Martinez v. Hott
| Decision Date | 01 February 2021 |
| Docket Number | Civil Action No. 1:20-cv-01289 (RDA/IDD) |
| Citation | 527 F.Supp.3d 824 |
| Parties | Fily Amaya MARTINEZ, Petitioner, v. Russell HOTT, et al., Respondents. |
| Court | U.S. District Court — Eastern District of Virginia |
Eileen Patricia Blessinger, Blessinger Legal PLLC, Falls Church, VA, for Petitioner.
Elizabeth Anne Spavins, United States Attorney's Office, Alexandria, VA, for Defendants Russell Hott, CHAD WOLF, Matthew T. Albence, Immigration and Customs Enforcement.
John Michael Erbach, Spotts Fain PC, Richmond, VA, for Respondent Jeffrey Crawford.
Rossie D. Alston, Jr., United States District Judge This matter comes before the Court on Respondents Russell Hott's, Chad Wolf's, Matthew T. Albence's, and Immigration and Customs Enforcement's ("Government Respondents") Motion for Summary Judgment (Dkt. 10) and Petitioner Fily Amaya Martinez's ("Petitioner") Motion to Strike Paragraphs 16-19 from the Declaration of James Mullan ("Motion to Strike") (Dkt. 13). This Court has dispensed with oral argument as it would not aid in the decisional process. Local Crim. R. 47. This matter has been fully briefed and is now ripe for disposition. Considering Petitioner's Corrected Petition for Writ of Habeas Corpus ("Amended Habeas Petition") (Dkt. 2); the Government Respondents’ Motion for Summary Judgment (Dkt. 10); the Government Respondents’ Memorandum of Law in Support of their Motion for Summary Judgment (Dkt. 11); Petitioner's Response in Opposition to the Government Respondents’ Motion for Summary Judgment (Dkt. 15); the Government Respondents’ Reply Memorandum in Support of their Motion for Summary Judgment (Dkt. 16); Petitioner's Motion to Strike (Dkt. 13); the Government Respondents’ Opposition to Petitioner's Motion to Strike (Dkt 17); Petitioner's Reply in Support of his Motion to Strike (Dkt. 18); and Respondent Crawford's Show Cause Response (Dkt. 8), and for the following reasons, it is hereby ORDERED that Petitioner's Motion to Strike be GRANTED;
IT IS FURTHER ORDERED that the Government Respondents’ Motion for Summary Judgment be GRANTED in part and DENIED in part;
IT IS FURTHER ORDERED that Petitioner's request to voluntarily dismiss Claim Three of his Amended Habeas Petition be GRANTED;
IT IS FURTHER ORDERED that Claim Three of the Amended Habeas Petitioner be DISMISSED without prejudice; and
IT IS FURTHER ORDERED that Petitioner be afforded an individualized bond hearing within fifteen days of the entry of this Order. The Immigration Judge is directed to conduct the individualized bond hearing consistent with the procedures set forth in this Order.
Petitioner is a native of El Salvador who, on or about September of 1988, first entered the United States. Dkt. Nos. 2, ¶¶ 19-20; 11, ¶ 1. In November of 1995, he was "adjusted to lawful permanent resident status." Dkt. Nos. 2, ¶ 20; 11, ¶ 2.
In May of 2001, in the Fairfax County General District Court, Petitioner pleaded guilty to the misdemeanor offense of possession of marijuana in violation of Va. Code § 18.2-108. Dkt. Nos. 2, ¶ 27(i); 11, ¶ 3. Accordingly, he was sentenced to 240 days in jail and six months of community service. Dkt. 2, ¶ 27(i).
Subsequently, in October of that same year, Petitioner pleaded guilty to possession of marijuana in violation of Va. Code § 18.2-250.1, for which he was sentenced to 300 days of incarceration with 240 days suspended, a $100 fine, and received suspension of his driver's license for 6 months. Dkt. 2, ¶ 27 (ii).
Further, in November of that same year, in the Circuit Court of Fairfax County, Petitioner was found guilty of receiving stolen property in violation of Va. Code § 18.2-102, and was sentenced to 360 days of incarceration with 180 days suspended. Dkt. Nos. 2, ¶ 27(ii); 11, ¶ 3. That same month, Petitioner also pleaded guilty to unauthorized use of a vehicle in violation of Va. Code § 18.2-102 and was sentenced to 360 days of incarceration with 180 days suspended. Dkt. 2, 27(iv).
And, on or around September 16, 2002, Petitioner was "found guilty of misdemeanor carrying a concealed weapon – first offense, in [ ] [the] Fairfax County General District Court." Dkt. 11, ¶ 6.
On or around July 29, 2002, the then Immigration and Naturalization Service ("INS") issued Petitioner a Notice to Appear, and charged Petitioner with:
being an immigrant who, at any time after admission, was convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), which as defined in 8 U.S.C. § 1101(a)(43)(G), includes a law relating to a theft offense for which the sentence imposed was one year or more; and an immigrant who, at any time after admission, was convicted of a violation of any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in Section 102 of the Controlled Substances Act, 21 U.S.C. § 802 ), other than a single offense involving possession for one's own use of 30 grams or less of marijuana, see 8 U.S.C. § 1227(a)(2)(B)(i).
Dkt. 11, 7 (citing Dkt. Nos. 11-1, ¶ 12; 2, ¶ 27).
