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Doe v. Smith

United States District Court, D. Massachusetts

October 19, 2017

JOHN DOE, Petitioner,
YOLANDA SMITH et al., Respondents.


          Leo T. Sorokin, United States District Judge

         John Doe, [1] a citizen of Kenya presently detained at the Suffolk County House of Corrections in Boston, Massachusetts, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Doc. No. 1. The respondents seeks dismissal of the petition, arguing this Court lacks jurisdiction to entertain Doe's claims. Doc. Nos. 14, 15. Doe has opposed the respondents' motion, urging that his petition articulates constitutional challenges to his detention which are properly subject to federal habeas review.[2] Doc. No. 33. Because Doe is correct, the motion to dismiss is DENIED.

         I. BACKGROUND

         Doe came to the United States from Kenya as a high-school student, then returned in 2008 to attend Yale University. Doc. No. 1 at ¶ 10. He went back to Kenya in 2010 and subsequently became involved in a project seeking justice for post-election violence victims. Id. He resumed his studies at Yale in 2013, graduated in 2014, and has remained in the United States since then. Id.

         In 2009 and 2014, Doe was arrested and faced criminal charges, but neither arrest resulted in a conviction. Id. ¶ 11. In November 2016, Doe was charged in New Hampshire with possessing marijuana and driving without a valid license. Id. He was released by the New Hampshire courts on bond, and those charges remain pending. Id.

         On December 19, 2016, Doe was taken into custody by Immigration and Customs Enforcement (“ICE”). Id. ¶ 9. He was denied bond on January 11, 2017, after an Immigration Judge (“IJ”) found he was a danger to the community. Doc. No. 15-1 at 5. Doe appealed. Id. at 3. On March 16, 2017, the IJ denied Doe's application for asylum but granted withholding of removal on two grounds - pursuant to section 241(b)(3) of the Immigration and Naturalization Act (“INA”), and under the Convention Against Torture (“CAT”).[3] Doc. No. 33-1 at 2. The Department of Homeland Security (“DHS”) appealed. Doc. No. 33-4. On May 10, 2017, despite the IJ's ruling in Doe's favor as to the removal question, the Board of Immigration Appeals (“BIA”) affirmed the IJ's order denying bond, reasoning that Doe's “lengthy record of arrests, including for the violent offense of assault, demonstrates a disregard for the laws of the United States.” Doc. No. 15-1 at 3.

         On June 26, 2017, Doe placed his pro se habeas petition in the prison mailing system, Doc. No. 1 at 14, and it was received and docketed by this Court a week later. His petition includes substantive and procedural due process claims arising under the United States Constitution. Id. at 11-12. He seeks release from custody and injunctive relief. Id. at 13.

         On July 7, 2017, the DHS asked the BIA to expedite the appeal in Doe's case. See Doc. No. 15-2 (seeking an expedited decision “[d]ue to [Doe's] continuing detention at government expense and the pending [federal habeas] litigation concerning [Doe's] continued detention”). Two weeks later, the DHS filed a motion requesting “a bond redetermination” for Doe, stating he was “eligible for a custody redetermination hearing, ” presumably in light of the IJ's ruling in his favor. Doc. No. 33-7 at 3. According to the DHS, such a hearing had been requested by Doe after the IJ's March ruling, but had not been scheduled previously because, “[t]hrough inadvertence, ” DHS had filed a form “incorrectly indicat[ing] that [Doe] had been released from ICE custody.” Id.

         In August 2017, the BIA ordered both parties to submit appellate briefs by September 13, 2017. Doc. No. 33-6. Also in August, the IJ held a custody redetermination hearing. Doc. No. 33 at 7; Doc. No. 33-8. On September 11, 2017, the IJ again denied bond, explaining:

While the Court recognizes that [Doe] has been detained for a considerable amount of time, the duration of detention is not a factor that the Court may consider when determining if [Doe] should be released from custody. As the Court is unable to find that [Doe] does not pose a danger to the community, his request for release from custody will be denied.

Doc. No. 36-1 at 5. The IJ's decision reflects that, in both of his bond hearings, Doe bore the burden of proving he was not a danger to the community. Id. at 2-3.

         Both parties now have submitted appellate briefs to the BIA, Doc. No. 40 at 5; nothing in the record or the law sheds light on when the appeal might be argued or resolved. Should DHS prevail, however, the matter would be remanded to the IJ for further proceedings, during which Doe alleges he is likely to remain detained.

         The respondents have moved to dismiss Doe's federal habeas petition, arguing he has failed to state a claim that is within this Court's jurisdiction to consider. Doc. No. 14. With pro bono counsel appointed, Doe opposed the motion. Doc. No. 33. Reply and sur-reply ...

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