Ndudzi v. Perez, Civil Action No. 5:20-CV-108

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtDiana Saldaña, United States District Judge
Citation509 F.Supp.3d 943
Parties Mariana NDUDZI, Petitioner, v. Orlando PEREZ, et al., Respondents.
Docket NumberCivil Action No. 5:20-CV-108
Decision Date24 December 2020

509 F.Supp.3d 943

Mariana NDUDZI, Petitioner,
Orlando PEREZ, et al., Respondents.

Civil Action No. 5:20-CV-108

United States District Court, S.D. Texas, Laredo Division.

Signed December 24, 2020
Entered December 25, 2020

509 F.Supp.3d 944

Brian E. Casey, Pro Hac Vice, Barnes & Thornburg LLP, South Bend, IN, Charles Roth, National Immigrant Justice Center, Chicago, IL, Curtis Francis Doebbler, Refugee and Immigrant Center for Education and Legal Service, San Antonio, TX, for Petitioner.

Hector Carlos Ramirez, United States Attorney's Office Southern District of Texas, Laredo, TX, for Respondents.


Diana Saldaña, United States District Judge

Before the Court is Petitioner Mariana Ndudzi's ("Petitioner") Motion for Reconsideration. (Dkt. 18.) Petitioner seeks reconsideration of the Court's September 29, 2020 Order (Dkt. 17) denying her Petition for a Writ of Habeas Corpus (Dkt. 1). Having been fully briefed on the issue, the Court finds that Petitioner's Motion for Reconsideration (Dkt. 18) should be denied.

Background & Procedural History

On July 7, 2020, Petitioner filed a Petition for a Writ of Habeas Corpus, claiming both that inadequate detention conditions related to the COVID-19 pandemic rendered her confinement unlawful and that the duration of her detention exceeded constitutional limits. (Dkt. 1.) The Government moved to dismiss the petition on August 12, 2020 (Dkt. 12), and Petitioner filed her opposition on October 6, 2020. (Dkt. 13.) The Court was considering the matter when, on September 18, 2020, Petitioner filed a Motion to Set Hearing or For Expedited Ruling. (Dkt. 16.) Noting that she was "subject to a final removal order" and "could be deported back to Angola ... as soon as the end of th[e] month," Petitioner requested a hearing or "a decision on her pending Petition in order to avoid her potential deportation from mooting her Petition." (Id. at 2–3.)

Eleven days later, on September 29, 2020, the Court entered its order denying Petitioner's request on both asserted

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grounds. (Dkt. 17.) Looking to Fifth Circuit and Supreme Court caselaw, the Court determined that Petitioner's conditions of confinement claims were not cognizable in a habeas petition and should have been brought in a civil rights action instead. (Id. at 7.) Because Petitioner is subject to a final order of removal under 8 U.S.C. § 1231(a), the Court also concluded that Petitioner's prolonged confinement claim was "untimely" under the Supreme Court's decision in Zadvydas v. Davis , 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). (Id. at 9.)

Following the Court's order, Petitioner filed a Motion for Reconsideration (Dkt. 18) on October 6, 2020, urging the Court to re-evaluate its prior decision. (Id. ) The Government filed its Response in Opposition (Dkt. 19) on October 26, 2020, and Petitioner replied on October 29, 2020. (Dkt. 20.) The Motion (Dkt. 18) has been fully briefed and is now ripe for decision.

Legal Standard

Courts retain the power to revise interlocutory orders before entering judgment adjudicating the parties' claims, rights, and liabilities under Federal Rule of Civil Procedure 54(b). Rule 54(b) provides that any court order or decision "may be revised at any time before the entry of a judgment adjudicating all the claims[.]" Fed. R. Civ. P. 54(b).1 "Under Rule 54(b), the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law." Austin v. Kroger Tex., L.P. , 864 F.3d 326, 336 (5th Cir. 2017) (internal quotation marks omitted); see also Dietz v. Bouldin , ––– U.S. ––––, 136 S. Ct. 1885, 1892, 195 L.Ed.2d 161 (2016) ("[A] district court ordinarily has the power to modify or rescind its orders at any point prior to final judgment in a civil case.")


