Tahtiyork v. U.S. Dep't of Homeland Sec.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
Docket NumberCIVIL ACTION NO. 20-1196 SECTION P
Decision Date12 January 2021




January 12, 2021




Petitioner Metoh Mbah William Tahtiyork, a detainee in the custody of the Department of Homeland Security ("DHS") and the Bureau of Immigration and Customs Enforcement ("ICE") who proceeds pro se, petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner is detained at Richwood Correctional Center ("RCC"). Respondents oppose the Petition. [doc. # 11]. For reasons below, the Court should dismiss the Petition.


Petitioner, a native of Cameroon, entered immigration custody on July 31, 2019. [doc. #s 1, p. 4; 5-1, p. 17]. On September 20, 2019, an asylum officer found that Petitioner had a credible fear of persecution. [doc. # 5-1, p. 15].

On April 22, 2020, an immigration judge ordered Petitioner removed, denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Id. at 19. Petitioner appealed, but on October 7, 2020, the Board of Immigration Appeals ("BIA") denied the appeal. [doc. #s 5, p. 7; 5-1, p. 23]. He appealed again, via counsel, on May 14 or 15, 2020, allegedly providing additional evidence of the danger he will encounter if removed; his appeal is pending. [doc. #s 1, pp. 4-5; 5, p. 7].

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Petitioner filed this Petition on approximately September 12, 2020. [doc. # 1, p. 8]. Seeking release from confinement, he first claims that he has "been in immigration detention for more than 6 months and [he] has not been given a bond hearing . . . to determine if [he] can be released." Id. at 6. He also claims that his life is at risk because he has "COPD" and pneumonia and is therefore vulnerable to a virus present at RCC, Covid-19. [doc. #s 1, pp. 6-7; 5, p. 6].

Petitioner claims further that he "has been detained in immigration custody for over 14 months even though no neutral decisionmaker—whether a federal judge or an immigration judge—has conducted a hearing to determine whether this lengthy incarceration is warranted based on a danger or flight risk . . . ." [doc. # 5, pp. 2, 6]. His "prolonged detention without a hearing" allegedly violates the Due Process Clause of the Fifth Amendment and the Eighth Amendment's Excessive Bail Clause." Id. at 2. He asks the Court to release him with "appropriate conditions of supervision if necessary, taking into account [his] ability to pay a bond" because the Government "has not established by clear and convincing evidence that [he] presents a risk of flight or danger in light of available alternatives to detention . . . ." Id. at 3. In the alternative, he seeks a bond hearing before either this Court or an immigration judge, at which the Government must either release him or establish by clear and convincing evidence that he presents a risk of flight or a danger to the community. Id. at 3, 13.


Under 28 U.S.C. § 2241(c)(3), the Court has federal subject-matter jurisdiction over habeas petitions filed by aliens claiming they are being detained "in violation of the Constitution or laws or treaties of the United States." See Zadvydas v. Davis, 533 U.S. 678, 687 (2001). However, the 'REAL ID Act' of 2005 divests federal courts of jurisdiction over several categories of immigration proceedings. See Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005).

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District courts may not review challenges to final orders of removal. 8 U.S.C. § 1252(a)(5); Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007). And no federal court may review any action that is committed to the discretion of the Attorney General or the DHS Secretary, 8 U.S.C. § 1252(a)(2)(B)(ii), including decisions "regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole," 8 U.S.C. § 1226(e).

The Supreme Court recognized a distinction between challenges to individual, discretionary detention decisions—which are prohibited—and "challenges to the statutory framework that permits [an] alien's detention without bail"—which remain cognizable under the habeas statute. Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018) (internal alterations omitted) (citing Demore v. Kim, 538 U.S. 510, 516 (2003)); see Aracely, R. v. Nielsen, 319 F. Supp. 3d 110, 135 (D.D.C. 2018) ("While§ 1252(a)(2)(B)(ii) undoubtedly bars judicial review of individual parole decisions, courts have declined to apply it to claims challenging the legality of policies and processes governing discretionary decisions under the INA.").

