Peruch-Vicente v. Longshore
| Decision Date | 29 May 2015 |
| Docket Number | Civil Action No. 15-cv-00068-GPG |
| Parties | EVELIN ADELA PERUCH-VICENTE, Applicant, v. JOHN LONGSHORE, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT ("ICE"), Respondents. |
| Court | U.S. District Court — District of Colorado |
Applicant, Evelin Adela Peruch-Vincente, initiated this action on January 12, 2015 by filing, pro se, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241. She paid the $5.00 filing fee. Attorney, Jim Salvatore, who assisted the Applicant in preparing the Application, entered his appearance on behalf of the Applicant on March 25, 2015 (ECF No. 21). Mr Salvatore thereafter filed a Motion to Withdraw1 on May 15, 2015 (ECF No. 27), which was granted by the Court in an order dated May 18, 2015 (ECF No. 28).
Pursuant to an order issued by Magistrate Judge Gordon P. Gallagher (ECF No. 8), Respondent Longshore filed a Preliminary Response to the Application on March 4, 2015 (ECF No. 14), addressing the applicability of the affirmative defense of exhaustion of administrative remedies. Applicant, through counsel, filed a Reply on March 29,2015. (ECF Nos. 22, 23).
On April 7, 2015, the Court entered an Order to Dismiss in Part and Directing Application to File an Amended Application. (ECF No. 25). In the April 7 Order, the Court found that Applicant satisfied the "in custody" requirement because she is subject to a reinstated order of removal. See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001) (). The Court further found that Applicant was not required to exhaust administrative remedies before seeking relief under 28 U.S.C. § 2241 because no remedies were available. The Court dismissed Applicant's allegations concerning the legality of her reinstated removal order for lack of subject matter jurisdiction. See 8 U.S.C. § 1252(a)(5). The Court further found that Applicant's allegations asserting that ICE/BI, Inc. agents threatened to lock her up and take away her child, which, according to Applicant, contravene the UN Declaration on Rights of Indigenous People, the UN Convention Against Torture, and the United States Indian Child Welfare Act, were not cognizable under § 2241. And, finally, the Court observed that Applicant's constitutional claims challenging the requirements of her order of supervision appeared to lack merit; however, because Applicant filed the § 2241 Application pro se, the Court afforded her an opportunity to file an Amended Application to state an arguable due process or equal protection claim.
Applicant, through counsel, filed an Amended Application on April 28, 2015. (ECF No. 26).
Applicant alleges the following in the Amended Application. Applicant is a native of Guatemala, who does not speak English. She is subject to a final reinstated order of removal, dated August 7, 2014. (ECF No. 26, at 2, 6). Applicant applied for asylum in the United States on September 1, 2014. (Id. at 4).
Applicant was released from Immigration and Customs Enforcement (ICE) detention on August 8, 2014, under an order of supervision that requires her to remain within the jurisdiction of the Denver Field Office. (Id. at 3). On September 4, 2014, she was informed that her supervision would be handled by BI, Inc., a private entity that contracts with ICE, pursuant to the Intensive Supervision and Appearance Program (ISAP). (Id. at 5-6). Applicant is subject to the following requirements under the ISAP, :
(Id. at 5).
Applicant alleges that she been required by BI, Inc. to sign documents that she cannot read, outside the presence of her attorney. (Id. at 6). Applicant's efforts to obtain an interpreter who speaks her language, through her supervising ICE Officer, have proved unavailing. (Id. at 7-8). When Applicant asked to be relieved of supervision under ISAP because the stringent requirements were preventing her from acquiring and maintaining a job, her ICE officer told her that there would be no changes to hersupervision until the asylum application was resolved. (Id. at 8-9).
Applicant states that between November and January 2015, she made several requests to adjust her ISAP status, so that she could work full time. (Id. at 9). She alleges that her application for a work permit was granted by the United States Citizenship and Immigration Service several months ago, but her ability to work is significantly restrained by the reporting requirements in her order of supervision. (Id. at 4, 7). At one point, she was told by an ICE officer that if she continued requesting adjustment of her ISAP, she "would be locked up and her child taken away." (Id. at 9). Applicant states that her high level of supervision under ISAP is not related to her individual circumstances because she has no history of flight; she has not committed a crime, but is instead a crime victim herself; she has a child born in the United States, and she has a pending I-589 application. (Id. at 12).
Applicant alleges that her asylum application has been pending since September 1, 2014, but Respondent has thus far not arranged for Applicant's "reasonable fear" interview.2 (Id. at 11). She asserts that her interview has been delayed unreasonably because she requested an indigenous language interpreter. (Id. at 11-12). Applicant states that she is being "forced to manage all her interviews in Spanish [her second language], although the ICE personnel she has encountered . . . speak Spanish poorly, if at all." (Id. at 12).
Applicant claims in the Amended Application that the conditions of her supervised release violate the Due Process Clause and the Equal Protection component of the FifthAmendment. She also asserts an equal protection violation based on the Respondent's delay in processing her application for asylum. For relief, Applicant seeks an order requiring ICE to adjust her supervision status so that she is allowed to report to Brush, Colorado, every three to four months, and that her asylum application be transferred to an Immigration Judge forthwith.
Section § 1231(a), of Title 8 United States Code, states, in pertinent part:
(5) Reinstatement of removal orders against aliens illegally reentering If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry.
See also 8 C.F.R. § 241.8 ().
An alien subject to a final order of removal may be released, pending removal, on conditions set forth in regulations prescribed by the Attorney General. See Zadvydas v. Davis, 533 U.S. 678, 695-96 (2001) (citing 8 U.S.C. § 1231(a)(3) and 8 C.F.R. § 241.5). If an alien fails to comply with the conditions of release, he or she will be subject to criminal penalties, including detention. Id.
As relevant here, the regulations require, inter alia, that the alien "appear before an immigration officer periodically for identification." Kalombo v. Shanahan, No. 07 Civ. 11350(PKC), 2009 WL 1788589, at *4 (S.D.N.Y. Jun. 23, 2009); see 8 C.F.R. § 241.5(a)(1) (); see also United States v. Witkovich, 353 U.S. 194, 202 (1957) ().
Applicant contends that the conditions of her order of supervision violate the Fifth Amendment Due Process Clause and are subject to strict scrutiny review because Applicant is "a member of a suspect class: an Indigenous woman who speaks an Indigenous dialect." (ECF No. 26, at 15).
The Fifth Amendment protects aliens from deprivation of life, liberty or property without due process of law, even if their presence in this country is unlawful. See Mathews v. Diaz, 426 U.S. 67, 77 (1976). Notwithstanding, in exercising its broad power over naturalization and immigration matters, "Congress regularly makes rules that would be unacceptable if applied to citizens." Id. at 79. See also Zadvydas, 533 U.S. at 695 ().
The Court rejects Applicant's invitation to apply strict scrutiny review to the conditions of her supervision. The Supreme Court has held that the liberty interest of an alien under a final removal order is not a fundamental right. Demore v. Kim, 538 U.S. 510, 521 (2003). Therefore, the restrictions placed on Applicant as conditions of her release need only be rationally related to a legitimate government interest. Id. at 528. See also Reno v. Flores, 507 U.S. 292, 305 (1993) (). Although courts in the Tenth Circuit have not addressed the specific issue, other district courts have held that a...
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