United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
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.
Standard of Review
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).
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.
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.
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.
Amending the Petition as to the Bond
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).
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 ...