Singh v. Sessions

          ORDER

          DANIEL D. DOMENICO UNITED STATES DISTRICT JUDGE.

         This 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.

         I. BACKGROUND

         The facts are not in dispute, and many of them have been previously addressed by the Court.^[2] 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.^[3](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.^[4] (Pet. Resp. at 17, Doc. 14; Doc. 16 ¶ 8.)

         Following 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^[5] 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 different conclusion.

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.

         Both 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. at 19.)

         While 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.

         II. STANDARD OF REVIEW

         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. 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 this Court.

         III. ANALYSIS

         Singh's renewed Petition is substantively identical to the one previously denied by the Court.^[6] (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.^[7]

         Initially, 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 ...