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Singh v. Sessions

United States District Court, D. Colorado

August 8, 2017

JEFF SESSIONS, Attorney General, JEFFREY LYNCH, U.S. Field Office Director for the Colorado Field Office, ELAINE DUKE, [1] U.S. Secretary of Homeland Security, JOHNNY CHOATE, Warden of GEO Group Inc. Aurora, Defendants.


          William J. Martínez, United States District Judge

         The matter before the Court is a petition for habeas corpus pursuant to 28 U.S.C. § 2241 (the “Petition, ” ECF No. 1), filed by Petitioner Gagandeep Singh. The Respondents[2] filed a response on July 25, 2017. (ECF No. 13.) Petitioner filed an untimely reply on August 3, 2017. (ECF No. 14.) Petitioner seeks immediate release from custody, asserting that his continued detention pending removal has exceeded the six-month period considered presumptively reasonable, and further, that his removal is not reasonably foreseeable. For the reasons stated below, the Court denies without prejudice Petitioner's request for relief.

         I. BACKGROUND

         Petitioner is a native and citizen of India. (ECF No. 1 ¶ 9.) Petitioner asserts that he “was forced to flee India due to the persecution he suffered on the basis of his religion, political opinion, and membership in a particular social group.” (Id. ¶ 10.) On November 3, 2015, he entered the United States at the port of entry in Nogales, Arizona. (Id. ¶ 9.) On November 4, 2015, the Department of Homeland Security (“DHS”) issued a notice to appear, “designating Petitioner as an arriving alien, and charging him as inadmissible to the United States under 8 U.S.C. § 1182(a)(7)(A)(I).” (ECF No. 13 at 2.) Petitioner was detained shortly thereafter and has “remained in [the continuous custody of Immigration and Customs Enforcement (‘ICE')] since that date.” (Id.) The Respondents represent that he is currently being held at the Denver Contract Detention Facility in Aurora, Colorado. (Id.)

         On November 8, 2016, an Immigration Judge found Petitioner removable and ordered him removed. (ECF No. 1 ¶ 15; ECF No. 13 at 3.) Petitioner timely appealed that decision to the Board of Immigration Appeals (“BIA”). (ECF No. 1 ¶ 16; ECF No. 13 at 3.) On April 26, 2017, “his appeal was dismissed.” (Id.) On May 17, 2017, Petitioner appealed the Board's decision by filing a petition for review in the United States Court of Appeals for the Tenth Circuit. (ECF No. 1 ¶ 17.) Petitioner also filed an emergency motion to stay deportation pending his appeal, which was denied on May 22, 2017. (ECF No. 13 at 3.)

         Petitioner contends that his continued detention is unconstitutional and f urther asserts that the Respondents have failed to comply with applicable federal statutes governing the detention of aliens. (See ECF No. 1 at 6-11.) Petitioner requests an order directing the Respondents to release him immediately from custody. (Id. at 12.)


         An application for habeas corpus pursuant to 28 U.S.C. § 2241 may only be granted if the petitioner “is in custody in violation of the Constitution, or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Federal courts have habeas jurisdiction to examine the statutory and constitutional bases for an immigration detention unrelated to a final order of removal. See Demore v. Kim, 538 U.S. 510, 517-18 (2003); see also Ferry v. Gonzales, 457 F.3d 1117, 1131 (10th Cir. 2006) (finding district court properly exercised jurisdiction over alien's habeas petition challenging his continued detention without bond or a bond hearing); Soberanes v. Comfort, 388 F.3d 1305, 1310 (10th Cir. 2004) (“Challenges to immigration detention are properly brought directly through habeas.” (citing Zadvydas v. Davis, 533 U.S. 678, 687-88 (2001))).

         “[F]or habeas petitions challenging present physical confinement, jurisdiction lies only in one district: the district of confinement.” Rumsfeld v. Padilla, 542 U.S. 426, 443 (2002); see also United States v. Scott, 803 F.2d 1095, 1096 (10th Cir. 1986) (“A § 2241 petition for a writ of habeas corpus must be addressed to the federal district court in the district where the prisoner is confined.”). Because Petitioner is detained in Aurora, Colorado, his § 2241 petition was filed properly in this Court.

         III. ANALYSIS

         A. Detention under 8 U.S.C. § 1226(c)-Mootness

         Petitioner challenges the Respondents' authority to detain him under 8 U.S.C. § 1226(c) and the constitutionality of his detention under that statute. Respondents maintain that Petitioner's claim challenging the legality of his detention under 8 U.S.C. § 226 is moot because his current detention is based on 8 U.S.C. § 1231.

         Under Article III of the Constitution, federal courts may only adjudicate live controversies. Alvarez v. Smith, 558 U.S. 87, 92 (2009). An “actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Id. (internal quotation marks and citations omitted). “If, during the pendency of the case, circumstances change such that a party's legally cognizable interest in a case is extinguished, the case is moot, and dismissal may be required.” Green v. Haskell Cnty. Bd. of Comm'rs, 568 F.3d 784, 794 (10th Cir. 2009).

         Under 8 U.S.C. § 1226, the Attorney General may arrest and detain an alien pending a determination of whether the alien is to be removed from the United States. Detention during this “pre-removal period” is considered definite because it terminates upon the immigration court's removal decision. Demore, 538 U.S. at 529. Upon entry of a final removal order, the matter enters the “removal period, ” and the statutory authority for detention shifts to 8 U.S.C. § 1231. Section 1231 defines the removal period as beginning on the latest of: (i) the date the order of removal becomes administratively final;[3] (ii) the date of the court's final order if ...

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