MARQUEZ-COROMINA v. Hollingsworth

Decision Date18 February 2010
Docket NumberCivil Action No. DKC 2006-3211.
Citation692 F. Supp.2d 565
PartiesAurelio MARQUEZ-COROMINA v. Lisa J.W. HOLLINGSWORTH.
CourtU.S. District Court — District of Maryland

Jonathan S. Greene, The Greene Law Firm LLC, Columbia, MD, for Aurelio Marquez-Coromina.

George William Maugans, III, U.S. Immigration and Customs Enforcement, Joanne D. Spotts, U.S. Department of Homeland Security, Baltimore, MD, for Lisa J.W. Hollingsworth.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Pending before the court is a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, filed by Petitioner Aurelio Marquez-Coromina, a detainee of the Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("ICE"). Petitioner is presently confined at the Federal Correctional Institute in Cumberland, Maryland ("Cumberland FCI"), and challenges the authority of Respondent Lisa J.W. Hollingsworth, Warden of Cumberland FCI, and ICE to detain him following the issuance of a final administrative order of removal over eighteen years ago. The issues have been fully briefed and a hearing has been conducted. For the reasons that follow, Petitioner's application will be denied.

I. Background

The underlying facts of the case are undisputed. Petitioner is a native of Cuba who arrived in the United States in 1980 as part of the Mariel boatlift. See Palma v. Verdeyen, 676 F.2d 100, 101 (4th Cir. 1982) (describing circumstances of the Mariel boatlift). On May 17, 1980, he was granted immigration parole by the former Immigration and Naturalization Service ("INS").1See 8 U.S.C. § 1182(d)(5). On February 23, 1984, Petitioner was convicted in Florida of robbery with a firearm related to an incident in which he threatened the life of the victim. He was sentenced to a twenty-year term in Florida state prison.

During his incarceration, INS revoked Petitioner's immigration parole and initiated exclusion proceedings, and on August 27, 1991, he was ordered excluded from the United States.2 In August 1995, Petitioner was released from prison to an immigration detainer pending removal. Efforts to repatriate him to Cuba were unsuccessful, however, and the parties agree that there is not now, nor has there ever been, a likelihood that Petitioner's removal will be effected. Consequently, Petitioner has remained in immigration custody ever since his release from Florida state prison, a period of over fourteen years.

While in INS custody, Petitioner underwent a series of mental health evaluations and was ultimately diagnosed as suffering from chronic paranoid schizophrenia.3 Petitioner experiences messianic delusions and auditory hallucinations, often of a homicidal or suicidal nature, and refuses to take medication to treat this condition. Based on his violent criminal history, psychiatric instability, and refusal to accept treatment, a recent psychiatric evaluator opined that Petitioner would present a danger to the public if he were released.

On November 28, 2006, Petitioner filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging that he was being unlawfully detained past the ninety-day statutory removal period authorized by 8 U.S.C. § 1231(a)(1)(A), and in violation of his rights under the Due Process Clause of the Fifth Amendment. (Paper 1). On February 2, 2007, Respondent moved for an extension of time in which to respond, citing ongoing administrative proceedings related to Petitioner's detention and attaching a January 30, 2007, "Decision" issued by the Assistant Secretary for ICE, which authorized Petitioner's continued detention, under 8 C.F.R. § 241.14(f), on the ground that his release "would pose a special danger to the public." (Paper 4, Ex. A). This court granted Respondent's requested extension. (Paper 5).

Meanwhile, the ICE decision was referred to an Immigration Judge for a preliminary hearing, pursuant to 8 C.F.R. § 241.14(h), to determine whether the evidence of special circumstances purportedly justifying Petitioner's continued detention established reasonable cause to warrant a merits hearing under 8 C.F.R. § 241.14(i). At the conclusion of the February 20, 2007, hearing, the Immigration Judge found reasonable cause for an evidentiary hearing, which was held on March 19, 2007. At the merits hearing, ICE presented medical documentation in support of its position, as well as the testimony of Dr. Lynn Liebermann, who had recently evaluated Petitioner and opined that he continued to suffer from untreated, chronic paranoid schizophrenia, that there was a potential for violent behavior associated with his condition, and that Petitioner posed a threat to the safety of others.4 In consideration of the evidence presented, the Immigration Judge issued a decision and order on March 27, 2007, upholding the ICE decision to continue Petitioner's immigration detention. (Paper 6, Ex. 1).

