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Duarte v. Souza

United States District Court, D. Massachusetts

May 29, 2018

CLAUDIO DUARTE, Petitioner,
v.
STEVEN SOUZA, Superintendent, Respondent.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE

         Petitioner Claudio Duarte's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#1] and Motion for Preliminary Injunction, Temporary Restraining Order and Request for Expedited Hearing [#9] seek Petitioner's release from immigration detention and a stay of removal while his motion to reopen proceeds through the immigration courts. Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus [#16] seeks dismissal of the petition on the grounds that Petitioner fails to state a claim as to his detention and that this court lacks subject-matter jurisdiction over Petitioner's final removal order. For the following reasons, Petitioner's Motion for Preliminary Injunction [#9] is DENIED and Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus [#16] is ALLOWED.[1]

         I. Background

         Petitioner is a citizen of Cape Verde. Pet'r's Pet. ¶ 6 [#1]. He has lived in the United States since 1994 (when he was three years old), and obtained lawful permanent residence in February 2011. Id. ¶ 14 [#1]; see also Aff. of Susan B. Church in Supp. Mot. Prelim. Inj., TRO & Req. Expedited Hr'g. ¶¶ 3-4 (“Church Aff.”) [#15]; Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3]. He is the father of two United States citizen children, and his own father, who raised Petitioner, is a pastor of a church in Rhode Island and a naturalized United States citizen. Pet'r's Pet. ¶¶ 14-15 [#1]; Church Aff. ¶ 5 [#15].

         In December 2012, Petitioner was convicted in Rhode Island District Court under Rhode Island General Laws, section 11-5-3 (simple assault or battery) and sentenced to “one year suspended, and one year of probation.” Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3].[2] In April 2013, Petitioner was placed in removal proceedings. Pet'r's Pet. ¶ 16 [#1]; Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3]. Petitioner sought to terminate the proceedings, arguing that his Rhode Island conviction did not amount to a crime of violence.[3] Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15]. On May 30, 2013, the Immigration Judge denied the motion to terminate, and ordered Petitioner to be removed to Cape Verde. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15]. Although Petitioner originally appealed the decision, he withdrew his appeal on June 19, 2013. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15]. The Immigration Judge allowed the motion to withdraw on June 21, 2013. Pet'r's Pet. ¶ 16 [#1]; Church Aff. ¶ 4 [#15], and a final order of removal to Cape Verde issued on June 25, 2013. Resp't Mem. in Supp. of Mot. Dismiss at 1 [#17]; Notice of Intent to Remove Ex. 1, Decl. Ass't Field Office Dir. ¶ 3 [#6-1].[4] Petitioner states that Immigration and Customs Enforcement (“ICE”) was unable to obtain the necessary travel documents to remove Petitioner. Pet'r Mem. in Resp. to Resp't Mot. Dismiss at 3 (“Pet'r Opp.”) [#20]. Petitioner was released back into his community on October 11, 2013, on an order of supervision. Resp't Third Suppl. Br. Ex. 3, at 3 [#35-3].

         In June 2017, after an arrest by the Pawtucket, Rhode Island, police department for failing to appear in connection with an earlier charge of receiving stolen goods, ICE officials detained Petitioner and served him with a “Notice of Revocation of Order of Supervision.” Id. at 1, 3. The June 9, 2017, Notice of Revocation states in relevant part:

This letter is to inform you that your case has been reviewed and it has been determined that you will be kept in the custody of [ICE] at this time. This decision has been made on a review of your file and on account of changed circumstances in your case.
On this date, a decision was made to revoke your Order of Supervision based on the fact that you violated your Order of Supervision with ICE by not coming to your scheduled appointments, you were arrested and convicted[5] of receiving stolen goods, and there is significant likelihood of removal in the reasonably foreseeable future in your case.
Based on the above and pursuant to 8 CFR 241.13, you are to remain in ICE custody at this time. You will promptly be afforded an informal interview at which you will be given the opportunity to respond to the reasons or the revocation and to provide any evidence to demonstrate that your removal is likely. If you are not released following the informal interview, you will receive notification of a new review, which will occur within approximately three months from the date of this notice.

