Virani v. Huron, SA-19-CV-00499-ESC

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE
PartiesMALIK AKBARBHAI VIRANI, Plaintiff, v. ANDREW HURON, AS OFFICER IN CHARGE OF THE SOUTH TEXAS DETENTION COMPLEX; IMMIGRATION AND CUSTOMS ENFORCEMENT, AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA; DANIEL A. BIBLE, AS SAN ANTONIO FIELD OFFICE DIRECTOR FOR DETENTION AND REMOVAL FOR IMMIGRATION AND CUSTOMS ENFORCEMENT; THE DEPARTMENT OF HOMELAND SECURITY, AS AN AGENCY OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA; KEVIN MCALEENAN, AS ACTING SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY; AND RAYNALDO CASTRO, AS FACILITY ADMINISTRATOR/WARDEN OF THE SOUTH TEXAS DETENTION COMPLEX; Defendants.
Docket NumberSA-19-CV-00499-ESC
Decision Date23 March 2020

MALIK AKBARBHAI VIRANI, Plaintiff,
v.
ANDREW HURON, AS OFFICER IN CHARGE
OF THE SOUTH TEXAS DETENTION COMPLEX;
IMMIGRATION AND CUSTOMS ENFORCEMENT, AS AN AGENCY
OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
DANIEL A. BIBLE, AS SAN ANTONIO FIELD OFFICE DIRECTOR FOR DETENTION
AND REMOVAL FOR IMMIGRATION AND CUSTOMS ENFORCEMENT;
THE DEPARTMENT OF HOMELAND SECURITY, AS AN AGENCY
OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;
KEVIN MCALEENAN, AS ACTING
SECRETARY OF THE DEPARTMENT
OF HOMELAND SECURITY; AND RAYNALDO CASTRO,
AS FACILITY ADMINISTRATOR/WARDEN
OF THE SOUTH TEXAS DETENTION COMPLEX; Defendants.

SA-19-CV-00499-ESC

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

March 23, 2020


ORDER

Before the Court in the above-styled cause of action is Respondents' Motion to Dismiss and/or, in the Alternative, for Summary Judgment [#14]. This case was reassigned to the undersigned's docket upon the consent of all parties to United States Magistrate Jurisdiction [#25]. The undersigned therefore has authority to issue this order pursuant to 28 U.S.C. § 636(b)(1)(A).

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In issuing this Order, the Court has considered Petitioner Malik Virani's Response to the Government's Motion [#15], the Government's Reply [#18], Petitioner's Surreply [#19], the Government's Supplemental Brief in Support of Its Motion for Summary Judgment [#36], Petitioner's Brief in Response [#37], the various Advisories filed by Petitioner [#13, 17, #31, #39], Petitioner's Verified Amended Petition and Complaint for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#29], the arguments of the parties at the Court's November 1, 2019 hearing, the entire record in this matter, and the governing law. For the reasons that follow, the Court will DENY IN PART AND GRANT IN PART the Respondents' motion.

I. Jurisdiction

This Court has jurisdiction over the Petition before the Court because Petitioner challenges the constitutionality of his continued detention and not the final order of removal underlying his detention. The Real ID Act divests federal courts of jurisdiction to consider challenges to removal orders, and federal courts lack jurisdiction to review discretionary decisions of the Attorney General. Zadvydas v. Davis, 533 U.S. 678, 688 (2001); Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007) (citing 8 U.S.C. § 1252(a)(5)). Federal courts have jurisdiction, however, to adjudicate claims challenging the constitutionality of an alien's continued detention. See Abdulle v. Gonzales, 422 F. Supp. 2d 774, 776 (W.D. Tex. 2006) (citing Gul v. Rozos, 163 Fed. App'x 317, 2006 WL 140540, at *1 (5th Cir. 2006)).

II. Procedural Background

Petitioner Malik Akbarbhai Virani, a citizen and national of India, filed his Verified Petition and Complaint for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on May 10, 2019, asking this Court to order his immediate release from detention while Petitioner awaits his removal to India. Petitioner alleges that he poses no threat to the community and no risk of flight

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and therefore should not be held beyond the 90-day "removal period" under the federal statutes governing his detention. Petitioner further claims that he was denied the administrative review he is guaranteed by statute to ensure that his continued detention is warranted and, therefore, his continued detention violates his right to procedural and substantive due process. Petitioner also argues there is no significant likelihood of his removal to India in the reasonably foreseeable future and his continued detention violates the federal statute governing post-removal-period detention as interpreted by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001).

