Duarte v. Souza
Decision Date | 29 May 2018 |
Docket Number | Civil Action No. 17-cv-12450-IT |
Parties | CLAUDIO DUARTE, Petitioner, v. STEVEN SOUZA, Superintendent, Respondent. |
Court | U.S. District Court — District of Massachusetts |
TALWANI, D.J.
Petitioner Claudio Duarte's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#1] and Motion for Preliminary Injunction, Temporary Restraining Order and Request for Expedited Hearing [#9] seek Petitioner's release from immigration detention and a stay of removal while his motion to reopen proceeds through the immigration courts. Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus [#16] seeks dismissal of the petition on the grounds that Petitioner fails to state a claim as to his detention and that this court lacks subject-matter jurisdiction over Petitioner's final removal order. For the following reasons, Petitioner's Motion for Preliminary Injunction [#9] is DENIED and Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus [#16] is ALLOWED.1
Petitioner is a citizen of Cape Verde. Pet'r's Pet. ¶ 6 [#1]. He has lived in the United States since 1994 (when he was three years old), and obtained lawful permanent residence in February 2011. Id. ¶ 14 [#1]; see also Aff. of Susan B. Church in Supp. Mot. Prelim. Inj., TRO & Req. Expedited Hr'g. ¶¶ 3-4 ("Church Aff.") [#15]; Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3]. He is the father of two United States citizen children, and his own father, who raised Petitioner, is a pastor of a church in Rhode Island and a naturalized United States citizen. Pet'r's Pet. ¶¶ 14-15 [#1]; Church Aff. ¶ 5 [#15].
In December 2012, Petitioner was convicted in Rhode Island District Court under Rhode Island General Laws, section 11-5-3 ( ) and sentenced to "one year suspended, and one year of probation." Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3].2 In April 2013, Petitioner was placed in removal proceedings. Pet'r's Pet. ¶ 16 [#1]; Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3]. Petitioner sought to terminate the proceedings, arguing that his Rhode Island conviction did not amount to a crime of violence.3 Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4[#15]. On May 30, 2013, the Immigration Judge denied the motion to terminate, and ordered Petitioner to be removed to Cape Verde. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15]. Although Petitioner originally appealed the decision, he withdrew his appeal on June 19, 2013. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15]. The Immigration Judge allowed the motion to withdraw on June 21, 2013. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15], and a final order of removal to Cape Verde issued on June 25, 2013. Resp't Mem. in Supp. of Mot. Dismiss at 1 [#17]; Notice of Intent to Remove Ex. 1, Decl. Ass't Field Office Dir. ¶ 3 [#6-1].4 Petitioner states that Immigration and Customs Enforcement ("ICE") was unable to obtain the necessary travel documents to remove Petitioner. Pet'r Mem. in Resp. to Resp't Mot. Dismiss at 3 ("Pet'r Opp.") [#20]. Petitioner was released back into his community on October 11, 2013, on an order of supervision. Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3].
In June 2017, after an arrest by the Pawtucket, Rhode Island, police department for failing to appear in connection with an earlier charge of receiving stolen goods, ICE officials detained Petitioner and served him with a "Notice of Revocation of Order of Supervision." Id. at 1, 3. The June 9, 2017, Notice of Revocation states in relevant part:
On August 25, 2017, ICE issued its "Decision to Continue Detention" stating that ICE had decided to continue to detain Petitioner "based on a review of your file and/or your personal interview and consideration of any information you submitted to ICE reviewing officials." Id. at 3. The letter further stated that Petitioner would continue to be detained due to his "criminal history and lack of non-governmental sponsors and/or community ties" which "reflect[ed] a significant risk if flight if [Petitioner] were to be released from ICE custody." Id. at 4. After December 6, 2017, if Petitioner was not removed or released from custody, jurisdiction over Petitioner's case would be transferred to ICE's Headquarters Removal and International Operations Unit ("HQPDU") for a "final determination regarding [Petitioner's] custody." Id.
