Ali v. Napolitano
| Decision Date | 26 July 2013 |
| Docket Number | Civil Action No. 12-11384-FDS |
| Court | U.S. District Court — District of Massachusetts |
| Parties | I. A. ALI, Petitioner, v. JANET NAPOLITANO, as Secretary of the Department of Homeland Security, and JOHN MORTON, Director of U.S. Immigration & Customs Enforcement for the Boston District Office, Respondents. |
MEMORANDUM AND ORDER ON
PETITION FOR WRIT OF HABEAS CORPUS
This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1226. Petitioner I. A. Ali seeks habeas relief on the grounds that an Order of Supervision compelling him to make indefinite semi-annual appearances before the Immigration and Customs Enforcement office violates his constitutional rights to due process of law. For the reasons set forth below, the petition will be dismissed unless petitioner files an amended petition addressing the content of the Immigration Court's official 2001 decision.
I. A. Ali is (apparently) a citizen of Somalia. He has resided in the United States since at least 2001. At some point—the record is unclear—the government instituted removal proceedings against him, and apparently he sought asylum. On July 16, 2001, an immigrationcourt granted Ali the relief of "withholding of removal." (Pet. for Writ ¶ 9).1 The Immigration Judge's written order was essentially in the form of a filled-out checklist with handwritten notations. According to the original written version of that order, (1) Ali's application for asylum was denied; (2) his application for withholding of removal was granted; (3) his "CAT" application was withdrawn2 ; and (4) both he and the government waived their rights to an appeal. The original written order did not direct that Ali be removed, nor did it indicate a country to which he should be removed. In addition, the order stated:
This is a summary of the oral decision entered on Jul[y] 16, 2001. This memorandum is solely for the convenience of the parties. If the proceedings should be appealed or reopened, the oral decision will become the official opinion in the case.
Four years then passed. Neither party provides a reason for the lengthy gap, or indicates whether Ali was subject to an order of supervision prior to 2005.
On July 15, 2005, Ali received an Order of Supervision. (Pet. for Writ ¶ 10). The Order of Supervision stated that Ali had been ordered removed on July 16, 2001. It then stated that "[b]ecause Immigration and Customs Enforcement (ICE) has not effected your deportation or removal during the period prescribed by law, it is ordered that you be placed under supervision and be permitted to be at large under the following conditions." It then listed the conditions, asfollows:
(Pet. for Writ, Ex. B).
Pursuant to that order, Ali has reported, in person, to the ICE Office twice a year since 2005. (Resp.'s Opp. at 4). Seven more years then passed.
On July 28, 2012, Ali filed the present petition for a writ of habeas corpus. On August 30, 2012, the Department of Homeland Security filed a "Motion to Correct Voluntary Departure Order" with the Immigration Court. At that point, more than eleven years had passed since the original order. (Resp.'s Motion to Correct at 1-2).3 That motion was granted on September 11, 2012.
The revised written order stated that (1) Ali "was ordered removed from the United States to Somalia"; (2) his application for asylum was denied; (3) his application for withholding of removal was granted (the order now included a handwritten notation, "removal to Somalia withheld"); (4) his "application for withholding of removal or deferral of removal under Article III of the Convention Against Torture" was withdrawn; and (5) he waived his right to appeal. (Pet. for Writ, Ex. A at 2). Again, the order stated that it was merely a summary of the order entered on July 16, 2001.
Petitioner contends that the terms of the order violate his constitutional right to due process of law. The government has moved to dismiss his petition. It contends (1) thatpetitioner is not eligible for habeas relief, as he is not in custody, and (2) that the terms of his order of supervision are lawful.
The relevant statute, 28 U.S.C. § 2241(c)(3), provides federal district courts with jurisdiction to entertain petitions for habeas relief from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." The custody requirement "is designed to preserve the writ of habeas corpus as a remedy for severe restraints on individual liberty." U.S. ex rel. Bailey v. U.S. Commanding Officer of Office of Provost Marshal, U.S. Army, 496 F.2d 324, 325-26 (1st Cir. 1974) (citing Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (internal quotation marks omitted)). To satisfy the custody requirement, a petitioner "must be subject to restraints 'not shared by the public generally.'" Hensley, 411 U.S. at 351-53 (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1962)) ( that the obligation to appear "at all times and places as ordered" by "[a]ny court or magistrate of competent jurisdiction" satisfies the custody requirement).
The law is clear that circumstances short of incarceration may constitute sufficient "custody" to warrant habeas review. The Supreme Court has deemed the "custody" requirement satisfied where a petitioner was on parole, Jones v. Cunningham, 371 U.S. 236, 243 (1962), released on bail awaiting trial, Hensley, 411 U.S. 345 (1973), or on military reserve status, Strait v. Laird, 406 U.S. 341, 345-46 (1972).
Respondent contends that an order of supervision is not a sufficient restraint to satisfy the "custody" requirement. In so arguing, respondent relies heavily on Parinejad v. ICE, 501 F. Supp. 2d 280, 283 (D. Mass. 2007). Respondent contends that Parinejad stands for theproposition that, if a petitioner is not physically detained, habeas corpus is not an available remedy. (Resp. Opp. at 2). However, the reasoning of Parinejad does not apply to the present case.
In Parinejad, the court addressed a putative class action suit brought by a detained immigrant, Sassan Parinejad, and two organizational petitioners—Political Asylum/Immigration Representation Project (PAIR) and the Catholic Legal Immigration Network, Inc. (CLINIC). Petitioners sought habeas relief to compel Parinejad's release from the custody of ICE. See Parinejad, 501 F. Supp. 2d at 281-82. Before the court could decide the merits of the habeas petition, Parinejad filed a motion to dismiss, stating that he had been released from custody. See id. The two organizational petitioners attempted to maintain the petition without Parinejad on the basis of the third-party habeas rule. The court dismissed the action for lack of standing, finding that Id. at 283.
As petitioner notes, there is no suggestion in that case that any restrictions were placed upon Parinejad subsequent to his release. (Pet. Reply Br. at 2). In contrast, Ali—the sole petitioner here—has been compelled since 2005 to report twice a year to the ICE Office. (Resp.'s Opp. Br. at 4). Among other requirements, petitioner must provide ICE with written notice of any change of residence, limit his contact with certain individuals, and appear in person "upon each and every request of ICE." (Doc. 1 Ex. B). Failure to comply with any of the conditions listed in the Order of Supervision could result in his detention and criminal prosecution. (Pet. for Writ, Ex. B). Accordingly, Parinejad does not control.
Respondent cites Zadvydas v. Davis, 533 U.S. 678 (2001), for the proposition that habeasrelief "extends solely to release from physical detention." However, that case established no such rule. In Zadvydas, the Court held that aliens who were admitted to the United States but subsequently ordered removed could not be detained indefinitely beyond the removal period. It did not address the question of what conditions, short of detention, might...
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