Morocho v. Mayorkas

Decision Date25 January 2023
Docket Number22-CV-1262 (AT) (BCM)
PartiesABEL ANTONIO PINA MOROCHO, Petitioner, v. ALEJANDRO MAYORKAS, Secretary of the Department of Homeland Security, Respondent.
CourtU.S. District Court — Southern District of New York



Petitioner Abel Antonio Pina Morocho, proceeding pro se and in forma pauperis, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a citizen of Ecuador who is currently serving a five- to fifteen-year sentence at Fishkill Correctional Facility (Fishkill) following a conviction for aggravated vehicular homicide. See Pet. (Dkt. 2) ¶¶ 4-6, 18. After Pina Morocho was sentenced, the U.S. Department of Homeland Security (DHS) initiated and concluded removal proceedings against him, obtaining an order of removal that became final on January 20, 2021. Petitioner filed this action more than a year later, on February 15, 2022. Citing Zadvydas v. Davis, 533 U.S. 678 (2001), petitioner appears to contend that he has been detained for an unreasonably prolonged period after his order of removal became final, Pet. ¶¶ 11-15, and, for that reason should be "discharged from his unconstitutional immigration confinement." Id. at 8. Additionally, petitioner asserts that the immigration judge (IJ) who issued his order of removal failed to consider all of the relevant evidence, id. ¶¶ 18-20 entitling him to "cancellation of removal." Id. at 8.

Now before me for report and recommendation (see Dkt. 8) is the motion of respondent Alejandro Mayorkas, Secretary of DHS, to dismiss the Petition pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6). (Dkt. 12.) The motion should be granted. As discussed in more detail below, this Court plainly lacks jurisdiction to review the order of removal or grant cancellation of removal. Moreover, although a federal district court may entertain a § 2241 petition alleging that a noncitizen has been in post-removal DHS detention for an unreasonable period of time, in this case petitioner's post-removal detention period has not yet commenced, because he is still serving his criminal sentence. Consequently, the portion of the Petition challenging his "immigration confinement" fails to state any constitutional claim.


Petitioner came to the United States at the age of 22. Pet. ¶ 18. He entered the country "without inspection, admission, or parole." Declaration of Supervisory Detention and Deportation Officer Scott J. North (North Decl.) (Dkt. 13) ¶ 4. On September 17, 2017, petitioner was arrested in New York City and charged with, inter alia, vehicular assault in the second degree in violation of N.Y. Penal Law (NYPL) § 120.03(1). Id. ¶ 5. On the same day, he was taken into the custody of the New York City Department of Corrections (NYCDOC) and held at Rikers Island as a pretrial detainee. Id. ¶ 6. On September 28, 2017, U.S. Immigration and Customs Enforcement (ICE), a component of DHS, "lodged a detainer with NYCDOC." Id. ¶ 7. An ICE detainer serves as a notice to jail and prison officials "that [they] should communicate with ICE before [a detainee's] scheduled release so that ICE can take [the detainee] into custody for immigration purposes." Hernandez v. I.C.E., 165 F.Supp.3d 715, 717 (N.D. Ill. 2016) (citing 8 U.S.C. § 1357(d)).

On October 10, 2017, petitioner was arraigned on an indictment charging him with multiple felonies, including "one count of murder (intentional) in violation of NYPL § 125.25(1); one count of aggravated vehicular homicide in violation of NYPL § 125.14(1); one count of vehicular manslaughter in the first degree in violation of NYPL § 125.13(1)," and numerous related offenses. North Decl. ¶ 8. On June 27, 2018, petitioner pled guilty to aggravated vehicular homicide, in violation of NYPL § 125.14(1), and was sentenced to five to 15 years in prison. Id. ¶ 9 & Ex. 3; Pet. ¶¶ 4-5.

On July 5, 2018, NYCDOC transferred petitioner to the custody of the New York State Department of Corrections and Community Supervision (DOCCS), which assigned him to Fishkill to serve his sentence. North Decl. ¶ 10. On September 19, 2018, ICE lodged a detainer with DOCCS. Id. ¶ 11.

