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Rodriguez-Guardado v. Smith

United States District Court, D. Massachusetts

September 22, 2017

FRANCISCO RODRIGUEZ-GUARDADO
v.
YOLANDA SMITH[1]

          MEMORANDUM AND ORDER ON THE GOVERNMENT'S MOTION TO DISMISS

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE.

         By way of a petition for writ of habeas corpus, Francisco Rodriguez-Guardado (Rodriguez) challenges the legality of his detention[2] since July 13, 2017, by Immigration and Customs Enforcement (ICE). The government moves to dismiss the petition. In reaching its decision, the court has carefully considered the parties' briefs, petitioner's motion for a temporary restraining order (TRO) (including the arguments presented at the TRO hearing), as well as the amicus brief filed by the American Civil Liberties Union of Massachusetts.

         Rodriguez, a citizen of El Salvador, illegally entered the United States in 2006. In 2011, the Bureau of Immigration Appeals (BIA) affirmed the denial of Rodriguez's application for asylum, and issued a final order of removal. Rodriguez did not seek further review from the Tenth Circuit Court of Appeals. From 2012 until 2016, ICE four times granted a one-year discretionary stay of deportation. Rodriguez's most recent one-year stay expired in March of 2017. In June of 2017, ICE denied a fifth request for a discretionary stay and ordered Rodriguez to present himself at ICE's Boston office on July 13, 2017, with a prepaid plane ticket to El Salvador in hand. On July 11, 2017, Rodriguez filed motions with the BIA seeking to reopen his removal proceeding and for an emergency stay of deportation. On July 13, 2017, when Rodriguez reported to the ICE office with a plane ticket showing a September departure date, he was taken into custody. Later that same day, Rodriguez filed the instant habeas petition with this court. Shortly thereafter, the BIA allowed Rodriguez's motion to stay removal pending the resolution of his motion to reopen. As of the date of this decision, Rodriguez's motion to reopen is still pending before the BIA and he remains in ICE custody.

         The government avers, without opposition, that ICE detained Rodriguez on July 13, 2017, with the intent of executing the final order of removal. But for judicial intervention, ICE would have transferred petitioner out of the District of Massachusetts on July 17, 2017, for removal to El Salvador three days later, on July 20, 2017. See Marfissi Decl., Dkt. # 17-1. The government contends that Rodriguez's detention is authorized by 8 U.S.C. § 1231(a)(2), which mandates that “the Attorney General shall detain the alien” for 90 days (the so-called “removal period”) to effectuate a removal order.

         Petitioner and amicus argue that § 1231(a)(2) does not authorize petitioner's current detention because the removal period has long ago expired. Section 1231(a)(1)(B) defines the “removal period” to begin on the latest of three discrete events. The only event applicable to Rodriguez is “[t]he date the order of removal becomes administratively final.”[3] 8 U.S.C. § 1231(a)(1)(B)(i). Rodriguez's order of removal became administratively final on July 18, 2011. According to petitioner and amicus, the 90-day removal period, computed from that date, expired in October of 2011. Petitioner also asserts that the presumptively reasonable detention window of six months, as delineated by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678, 700-701 (2001), has also lapsed.

         The government contends that, even if the start of the removal period is properly dated to July of 2011, [4] § 1231 authorized Rodriguez's continued detention. Section 1231(a)(1)(C) expands the removal period beyond 90 days “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.” (Emphasis added). Seeking and securing a discretionary stay unquestionably prevents petitioner's removal.

         Petitioner and amicus rely on Arevalo v. Ashcroft, 260 F.Supp.2d 347 (D. Mass. 2003), [5] for the proposition that only acts tainted by “bad faith, dishonesty, or improper behavior” come within the ambit of § 1231(a)(1)(C). Id. at 349. The court in Arevalo, applying the interpretive canon of noscitur a sociis - a word is known by the company it keeps - reasoned that because “acts” follows immediately after the word “conspires, ” a term connoting secret, improper, or unlawful action, the term “acts” necessarily encompasses only steps taken in bad faith. See Id. If that premise is accepted, and given that Rodriguez pursued relief legitimately and in good faith, it follows that the discretionary stays did not operate to extend his removal period.

