Benitez-Garay v. Dep't of Homeland Sec.
| Decision Date | 08 February 2019 |
| Docket Number | Civil Action No. SA-18-CA-422-XR |
| Parties | MIGUEL ANGEL BENITEZ-GARAY, Plaintiff, v. DEPARTMENT OF HOMELAND SECURITY, ET AL., Defendants. |
| Court | U.S. District Court — Western District of Texas |
On this date, the Court considered its jurisdiction over this petition for writ of habeas corpus. Although this case presents sympathetic facts, the Court concludes that relief is not available in this Court because it lacks jurisdiction.
According to the Petition and the records before the Court, Petitioner Benitez-Garay, an El Salvadoran national, entered the United States in 2000 or 2001 without inspection. He was ordered removed by an Immigration Judge in August 2006.1 He was removed much later in 2015. He re-entered the United States in early 2016. In 2017, apparently after being arrested on a misdemeanor charge and being subsequently charged with unlawful re-entry (for which he received a sentence of time served and one year of probation), he expressed a fear of returning to El Salvador and was given an interview with an asylum officer. The officer determined that Petitioner did not establish a reasonable fear of persecution or torture.
The asylum officer's negative reasonable fear determination was vacated in September 2017, and Petitioner was placed in withholding-only proceedings wherein he applied for withholding of removal under § 241(b)(3) of the INA and protection under the Convention AgainstTorture ("CAT").2 His initial hearing was scheduled for February 15, 2018.
In September 2017, while in ICE custody in the Federal Bureau of Prisons, Petitioner was diagnosed with cancer. Petitioner asserts that, despite his severe condition, for a period of approximately one month in November 2017, he was denied medical treatment and drugs. Docket no. 6 at 5-6. Petitioner further contends that ICE took no steps to ensure he would get adequate medical care for his condition after removal to El Salvador. Id. at 6.
In October 2017, Petitioner started working with Homeland Security Investigations ("HSI") agents on drug-related activity in the Austin area, and they promised to help him with his immigration proceedings and "get him out." Docket no. 6 at 7. On October 25, 2017, DHS filed a motion to move up Petitioner's hearing to October 30, 2017 (from February 2018), and the motion was granted that same day. Petitioner alleges this was done without notice or opportunity to respond, and the motion was based on the fact that he had cancer. Id.
At the October 30 hearing, the Immigration Judge ("IJ") denied Petitioner's claims for withholding under INA § 241(b)(3) and the CAT, and ordered Petitioner removed to El Salvador. Petitioner waived his right to appeal, as he had been instructed to do by HSI agents. He was released shortly thereafter, and an Agent Soto was waiting for him. On December 15, 2017, Petitioner was granted a one-year deferred action (from December 16, 2017 to December 16, 2018) by ICE through the Special Agent in Charge of the San Antonio HSI Field Office. Petitioner was notified that, while in deferred-action status, he was required to obey all federal, state, and local laws. Petitioner met with HSI throughout November 2017 to February 2018.
Petitioner was then arrested for violating his probation for using drugs. Petitioner contends that, instead of going to jail, he was sent to ICE custody at Pearsall. At first, Petitioner was depressed and consented to removal, and ICE began making removal arrangements. However, after speaking with another detainee, Petitioner obtained representation from his current counsel. Petitioner's new counsel then filed an application for stay of removal with ICE on March 2, 2018 and a motion to reopen his immigration proceedings with the immigration court on March 5, 2018. Petitioner was granted an emergency stay to allow the IJ to evaluate his motion to reopen.
On March 23, the IJ denied the motion to reopen, finding the motion untimely because itwas filed more than 90 days after the IJ's October 30, 2017 decision, and the IJ vacated the stay of removal. Petitioner appealed the decision to the Board of Immigration Appeals ("BIA") and filed an emergency motion to stay removal on March 29. The BIA denied his stay of removal on April 18, 2018. On April 24, Petitioner filed an emergency motion to reconsider the stay with the BIA, which was denied on May 2. Petitioner filed his brief on appeal with the BIA on May 2.
