M P v. Joyce
| Docket Number | CIVIL 1:22-CV-06123 |
| Decision Date | 25 August 2023 |
| Parties | M P, Plaintiff v. WILLIAM P JOYCE ET AL, Defendants |
| Court | U.S. District Court — Western District of Louisiana |
REPORT AND RECOMMENDATION
Before the Court is a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF Nos. 1, 27) filed on behalf of Petitioner, M.P.[1] M.P. is an immigration detainee at the Winn Correctional Center (“WCC”) in Winnfield Louisiana. ECF No. 36 at 3. He challenges the legality of his continued detention including the conditions of his confinement.
Because M.P.'s claim regarding the conditions of his confinement and his claim under the Rehabilitation Act cannot be raised in a § 2241 Petition, and because M.P. fails to state a viable claim under § 2241, his Petition should be DENIED in part and DISMISSED in part for lack of jurisdiction.
M.P. is a native and citizen of El Salvador. He first entered the United States on August 11, 2018, without a valid immigrant visa, reentry permit, border crossing card, or other valid entry document. ECF Nos. 27 at 8; 31-1 at 1. He was ordered removed on February 6, 2019. ECF Nos. 27 at 9; 31-1 at 1. M.P. was removed to El Salvador on April 11, 2019. ECF No 31-1 at 1.
M.P. reentered the United States unlawfully on June 10, 2019. ECF Nos. 27 at 9; 31-1 at 1. He was detained by the Department of Homeland Security (“DHS”), and the prior removal order was reinstated. Id. M.P. was removed to El Salvador again on September 12, 2019. Id.
On May 12, 2021, DHS was notified by another law enforcement agency that M.P. had been arrested in New York.
M.P. was transferred to the custody of DHS on March 8, 2022. ECF No. 31-1 at 2.
On April 11, 2022, M.P. attended a hearing in Immigration Court and asked for a continuance to find an attorney. Id.; ECF No. 27 at 9. The request was granted, and the matter was rescheduled for April 25, 2022. Id. At the next appearance, M.P.'s attorney asked for a continuance, which was granted. Id.
On May 10, 2022, M.P. filed an application for withholding of removal and protection under the Convention Against Torture, and the matter was continued pursuant to a request for M.P. to receive a psychological evaluation. Id. The hearing was reset several times. On August 19, 2022, it was determined that M.P. was competent, and a merits adjudication was scheduled for September 27, 2022. ECF Nos. 31-1 at 2; 27 at 9.
On September 4, 2022, M.P. was transported to the Emergency Department after suffering abrasions on his left wrist. ECF No. 31 at 4. M.P. alleges that he “swallowed all the pills he had in his cell and cut his own arms with a nail clipper, the only sharp object he had, in an attempt to end his own life.” ECF No. 27 at 15. Upon return to the DHS facility, M.P. was placed on suicide watch. ECF No. 31-1 at 2.
On September 27, 2022, the Immigration Judge denied M.P.'s application for relief from removal. M.P. appealed the decision to the Board of Immigration Appeals (“BIA”). Id. at 3. According to the EOIR Automated Case Information website, the BIA dismissed the appeal on March 2, 2023, and a Motion to Reopen BIA Jurisdiction was filed on March 17, 2023.[2]
M.P. filed a Petition for Review of Agency Order in the United States Court of Appeals for the Second Circuit on March 2, 2023. See Case No. 23-6200 (2nd Cir.). And according to the docket report from CM/ECF, M.P. recently filed another Petition for Review of Agency Order in the Second Circuit on July 25, 2023. See Case No. 236815 (2nd Cir.).
M.P. received a 270-day post order custody review on January 19, 2023, and it was determined that M.P. should remain in custody. Id. at 3. M.P. argues that the Due Process Clause of the Fifth Amendment requires that he be afforded “immediate release or, at a minimum, a bond hearing.” ECF No. 27 at 41.
M.P. and the Government agree that he is subject to mandatory detention during the pendency of his removal proceedings pursuant to 8 U.S.C. § 1231(a) because he is subject to a reinstated order of removal.[3] ECF Nos. 27 at 41; 31 at 4. The statute authorizes the Government to detain aliens ordered to be removed and gives the Government 90 days to remove them from the United States-the “removal period.” Id. at § 1231(a)(1)-(2). After the removal period expires, the Government can either continue to detain these aliens or release them under supervision.[4] See Demore v. Kim, 538 U.S. 510, 527 (2003) (). The Supreme Court “has recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.” Demore, 538 U.S. at 523.