On November 28, 2017, Petitioner filed with the Boston immigration court an "Emergency Motion for Stay of Removal Pending Motion to Reopen Decision & Motion toTerminate." Pet'r's Pet. Ex. 2, at 2 [#1-2]. Petitioner argued that recent intervening First Circuit and Supreme Court precedent established that simple assault in Rhode Island is not an aggravated felony. Id. at 1 ( ).
In a December 20, 2017, decision, the immigration judge explained that he is bound by the First Circuit's decision in Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007), finding that the offense of assault under Rhode Island law constitutes a crime of violence under 18 U.S.C. § 16(a), and consequently, an aggravated felony for immigration purposes, and could not consider whether the later cases should control by implication. Resp't Mem. in Supp. of Mot. Dismiss Ex. 1 at 3 [#17-1]. Matter of Guerrero, 25 I. & N. Dec. 631, 633 (BIA 2011), cited by the immigration judge, similarly finds assault under Rhode Island law to be a crime of violence based on Lopes.6 Id.
Petitioner filed an appeal of the immigration judge's decision and an Emergency Motion to Stay Removal with the BIA on January 16, 2018. Pet'r Opp. Ex. 1 [#20-1]; Pet'r Opp. Ex. 2 [#20-2]. The BIA denied the request for a stay of removal on January 26, 2018. Suppl. Filing in Supp. of Resp't Mot. Dismiss Ex. 1, at 1 () [#25-1]. According to the record before this court, BIA has not yet rendered a decision on Petitioner's appeal of the immigration judge's decision, despite the government not having filed any brief in opposition. Transcript of March 5, 2018 Oral Argument at 5:6 [#33]; Resp. Ct. Order Regarding Bd. of Immigration Appeal Denial of Stay of Removal, Ex. 2 [#39-2].
Meanwhile, on December 12, 2017, Petitioner filed the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#1] seeking relief from this court under Zadvydas v. Davis, 533 U.S. 678 (2001). Petitioner asserted that he had been in custody more than six months, that he was not removable (for the reasons set forth in his motion before the immigration court), and that his continued detention was unreasonable.
Two days later, Respondent filed a Notice of Intent to Remove [#6], indicating that Respondent had the travel documents for Petitioner and intended to remove him the week of December 18, 2017. That same day, Petitioner filed his Motion for Preliminary Injunction, Temporary Restraining Order and Request for Expedited Hearing [#9], seeking an expedited hearing and temporary restraining order based on the government's notice of intent to remove. The following day, on December 15, 2017, the emergency duty judge ordered Respondent not to remove Petitioner until the assigned judge who was out of the country could addressed the merits of the Petition. Order [#12]. Respondent promptly notified the court that ICE had canceled Petitioner's scheduled removal and agreed not to remove Petitioner until the court could address the merits of the Petition. Notice of Cancellation of Removal [#13].
On January 3, 2018, Respondent filed its Motion to Dismiss Petition for Writ of Habeas Corpus [#16], arguing that the court does not have jurisdiction to consider Petitioner's challenge to his removal, and that as to his detention, his confinement is lawful as there is a significant likelihood that he will be removed to Cape Verde in the reasonably foreseeable future. The parties have extensively briefed the various issues and the court held oral argument.
On March 26, 2018, Respondent informed the court that Respondent is in possession of renewed travel documents for Petitioner and ICE has scheduled Petitioner's removal for the month of June 2018. Third Suppl. Filing in Supp. of Resp't Mot. Dismiss, at 1 () [#36].
Respondent seeks to dismiss this petition for failure to state a claim as to Petitioner's claim under Zadvydas v. Davis, 533 U.S. 678 (2001) and for lack of subject matter jurisdiction as to Petitioner's remaining claims and requests for relief. The court begins with the issue of jurisdiction.
Respondent argues that under the REAL ID Act of 2005, the district court has no jurisdiction in removal cases...
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