United States District Court, D. Colorado
ORDER TO DISMISS IN PART AND DIRECTING APPLICANT TO FILE AMENDED APPLICATION
LEWIS T. BABCOCK, Senior District Judge.
Applicant initiated this action on January 12, 2015 by filing, pro se, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241. She paid the $5.00 filing fee.
On January 14, 2015, Magistrate Judge Gordon P. Gallagher ordered the Respondents to file a Preliminary Response to the Application addressing any jurisdictional issues, and the affirmative defense of exhaustion of administrative remedies. (ECF No. 3). Respondent Longshore filed a Preliminary Response on March 4, 2015 (ECF No. 14), after being served with the January 14 Order on February 12, 2014. Applicant, through counsel,  filed a Reply on March 29, 2015. (ECF Nos. 22, 23).
Applicant is subject to a final reinstated order of removal dated August 7, 2014. (Declaration of Sergio A. Ugazio,  ¶ 6, at ECF No. 14-1). Applicant was released from ICE custody on August 8, 2014, based on her pending Application for Asylum and for Withholding of Removal and because she was verifiably pregnant at the time of her apprehension by the U.S. Border Patrol on August 6, 2014. (Id.). Upon her release, the Enforcement and Removal ("ERO") Field Office in Port Isabel, Texas required Applicant to report to the Denver ERO Field Office for further evaluation of her custody situation. (Id.). Denver ERO subsequently exercised its discretion regarding custody, and released Applicant subject to enrollment in an Alternative to Detention (ATD) program and compliance with that program's conditions. (Id. at ¶ 7). She is required to report in person to the Denver BI Incorporated offices once each week, on Mondays, and to report on VoiceID. (Id.). She also has on-site home visits every two weeks. (Id.). Applicant is not subject to electronic monitoring. (Id.).
In the § 2241 Application, Applicant asserts that the requirements of the ATD program (i.e., supervised release) violate her Fifth Amendment due process and equal protection rights. (ECF No. 1, at 3-4). Applicant also alleges in the Application that she was "wrongly and illegally removed at the border by illegal procedures under the Due Process Clause" and that "[h]er current detention is a legal farce because the facts underlying her removal order are not being considered, nor her current legal asylum claim." (Id. at 2). In addition, she alleges outrageous conduct by ICE (BI) officials in threatening to lock her up and take away her child, in violation of the UN Declaration on Rights of Indigenous People, the UN Convention Against Torture, and the United States Indian Child Welfare Act. For relief, Applicant requests that Respondent Longshore issue an Order of Supervision whereby the conditions of Applicant's ATD program be limited to "report[ing] to ICE at Brush, Colorado in a reasonable and only telephonic manner until further order." (Id. at 5).
II. The "In Custody" Requirement
An individual may seek habeas relief under § 2241 only if he or she is "in custody" under federal authority or for violation of federal law. 28 U.S.C. § 2241(c). A final order of removal subjects an alien to a restrain on liberty sufficient to place the alien in "custody." See Aguilera v. Kirkpatrick, 241 F.3d 1286, 1291 (10th Cir. 2001)("Although the petitioners in this case are not being detained, ' they are in custody' for habeas purposes because they are subject to final deportation orders"); Galaviz-Medina v. Wooten, 27 F.3d 487, 493 (10th Cir.1994) ("[T]here is general consensus that an alien whose liberty is restricted pursuant to an order emanating from the INS is in custody' for purposes of satisfying the prerequisites for habeas review."). Accord Jones v. Cunningham, 371 U.S. 236 (1963) (parolee still "in custody" of the parole board for purposes of habeas corpus relief because the parole order imposed conditions that "significantly confine[d] and restrain[ed] his freedom").
The Applicant's allegations that she is subject to a final order of removal and is restricted in her freedom of movement by the conditions of her supervised release are sufficient to satisfy the "in custody" requirement of § 2241.
III. Challenges to Reinstatement of Removal Order
In the Reply brief, Applicant, through counsel, states that Applicant intended to allege in her pro se Application that "her first removal order' and her reinstatement of removal order' were farces' in terms of procedural Due Process under the Fifth Amendment to the Constitution of United States because they both were executed by ICE without serving her with actual copies of the documents." (ECF Nos. 22 and 23, at 2). Although somewhat unclear from the allegations, it appears that Applicant may also be asserting that the reinstatement of her removal order violates the UN Declaration on Rights of Indigenous People, the UN Convention Against Torture, and the United States Indian Child Welfare Act. ( See ECF No. 1, at 4; ECF Nos. 22 and 23, at 3, 4). None of these allegations may be pursued in a § 2241 proceeding.
Under the Real ID Act, petitions for review filed with the court of appeals are "the sole and exclusive means" of review of most administrative orders of removal, deportation, or exclusion. 8 U.S.C. § 1252(a)(5). Thus, the Real ID Act eliminates a district court's jurisdiction over habeas petitions challenging final orders of removal. However, the Real ID Act did not eliminate a district court's jurisdiction to review habeas petitions challenging an alien's detention. 8 U.S.C. § 1252(a)(1). Accordingly, Applicant's allegations concerning the legality of her reinstated removal order will be dismissed without prejudice for lack of subject matter jurisdiction.
IV. Objectionable Conduct by ICE or BI Incorporated Agents
In the § 2241 Application, Applicant asserts that ICE/BI Incorporated agents threatened to lock her up and take away her child, which, according to Applicant, contravene the UN Declaration on Rights of Indigenous People, the UN Convention Against Torture, and the United States Indian Child Welfare Act. However, these allegations do not tend to show that the conditions of Applicant's supervised release violate due process or other federal statute or treaty. The critical inquiry under the habeas corpus statute is whether the petitioner's custody violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2241(c). Whether Applicant's allegations of objectionable conduct by ICE/IB Incorporated agents would support a Bivens claim against individual ...