         This court respectfully disagrees with Arevalo's syllogism. The disjunctive juxtaposition of “conspires or acts” more naturally captures a distinction between collusive conduct and personal action. To the extent that the use of the word “conspires” suggests an illegitimate purpose, it connotes a collaborative effort to thwart the execution of a removal order, the stated purpose of § 1231 (entitled “Detention and removal of aliens ordered removed”). It is impossible to overlook that Congress, in setting out the first conditional of the subsection, incorporated a good faith requirement (“fails or refuses to make timely application in good faith”), and could have easily inserted a like qualification in the second conditional (“conspires or acts in bad faith”), but did not. “We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.” Jama v. Immigration & Customs Enf't, 543 U.S. 335, 341 (2005). Consistent with this common-sense reading of § 1231(a)(1)(C), numerous courts, including the First Circuit, have found delays attributable to an alien's legal challenges to a removal order to extend the 90-day removal period. See, e.g., Lawrence v. Gonzales, 446 F.3d 221, 227 (1st Cir. 2006) (“Lawrence's continued detention here occurred pursuant to his own procuring of stays incident to his legal challenges to the removal order.”); Roach v. Holder, 344 Fed. App'x. 945, 947 (5th Cir. 2009) (“[R]epeated filings with the BIA constituted acts to prevent [] removal.”); Akinwale v. Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002) (a stay of deportation pending judicial review extended the removal period).[6]

         Moreover, even assuming that the “removal period” had for some reason expired, the government plausibly maintains that it has statutory authority to hold Rodriguez under 8 U.S.C. § 1231(a)(6). The statute provides that “[a]n alien ordered removed who is inadmissible under [8 U.S.C.] section 1182 . . . may be detained beyond the removal period and, if released, shall be subject to the terms of supervision in paragraph (3).” 8 U.S.C. § 1231(a)(6). Rodriguez does not dispute that that he has been ordered removed and is therefore inadmissible under § 1182(a)(6)(A)(i).

         Petitioner and amicus fault ICE, however, for failing to follow its own regulations providing for a post-removal-period custody determination; see 8 C.F.R. § 241.4 (e)-(f) (listing the criteria for post-removal period release), and contend that Rodriguez would qualify to be released with conditions if such a custody determination were made.[7] But the regulations do not require a determination hearing when, as here, the execution of a removal order is impending. See 8 C.F.R. § 241.4(g)(4) (“The Service will not conduct a custody review under these procedures when the Service notifies the alien that it is ready to execute an order of removal.”). The fact that petitioner's motion to reopen the removal proceedings remains pending does not lead to a different result. See 8 C.F.R. § 241.4(b)(1) (“An alien who has filed a motion to reopen immigration proceedings for consideration of relief from removal . . . shall remain subject to the provisions of this section unless the motion to reopen is granted.”).

         Nor is there any traction to Rodriguez's argument that his continued detention without a release determination amounts to a denial of due process. The Supreme Court in Zadvydas fixed a presumptively reasonable removal detention duration of six months.[8] 533 U.S. at 700-701. As petitioner has been detained for approximately two months as of this date, the length of his detention does not offend due process.

         Finally, petitioner presses an ineffective assistance of counsel (IAC) claim. Petitioner faults his prior attorneys for failing to inform him of the S- visa program (explained below) when, in 2006, he provided material assistance to law enforcement, or subsequently when he applied for asylum, and then finally, when he sought BIA review of the denial of his asylum application. Assuming without deciding that this court has jurisdiction, [9] I agree with the government that petitioner has not pled a viable IAC claim.

         Effective assistance of counsel in the usual sense is a right conferred by the Sixth Amendment on defendants in criminal proceedings.

While aliens have no constitutional right to counsel in removal proceedings, they are entitled to due process. See Lozada v. INS,857 F.2d 10, 13 (1st Cir. 1988). Thus, ineffective assistance of counsel in a removal proceeding may constitute a denial of due process if (and to the ...

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