On May 7, Petitioner filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and an accompanying motion for Temporary Restraining Order ("TRO"), seeking to prevent his removal from the United States "until he is provided adequate medical care, assurance of continued care, and through a completed and appropriate due process it has been determined whether, in light of current conditions and circumstances, he is entitled to mandatory protection from removal and to re-open his matter before the Board of Immigration Appeals." In the "Jurisdiction" section of the petition, Petitioner asserts various bases for jurisdiction, including this Court's habeas corpus jurisdiction under 28 U.S.C. §2241 and Article I, § 9 cl. 2 (Suspension Clause), federal question jurisdiction 28 U.S.C. §1331, the mandamus statute 28 U.S.C. § 1361, the Administrative Procedures Act 5 U.S.C. § 701 et seq., Article III and Amendment V of the Constitution, and the common law. Petitioner also contends that this Court may grant relief pursuant to the Declaratory Judgments Act, the All Writs Act, and Ex Parte Young. Petitioner asserts that this case arises under the United States Constitution; the Immigration and Nationality Act ("the INA"); the regulations implementing the INA's asylum and expedited removal provisions, the Convention Against Torture ("the CAT"), the Foreign Affairs Reform and Restructuring Act of 1998 (the "FARRA"), and the Administrative Procedure Act ("the APA"). Docket no. 1 § 10.
Last, Petitioner asserts that, Docket no. 1 § 9.
The Petition includes various claims asserting violations of Petitioner's right to dueprocess in the underlying proceedings and asserts that Petitioner is protected from removal under the CAT. It further asserts that Petitioner is entitled to adequate medical treatment as a detainee. This claim asserts in part that Respondents are denying him needed medical care by scheduling his deportation, knowing that the necessary medical care will not be available to him in El Salvador.
Petitioner asked this Court to assume jurisdiction, declare his detention unlawful, order that he be provided adequate medical care for the duration of his illness, and order his release from custody and, in the alternative, order a full and complete medical evaluation prior to deportation, and, in the alternative, enjoin Respondents from removing him until he has exhausted his immigration procedures, and enjoin Respondents from transferring him outside this district.
On May 8, this Court denied Petitioner's motion for TRO, finding that Petitioner had failed to establish jurisdiction. Thereafter, the Court issued a Show Cause Order to Petitioner to demonstrate why this case should not be dismissed for lack of subject matter jurisdiction and to inform the Court whether Petitioner had been removed. Petitioner responded that Petitioner was removed after the Court denied his TRO, but argues that the Court nevertheless has jurisdiction over this matter.
Petitioner informed the Court that, on November 15, 2018, the BIA dismissed his appeal from the IJ's March 23 order denying his motion to reopen. Docket no. 7. Two BIA members affirmed the denial of the motion to reopen as untimely, noting that Petitioner was not entitled to equitable tolling because he could have filed a timely motion to reopen based on his due process argument that the Immigration Judge erred in granting the motion to advance his individual hearing on the same day it was filed and had begun cooperating with HSI during the 90-day period for filing motions to re-open, but instead waited until his deferred action was revoked to file the motion to reopen. A dissenting board member would have found exceptional circumstances based on the fact that Petitioner, "pro se and newly diagnosed with leukemia, was not given adequate time to respond to the Department of Homeland Security's motion to advance his individual merits hearing date from February 15, 2018 to October 30, 201[8]." Docket no. 7-1.
Records indicate that Petitioner filed a petition for review in the Fifth Circuit Court of Appeals on December 14, 2018. No. 18-60859. Petitioner's brief is due March 4, 2019.
In May 2005, Congress passed the REAL-ID Act, which "divested federal [district] courtsof jurisdiction over § 2241 [habeas] petitions attacking removal orders." Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736 (5th Cir. 2005). The Real-ID Act altered the way in which aliens may seek judicial review of administrative orders of removal. Jean v. Gonzales, 452 F.3d 392, 396 (5th Cir. 2006). Under the Act, "[n]otwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, a petition for review filed with an appropriate court of appeals . . . shall be the sole and exclusive means for...
To continue reading
Request your trial