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Evariste v. Hodgson

United States District Court, D. Massachusetts

August 29, 2019

EMMANUEL EVARISTE, Petitioner,
v.
THOMAS M. HODGSON, Sheriff, Bristol County, Respondent.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Petitioner Emmanuel Evariste (“Evariste”) has filed this petition pro se for writ of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2241. D. 1. The Respondent has moved to dismiss for lack of subject matter jurisdiction. D. 11. Evariste has filed several motions requesting to add new claims. D. 17; D. 19. The Court ALLOWS Evariste's motion to add a claim to the Petition requesting a bond hearing, D. 17, and DENIES his remaining requests for additional relief, D. 14; D. 15; D. 19. Having allowed Evariste to amend the Petition in this regard, the Court DENIES the motion to dismiss for lack of subject matter jurisdiction. D. 11.

         II. Standard of Review

         When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) “[a]t the pleading stage, ” dismissal “is appropriate only when the facts alleged in the complaint, taken as true, do not justify the exercise of subject matter jurisdiction.” Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003). As with a Fed.R.Civ.P. 12(b)(6) motion, the Court “must credit the plaintiff's well-pled factual allegations and draw all reasonable inferences in the plaintiff's favor.” Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). Unlike a Rule 12(b)(6) motion, however, the Court may look beyond the pleadings to determine jurisdiction without converting the motion into a summary judgment motion. Gonzalez v. United States, 284 F.3d 281, 288 (1st Cir. 2002).

         III. Factual Background

         Evariste, entered the United States from Haiti as a legal permanent resident on June 21, 1994. D. 1. Evariste has been convicted of numerous criminal offenses including, but not limited to, drug distribution offenses. D. 12-1 ¶¶ 7-11. After his most recent conviction for distribution of a Class B substance, he served his sentence in the South Bay House of Correction. D. 1. Upon the termination of his sentence, on December 21, 2018, U.S. Immigration and Custom Enforcement (“ICE”) took Evariste into custody and charged him as removable from the United States pursuant to the Immigration and Nationality Act Section 237(a)(2)(A)(iii). D. 1; D. 12-1 ¶ 13.

         The removal charge was based on his underlying conviction of an aggravated felony as defined in Section 101(a)(43)(B) of the Act. D. 12-1 ¶ 13. Before the immigration court, Evariste challenged the removal charge arguing that his underlying convictions had been vacated. D. 1. Evariste has now filed this Petition claiming that his underlying convictions were vacated and arguing therefore ICE has no basis to hold him. D. 1. On June 19, 2019, an immigration judge ordered Evariste removed to Haiti. D. 12-1 ¶ 18; D.14 at 1. Evariste has filed an appeal of that decision with the Board of Immigration Appeals on July 22, 2019, D. 17-2, which presumably is still pending.

         IV. Procedural History

         Evariste instituted this action on May 20, 2019. D. 1. The Respondent has now moved to dismiss. D. 11. Since Evariste's initial filing of the Petition, D. 1, an immigration judge issued an order of removal, D. 12-1 ¶ 18; D. 14 at 1. After the Judge issued an order of removal, Evariste has filed additional motions challenging that order, D. 14; D.15, and motions requesting additional relief, D. 17; D. 19, including that Evariste seeks a bond hearing. D. 17.

         V. Discussion

         A. Amending the Petition as to the Bond Hearing

         Since filing his original Petition for habeas relief with this Court, Evariste has filed a motion seeking a bond hearing. D. 17. As Evariste is proceeding pro se, the Court treats this motion as a motion seeking to amend and add new claims. See Laurore v. Spencer, 396 F.Supp.2d 59, 62 (D. Mass. 2005) (treating the pro se plaintiff's motion as a motion to amend).

         In deciding “whether amendment of a federal habeas petition should be allowed, a court must look to the Federal Rules of Civil Procedure.” Id. (citing 28 U.S.C. §2242). Under the Rules, a litigant is permitted to amend once as a matter of right within twenty-one days of the Defendant filing a motion to dismiss, Fed.R.Civ.P. 15(a)(1)(B), and other amendments may be allowed with leave of court and a “court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). The Respondent filed its motion to dismiss on July 19, 2019, D. 11, and Evariste filed his motion for a bond hearing within the appropriate time period on August 8, 2019, D. 17. Even if it had not been a timely amendment as of right, given the nature of the claim, as discussed fully below, the Court would have ...


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