Despite any statutory limitations on judicial review, federal courts retain "jurisdiction to review [an alien's] detention insofar as that detention presents constitutional issues," Oyelude v. Chertoff, 125 F. App'x 543, 546 (5th Cir. 2005), such as "questions of law regarding the AG's statutory authority or the regulatory framework" governing immigration detention, Garza-Garcia v. Moore, 539 F. Supp. 2d 899, 903 (S.D. Tex. 2007); see also Maldonado v. Macias, 150 F. Supp. 3d 788, 794 (W.D. Tex. 2015) ("[E]ven after the passage of the REAL ID Act, district courts retain the power to hear statutory and constitutional challenges to civil immigration detention under § 2241 when those claims do not challenge a final order of removal, but instead challenge the detention itself.").

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Law and Analysis

I. Overstay in Detention

Petitioner claims that he has "been in immigration detention for more than 6 months" without a bond hearing "to determine if [he] can be released." Id. at 6. He seeks release from confinement. Id. at 7.

Considering that he seeks release and that he complains of detention for over six months following his order of removal, he impliedly invokes Zadvydas v. Davis, 533 U.S. 678 (2001), where the Supreme Court held that if an alien is detained for six months after a final order of removal, and if the alien petitioning for habeas corpus "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." Zadvydas, 533 U.S. at 701. "[A]n alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id.

Petitioner's claim, however, is premature because his appeal before the BIA is pending and thus his order of removal is not final. See Lopez Acosta v. Rosen, 2021 WL 54772, at *1 (5th Cir. Jan. 6, 2021) ("Because Lopez Acosta is currently pursuing administrative remedies below, he is no longer subject to a final order of removal . . . ."); Castillo-Rodriguez v. I.N.S., 929 F.2d 181, 183 (5th Cir. 1991) ("The order of the immigration judge, then, is not final when a timely appeal is taken to the Board.").

Under 8 U.S.C. §1101(a)(47), an "order of deportation" becomes final upon the earlier of: "(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals." Likewise, under 8 C.F.R. § 1241.1, "An order of removal made by the

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immigration judge . . . shall become final: (a) Upon dismissal of an appeal by the Board of Immigration Appeals . . . ." See Agyei-Kodie v. Holder, 418 F. App'x 317, 318 (5th Cir. 2011).1

Respondents write in passing that Petitioner's "removal order became administratively final pursuant to 8 C.F.R. § 1241.1 on April 22, 2020." [doc. # 11, p. 7]. This is incorrect because April 22, 2020, was when the immigration judge first ordered Petitioner removed. [doc. # 5-1, p. 20]. Moreover, Respondents later state, contradictorily, that Petitioner "has been in pre-removal detention for just over one (1) year." Id. at 16. They also recognize that Petitioner is not confined under 8 U.S.C. § 1231, he is confined under 8 U.S.C. §1225(b). See Jefferally v. Barr, 2019 WL 3935977, at *2 (S.D. Tex. Aug. 20, 2019) ("Once a detained alien is subject to a final removal order, the statutory basis for detention is § 1231 . . . ."). They add, "Because Petitioner's case is currently pending a second appeal, Petitioner's removal proceedings are still pending." [doc. #11, p. 15].

The Court should dismiss this claim.

II. Conditions of Confinement

A. Habeas Corpus is Unavailable

Petitioner seeks release because he has "COPD" and is vulnerable to a virus present at RCC, Covid-19. Plainly, he challenges the conditions of his confinement.

"Simply stated, habeas is not available to review questions unrelated to the cause of detention. Its sole function is to grant relief from unlawful imprisonment or custody and it

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cannot be used properly for any other purpose. While it is correctly alluded to as the Great Writ, it cannot be utilized as . . . a springboard to adjudicate matters foreign to the question of the legality of custody." Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976).

"Allegations that challenge the fact or duration of confinement are properly brought in habeas petitions, while allegations that challenge rules, customs, and procedures affecting conditions of confinement are properly brought in civil rights actions." Schipke v. Van Buren, 239 F. App'x 85, 85-86 (5th Cir. 2007). "A § 2241 habeas petition is the proper procedural vehicle for challenging an action that 'directly implicates the duration of' a prisoner's confinement. Davis v. Fechtel, 150 F.3d 486, 487, 490 (5th Cir. 1998). It is not, however, the proper procedural vehicle for claims . . . regarding the conditions of confinement." Boyle v. Wilson, 814 F. App'x 881, 882 (5th Cir. 2020).2

In Moore v. King, No. 08-60164, 2009 WL 122555, at *1 (5th Cir. Jan. 20, 2009), for instance, the petitioner sought habeas relief, challenging the conditions of his...

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