Id. at 1.

         On August 25, 2017, ICE issued its “Decision to Continue Detention” stating that ICE had decided to continue to detain Petitioner “based on a review of your file and/or your personal interview and consideration of any information you submitted to ICE reviewing officials.” Id. at 3. The letter further stated that Petitioner would continue to be detained due to his “criminal history and lack of non-governmental sponsors and/or community ties” which “reflect[ed] a significant risk if flight if [Petitioner] were to be released from ICE custody.” Id. at 4. After December 6, 2017, if Petitioner was not removed or released from custody, jurisdiction over Petitioner's case would be transferred to ICE's Headquarters Removal and International Operations Unit (“HQPDU”) for a “final determination regarding [Petitioner's] custody.” Id.

         On November 28, 2017, Petitioner filed with the Boston immigration court an “Emergency Motion for Stay of Removal Pending Motion to Reopen Decision & Motion to Terminate.” Pet'r's Pet. Ex. 2, at 2 [#1-2]. Petitioner argued that recent intervening First Circuit and Supreme Court precedent established that simple assault in Rhode Island is not an aggravated felony. Id. at 1 (citing United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011), Whyte v. Lynch, 807 F.3d 463, 471-72 (1st Cir. 2015), United States v. Fish, 758 F.3d 1, 3 (1st Cir. 2014), and Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010)).

         In a December 20, 2017, decision, the immigration judge explained that he is bound by the First Circuit's decision in Lopes v. Keisler, 505 F.3d 58, 63 (1st Cir. 2007), finding that the offense of assault under Rhode Island law constitutes a crime of violence under 18 U.S.C. § 16(a), and consequently, an aggravated felony for immigration purposes, and could not consider whether the later cases should control by implication. Resp't Mem. in Supp. of Mot. Dismiss Ex. 1 at 3 [#17-1]. Matter of Guerrero, 25 I. & N. Dec. 631, 633 (BIA 2011), cited by the immigration judge, similarly finds assault under Rhode Island law to be a crime of violence based on Lopes.[6] Id.

         Petitioner filed an appeal of the immigration judge's decision and an Emergency Motion to Stay Removal with the BIA on January 16, 2018. Pet'r Opp. Ex. 1 [#20-1]; Pet'r Opp. Ex. 2 [#20-2]. The BIA denied the request for a stay of removal on January 26, 2018. Suppl. Filing in Supp. of Resp't Mot. Dismiss Ex. 1, at 1 (“Resp't First Suppl. Br.”) [#25-1]. According to the record before this court, BIA has not yet rendered a decision on Petitioner's appeal of the immigration judge's decision, despite the government not having filed any brief in opposition. Transcript of March 5, 2018 Oral Argument at 5:6 [#33]; Resp. Ct. Order Regarding Bd. of Immigration Appeal Denial of Stay of Removal, Ex. 2 [#39-2].

         Meanwhile, on December 12, 2017, Petitioner filed the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [#1] seeking relief from this court under Zadvydas v. Davis, 533 U.S. 678 (2001). Petitioner asserted that he had been in custody more than six months, that he was not removable (for the reasons set forth in his motion before the immigration court), and that his continued detention was unreasonable.

         Two days later, Respondent filed a Notice of Intent to Remove [#6], indicating that Respondent had the travel documents for Petitioner and intended to remove him the week of December 18, 2017. That same day, Petitioner filed his Motion for Preliminary Injunction, Temporary Restraining Order and Request for Expedited Hearing [#9], seeking an expedited hearing and temporary restraining order based on the government's notice of intent to remove. The following day, on December 15, 2017, the emergency duty judge ordered Respondent not to remove Petitioner until the assigned judge who was out of the country could addressed the merits of the Petition. Order [#12]. Respondent promptly notified the court ...


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