Smith v. Barr

• Citation: 444 F.Supp.3d 1289
• Decision Date: 16 March 2020
• Docket Number: Case No. 20-CV-0060-CVE-JFJ
• Parties: Lincoln SMITH, Petitioner, v. William BARR, Attorney General of the United States; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; Barbara Owlett, Acting Field Office Director for U.S. Immigration and Customs Enforcement; and U.S. Department of Homeland Security, Respondents.
• Court: U.S. District Court — Northern District of Oklahoma

444 F.Supp.3d 1289

Lincoln SMITH, Petitioner,

v.William BARR, Attorney General of the United States; Chad Wolf, Acting Secretary of the U.S. Department of Homeland Security; Barbara Owlett, Acting Field Office Director for U.S. Immigration and Customs Enforcement; and U.S. Department of Homeland Security, Respondents.¹

Case No. 20-CV-0060-CVE-JFJ

United States District Court, N.D. Oklahoma.

Signed March 16, 2020

Lincoln Smith, Tulsa, OK, pro se.

Jeffrey Andrew Gallant, United States Attorney's Office, Tulsa, OK, Cheryl R. Triplett, United States Attorney's Office, Muskogee, OK, for Respondents.

OPINION AND ORDER

CLAIRE V. EAGAN, UNITED STATES DISTRICT JUDGE

This matter is before the Court on petitioner Lincoln Smith's pro se 28 U.S.C. § 2241 petition for writ of habeas corpus (Dkt. # 1), filed February 12, 2019,² respondent's motion to dismiss the petition (Dkt. # 7), filed May 3, 2019, and petitioner's "motion to compel for failure to exhaust state remedies and reconsideration to expedite," (Dkt. # 11), filed December 13, 2019. Petitioner, a native and citizen of Jamaica, is currently detained at the David L. Moss Criminal Justice Center, in Tulsa, Oklahoma, under the custody of the United States Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), pending a final decision on whether he should be removed from the United States. Petitioner claims his continued detention, without a bond hearing, is unlawful and unconstitutional. Respondents move to dismiss the petition as prematurely filed and, alternatively, urge the Court to deny relief on the merits. Dkt. ## 6, 7.³ For the reasons discussed below, the Court denies respondents' motion to dismiss the § 2241 petition, grants in part and denies in part the § 2241 petition, and denies as moot petitioner's motion to compel and expedite ruling.

I. Background

Petitioner is a native and citizen of Jamaica. Dkt. # 1, at 3.⁴ In 1987, petitioner was admitted to the United States and began living in New York. Dkt. # 7-1, at 3. In August 2017, DHS officials initiated removal proceedings against petitioner by serving him a Notice to Appear. Dkt. # 1 at 3; Dkt. # 7-1, at 1-2, 4. The DHS alleged petitioner was removable, under 8 U.S.C. § 1227(a)(2)(A)(ii) and (iii) and 8 U.S.C. § 1227(a)(2)(B)(i), because he had two prior convictions for cocaine possession, one prior conviction for cocaine possession with intent to distribute, and one prior conviction for grand larceny.⁵ Dkt. # 7-1, at 3-4. ICE agents took petitioner into custody on or about August 21, 2017. Dkt. # 1 at 2; Dkt. # 7-4, at 2.

Petitioner appeared at his initial immigration hearing on September 20, 2017. Dkt. # 7-2, at 3. At the hearing, petitioner conceded removability under 8 U.S.C. § 1227(a)(2)(B)(i), based on his convictions for possessing cocaine, but denied removability under § 1227(a)(2)(A)(iii), arguing that his convictions for possession with intent to distribute and grand larceny were not aggravated felonies. Id. at 3, 5. The immigration judge continued the matter until December 21, 2017, at petitioner's request, so he could apply for cancellation of removal, asylum and withholding of removal. Id. at 3. Ultimately, petitioner applied only for cancellation of removal. Id. at 4-5. Following a final hearing on April 30, 2018, the immigration judge denied petitioner's application for cancellation of removal, denied his request for a continuance to apply for additional forms of relief, and ordered petitioner removed to Jamaica. Id. at 1, 5-7. Petitioner filed an administrative appeal with the Board of Immigration Appeals (BIA). Dkt. # 7-3, at 1-2. The BIA denied petitioner's motion to remand and dismissed his appeal on October 2, 2018. Id. at 3-6.

On October 10, 2018, an agent from ICE's Office of Enforcement and Removal Operations (ERO) completed an application for travel documents and submitted the application to the Jamaican Consulate. Dkt. # 7-4, at 2. Five days later, the ERO agent contacted the Jamaican consulate to schedule an interview for petitioner. Dkt. # 7-4, at 2. On October 29, 2018, the date of the scheduled interview, petitioner refused to speak to the consulate and told the ERO agent that he had filed a petition for review (PFR) of the BIA's removal order. Id. The ERO agent later confirmed that petitioner filed a PFR and a motion for stay of removal in the United States Court of Appeals for the Second Circuit on October 25, 2018. Id. at 2-3.

