Silva v. Moniz

• Decision Date: 14 July 2021
• Docket Number: Case No. 20-cv-12255-DJC
• Parties: CARLOS MONTEIRO SILVA, a/k/a Carlos DaSilva, a/k/a Carlos Monteiro DaSilva, Petitioner, v. ANTONE MONIZ, Superintendent, Plymouth County Correctional Facility, Defendant.
• Court: U.S. District Court — District of Massachusetts

CARLOS MONTEIRO SILVA, a/k/a Carlos DaSilva,a/k/a Carlos Monteiro DaSilva, Petitioner, v. ANTONE MONIZ, Superintendent,Plymouth County Correctional Facility, Defendant.

Case No. 20-cv-12255-DJC

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

July 14, 2021

MEMORANDUM AND ORDER

CASPER, J.

I. Introduction

Petitioner Carlos Silva ("Silva"), an immigration detainee at Plymouth County House of Correction ("PCCF"), has filed a writ of habeas corpus pursuant to 28 U.S.C § 2241 (the "Petition"), alleging that the duration of his detention is unlawful. D. 1. Respondent Antone Moniz, Superintendent of PCCF ("Respondent"), has moved to dismiss the Petition because Silva failed to set forth grounds entitling him to relief under § 2241. D. 10. For the reasons set forth below, the Court ALLOWS Respondent's motion as to all grounds except the Reid bond hearing, D. 10, and DENIES the Petition as to all grounds except this issue, D. 1.

II. Standard of Review

On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6), the Court must determine if the facts alleged "plausibly narrate a claim for relief." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint "as a whole," the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the Court must perform a close reading of the claim to distinguish the factual allegations from the conclusory legal allegations contained therein. Id. Factual allegations must be accepted as true, while conclusory legal conclusions are not entitled credit. Id. Second, the Court must determine whether the factual allegations present a "reasonable inference that the defendant is liable for the misconduct alleged." Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). In sum, the complaint must provide sufficient factual allegations for the Court to find the claim "plausible on its face." García-Catalán, 734 F.3d at 103 (citation omitted).

III. Factual Background

Silva is a native and citizen of Cape Verde. D. 1 ¶ 8. On March 7, 1989, at the age of six, he arrived in the United States as a lawful permanent resident. Id. ¶ 9. On July 1, 2019, he was placed into ICE custody, id. ¶ 8, and was ordered removed by the Immigration Judge ("IJ") on December 11, 2019, id. On May 28, 2020, the Board of Immigration Appeals ("BIA") dismissed Silva's appeal from the IJ's decision. Id. The BIA concluded that the IJ "properly found that the respondent was convicted of an aggravated felony relating to obstruction of justice" and that Silva was "thus removable as charged under the aggravated felony ground of deportability." D. 13-7 at 53. Silva filed a petition for review with the First Circuit. D. 1 ¶ 8; see Silva v. Garland, No. 20-1593 (1st Cir.). On November 4, 2020, the First Circuit granted Silva's motion for stay of removal.D. 1 ¶ 8. The Panel heard the parties regarding the petition for review on May 5, 2021 and the matter remains pending. Silva v. Garland, No. 20-1593 (1st Cir.).

As of the filing of the Petition, Silva had been detained since he was first taken into ICE custody in July 2019, D. 1 ¶ 10. Silva's last custody review was held on November 5, 2020, at which his petition for release was denied. Id. ¶ 11. Silva also alleges that he is at heightened risk of complications due to the COVID-19 pandemic. Id. ¶ 12. Pending his removal (which is presently stayed by the First Circuit), Silva remains detained at PCCF. Id. ¶ 1.

IV. Procedural History

Silva filed his first habeas petition with this Court on April 8, 2020. See Campbell v. Moniz, No. 20-cv-10697-PBS, 2020 WL 2129594. In his petition, Silva argued his continued detention without a bond hearing violated due process, relying on Reid v. Donelan, 390 F. Supp. 3d 201 (D. Mass. 2019). Id. The Petition was denied. Id. Silva then filed another habeas petition with this Court on June 16, 2020 on the grounds that his continued confinement posed a substantial risk of serious harm due to his increased risk of contracting COVID-19. D. 11-2 (reproducing Judge Sorokin's September 10, 2020 Memorandum and Order in Silva v. Moniz, 20-cv-11144-LTS (D. Mass.)). The petition was denied. Id. Silva then filed this Petition. D. 1. Respondent now has moved to dismiss. D. 10. The Court heard the parties on the pending motion and took the matter under advisement. D. 18.

