Mendoza v. Barr
| Decision Date | 15 March 2019 |
| Docket Number | CIVIL ACTION NO. H-18-3012 |
| Parties | OSCAR ARMANDO SARRES MENDOZA, (A-072-810-778), Petitioner, v. WILLIAM BARR, et al., Respondents. |
| Court | U.S. District Court — Southern District of Texas |
Petitioner Oscar Armando Sarres Mendoza has filed a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 ("Petition") (Docket Entry No. 1), seeking release from detention by immigration officials. He has also filed an amended version of that pleading, entitled Verified Petition for a Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief ("Amended Petition") (Docket Entry No. 13).
Now pending is Respondents' Motion to Dismiss and Response in Opposition to Petitioner's Petition for a Writ of Habeas Corpus ("Respondents' Motion") (Docket Entry No. 16). Petitioner has filed a Response ("Petitioner's Response") (Docket Entry No. 19)and a Motion for Leave to File an Amended Complaint (Docket Entry No. 22). After considering all of the pleadings and the applicable law, the court concludes that this case must be dismissed for the reasons explained below.
Petitioner is a native and citizen of Honduras, who first entered the United States illegally in 1993.2 An immigration judge in Harlingen entered an order of removal against Petitioner on February 8, 1994.3 Petitioner was deported more than once,4 only to return illegally to the United States.5 In 2006, Petitioner was convicted of aggravated robbery in violation of Texas law and sentenced to 20 years in state prison.6 He was also convicted of resisting arrest.7
Petitioner was taken into custody by Immigration and Customs Enforcement ("ICE") most recently on May 17, 2017, and placed in removal proceedings.8 Officials originally sought to deportPetitioner by reinstating the previous order of removal entered against him in 1994.9 After Petitioner successfully challenged that order, which was entered against him in absentia, officials filed new charges of deportability based on his criminal record.10 Petitioner provides the transcript of an oral decision by a local immigration judge, who found Petitioner ineligible for relief in the form of cancellation of removal or for asylum, due to Petitioner's prior conviction for aggravated robbery, which constitutes a "crime of violence" that qualifies as an "aggravated felony" and is also considered a "particularly serious offense" under the immigration statutes.11 After concluding that no waiver or other basis for relief applied, the immigration judge ordered Petitioner to be deported on June 19, 2018.12
Petitioner, who has filed an appeal from the order of removal to the Board of Immigration Appeals ("BIA"),13 has been "continuously detained" by immigration officials during his removalproceedings.14 On August 28, 2018, Petitioner filed his original habeas corpus Petition under 28 U.S.C. § 2241, seeking relief from "continued unlawful detention."15 On October 11, 2018, Petitioner filed an Amended Petition, which also challenges the legality of his continued confinement while awaiting removal.16 In both the original Petition and the Amended Petition, Petitioner argues that his continued detention violates due process because his removal to Honduras is not reasonably foreseeable, and he seeks immediate release from custody pursuant to Zadvydas v. Davis, 121 S. Ct. 2491 (2001).17 In addition, Petitioner seeks two billion dollars in compensatory damages for his wrongful confinement.18
The respondents, including the United States Attorney General, former Secretary of the Department of Homeland Security John Kelly, who has been succeeded by Kirstjen Nielsen, ICE Field Office Director Patrick D. Contreras, and Warden Robert Lacy, Jr., move to dismiss, noting that Petitioner fails to state a valid claim under Zadvydas because he has appealed the decision entered by the immigration judge on June 19, 2018, to the BIA, meaning that hisorder of removal is not yet "final."19 The respondents argue further that Petitioner's continued confinement is authorized by 8 U.S.C. § 1226(c), which mandates detention during removal proceedings for aliens who have committed a criminal offense that renders them deportable.20 Because Petitioner's continued detention is authorized, the respondents argue that he is not entitled to habeas corpus relief because he cannot establish the requisite constitutional violation.21
Petitioner has filed a Response to the Respondents' Motion,22 and he also requests leave to file an amended complaint to assert claims about the conditions of his confinement.23 As explained to Petitioner previously, claims concerning a prisoner's conditions of confinement may not be brought in a habeas corpus proceeding, andare actionable, if at all, in a civil rights action.24 Petitioner's motion for leave to amend will be denied, and this case will be dismissed for reasons discussed in more detail below under the applicable standards of review.
The respondents move to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Krim v. pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (citations omitted). In considering a challenge to subject matter jurisdiction, the district court is "free to weigh the evidence and resolve factual disputes in order to satisfy itself that it has the power to hear the case." Id. The petitioner bears the burden of demonstrating that subject matter jurisdiction exists. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
The respondents also move to dismiss for failure to state aclaim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. To withstand a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level[.]" Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007). If the complaint has not set forth "enough facts to state a claim to relief that is plausible on its face," it must be dismissed. Id. at 1974.
The court is mindful of the fact that plaintiff proceeds pro se in this case. Courts are required to give a pro se litigant's contentions, however inartfully pleaded, a liberal construction. See Erickson v. Pardus, 127 S. Ct. 1081, 2200 (2007) (citing Estelle v. Gamble, 97 S. Ct. 285, 292 (1976)); see also Haines v. Kerner, 92 S. Ct. 594, 595-96 (1972) (). Nevertheless, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iabal, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 127 S. Ct. at 1965).
As an initial matter, Petitioner's claims for relief are governed by the federal habeas corpus statutes, which authorize release from confinement where a prisoner can demonstrate that heis "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Compensatory or monetary damages are not available in a habeas corpus proceeding. See Preiser v. Rodriguez, 93 S. Ct. 1827, 1838 (1973) (); see also Muhammad v. Close, 124 S. Ct. 1303, 1304 (2004) (). Therefore, Petitioner's request for two billion dollars in compensatory damages must be dismissed for failure to state a claim upon which relief may be granted.
Petitioner claims that he is entitled to relief because his continued detention violates Zadvydas v. Davis, 121 S. Ct. 2491, 2504-05 (2001), which requires an immigration detainee's release under certain circumstances, after the expiration of a presumptively reasonable six-month period of detention, where there is no prospect of removal in the foreseeable future. This claim is without merit.
Once a removal order becomes "final," the Attorney General has ninety days to effect an alien's departure from the United States. 8 U.S.C. § 1231(a)(1); Andrade v. Gonzales, 459 F.3d 538, 543 (5thCir. 2006). Aliens may be detained during the removal period. See 8 U.S.C. § 1231(a)(2). If an alien is not promptly removed within the removal period, then he or she may be eligible for supervised release until removal can be accomplished. See id. at § 1231(a)(3). Certain inadmissible or criminal aliens "may be detained beyond the removal period," or released under terms of supervision, while efforts continue. See id. at § 1231(a)(6).
In Zadvydas, the Supreme Court held that the Fifth Amendment Due Process Clause does not permit indefinite detention lasting beyond six months past the ninety-day removal period found in § 1231(a). See Zadvydas, 121 S. Ct. at 2498, 2504-05. After the expiration of six months, an alien may seek his release from custody by demonstrating a "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future[.]" Id. at 2505. The alien bears the burden of proof in showing that no such likelihood of removal exists. Id. Once this has been shown, the burden shifts to the government, which "must respond with evidence sufficient to rebut that showing." Id.
Where an alien has filed an appeal from the order of removal, the removal order does not become final for purposes of triggering the ninety-day removal period until after the BIA issues a decision affirming the order of removal. See 8 U.S.C. § 1101(a)(47...
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