United States District Court, D. Colorado
D. DOMENICO UNITED STATES DISTRICT JUDGE.
matter is before the Court on a Petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Pet., Doc. 6.)
Petitioner Gagandeep Singh entered the United States
illegally and applied for asylum, withholding of removal, and
relief under the United Nations Convention Against Torture.
In his campaign to remain in this country, he has proceeded
through an immigration judge, the Board of Immigration
Appeals, the United States Court of Appeals for the Tenth
Circuit, and previously through this Court. He now renews his
Petition here. For the reasons that follow, the Court
DENIES the Petition with prejudice.
facts are not in dispute, and many of them have been
previously addressed by the Court. Petitioner Gagandeep Singh,
a native and citizen of India, contends he was “forced
to flee India due to the persecution he suffered on the basis
of his religion (Petitioner is a Sikh while the predominant
religion in India is Hinduism); political opinion, and
membership in a particular social group.” (Id.
¶¶ 10-11.) On November 3, 2015, he entered the
United States at the port of entry in Nogales, Arizona.
(Id. ¶10.) On November 4, 2015, the Department
of Homeland Security (DHS) issued him a notice to appear,
“charging him as removable pursuant to section 8 U.S.C.
§ 1182(a)(7)(A)(i)(I)” of the Immigration and
Nationality Act.(Id. ¶ 12.) On November 13,
2015, Singh was transferred to the Immigration and Customs
Enforcement (ICE) contract detention facility in Aurora,
Colorado, where he remains to this day. (Pet. Resp. at
17, Doc. 14; Doc. 16 ¶ 8.)
continuances at Singh's request, he had a hearing on the
merits of his pleas for asylum, withholding of removal, and
pursuant to the Convention Against Torture on September 26
and October 6, 2016, in front of an immigration judge. (Pet.
¶ 15; Pet. Resp. at 17.) On November 8, 2016, the
immigration judge found Singh's testimony not credible,
denied his requests, and ordered his removal back to India.
(Pet. ¶ 16; Pet. Resp. at 17.) Singh sought Board of
Immigration Appeals (BIA) review of the denial, but on April
26, 2017, the BIA dismissed the appeal, finding that the
immigration judge's decision was not made in clear error.
(Pet. ¶ 17.) On May 17, 2017, Singh appealed the
BIA's decision by filing a petition for review with the
United States Court of Appeals for the Tenth Circuit.
Simultaneously, he filed an emergency petition to stay
deportation pending that appeal. (Id. ¶ 18-19;
Pet. Resp. at 18.) On May 22, 2017, the Tenth Circuit denied
the stay (Pet. Resp. at 18), and on January 8, 2018, it
formally denied Singh's petition for review. Singh v.
Sessions, 712 Fed.Appx. 819, 824 (10th Cir. 2018). In
doing so, the Tenth Circuit made clear it would not undermine
the decisions below:
We uphold the adverse credibility ruling. The [immigration
judge] gave specific, cogent, and detailed reasons. And the
BIA highlighted many of the inconsistencies, omissions and
embellishments that the [immigration judge] identified. No.
reasonable adjudicator would be compelled to reach a
Id. The circuit court also noted that the parties
agreed that Singh was not entitled to relief on any of his
claims in the absence of credible testimony. Id.
before and after the Tenth Circuit's denials of the stay,
on at least fifteen separate occasions, Singh refused to
complete an application for travel documents for submission
to the Consulate of India. (Pet. Resp. at 18.) On June 30 and
October 10, 2017, he was served with formal notices of
failure to comply pursuant to 8 C.F.R. § 241.4(g).
(Id. at 18-19.) As of March 6, 2018, according to
ICE, India will not repatriate Singh until he completes an
application for travel documents. ICE maintains that there
are no additional impediments to Singh's deportation
other than his noncompliance with this process. (Id.
the Tenth Circuit decision denying review remained pending,
Singh filed an initial petition for habeas corpus in this
Court, challenging his detention under 8 U.S.C. §§
1226 and 1231 (hereinafter, Section 1226 and Section 1231).
See generally Singh v. Sessions, No.
17-CV-1324-WJM-KMT, 2017 WL 3397337 (D. Colo. Aug. 8, 2017)
(hereinafter, Singh I). In that matter, the Court
found Singh's Section 1226 claim to be moot because his
removal was administratively final per the decision of the
BIA, and Respondents' authority for detention was
therefore governed by Section 1231. Id. at *2-*3.
Further, the Court found that his claims under Section 1231
were not ripe because his detention of three months following
his final order of removal was well within the presumptively
reasonable six-month time-period announced by the Supreme
Court. Id. at *3-*4 (discussing Zadvydas v.
Davis, 533 U.S. 678 (2001)). Therefore, on August 8,
2017, the Court dismissed the petition without prejudice as
premature and permitted Singh to re-file at the close of the
six-month period. Id. at *4.
STANDARD OF REVIEW
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. 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, 533 U.S. at 687-88). “[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 Section 2241 Petition was filed properly in
renewed Petition is substantively identical to the one
previously denied by the Court. (Compare Pet. with
Singh I, No. 1:17-cv-01324, at Doc. 1.) He again claims
“substantive due process, ” “procedural due
process, ” and statutory violations, and seeks his
immediate release from custody, enjoinment of further
detention, and attorney's fees and costs. (Pet. at
16-17.) Since his initial petition, only two circumstances
have changed: (1) the Tenth Circuit has denied his petition
for review of the immigration judge's decision, and (2)
more than six months have passed since his April 26, 2017
order of removal became administratively final.
the Court has already found that Singh is not being detained
pursuant to Section 1226, but Section1231. See Singh
I, 2017 WL 3397337, at *2 (outlining that Section 1231
governs detention of aliens ordered removed, while the
Section 1226 pre-removal period terminates upon the
immigration court's removal decision). Therefore, even
though the Petition again submits that Singh's
“continued detention under 8 U.S.C. §
1226(c)” is unlawful and unconstitutional, the only
cognizable reading of the Petition is a ...