On November 7, 2018, ICE served petitioner with a Notice to Appear (NTA), which charged him as removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i), as a noncitizen who was present in the U.S. without having been admitted or paroled. North Decl. ¶ 12 & Ex. 1 (NTA). On December 20, 2018, petitioner appeared remotely at a master calendar hearing before an IJ, id. ¶ 15, and on January 31, 2019, he appeared again, conceded service of the NTA, and admitted some but not all of the charges in the NTA. Id. ¶ 16. At that hearing, the IJ sustained the charge in the NTA, and adjourned the hearing to allow petitioner to "file all applications for relief from removal," id., which petitioner did. Id. ¶ 17. After numerous adjournments, some of them due to the COVID-19 pandemic, see id. ¶¶ 17-23, petitioner and his counsel appeared remotely for an individual hearing on December 21, 2020, id. ¶ 18, at which the IJ denied petitioner's application for relief from removal and ordered petitioner removed from the United States to Ecuador. North Decl. ¶ 24 & Ex. 2 (Order of Removal). Pina Morocho's deadline for appealing the Order of Removal to the Bureau of Immigration Appeals (BIA) was January 20, 2021. Id. ¶ 24. No appeal was filed. Id.

Plaintiff's state court appeal of his criminal conviction was unsuccessful. See People v. Morocho, 184 A.D.3d 876, 877, 124 N.Y.S.3d 241 (2nd Dep't 2020) (Mem), appeal denied, 35 N.Y.3d 1096, 155 N.E.3d 800 (Table) (2020). As of the filing of this action, his motion to set aside his conviction, filed pursuant to N.Y. Crim. Proc. Law § 440, remained pending. Pet. at 3 n.1.

Petitioner first became eligible for parole on September 6, 2022, see North Decl. ¶ 25 & Ex. 3, but parole was denied. See DOCCS, Incarcerated Lookup: DIN 18R1595, (last visited January 25, 2023). Petitioner's next parole hearing will not be until at least May 2024. Id. Petitioner will be eligible for conditional release on September 6, 2027, and will have served his full sentence on September 6, 2032. Id.

In this Court, petitioner seeks (i) a discharge from his "unconstitutional immigration confinement," (ii) cancellation of removal ("and/or de novo review of removal proceedings"), and (iii) an order requiring production of the "transcript of the entire immigration proceedings developed in the immigration court[.]" Pet at 8.

In his motion to dismiss, filed on June 8, 2022, respondent argues that this Court lacks subject matter jurisdiction to consider petitioner's challenge to his current physical confinement because petitioner is not in ICE custody at all, Resp. Mem. (Dkt. 14) at 11-13, and that any inquiry into the reasonableness of his future detention by ICE, pursuant to his Order of Removal, would be "premature." Id. at 13-15. Respondent further contends that only the Court of Appeals, not this Court, could review the Order of Removal, id. at 16-19, and adds that the proper forum for requesting transcripts of immigration proceedings is immigration court. Id. at 19-20.

On July 27, 2022, petitioner filed a memorandum in opposition to the motion (Pet. Opp. Mem.) (Dkt. 19), and on August 11, 2022, respondent filed a reply brief (Dkt. 20). Thereafter, on August 23, 2022, petitioner filed a sur-reply letter-brief (Dkt. 22).

A. Rule 12(b)(1)

"Federal courts are courts of limited jurisdiction," possessing "only that power authorized by Constitution and statute." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). If the district court "lacks the statutory or constitutional power to adjudicate" a case, it must be dismissed for lack of subject matter jurisdiction. Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.a.r.l., 790 F.3d 411, 416-17 (2d Cir. 2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)); see also Durant, Nichols, Houston, Hodgson & Cortese-Costa, P.C. v. Dupont, 565 F.3d 56, 62 (2d Cir. 2009) ("It is a fundamental precept that federal courts are courts of limited jurisdiction and lack the power to disregard such limits as have been imposed by the Constitution or Congress.") (citation omitted); Fed.R.Civ.P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."). "Customarily," therefore, "a federal court first resolves any doubts about its jurisdiction over the subject matter of a case before reaching the merits or otherwise disposing of the case." Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152, 155 (2d Cir. 1996).

In resolving a motion to dismiss for lack of subject matter jurisdiction, made pursuant to Rule 12(b)(1), the district court "must take all uncontroverted facts in the complaint (or petition) as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Marino v. Coach, Inc., 264 F.Supp.3d 558, 564 (S.D.N.Y. 2017) (quoting Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014)). However, "where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." APWU v. Potter, 343 F.3d 619, 627 (quoting LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999)); accord Ray Legal Consulting Grp. v. Gray, 37 F.Supp.3d 689, 696 (S.D.N.Y. 2014).

B. Rule 12(b)(6)

When considering a Rule 12(b)(6) motion, the trial court must "accept as true all factual statements alleged" in the pleading "and draw all reasonable inferences in favor of the nonmoving par...

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