United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Evelin Adela Peruch-Vincente, 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. Attorney, Jim Salvatore, who assisted the Applicant in preparing the Application, entered his appearance on behalf of the Applicant on March 25, 2015 (ECF No. 21). Mr Salvatore thereafter filed a Motion to Withdraw on May 15, 2015 (ECF No. 27), which was granted by the Court in an order dated May 18, 2015 (ECF No. 28).
I. Procedural Background
Pursuant to an order issued by Magistrate Judge Gordon P. Gallagher (ECF No. 8), Respondent Longshore filed a Preliminary Response to the Application on March 4, 2015 (ECF No. 14), addressing the applicability of the affirmative defense of exhaustion of administrative remedies. Applicant, through counsel, filed a Reply on March 29, 2015. (ECF Nos. 22, 23).
On April 7, 2015, the Court entered an Order to Dismiss in Part and Directing Application to File an Amended Application. (ECF No. 25). In the April 7 Order, the Court found that Applicant satisfied the "in custody" requirement because she is subject to a reinstated order of removal. 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"). The Court further found that Applicant was not required to exhaust administrative remedies before seeking relief under 28 U.S.C. § 2241 because no remedies were available. The Court dismissed Applicant's allegations concerning the legality of her reinstated removal order for lack of subject matter jurisdiction. See 8 U.S.C. § 1252(a)(5). The Court further found that Applicant's allegations asserting that ICE/BI, Inc. 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, were not cognizable under § 2241. And, finally, the Court observed that Applicant's constitutional claims challenging the requirements of her order of supervision appeared to lack merit; however, because Applicant filed the § 2241 Application pro se, the Court afforded her an opportunity to file an Amended Application to state an arguable due process or equal protection claim.
Applicant, through counsel, filed an Amended Application on April 28, 2015. (ECF No. 26).
II. The Amended Application
Applicant alleges the following in the Amended Application. Applicant is a native of Guatemala, who does not speak English. She is subject to a final reinstated order of removal, dated August 7, 2014. (ECF No. 26, at 2, 6). Applicant applied for asylum in the United States on September 1, 2014. ( Id. at 4).
Applicant was released from Immigration and Customs Enforcement (ICE) detention on August 8, 2014, under an order of supervision that requires her to remain within the jurisdiction of the Denver Field Office. ( Id. at 3). On September 4, 2014, she was informed that her supervision would be handled by BI, Inc., a private entity that contracts with ICE, pursuant to the Intensive Supervision and Appearance Program (ISAP). ( Id. at 5-6). Applicant is subject to the following requirements under the ISAP, :
report to BI, Inc. every Wednesday at 2 p.m.;
be available for home visits from 8:00 am -12:00 pm every Friday, and from 1:00-2:00 pm every Tuesday;
be available for phone calls every Friday, between 8:00-10:00 a.m.; and
provide a "contact" with a physical address and a mailing address who must be ...