Bonitto v. Bureau of Imming. and Cust. Enforcement

• Decision Date: 17 April 2008
• Docket Number: Civil No. B-07-226.
• Citation: 547 F.Supp.2d 747
• Parties: Kevin BONITTO, Petitioner, v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.
• Court: U.S. District Court — Southern District of Texas

547 F.Supp.2d 747

Kevin BONITTO, Petitioner, v. BUREAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT, Respondent.

Civil No. B-07-226.

United States District Court, S.D. Texas, Brownsville Division.

April 17, 2008.

COPYRIGHT MATERIAL OMITTED

Kevin Bonitto, Los Fresnos, TX, Pro Se.

Rene Carlo Benavides, US Attorney's Office, McAllen, TX, for Respondent.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

HILDA TAGLE, District Judge.

Before the Court is the Magistrate Judge's Report and Recommendation in the above-referenced cause of action. After a de novo review of the file, the Magistrate Judge's Report and Recommendation is hereby ADOPTED. It is, therefore, ORDERED, ADJUDGED, and DCREED that:

1. Bonitto's petition under 28 U.S.C. § 2241 is GRANTED CONDITIOALLY.

2. Respondent shall undertake a review of Petitioner Bonitto's custody status in accordance with the provisions of 8 C.F.R. § 241.4 by May 26, 2008.

3. If Respondent fails to provide Petitioner with the process required by 8 C.F.R. § 241.4 by May 26, 2008, Petitioner shall be released from confinement subject to supervision in accordance with 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.5.

4. Respondent shall file a status report with this Court no later than May 26, 2008.

5. Petitioner's request for injunctive relief, attorney's fees, and costs is DENIED.

6. Respondent's Motion to Dismiss is DENIED.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

FELIX RECIO, United States Magistrate Judge.

Before the Court is Kevin Bonitto's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. (Doc. 1). Respondent has filed a Motion to Dismiss, which will also be considered herein. (Doc. 22). For the following reasons, Petitioner's habeas petition should be GRANTED CONDITIOALLY and Respondent's Motion to Dismiss should be DENIED.

BACKGROUND

Petitioner Kevin Bonitto is a native and citizen of the Jamaica. He is currently detained at the Port Isabel Detention Center ir, Los Fresnos, Texas pending his removal from the United States. He originally entered this country at age twelve on March 13, 1996, as a lawful permanent resident. Bonitto has since been ordered removed by decision of an immigration judge ("IJ") for having been convicted of a drug trafficking crime and an aggravated felony. His removal period under 8 U.S.C. § 1231(a)(1)(B) began on June 21, 2007.

On October 11, 2001, Bonitto was convicted of the criminal sale of a controlled substance near school grounds and sentenced to serve six years and two months in prison. On June 21, 2001, DHS encountered Bonitto at the Green Correctional facility in New York City and placed him in DHS custody at the Buffalo Detention Center in order to prosecute his immigration charges. A Notice to Appear charged Bonitto as removable on March 15, 2002, and on November 6, 2002, an IJ ordered Bonitto removed to Jamaica. On March 6, 2003, the Board of Immigration Appeals ("BIA') denied his appeal and summarily affirmed the IJ's decision.

On June 21, 2007, Bonitto was released from the custody of the New York Department of Correctional Services into ICE custody and was thereafter detained pending his removal to Jamaica pursuant to 8 U.S.C. § 1231.¹ On November 23, 2007, Bonitto's deportation officer completed a file review, a Post Order Custody Review ("POCR") worksheet, and conducted a personal interview with Bonitto. In the POCR worksheet, the officer checked the box for "no" in response to the question regarding whether Bonitto appeared to meet any of the criteria for continued detention notwithstanding the likelihood of removal, including whether he was determined to be "specially dangerous." See Respondent's Mot. to Dismiss, Attachment 1, at 7. (Doc. 22). However, in the document entitled "Officer Comments/Analysis and Recommendation" the same officer stated that he believes Bonitto will pose a danger to society if released and recommends Bonitto's continued detention.

On December 3, 2007, the Field Office Director agreed with the deportation officer and determined Bonitto should continue in custody without comment. On the same day Bonitto was served with a document entitled "Decision to Continue Detention." The document advised Bonitto that ICE had decided to continue his detention, but did not state any grounds for this decision. The document also stated that if Bonitto was not released by December 17, 2007, jurisdiction of Bonitto's custody decisions would be transferred to the Headquarters Post Order Detention Unit ("HQPDU").