V. Discussion

A. Due Process under 8 U.S.C. § 1231(a)(6) and Zadvydas

Silva argues that under Zadvydas v. Davis, 533 U.S. 678 (2001), six months is the presumptively reasonable period during which ICE may detain individuals to effectuate their removal. D. 1 ¶ 13; Zadvydas, 533 U.S. at 702. Silva argues that the Department of HomelandSecurity's administrative regulations state that ICE's Headquarters Post-Order Detention Unit ("HQPDU") also allots a six-month period for determining whether there is a significant likelihood of an individual's removal in the reasonably foreseeable future. D. 1 ¶ 13 (citing 8 C.F.R. § 241.13(b)(2)(ii) (noting that the HQPDU is not obligated to release a non-citizen under this section "until the HQPDU has had the opportunity during a six-month period, dating from the beginning of the removal period . . . to make its determination as to whether there is a significant likelihood of removal in the reasonably foreseeable future")). At the time his Petition was filed, Silva had been held for approximately seven months, since his final removal order was issued on May 28, 2020, id. ¶ 11, and for approximately seventeen and a half months since his detention began on July 1, 2019, id. ¶ 10. The First Circuit granted his stay of any removal in November 2020. Id. ¶ 8.

The detention of non-citizens subject to a final deportation order is governed by 8 U.S.C. § 1231. Pursuant to 8 U.S.C. § 1231, the Attorney General shall remove undocumented individuals who have been ordered removed within ninety days and may detain such individuals during this "removal period." 8 U.S.C. § 1231(a)(1)(2). The removal period begins upon the latest of the following: (i) the date the order of removal becomes administratively final; (ii) if the removal order is judicially reviewed and if a court orders a stay of the removal of the noncitizen, the date of the court's final order; (iii) if the noncitizen is detained or confined (except under an immigration process), the date the noncitizen is released from detention or confinement. 8 U.S.C. § 1231(a)(1)(B). The government may detain non-citizens beyond the ninety-day period upon a finding that the non-citizen is "a risk to the community or unlikely to comply with the order of removal." 8 U.S.C. § 1231(a)(6).

While § 1231(a)(6) does not explicitly limit the period during which the Attorney General may detain a noncitizen, in Zadvydas v. Davis, the Supreme Court held that due process considerations mandate that detention under § 1231(a)(6) be limited "to a period reasonably necessary to bring about that [noncitizen's] removal from the United States." Zadvydas, 533 U.S. at 689. The Court created a six-month presumption and concluded that if the noncitizen "provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing." Id. at 701 (recognizing that the presumption "does not mean that every [non-citizen] not removed must be released after six months," but rather a non-citizen "may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future").

Silva's removal order became final on May 28, 2020, when the BIA issued its final decision. D. 1 ¶ 8. Although Silva has been detained for over six months since his removal order became final, Respondent asserts that once the First Circuit completes its review of Silva's appeal, if decided in Respondent's favor, Silva will be removed to Cape Verde, thereby making his removal "reasonably foreseeable." D. 11 at 10-11. "[P]ost-removal-period detention, unlike detention pending a determination of removability . . . , has no obvious termination point." Zadvydas, 533 U.S. at 697. A petitioner's detention claim under the due process clause is moot, however, where "but for [the] Court's stay of removal, petitioner would have already been removed." Gomes v. Smith, 381 F. Supp. 3d 120, 123 (D. Mass. 2019) (concluding that given petitioner would have already been removed if not for stay, his removal is considered "'imminent' and the implication of reasonable detention under Zadvydas is inapposite"); see Lawrence v. Gonzales, 446 F.3d 221, 227 (1st Cir. 2006) (concluding petitioner's continued detention"occurred pursuant to his own procuring of stays incident to his legal challenges to the removal order; it is beyond dispute that this period of time was necessary to bring about [petitioner's] removal . . ."); McPherson v. Holder, No. 14-cv-30207-MGM, 2015 WL 12861171, at *4 (D. Mass. Mar. 4, 2015) (concluding petitioner's removal was "reasonably foreseeable" where "once [petitioner's] appeal is resolved, if it is resolved in the government's favor, petitioner will be removed," and all that "appears to be preventing the removal process is a decision on petitioner's challenge to his removal order and in particular his motion for stay of removal").

Although a petitioner's detention may lack a specific end date, "this uncertainty alone does not render his detention indefinite in the sense the Supreme Court found constitutionally problematic in Zadvydas." Prieto-Romero v. Clark, 534 F.3d 1053, 1062 (9th Cir. 2008). In Zadvydas, removal was not reasonably foreseeable because no country would accept the deportees or the United States lacked an extradition treaty with the receiving countries, making the deportees'...