United States District Court, D. Massachusetts
ORDER ON MOTION TO DISMISS (DOC. NO. 14)
Sorokin, United States District Judge
Doe,  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. Doc. No. 33. Because Doe is correct, the
motion to dismiss is DENIED.
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.
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.
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”). 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.
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.
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.
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
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.
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
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 ...