Diallo v. Pitts
| Decision Date | 15 January 2020 |
| Docket Number | Civil Action No. 1:19-cv-216 |
| Parties | MAMADOU BAILO DIALLO, PETITIONER v. MICHAEL J. PITTS, ET AL., RESPONDENTS |
| Court | U.S. District Court — Southern District of Texas |
The Court is in receipt of Petitioner Mamadou Bailo Diallo's "28 U.S.C. § 2241 Petition for Writ of Habeas Corpus" (hereinafter, Diallo's "Petition") and "Opposed Motion to Set Hearing" (hereinafter, Diallo's "Motion for Hearing"). Dkt. Nos. 1 and 12. Respondents have filed a "Motion to Dismiss" Diallo's Petition, which argues that this Court lacks subject matter jurisdiction over Diallo's claims. Dkt. No. 8. It is recommended that the Court: (1) DENY Respondents' Motion to Dismiss; (2) GRANT Diallo's Petition as further specified below; and (3) GRANT Diallo's Motion for Hearing.
On November 27, 2019, Diallo filed his instant Petition. Dkt. No. 1. That same day, Diallo filed a "Memorandum in Support" of his Petition and an "Opposed Motion for an Order to Show Cause Requiring Respondents to Timely Respond" (hereinafter, Diallo's "Opposed Motion"). Dkt. Nos. 2-3. Diallo's Opposed Motion relied upon 28 U.S.C. § 2243. Dkt. No. 3 at 1, 3-5. In relevant, part § 2243 provides:
The Court granted Diallo's Opposed Motion, and Respondents subsequently filed an "Opposed Motion for Extension of Time to Reply to Petitioner's Petition." See Dkt. Nos. 4-7. The Court granted Respondents' Opposed Motion, allowing Respondents until December 25, 2019, to file a response to Diallo's Petition. Dkt. No. 7. Rather than respond to Diallo's Petition on the merits, Respondents filed their instant Motion to Dismiss, arguing that, under Federal Rule of Civil Procedure 12(b)(1), this Court lacks subject matter jurisdiction. Dkt. No. 8.
On January 2, 2020, Diallo filed his "Response in Opposition to Respondents' Motion to Dismiss" (hereinafter, Diallo's "Response"). Dkt. No. 11. Subsequently, Diallo filed his opposed Motion for Hearing. Dkt. No. 12. In his Response and his Motion for Hearing, Diallo argues that Respondents have deliberately mischaracterized his Petition in order to argue that subject matter jurisdiction is lacking. Dkt. No. 11 at 1-5; Dkt. No. 12 at 2. Diallo asserts that subject matter jurisdiction is present, and that this Court may order his release because the materialfacts of this case are not in dispute and his Petition only presents issues of law. Dkt. No. 12 at 2. Alternatively, Diallo asks the Court to conduct a custody hearing to determine whether his continued detention is justified. Id.
The parties agree that Diallo is a native and citizen of Guinea. Dkt. No. 1 at 3; Dkt. No. 8 at 8. On or about August 4, 2017, Diallo presented himself at the Hidalgo, Texas Port of Entry and requested asylum. Id. Diallo claims that asylum is appropriate because he was imprisoned, starved, and tortured in Guinea due to his Peul ethnicity and his leadership activities for the Union of Democratic Forces of Guinea ("UFDG"), a political party that opposes the current ruling party of Guinea. Dkt. No. 1 at 4-5. He is currently being detained at the Port Isabel Detention Center in Los Fresnos, Texas. Id. at 3. Diallo alleges that he has been detained since August 4, 2017, and "has never received an individualized hearing before a neutral arbiter to determine whether his detention is even necessary." Id. at 6.
Diallo asserts that his detention without a hearing, which has now exceeded a period exceeding two years and five months, violates his right to due process as guaranteed by the Fifth Amendment to the United States Constitution. Dkt. No. 1 at 10. Diallo seeks his immediate release, or an immediate custody hearing and release. Id. at 11. He states that no other recourse is available to him because "[c]urrent regulations strip the immigration court of jurisdiction over custody redeterminations for 'arriving aliens.'" Id. at 10. Diallo asks that his release beaccompanied by "appropriate conditions of supervision if necessary." Id. at 11. Along with all unspecified relief that might be just and proper, he asks for his reasonable attorneys' fees, costs, and any other disbursements due to him pursuant to the Equal Justice Act, 28 U.S.C. § 2412. Id.