Petitioner argues that the Court should reconsider its order dismissing her habeas petition for three reasons. First, Petitioner contends that the Court did not apply the "same constitutional principles" it outlined in Da Silva v. Nielsen , 5:18-MC-00932 (S.D. Tex. Mar. 29, 2019) to the "analogous facts" here. (Dkt. 18 at 1.) Looking foremost to Supreme Court caselaw, the Court recognized that the petitioner in that case—an asylum seeker detained as an arriving alien not yet subject to a final removal order—enjoyed a constitutional right to an individualized bond hearing. Da Silva , 5:18-MC-00932, slip op. at 21. According to Petitioner, that logic ought to apply with equal force here because the right to due process does not "differentiat[e] between pre-removal order and post-removal order detention." (See Dkt. 18 at 7.) Second, because the Court's prior order (Dkt. 17) applied that very distinction, Petitioner relatedly complains that the Court failed to address the merits of her due process claim. (Dkt. 18 at 4.) Third, and

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finally, Petitioner argues that the Court failed to rule on Petitioner's claim that the conditions of her confinement are unconstitutional and warrant her immediate release. (Id. at 9.) For the reasons outlined below, each claim fails.

A. Prolonged confinement claims related to Petitioner's pre-final removal order are moot, and any Zadvydas claim is premature.

Petitioner's first argument that the Court should have applied the principles of Da Silva is unpersuasive. Petitioner maintains that, under Da Silva , she has a due process right "that requires her release from detention." (Dkt. 18 at 5–6.) In Da Silva , the Court determined that an arriving alien detained pursuant to 8 U.S.C. § 1225(b)(1) had a constitutional right to an individualized bond hearing when her detention became unreasonably prolonged.2 Like the petitioner in Da Silva , Petitioner was detained by immigration authorities pursuant to § 1225(b)(1) for fifteen months after she presented herself for admission and sought asylum at a port of entry. (See Dkt. 1 at 52; Dkt. 12 at 1.) During that period, an Immigration Judge held a hearing on the merits of Petitioner's asylum claim, but subsequently denied her petition and ordered her removal. (Dkt. 12 at 2.) Petitioner appealed the decision to the Board of Immigration Appeals (BIA), but the BIA dismissed her claim on July 31, 2020. (Dkt. 12, Attach. 6.)3 Thus, for over four months, Petitioner has been detained as an alien subject to an administratively final order of removal. See id. §§ 1231(a)(1)(B)–(a)(2).

The BIA's denial finalized the Immigration Judge's prior order of removal, thereby shifting the statutory basis of Petitioner's detention from § 1225(b)(1) to § 1231(a). Id. §§ 1231(a)(1)(B)(i)–(a)(2). In turn, § 1231 provides a ninety-day window for authorities to remove aliens subject to a final removal order, though the Zadvydas Court held that post-removal order detention durations do not become constitutionally suspect until after six months. Id. § 1231(a)(1); Zadvydas , 533 U.S. at 701, 121 S.Ct. 2491. According to Petitioner, in light of Da Silva and the length of her detention, the "combination of pre-final order and post-final order detention" is constitutionally impermissible. (See Dkt. 18 at 7.) In other words, the fact that Petitioner was detained under two distinct statutory authorities "is not sufficient, in and of itself, to foreclose relief to her for violation of her Fifth Amendment Due Process rights." (Id. at 6.)

This case is not like Da Silva .4 The Fifth Circuit has at least twice indicated that the distinction between aliens subject to an administratively final removal order and those who are not matters in how prolonged confinement claims are assessed. See Chance v. Napolitano , 453 F. App'x 535 (5th Cir. 2011) (per curiam) (concluding that the district court did not err in finding that the "challenge to [petitioner's] continued post removal detention was premature" when petitioner "had not been in post-removal-order detention longer than the presumptively reasonable six-month

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period" authorized by Zadvydas ); Okpoju v. Ridge , 115 F. App'x 302 (5th Cir. 2004) (per curiam) (finding that a continued detention claim was "premature" because petitioner "had not yet been in custody longer than the presumptively reasonable six-month post removal order period"), cert. denied , 544 U.S. 1066, 125 S.Ct. 2528, 161 L.Ed.2d 1120 (2005). To be sure, these unpublished decisions from the Fifth Circuit are not binding. However, they are in lockstep with every other court of appeals to consider the issue, which underscores their persuasive weight.5

The mootness doctrine requires that the Court not ignore the statutory shift in Petitioner's detention. Under their Article III powers, "federal courts may adjudicate only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp. , 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). Mootness extends from this central jurisdictional premise. "[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome." Powell v. McCormack , 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)....

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