On February 14, 2003, Petitioner appeared before the Arlington Immigration Court where the Immigration Judge ordered that Petitioner be removed from the United States to El Salvador. Dkt. Nos. 2, 5; 11, ¶ 8; 11-1, 8. Accordingly, on April 25, 2003, Petitioner was so removed. Dkt. Nos. 11, 9; 11-1, 14.
Sometime after his removal, Petitioner returned to the United States and "entered without inspection." Dkt. Nos. 11, ¶ 10; 11-1, ¶ 15.
On October 12, 2018, the Department of Homeland Security arrested Petitioner and reinstated the 2003 order of removal. Dkt. Nos. 2, ¶ 22; 11, ¶ 15; 11-1, ¶ 20. Thereafter, on January 11, 2019, in the Eastern District of Virginia, Petitioner was charged with and pleaded guilty to illegal reentry after conviction of an aggravated felony in accordance with 8 U.S.C. § 1326. Dkt. Nos. 2, ¶ 23; 11, ¶ 17. As a result of that conviction, Petitioner was sentenced to 366 days of incarceration and was committed to the custody of the Bureau of Prisons ("BOP"). Dkt. Nos. 2, ¶ 23; 11, ¶ 17; 11-1, ¶ 23.
Then, on September 20, 2019, after being released from the custody of the BOP, Petitioner was taken into custody by Immigration and Customs Enforcement ("ICE") and was detained at the Farmville Detention Center, where he remains. Dkt. Nos. 2, ¶ 23; 11, ¶ 18; 11-1, ¶ 24.
On October 4, 2019, the United States Citizenship and Immigration Services ("USCIS") determined that Petitioner was in "reasonable fear" of returning to El Salvador, issued Petitioner a form I-863, and referred the matter to the Arlington Immigration Court for withholding proceedings. Dkt. Nos. 2, ¶ 5; 11, ¶ 20; 11-1, ¶ 26. There, Petitioner requested bond, and after ICE filed information regarding Petitioner's criminal history, Petitioner's counsel withdrew the request for bond and "agreed that Petitioner was subject to mandatory detention" under 8 U.S.C. § 1226 (c). Dkt. 11, 20; 11-1, ¶ 26.
On January 7, 2020, Petitioner applied for withholding of removal and protection under the Convention Against Torture, and the Immigration Judge scheduled a hearing on Petitioner's application for March 5, 2020. Dkt. Nos. 2, ¶ 25; 11, ¶ 21; 11-1, ¶ 27. At the request of Petitioner's counsel, the hearing was rescheduled to March 23, 2020. Dkt. Nos. 11, ¶ 22; 11-1, ¶ 28. On March 23, 2020, Petitioner's counsel requested another continuance, which the Immigration Judge granted. Dkt. Nos. 11, ¶ 23; 11-1, ¶ 29. In turn, the hearing on Petitioner's application was rescheduled for May 20, 2020, and the hearing did, in fact, commence on that day. Dkt. Nos. 11, ¶¶ 23-24; 11-1, ¶ 29-30.
On August 4, 2020, United States Immigration Judge Deepali Nadknari issued a written decision granting Petitioner's application for withholding of removal under the Convention Against Torture Act. Dkt. Nos. 2, ¶ 26; 11, ¶ 26; 11-1, ¶ 32. On September 3, 2020, ICE appealed Judge Nadknari's decision to the Board of Immigration Appeals ("BIA"). Dkt. Nos. 2, ¶ 26; 11, ¶ 28; 11-1, ¶ 34. That appeal remains pending before the BIA. Dkt. Nos. 2, ¶ 26; 11, ¶ 29; 11-1, ¶ 35.
On October 30, 2020, Petitioner commenced this action by filing a Petition for Writ of Habeas Corpus in this Court. Dkt. 1. On November 19, 2020, Petitioner filed an Amended Petition for a Writ of Habeas Corpus. Dkt. 2. Then, on December 3, 2020, this Court ordered all Respondents to show cause as to why Petitioner's Amended Habeas Petition should not be granted within three days of December 3, 2020. Dkt. 6.
Accordingly, Respondent Jeffrey Crawford ("Respondent Crawford") replied by indicating that he "is not a government employee of any kind," but rather, he "is employed as the Director of Immigration Centers of America – Farmville, LLC[,]" which is a private entity that "provides services" to ICE. Dkt. 8, ¶¶ 1, 2. As such, he indicated that he "underst[ood] that he is a nominal respondent named in this case" as he is "the immediate custodian of" Petitioner. Id. at ¶ 3. Respondent Crawford further averred that he would "abide by any directive, final order or judgment (pending appeal if execution of such final order or judgment is stayed pending appeal) entered by this Court directing him to act with respect to Petitioner." Id. at ¶ 4.
The Government Respondents responded to the Court's December 3, 2020 Order by filing the instant Motion for Summary Judgment and attached the Declaration of James Mullan ("Mullan Declaration") to their Memorandum in Support of that motion. Dkt. Nos. 10; 11; 11-1. On December 18, 2020, Petitioner moved to strike the Mullan Declaration, and on December 21, 2020, Petitioner opposed the Government Respondents’ Motion for Summary Judgment. Dkt. Nos. 13; 15. The Government Respondents opposed Petitioner's Motion to Strike (Dkt. 17), and filed a reply in furtherance of their Motion for Summary Judgment (Dkt. 16), while Petitioner filed a reply in support of his Motion to Strike (Dkt. 18).
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