By filing a PFR and a motion for stay of removal, petitioner "triggered the ‘forbearance agreement.’ " Dkt. # 7, at 3; Dkt. # 7-4, at 3. Under that agreement, the ERO has agreed not to remove aliens who have a PFR pending before the Second Circuit and who have filed a motion for stay of removal. Dkt. # 7, at 3; See Efstathiadis v. Holder, 752 F.3d 591, 599 n.5 (2d Cir. 2014) ("While a petition is pending in this Court, the Government's forbearance policy assures that the filing of a motion to stay removal, as has been done here, will suffice to prevent removal."). Consistent with the ERO's forbearance agreement, the ERO ceased all efforts to remove petitioner. Dkt. # 7-4, at 3.

On or about November 13, 2018, petitioner was transferred to the Moore Detention Center, in Okmulgee, Oklahoma. Dkt. # 1, at 2; Dkt. # 7-4, at 3. Petitioner filed a motion for reconsideration with the BIA on November 27, 2018. Dkt. # 7-5, at 1.

On February 12, 2019, while his motion for reconsideration was pending before the BIA, petitioner filed the instant § 2241 petition for writ of habeas corpus in the United States District Court for the Southern District of New York. Dkt. # 1, at 1. Citing petitioner's transfer to the Moore Detention Center, that court transferred the petition to the United States District Court for the Eastern District of Oklahoma on February 20, 2019. Dkt. ## 2, 3. Six days later, that court directed respondents to file a response. Dkt. # 4.

On April 24, 2019, petitioner was transferred to the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. Dkt. # 7-4, at 3. That same day, the BIA dismissed his motion for reconsideration as untimely and, alternatively, denied the motion on the merits. Dkt. # 7-5, at 1-2.

On May 3, 2019, respondents filed a response (Dkt. # 6) to the § 2241 petition and a motion to dismiss the petition (Dkt. # 7). Petitioner filed a response (Dkt. # 10) to the dismissal motion on August 21, 2019.

Meanwhile, on August 8, 2019, the Second Circuit granted petitioner's motion for a stay of removal, pending its decision on his PFR, and appointed counsel to represent him. Dkt. # 10, at 2; Dkt. # 13, at 2; see Dkt. # 86, Smith v. Barr, 2d Cir. Docket No. 18-3190 (Aug. 8, 2019).⁶ In the order granting the stay, the Second Circuit specifically instructed counsel for petitioner to brief "whether Petitioner's convictions are aggravated felonies that render him removable and ineligible for cancellation of removal." Dkt. # 86, Smith v. Barr, 2d Cir. Docket No. 18-3190. Petitioner's PFR remains pending.⁷

Petitioner filed a "motion to compel for failure to exhaust state remedies and reconsideration to expidite [sic ]" (Dkt. # 11) on December 13, 2019, requesting an expedited ruling on his habeas petition.⁸ On February 10, 2020, respondents filed a "supplement" (Dkt. # 13) to the motion to dismiss. Two days later, citing petitioner's transfer to the David L. Moss Criminal Justice Center, the United States District Court for the Eastern District of Oklahoma transferred the § 2241 petition to this court. Dkt. # 14.

II. Discussion

Petitioner claims that his continued detention in ICE custody is unlawful, under 8 U.S.C. § 1226 and 8 U.S.C. § 1231, and violative of his rights under the Fifth Amendment's Due Process Clause, as interpreted in Demore v. Kim, 538 U.S. 510, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003), and Zadvydas v. Davis, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001). Dkt. ## 1, 10.⁹ Petitioner seeks federal habeas relief, under 28 U.S.C. § 2241, and requests his immediate release from custody, either on his own recognizance or under bond and subject to conditions of supervision. Dkt. # 1, at 6, 9; Dkt. # 10, at 10. Alternatively, he requests to be taken before an immigration judge for an individualized hearing at which the Government would bear the burden of demonstrating that his continued detention is justified because he is either a flight risk or a danger to the community. Dkt. # 1, at 5; Dkt. # 10, at 10.

Respondents contend that "[p]etitioner's detention pending removal is statutorily authorized and does not raise any constitutional concerns." Dkt. # 7, at 7. They urge this Court to dismiss the petition as premature because petitioner filed it before he had been held in "post-order detention," under § 1231(a), for the presumptively reasonable 6-month period established in Zadvydas. Dkt. # 7, at 1-2, 5. Alternatively, respondents urge the Court to deny the petition because petitioner "prevent[ed] DHS from removing him" by seeking judicial review of his removal order and "triggering" the forbearance agreement. Dkt. # 7, at 2, 6-7.

A. Jurisdiction

Under 28 U.S.C. § 2241, federal courts have jurisdiction to determine whether a habeas petitioner is being held "in custody in violation of the Constitution or laws ... of the United States." 28 U.S.C. § 2241(c)(3) ; Zadvydas, 533 U.S. at 687, 121 S.Ct. 2491. In the immigration context, Congress has placed various limits on the exercise of this jurisdiction. See 8 U.S.C. § 1252. For example, a federal court may not exercise federal habeas jurisdiction to review certain decisions denying discretionary relief, see 8 U.S.C. § 1252(a)(2)(B), or to review any final order of removal against a criminal alien, id. § 1252(a)(2)(C). But these limits do not "preclud[e] review of constitutional claims," id. § 1252(a)(2)(D), or "examin[ation of] the statutory ... bases for an immigration detention," Carbajal v. Holder, 43 F. Supp. 3d 1184, 1186 (D. Colo. 2014). see also Zadvydas...