Diaz-Ortega v. Lund

Decision Date15 October 2019
Docket NumberCIVIL DOCKET NO. 1:19-CV-670-P
PartiesBRENDA DIAZ-ORTEGA, Petitioner v. GEORGE H. LUND, III, ET AL., Respondents
CourtU.S. District Court — Western District of Louisiana




Before the Court are: (1) a Petition for Writ of Habeas Corpus (Doc. 1) filed by counsel for Petitioner Brenda Diaz-Ortega ("Diaz-Ortega"), and; (2) a Motion to Dismiss (Doc. 12) filed by Respondents George H. Lund, III (an Acting Field Office Director in the Department of Homeland Security/Bureau of Immigration and Customs Enforcement ("DHS/ICE")), and D.C. Cole (Warden of the Lasalle Parish Detention Center) (collectively, the "Government").

Diaz-Ortega is an immigration detainee in the custody of DHS/ICE. She is being detained at the LaSalle Detention Facility in Jena, Louisiana. She challenges her detention pending a decision by the Board of Immigration Appeals ("BIA").

Because this is a habeas corpus proceeding, the Government's Motion to Dismiss (Doc. 12) should be DENIED as procedurally improper. In reaching the merits of Diaz-Ortega's Petition, however, the Court properly construes the Motion and the parties' other briefs (Docs. 14, 22, 23) as substantive habeas briefs.

And on its merits, the Petition presents unusual circumstances. For more than 18 months, Diaz-Ortega has remained in "post-removal-order detention" under 8 U.S.C. § 1231. She moved the BIA to reopen her immigration proceedings and to stay her removal. The BIA granted the stay nearly 17 months ago, which has prevented her removal - and prolonged her detention - since then.

But the BIA will decide Diaz-Ortega's motion to reopen. If the BIA grants the motion, Diaz-Ortega's removal order will no longer be final. If the BIA denies the motion, her removal will again become probable, notwithstanding other challenges she may pursue. In either event, under our jurisprudence, Diaz-Ortega cannot show that there is no significant likelihood of her removal in the reasonably foreseeable future. Therefore, Diaz-Ortega's Petition (Doc. 1) should be DENIED IN PART and DISMISSED WITHOUT PREJUDICE.

But relief is warranted in one respect. DHS/ICE has incorrectly determined that Diaz-Ortega is not subject to 8 C.F.R. § 241.4, and has accordingly denied her a custody review and other procedural rights required by that regulation. Therefore, Diaz-Ortega's Petition (Doc. 1) should be GRANTED IN PART to the extent necessary to secure Diaz-Ortega's access to those procedural rights.

I. Background

Diaz-Ortega is a native and citizen of Honduras. She entered the United States on December 12, 2002. (Doc. 20-9, p. 1). She was deemed inadmissible, and was issued a Notice to Appear. (Doc. 20-9, p. 1). Her request for asylum and her application for withholding of removal were both subsequently denied. (Doc. 20-11).

Diaz-Ortega was granted permission for voluntary departure, which was to occur on or before January 23, 2004. (Doc. 20-11). She appealed to the BIA onDecember 29, 2003, but did not voluntarily depart. (Doc. 20-9, p. 1). The BIA denied her appeal, and set a new voluntary departure deadline of May 26, 2005. (Doc. 20-12). Again, Diaz-Ortega did not voluntarily depart. (Doc. 24, p. 27). Instead, she moved the BIA to reconsider its decision on her appeal. (Doc. 20-13). The BIA denied her motion to reconsider on July 21, 2005. (Doc. 20-13).

Nearly three years passed without incident. Then, on July 2, 2008, DHS/ICE issued a "Warrant of Removal/Deportation" for Diaz-Ortega. (Doc. 20-14, p. 1). It is unclear what prompted the warrant to be issued at this particular time.

Nearly four more years passed, however, again without incident. But on June 20, 2012, Diaz-Ortega "was encountered in New Orleans and placed under an Order of Supervision (OSUP) pending removal." (Doc. 20-9, p. 2). Diaz-Ortega was placed under the OSUP - rather than detained or removed - in part because she had minor children at the time. (Tr. 29).

By the terms of the OSUP, because Diaz-Ortega was not removed "during the period prescribed by law," she was "permitted to be at large" subject to various conditions. (Doc. 20-1, p. 1). Included were requirements that Diaz-Ortega: (1) not commit a federal, state, or local offense; (2) "appear in person" at the request of DHS/ICE "for deportation or removal," and meanwhile; (3) report in person to DHS/ICE on scheduled dates. (Doc. 20-1, p. 1). She remained in the United States for the next roughly six years under the terms of the OSUP.

