner presents no such facts, but merely states he cooperated in an investigation, and he fears retaliation if he returned to Jamaica. Pet. 8.
The Eleventh Circuit interprets the state-created danger doctrine according to Collins v. City of Harker Heights, Texas, 503 U.S. 115 (1992). Under that approach, “conduct by a government actor will rise to the level of a substantive due process violation only if the act can be characterized as arbitrary or conscience shocking in a constitutional sense.” Waddell v. Hendry Cnty. Sheriff's Off., 329 F.3d 1300, 1305 (11th Cir. 2003) (citing Collins, 503 U.S. at 128). Further, “only the most egregious official conduct can be said to be arbitrary in the constitutional sense.” Cnty. Of Sacramento v. Lewis, 523 U.S. 833, 834 (1998). The conduct at issue here-effectuating the removal of a non-citizen after he willingly cooperated in an investigation-does not rise to the level required to state a claim under this theory. See Perez-Guerrero v. U.S. Att'y Gen., 717 F.3d 1224, 1234 (11th Cir. 2013) (holding that a petitioner's due process rights were not violated when he was ordered to be removed after cooperating in a government investigation, despite his state-created danger argument). Even under the Ninth Circuit's standard, if applied, Petitioner's argument would likely fail. In Morgan v. Gonzales, the Ninth Circuit applied Wang to facts similar to Petitioner's and found the petitioner in that case did “not allege anything approaching the kind of affirmative government misconduct found in Wang.” 495 F.3d 1084, 1092-93 (9th Cir. 2007).
Finally, the Court notes that, even if it did not recommend dismissal of Petitioner's habeas claims or find his remaining claims barred, it would still recommend dismissal of his claims because they cannot be raised in the same action as a habeas petition. See Kerlin v. Barnard, 742 Fed.Appx. 488, 489 (11th Cir. 2018) (per curiam) (noting that a habeas petition and § 1983 claim are “mutually exclusive” and cannot be raised in the same action (citing Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006) and McNabb v. Comm'r Ala. Dep't of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013))); Corbin v. Dep't of Veteran's Affs., 2015 WL 10384134, at *2 (N.D. Ala. Dec. 11, 2015) (noting that a claim against federal officials must be brought under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and must be brought in a separate action).
Moreover, “[a]lthough the scope of the writ of habeas corpus has been extended beyond that which the most literal reading of the statute might require, the Court has never considered it a generally available federal remedy for every violation of federal rights.” Lehman v. Lycoming Cty. Children's Servs. Agency, 458 U.S. 502, 510, (1982). “[W]hatever the expanded scope of our jurisdiction may be, the remedy that habeas corpus provides remains tied to some form of relief from the petitioner's custody.” Arnaiz v. Federal Satellite Low, 594 F.3d 1326, 1329 (11th Cir. 2010) (per curiam). In sum, Petitioner cannot bring any constitutional claim he might have styled as a habeas corpus petition. If he wishes to proceed with a different constitutional claim, he must file an appropriate complaint and pay the associated filing fee.
CONCLUSION
For the foregoing reasons, it is recommended that Respondent's motion to dismiss (ECF No. 9) be GRANTED and Petitioner's application for habeas relief (ECF No. 1) be DISMISSED WITHOUT PREJUDICE. Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED,