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Augusta v. Chertoff

January 28, 2009

MARIA AUGUSTA : FAREZ-ESPINOZA PETITIONER,
v.
MICHAEL CHERTOFF, SECRETARY, DEPARTMENT OF HOMELAND SECURITY, AND MICHAEL MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS.



The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge

OPINION & ORDER

Petitioner Maria Augusta Farez-Espinoza ("Farez-Espinoza") filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2241 challenging her detention by the Department of Homeland Security ("DHS"), naming as respondents the Secretary of DHS and the United States Attorney General (collectively, "Respondents" or "Government").*fn1 Farez-Espinoza essentially challenges her detention as being without statutory basis and unconstitutional in violation of her Due Process rights. In addition to disputing the merits of Farez-Espinoza's habeas petition, the Government additionally argues that (1) this court lacks jurisdiction over the petition; (2) Respondents are wrongly named in the petition; and (3) venue is improper in this district. For the reasons set forth below, this Court disagrees with the Government's position and the petition is granted.

I. BACKGROUND*fn2

Farez-Espinoza is a citizen of Ecuador and came to the United States two and a half years ago, on July 27, 2006. On the same day, Farez-Espinoza, a teenager at the time, was served with a Notice to Appear alleging that she was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without having been admitted or paroled. Farez-Espinoza is the natural-born daughter of Jose Farez, who is married to Carmela Farez-Leone, a naturalized United States citizen for more than twenty years. Farez-Espinoza lived with her father, stepmother and younger sister at their home in Ridgewood, New York from her arrival in this country until October 27, 2008, when she was detained. Based on representations of FarezEspinoza's counsel, which have gone unrefuted by the Government, officials of DHS and the Bureau of Immigration and Customs Enforcement ("ICE") have been aware of Farez-Espinoza's address and whereabouts at all relevant times.

Farez-Espinoza appeared before the United States Immigration Court in this district on November 30, 2006. Thereafter, a removal hearing was scheduled for July 17, 2007; however, herattorney who had represented her in her immigration proceedings failed toadvise her that she was to appear before the Immigration Court on that datefor her removal hearing. Upon her failure to appear at the removal hearing, the Immigration Court entered an Order of Removal on July 19, 2007. Farez-Espinoza alleges that she never received notice of the Order of Removal.

On October 27, 2008, Farez-Espinoza was apprehended fornonpayment of a$2.00 New York City subway fare and was taken into custody by the New York City Police Department. Farez-Espinoza has no previous criminal record. On the day of her arrest, when it was discovered that she had been ordered removed by the Immigration Court, Farez-Espinoza was placed into thecustody of ICE. She was detained briefly and processed at the Varick Street Service Processing Center in Manhattan ("Varick Street") and was transferred laterthe same day to a detention facility in Kearny, New Jersey. Farez-Espinoza remained at the New Jersey facility until December 23, 2008, when she was transferred to another detention facility, this one in Bloomsburg, Pennsylvania, where she remains in custody today.

Upon learning, apparently for the first time, of the Order of Removal entered against her, Farez-Espinoza filed an appeal of the Order to the Board of Immigration Appeals ("BIA") on October 28, 2008. On November 24, 2008, the BIA found that, in order to exhaust her administrative remedies, Farez-Espinoza must first file a motion to reopen her case before the Immigration Court pursuant to Section 240(b)(5)(C) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1229a(b)(5)(C).*fn3 The Government conceded at the January 16, 2009 conference with the Court that if the Immigration Court were to grant Farez-Espinoza's motion to reopen her case, the Order of Removal would be automatically stayed. Counsel for the Government further represented at the conference that it would not oppose such a motion if the Farez-Espinoza were to file one.

On December 1, 2008, after more than a month in custody, Farez-Espinoza filed the instant habeas petition, challenging her physical custody and requesting specifically that she be released so that she could attend a scheduled appointment "to be fingerprinted December 17, 2008," the date on which she was scheduled to have her biometrics taken at a United States Citizenship and Immigration Services ("USCIS") Application Support Center ("ASC") to be reviewed for an adjustment of status pursuant to Section 245 of the INA. The petition was received by this Court's Pro Se Office on December 3, 2008, but unfortunatelywas not filed with the Clerk of the Court until December 19, 2008, two days after the date of her scheduled biometrics appointment.

On January 9, 2009, this Court entered an Order construing the petition as a writ of habeas corpus to includeattendance ofthe biometrics appointment scheduled by the USCIS ASC and as an order to show cause why she should not be released for such biometrics appointment and for any other proceeding relating to her immigration case. See Order to Show Cause, dated January 9, 2009. This Court based its Order expressly on the finding that it did not construe the Farez-Espinoza's request as a challenge to the BIA's decision in her pending immigration proceeding; rather, this Court determined that the petition was one challenging her physical detention. See id.

On January 20, 2009, as directed by the BIA, Farez-Espinoza filed a motion to reopen her case before the Immigration Court. The Government did not oppose the motion and the Immigration Court issued a stay of removal pending resolution of her immigration case. Therefore, as the Government has apparently conceded, the Order of Removal is not currently in effect, and Farez-Espinoza's removal to Ecuador is, at least temporarily, on hold.

II. DISCUSSION

A. Jurisdiction

As a preliminary matter, I will briefly respond to the Government's argument that, because ICE has authority to detain aliens subject to a final order of removal, this Court lacks jurisdiction to consider Farez-Espinoza's petition. Specifically, the Government has argued that this Court lacks jurisdiction "because habeas jurisdiction extends only to purely legal statutory questions and constitutional claims." Government's Letter, dated January 15, 2009, at 3. The Government is quite right that this Court's jurisdiction over Farez-Espinoza's habeas petition is limited to challenges to her detention based on "purely legal statutory and constitutional claims." See Calcano-Martinez v. I.N.S., 232 F.3d 328, 342 (2d Cir. 2000), aff'd, 533 U.S. 348 (2001). However, this limitation is not quite as circumscribed as the Government contends. FarezEspinoza's petition challenges not the Immigration Court's Order of Removal, but rather the statutory authority for and constitutionality of her continued detention under the immigration laws. The former challenge is precisely the type of challenge that would not be properly before this Court, and would require an exhaustion of the immigration process through the Immigration Court, BIA and ultimately the Second Circuit. See Sol v. I.N.S., 274 F.3d 648, 651 (2d Cir. 2001) (holding "that federal jurisdiction over § 2241 petitions does not extend to review of discretionary determinations by the [Immigration Judge] and the BIA"); Kyei v. I.N.S., 65 F.3d 279, 284 (2d Cir. 1995) ("To hold otherwise would interfere with the INS's and BIA's ability to develop a comprehensive law enforcement policy, and would do so for no good reason."). Indeed, as the Government aptly has noted, the REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231 (2005), unequivocally divests federal district courts of subject matter jurisdiction to review removal orders. See 8 U.S.C. § 1252(b); De Ping Wang v. Dep't of Homeland Sec., 484 F.3d 615, 618 (2d Cir. 2007) ("[T]he REAL ID Act eliminated the availability of habeas corpus as a separate means of obtaining judicial review of a final order of removal."). Under the REAL ID Act, the only means to seek such relief is a Petition for Review filed in the circuit court in the judicial circuit in which the immigration judge completed the proceedings. 8 U.S.C. § 1252(b)(2).

However, the REAL ID Act certainly does not divest the district court of jurisdiction over any habeas corpus petition merely because it is filed by an alien who is the subject of parallel proceedings in the Immigration Court. Indeed, as this Court has held previously: "[t]he REAL ID Act does not provide for transfer of that part of a habeas petition that simply challenges current detention by immigration authorities. . . [I]t is appropriate for the district court to deal with that issue." Washington v. District Dir., I.N.S., No. 04 Civ. 3492 (RMB)(MHD), 2005 WL 2777314, at *3 (S.D.N.Y. Aug. 26, 2005)(internal citations omitted). This finding is consistent with the Second Circuit's holding that federal district courts retain jurisdiction under § 2241 to grant writs of habeas corpus to aliens "when those aliens are in custody in violation of the Constitution or laws or treaties of the United States." Henderson v. I.N.S., 157 F.3d 107, 122 (2d Cir. 1998) (quoting 28 U.S.C. § 2241) (internal quotation marks omitted). Numerous courts in other circuits, as well as district courts in this circuit, likewise have held that issues that are purely legal in nature,raised by aliens detained under the immigration laws are encompassed by a district court's § 2241 habeas jurisdiction. See, e.g., Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir. 1998) ("The scope of [§ 2241] habeas jurisdiction is not limited to constitutional claims, but encompasses at least the pure issues of law concerning the applicability of statutory provisions" by the Attorney General to aliens); Lee v. Reno, 15 F. Supp. 2d 26, 42-43 (D.D.C. 1998) (finding that § 2241 extends to all constitutional claims and to issues of statutory construction); Ncube v. I.N.S. Dist. Dirs. & Agents, 98 Civ. 0282 (HB)(AJP), 1998 U.S. Dist. LEXIS 18902, at *34 (S.D.N.Y. Dec. 2, 1998) ("In short, the Second Circuit's Henderson decision makes clear that § 2241 allows review of all constitutional issues and at least statutory interpretation issues affecting an alien's substantive rights.").

In this case, Petitioner has stated two independent bases for her challenge to her detention. First, she argues essentially that in prolonging her detention, Respondents have violated the removal provisions of the INA. Second, she argues that her continued detention is in violation of her Due Process rights. Each of these claims of unlawful detention is "a pure question of law" under the Second Circuit's decision in Henderson, and therefore clearly within the habeas jurisdiction of this Court.

B. Proper Respondent

The Government also argues that based on Farez-Espinoza's current detention in Bloomsburg, Pennsylvania, thenamed Respondents in her habeas petition are wrong, and the habeas statute requires that she name the warden of thefacility where she is heldas the respondent. For this proposition, the Government relies on the Supreme Court's holding in Rumsfeld v. Padilla, 542 U.S. 426 (2004). The Government's reliance on Padilla is misplaced.

Pursuant to the habeas statute, a writ of habeas corpus "shall be directed to the person having custody of the person detained." 28 U.S.C. § 2243; see also 28 U.S.C. § 2242 (providing the proper respondent to a habeas petition is "the person who has custody over [the petitioner]"). As the Court found in Padilla, the custodian to be named petitioner is "the person with the ability to produce the prisoner's body before the habeas court." 542 U.S. at 435. The Court went on to describe that "[t]hese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Id. (citing Wales v. Whitney, 114 U.S. 564, 574 (1885)) (emphasis in original).*fn4 Thus, the Padilla Court held, "the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official." Id. Importantly, however, the Court ...


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