When Diaz-Ortega reported on April 11, 2018, however, DHS/ICE revoked the OSUP and placed her into custody. (Docs. 20-2; 20-9, p. 2). According to theDeclaration of Assistant Field Office Director Richard Brooks, DHS/ICE revoked the OSUP because Diaz-Ortega's children reached adulthood, and because she "had frequently missed reporting dates under her OSUP conditions." (Doc. 20-9, p. 2).1

On April 19, 2018, Diaz-Ortega's attorney submitted an "Application for Request for Stay of Deportation or Removal" based on a fear of harm if Diaz-Ortega was returned to Honduras. (Doc. 20-3). DHS/ICE denied the request. (Doc. 20-3).

On May 11, 2018, Diaz-Ortega filed a motion to reopen, and a request for stay of removal pending a decision on the motion to reopen. (Doc. 20-4). Six days later, on May 17, 2018, a 30-day travel document was issued for Diaz-Ortega. (Doc. 20-7) . And seven days after that, on May 24, 2018, the BIA granted Diaz-Ortega's request for a stay. (Doc. 20-4). This seven-day period was the only time during which Diaz-Ortega could actually have been removed from the United States. (Tr. 37). However, the travel document expired in 30 days. (Tr. 47). Given the stay, Diaz-Ortega was not removed, and remained in DHS/ICE custody.

On July 11, 2018, DHS/ICE conducted a 90-day review of Diaz-Ortega's case and issued a "Decision to Continue Detention." (Doc. 20-5). This prompted Diaz-Ortega's attorney to submit a "Request for Prosecutorial Discretion" seeking her release. (Doc. 12-13, pp. 1-4). That request was denied.

To date, the BIA has not ruled on Diaz-Ortega's May 11, 2018 motion to reopen. To date, the BIA's stay of her removal remains in effect. And to date, she remains in DHS/ICE custody.

In her Petition (Doc. 1), Diaz-Ortega claims that her continued detention is unconstitutional. The Government maintains that Diaz-Ortega's Petition is meritless given the inevitability of a decision by the BIA, and "premature" given the stay of her removal less than 90 days after she was detained. (Doc. 12).

The Court conducted an evidentiary hearing on July 29, 2019.2 Two witnesses testified - Diaz-Ortega and Officer Cox. (Doc. 24). The Court received documentary exhibits. (Doc. 20). And at the Court's instruction, both parties filed supplemental briefs after the hearing. (Docs. 22, 23).

II. Law and Analysis
A. The Court has jurisdiction to grant habeas relief under 28 U.S.C. § 2241.

A district court has the authority to grant a writ of habeas corpus under 28 U.S.C. § 2241(a). A § 2241 petition is the proper method to challenge the legality and constitutionality of extended detention pending removal. Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001). But a petitioner may seek habeas relief under § 2241 only if the petitioner is "in custody" under federal authority or for violation of federal law. 28U.S.C. § 2241(c). The "in custody" requirement is a jurisdictional prerequisite. Maleng v. Cook, 490 U.S. 488, 490 (1989).

Because Diaz-Ortega has remained in DHS/ICE custody since April 11, 2018, the Court has jurisdiction under § 2241.

B. The Court does not have jurisdiction over Diaz-Ortega's removal order.

"The passage of the REAL ID Act divested district courts of jurisdiction over removal orders and designated the courts of appeals as the sole forums for such challenges via petitions for review." Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007); see also 8 U.S.C. § 1252(a)(5), as amended by REAL ID Act § 106(a) ("Notwithstanding any other provision of law . . . 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 Act...."); 8 U.S.C. § 1252(b)(9), as amended by REAL ID Act § 106(a)(2) ("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 . . . to review such an order or such questions of law or fact."). Moreover, the Fifth Circuit has specifically held that district courts lack jurisdiction to consider requests for a stay of removal proceedings. Idokogi v. Ashcroft, 66 F. App'x 526 (5th Cir. 2003) (per curiam).

Diaz-Ortega does not request review or a judicial stay of her removal order. Nevertheless, the Court notes that, because it lacks jurisdiction, no findings belowshould be construed as a substantive review of her removal order or a determination as to whether her removal order should be judicially stayed.

C. The Government's Motion to Dismiss is procedurally improper.

The Federal Rules of Civil Procedure "apply to proceedings for habeas corpus . . . to the extent that the practice in those proceedings . . . (A) is not specified in a federal statute, the Rules Governing Section 2254 Cases, or the Rules Governing Section 2255 Cases [collectively, the "Habeas Rules"]; and (B) has previously conformed to the practice in civil actions." Under Rule 1(b) of the Rules Governing Section 2254 Cases, the Habeas Rules also apply to § 2241 habeas cases. See Romero v. Cole, 1:16-CV-00148, 2016 WL 2893709, at *2 & n.4 (W.D. La. Apr. 13, 2016), report and recommendation adopted, 1:16-CV-00148, 2016 WL 2844013 (W.D. La. May 12, 2016) (and cases cited therein).

The Habeas Rules set forth procedures for responding to and evaluating habeas petitions - not the Federal Rules of Civil Procedure. See Williams...

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