Petitioner filed this habeas action on December 27, 2007, alleging that he had been in post-removal detention for more than the six-month presumptively reasonable period and that there was no significant likelihood of removal in the reasonably foreseeable future. ICE responded to Bonitto's habeas petition on March 7, 2008 with a motion to dismiss, and included in its response records of the abovedetailed custody determinations. ICE's motion to dismiss does not mention a 180-day review by HQPDU nor does it contain records of such a review. Based on the record before it, the Court assumes Bonitto has yet to receive his 180-day custody review.

ALLEGATIONS

In his petition, Bonitto challenges his detention on three grounds. He alleges that he is being unlawfully detained because there is no significant likelihood of his removal to Jamaica in the reasonably foreseeable future. He first alleges his continued detention violates 8 U.S.C. § 1231(a)(6), as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). He alleges that he has been in post-removal order detention for more than six months, and that his continued deportation violates the "presumptively reasonable" period set forth by the Supreme Court for post-removal detention in Zadvydas. Secondly, he alleges that his post-removal detention violates his Constitutional right to substantive due process. Lastly, he alleges that his post-removal detention violates his Constitutional right to procedural clue process.

To support his claim that there is no significant likelihood of removal in the reasonably foreseeable future and that he should be released, Bonitto alleges that he has fully cooperated with deportation officials. He claims he has spoken to the Jamaican consulate and requested travel documents, given ICE his passport and LPR card, willfully participated in all requested interviews by ICE officials, and completed all necessary forms to facilitate his removal. He also claims that ICE is "aware" that his return to Jamaica cannot be effectuated in the reasonably foreseeable future. See Pet's 2241 Mot., at 5-6. (Doc. 1).

He requests to be released subject to supervision in accordance with 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.5. He also prays for an injunction against his further unlawful detention, attorney's fees and costs under the Equal Access to Justice Act, and any further relief the Court deems just and proper. Id. at 18-19.

PROPER RESPONDENT

Petitioner has named Immigration and Customs Enforcement ("ICE") as the respondent to his petition. The United States Supreme Court has made clear that for purposes of a habeas corpus petition under 2241, the only proper respondent is the immediate custodian of the petitioner who has the ability to produce the petitioner before the Court. See Rumsfeld v. Padilla, 542 U.S. 426, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). The Court notes that the proper Respondent is the warden of the facility at which Petitioner is detained.

DISCUSSION

I. Jurisdiction Under Section 2241

A petition under § 2241 is the proper vehicle for a petitioner to use when he seeks to challenge the legality and constitutionality of post-removal-period detention. See Zadvydas v. Davis, 533 U.S. 678, 687-688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). The district where the petitioner is detained "is the only district that has jurisdiction to entertain a defendant's § 2241 petition." Lee v. Wetzel, 244 F.3d 370, 373-75 (5th Cir.2001). Bonitto's petition complains of his detention when removal is no longer reasonably foreseeable, and Bonitto is detained in Port Isabel within the Southern District of Texas. Therefore, the district court in Brownsville has jurisdiction over these allegations.

II. Federal Law on Post-Removal Detention.

a. Statutory Framework and Constitutional Constraints.

The statutory provision that governs the Court's review in this case is 8 U.S.C. § 1231. Under § 1231(a)(1)(A), when an alien is ordered removed the Attorney General "shall remove the alien from the United States within a period of 90 days."² During this 90-day removal period, the Department of Homeland Security ("DHS") and Immigration and Customs Enforcement ("ICE")³ are required to detain the alien. Upon the conclusion of the 90-day removal period the statute allows for either continued detention or release under supervision. 8 U.S.C. § 1231(a). Although the statute gives the Attorney General the discretion to continue detaining an alien in this situation, this detention is subject to the limits of the Fifth Amendment's Due Process clause. See Zadvydas, 533 U.S. at 690-692, 121 S.Ct. 2491.

In Zadvydas v. Davis the Supreme Court interpreted 1231(a)(6), the provision that allows for detention beyond the 90-day removal period, to limit post-removal-period detention to a period "reasonably necessary to bring about the alien's removal from the United States." Id. at 689, 121 S.Ct. 2491. The Court held that postremoval detention for six months is "presumptively reasonable." Id. at 701, 121 S.Ct. 2491. Beyond six months, if removal is no longer reasonably foreseeable, continued detention is not authorized by the statute. Id. at 699, 121 S.Ct. 2491. Under Zadvydas, if an alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future in a habeas corpus petition, the Government must respond with evidence sufficient to...