The Government may even detain these aliens beyond the removal period if the district director conducts a Post-Order Custody Review (“POCR”), and the aliens' removal will not be accomplished during the removal period. See 8 C.F.R. § 241.4(k)(1)(i).[5] If the district director decides that the aliens should remain in custody pending removal, DHS must continue to provide periodic reviews for as long as the aliens remain in custody pending removal. See id. § 241.4(k).
M.P. argues that that § 1231 is unconstitutional as applied to him, both substantively and procedurally.[6] He also claims that his detention violates the Eighth Amendment and the Rehabilitation Act.
Zadvydas established the framework for aliens subject to a removal order to bring an as-applied challenge to § 1231-namely, challenging whether their detention beyond the removal period is unreasonable. See Zadvydas, 533 U.S. at 689; see also, Rodriguez Del Rio v. Price, 20-CV-00217, 2020 WL 7680560, at *2 (W.D. Tex. 2020); Fuentes-De Canjura v. McAleenan, 19-CV-00149, 2019 WL 4739411, at *7 (W.D. Tex. 2019). In Zadvydas, the Supreme Court concluded that indefinite detention under § 1231 presents a “serious constitutional problem” when the statute's goal-“assuring the alien's presence at the moment of removal”-no longer bears a “reasonable relation” to the alien's detention and removal seems “a remote possibility at best.” Zadvydas, 533 U.S. at 690. The Supreme Court held that the Government's authority to detain an alien under § 1231 ends “once removal is no longer reasonably foreseeable.” Id. at 699. In such cases where the Government cannot continue to detain the alien, the alien is still subject to supervision under § 1231(a)(3).[7] See id. at 696.
Accordingly, the Supreme Court recognized that a six-month detention was “presumptively reasonable” under the statute. Id. at 689. For the detention to remain reasonable, “as the period of prior postremoval confinement grows, what counts as the ‘reasonably foreseeable future' conversely would have to shrink.” Id. This presumption applies to all categories of aliens covered by § 1231. See Tran v. Mukasey, 515 F.3d 478, 482 (5th Cir. 2008) (citing Clark v. Martinez, 543 U.S. 371, 378 (2005)). However, this presumption does not mean that every alien must be released after six months. See Zadvydas, 533 U.S. at 689.
After the presumptively reasonable six-month period expires, aliens can attack the reasonableness of their detention by providing “good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.; Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). Aliens bear the initial burden of proof. See Andrade, 459 F.3d at 543-44. To meet this burden, an alien must allege sufficient evidence establishing “that there is no significant likelihood of removal in the reasonably foreseeable future,” and not merely offer conclusory statements suggesting that removal will not occur immediately following the resolution of their appeals. Id. (citing Zadvydas, 553 U.S. at 701). Once the alien makes that showing, “the Government must respond with evidence sufficient to rebut [it].” Zadvydas, 553 U.S. at 701.
M.P. has been in post-removal order detention for well over six months. He argues that his removal is not significantly likely to occur in the reasonably foreseeable future because, at the time of filing his § 2241 Petition, he had just begun the process of appealing the Immigration Judge's denial of his application, the BIA had not set a briefing schedule, and the BIA would take months to review the appeal. ECF No. 1 at 40. However, the appeal has now been denied. Still, M.P. has not been removed because of ongoing proceedings in the Second Circuit.
M.P.'s confinement is not “potentially permanent.” Zadvydas, 553 U.S. at 691. There is “a certain end point to the proceedings related to his pending petition for review” and “it appears reasonably likely that he will be removed in the foreseeable future if his petition is denied.” Thompson v. Holder, 374 Fed.Appx. 522, 523 (5th Cir. 2010).
In fact, it is uncontested that removals to El Salvador occur on a biweekly basis, and the country does not require travel documents for repatriation. ECF No. 38-1 at 2. M.P. does not argue or demonstrate that the Government will not be able to swiftly remove him from this country once his legal proceedings are concluded (if removal continues to be the appropriate disposition).
While M.P. has a legal right to seek judicial relief, it is apparent that the appeals, requests for stay, and his pending civil litigation are the sole cause for his continued...
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