Petitioner did not appeal that decision to the Board of Immigration Appeals, and on May 2, 2007, Respondent filed papers opposing his habeas petition on the ground that this court was without jurisdiction to decide the case because Petitioner had failed to exhaust his administrative remedies. (Paper 6). Upon the court's order, counsel was appointed to represent Petitioner, a hearing was scheduled, and both parties filed pre-hearing memoranda. Following a February 6, 2009, hearing, both parties submitted post-hearing memoranda addressing one discrete issue raised at the hearing.5

II. Analysis
A. Exhaustion of Administrative Remedies

Respondent initially contends that Petitioner's failure to file an administrative appeal of the Immigration Judge's ruling upholding the ICE decision renders this court without jurisdiction to consider his habeas challenge. This argument is flawed in multiple respects.

First, it ignores that Petitioner filed his habeas petition on November 28, 2006, prior to the January 30, 2007, ICE decision that set in motion the administrative proceedings from which Respondent contends Petitioner was required to appeal. Clearly, the habeas petition could have no relation to an administrative process that had not yet transpired. Moreover, as Respondent observes in her opposition papers, "the petition does not seek judicial review of Petitioner's final order of exclusion, but challenges only his continued detention pending removal." (Paper 6, at 1). Where, as here, a habeas petitioner "challenges neither the Attorney General's power to exclude him nor his authority to revoke his immigration parole and detain him pending exclusion," but rather "contends that ICE lacks the authority to detain him indefinitely, and that such detention violates his rights to substantive and procedural due process," his claims are properly raised in a § 2241 petition. Arango Marquez v. I.N.S., 346 F.3d 892, 896 (9th Cir.2003) (internal marks omitted); see also Zadvydas v. Davis, 533 U.S. 678, 688, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) ("We conclude that § 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention"). Accordingly, the court has jurisdiction to adjudicate the claims raised in Petitioner's habeas corpus application.

B. The Applicable Regulatory Scheme

Although the record in this case is silent as to the statutory and regulatory scheme applied to Petitioner prior to the January 30, 2007, ICE "decision," it is undisputed that he is presently detained pursuant to the authority of 8 U.S.C. § 1231(a)(6) and the implementing regulations of 8 C.F.R. § 241.14. As the Supreme Court of the United States explained in Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491:

When an alien has been found to be unlawfully present in the United States and a final order of removal has been entered, the Government ordinarily secures the alien's removal during a subsequent 90-day statutory "removal period," during which time the alien normally is held in custody.
A special statute authorizes further detention if the Government fails to remove the alien during those 90 days. It says:
"An alien ordered removed 1 who is inadmissible . . . 2or removable as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy or 3 who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained beyond the removal period and, if released, shall be subject to certain terms of supervision. . . ." 8 U.S.C. § 1231(a)(6) (1994 ed., Supp. V).

As the Zadvydas Court observed, the relevant statute distinguishes three categories of aliens. In that case, the Court considered whether the "post-removal-period statute authorizes the Attorney General to detain a removable alien i.e., the second category of alien who was lawfully admitted, but subsequently violated a condition of admission indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal." Zadvydas, 533 U.S. at 682, 121 S.Ct. 2491 (emphasis in original). Employing the doctrine of constitutional avoidance, the Court held that the statute implicitly authorizes continued detention for a presumptively reasonable six-month period. Id. at 701, 121 S.Ct. 2491. In Clark v. Martinez, 543 U.S. 371, 378, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005), a case considering the post-removal order detention of two Mariel Cubans, the Court applied its holding in Zadvydas to all three categories of aliens in § 1231(a)(6):

The operative language of § 1231(a)(6), "may be detained beyond the removal period," applies without differentiation to all three categories of aliens that are its subject. To give these same words a different meaning for each category would be to invent a statute rather than interpret one. As the Court in Zadvydas recognized, the statute can be construed "literally" to authorize indefinite detention, id., at 689,
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