The record in this case reflects that Petitioner and his wife entered the United States in 1992 as non-immigrant visitors. (Chen Decl. [#14-4] at ¶ 1.) The Immigration and Naturalization Service ("INS") encountered Petitioner in 1998 and served him with a Notice to Appear under Section 237(a)(1)(B) of the Immigration and Nationality Act ("INA") for overstaying his visa. (Id. at ¶ 2.) Petitioner paid a bond, was released from custody, and filed an application for asylum and withholding of removal in an attempt to remain in the United States. (Asylum Application [#1-1] at 2-10.) In late 1999, an immigration judge denied the application as untimely filed and therefore did not review its merits but granted Petitioner Voluntary Departure to India. (Voluntary Departure Order [#1-1] at 53-65.) Petitioner did not depart the United States at that time and instead appealed the ruling. (Chen Decl. [#14-4] at ¶ 7.)

The BIA affirmed the grant of Voluntary Departure in January 2003. (Id. at ¶ 9.) Petitioner filed various motions to reopen his immigration proceedings and to apply for readjustment of status over the course of the following years, none of which was successful. (Id. at ¶¶ 10-19, 21-22; BIA Orders [#1-1] at 66-73.) Petitioner also filed a Form I-485, an Application to Register Permanent Residence or Adjust Status, in August 2007, which as of the filing of this case remained pending. (Chen Decl. [#14-4] at ¶ 20.) INS provided Petitioner with

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multiple extensions of his voluntary departure period, but ultimately these extensions expired. (See BIA Decision [#1-1] at 66).

In August 2018, fifteen years after the BIA affirmed the grant of Voluntary Departure, Petitioner was arrested for violating INS's order to depart and was placed in detention pending his deportation to India. (Id. at ¶ 24.) Petitioner thereafter moved the BIA to reopen his removal proceedings and again filed an application for asylum, this time based on changed country circumstances. (Motion to Reopen [#1] at 58-79.) On May 10, 2019, while Petitioner's applications were pending, he filed his original Verified Petition and Complaint for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging his continued detention. (Pet. [#1].) The BIA denied Petitioner's motion to reopen his removal proceedings in June 2019, and Petitioner timely appealed the BIA's decision to the Fifth Circuit Court of Appeals. (BIA Denial [#13-1]; Appeal [#13-2].) Petitioner also timely filed with the BIA a motion to reconsider its June 2019 decision. (Motion to Reconsider [#13-3].)

Respondents1 filed the Motion to Dismiss and/or Motion for Summary Judgment that is the subject of this Order on July 3, 2019 [#14]. By their motion, Respondents ask the Court to dismiss Petitioner's Petition for Writ of Habeas Corpus for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure or award them summary judgment under Rule 56. After the motion was filed, the Fifth Circuit granted Petitioner's motion to stay his deportation pending conclusion of the appeal. (Advisory [#17].) The BIA denied Petitioner's motion to reconsider in September 2019. Petitioner appealed this BIA decision to the Fifth

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Circuit as well, and the Fifth Circuit consolidated the two appeals. See Bhai v. Barr, Cause No. 19-60451.

In early October 2019, this case was transferred to the undersigned's docket [#25]. Petitioner thereafter moved to amend his Petition to add Raynaldo Castro, Facility Administrator of the South Texas Detention Complex where Petitioner is currently detained, as an additional Respondent. Respondents did not oppose the requested amendment. The Court granted the motion, and Petitioner filed his Verified Amended Petition and Complaint for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#29] on October 22, 2019. Because the Amended Petition did not change the substance of Petitioner's factual allegations or the asserted legal bases for his release from detention, the Court did not dismiss as moot Respondents' motion or instruct Respondents to file a new motion.2

After the Amended Petition was filed, the Court held a hearing on Respondents' Motion to Dismiss and/or for Summary Judgment and took the motion under advisement. At the hearing, the Court informed the parties that it intended to treat the motion as a Motion for Summary Judgment, rather than a Motion to Dismiss, and ordered supplemental briefing and evidence, specifically as to what process Petitioner was given with respect to his continued detention. Both Petitioner and Respondents filed a post-hearing brief with additional summary judgment evidence. (Respondents' Suppl. Brief [#36]; Pet.'s Suppl. Brief [#37].)

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Petitioner recently advised the Court that his son Shareef Nadeem Virani was naturalized as a citizen of the United States on February 19, 2020. (Advisory [#39].) As a result of his new citizenship status, Petitioner's son has begun the process of filing immediate relative petitions on behalf of his parents, including Petitioner, so that they may seek adjustment of their immigration status to permanent resident status. Petitioner's appeal before the Fifth Circuit remains pending and the stay of deportation remains in force. At the time of the writing of this Order, Petitioner has been held in custody for over 18 months.

III. Summary Judgment Standard in Habeas Context

To prevail, a Section 2241 petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c). Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Fed. R. Civ. P. 56(c). This standard applies with equal force to habeas corpus cases. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).

The party moving for summary judgment bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions...

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