Respondents argue that the Court should dismiss Diallo's Petition under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Dkt. No. 8 at 1. Respondents claim that Diallo is challenging the decision of the United States Immigration and Customs Enforcement ("ICE") to deny his request for parole. Respondents state that this is "evident" because Diallo is seeking immediate release. Id. at 17. Respondents contend that this Court does not have jurisdiction to review ICE's discretionary decision to deny parole; therefore, dismissal is proper. Id. at 7, 13-20. Additionally, Respondents claim that Diallo's case is now moot because he has since received the parole interview he was seeking. Id. at 21 ().
After presenting himself for inspection on August 4, 2017, at the Hidalgo, Texas Port of Entry, Diallo claimed a fear of returning to Guinea. Dkt. No. 1 at 8; Dkt. No. 8 at 8. On August 15, 2017, an asylum officer interviewed Diallo and found that he had a credible fear of persecution upon return to Guinea. Id. On August 17, 2017, the Department of Homeland Security ("DHS") served Diallo with a Notice to Appear ("NTA") before an immigration judge. Dkt. No. 8-1 at 2. The NTA chargedhim with inadmissibility under section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (hereinafter, "INA" or the "Act") as an immigrant who, "at the time of application for admission, [was] not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under Section 211(a) of the Act." Id.
In a letter dated September 6, 2017, DHS informed Diallo that ICE had decided not to release him on parole. Dkt. No. 8-1 at 5-6. DHS's letter stated that Diallo would not be released because: (1) he had not established his identity to ICE's satisfaction; (2) he had not established that he would appear for immigration proceedings if released; (3) he had not established that he would pose no danger to the community or U.S. security if released; and (4) additional, exceptional overriding factors of an unspecified nature militated against his release. Id. Pursuant to his NTA, Diallo appeared in immigration court, admitted the NTA's factual allegations, and conceded removability. Id. at 8.
The immigration judge, Robert L. Powell, found Diallo removable. Dkt. No. 8-1 at 8-9. Diallo subsequently filed applications for asylum, withholding of removal under § 241(b)(3) of the INA, and protection under the Convention Against Torture. Id. Judge Powell held a hearing on the merits of Diallo's applications on November 2, 2017. Id. at 9. Diallo appeared pro se. Id. at 8. On November 7, 2017,Judge Powell denied Diallo's applications and issued a written decision ordering Diallo removed to Guinea. Id. at 23.
Diallo appealed the decision to the Board of Immigration Appeals ("BIA"). Dkt. No. 8-1 at 26. On April 11, 2018, the BIA reversed and remanded the case back to Judge Powell for proceedings consistent with its order. Id. at 26-29. Noting that the BIA did not explicitly require him to conduct additional hearings (id. at 33), Judge Powell issued a written decision on May 23, 2018. Id. at 32-59. In his decision, Judge Powell again denied Diallo's applications and ordered him removed to Guinea. Id. at 59. Diallo appealed. Id. at 63.
On November 20, 2018, the BIA reversed and remanded the case again for proceedings consistent with its order. Dkt. No. 8-1 at 63-64. In reversing, the BIA noted that it had previously found that Judge Powell's adverse credibility and firm resettlement findings were clearly erroneous, and that Diallo was "was eligible for asylum as a matter of discretion[.]" Id. at 63. The BIA then noted that Diallo had not subsequently been provided with appropriate notice of his rights to seek additional proceedings or supplement the record before Judge Powell issued his second decision. Id. at 63-64. Additionally, the BIA stated as follows:
Finally, we note the Immigration Judge's stated disagreement with the Board's decision, as set forth in our April 11, 2018, decision; relating to firm resettlement (IJ at 14, fn 13). We also note his references to the numbers of migrants coming to the United States through other countries, including in "caravans." On remand, the Immigration Judge is required to issue a decision that is not inconsistent with our prior decision in this case relating to firm resettlement, as well as our decision on the issue of discretion, and should also refrain from general comments not related to the particular case in front of him.
On remand, a new immigration judge, Frank T. Pimentel, issued a decision on February 1, 2019, ordering Diallo removed to Guinea. Dkt. No. 8-1 at 66. Diallo appealed, but this time the BIA affirmed and dismissed his appeal. Id. at 71-73. On August 21, 2019, Diallo filed a ...
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