Singh v. Choate

          ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

          Kristen L. Mix United States Magistrate Judge.

         Petitioner Surjit Singh, a native and citizen of India, is in the custody of the federal government at an immigration detention center in Aurora, Colorado pending the conclusion of removal proceedings. This matter is before the Court on the amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed pro se by Mr. Singh challenging his continued detention.^[1] (ECF No. 16.) On May 14, 2019, the Court ordered Respondent to show cause why the Application should not be granted. (ECF No. 22.) On May 29, 2019, the government filed Respondent's Response to Order to Show Cause (ECF No. 26); on August 5, 2019, Mr. Singh filed Petitioner's Traverse to Respondent's Reply (ECF No. 35). For the reasons discussed below, the Court concludes that the Application should be granted in part and denied in part.

         The Court must construe the Application and other papers filed by Petitioner liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         I. BACKGROUND

         The pertinent facts are undisputed. Petitioner Surjit Singh is a native and citizen of India. (Decl. of Paul Lauciello, ECF No. 26-1 at 1.) On May 1, 2005, Petitioner was granted lawful permanent resident status in the United States. (Id.) In June of 2015, in the United States District Court for the District of Nevada Petitioner pled guilty to two crimes: (1) Conspiracy to Possess with Intent to Distribute a Controlled Substance and Controlled Substance Analogue; and (2) Conspiracy to Commit Benefits Fraud. See United States v. Singh, et al., No. 13-cr-00118-LRH-WGC (D. Nev. Dec. 18, 2013). He was sentenced to thirty months in prison and ordered to pay $395.23 in restitution. See Id. Before he completed his prison sentence, the Department of Homeland Security issued a Notice to Appear which commenced removal proceedings against Petitioner because he was an alien convicted of an aggravated felony, hence subject to removal from the United States under 8 U.S.C. § 1227(a)(2)(A)(iii). (See Lauciello Decl. at 2.) On October 4, 2017, after serving his sentence and on being released from prison, immigration officials detained Petitioner to proceed with removal proceedings as required under § 1227(a)(2)(A)(iii) (providing that the Attorney General “shall take into custody any alien who” is removable as an aggravated felon). (Id.)

         On October 23, 2017, Petitioner appeared in immigration court and requested a continuance to obtain counsel, which was granted to November 8, 2017. (Id. at 2.) On November 8, 2017, Petitioner appeared with counsel who requested a continuance to prepare, which was granted. (Id.) On November 29, 2017, Petitioner again appeared with counsel-this time he admitted the allegations and conceded the charge in the Notice to Appear. (Id. at 3.) Instead of contesting the allegations, counsel for Petitioner stated that he would seek relief from removal. (Id.)

         The Immigration Judge (IJ) held an individual merits hearing on Petitioner's applications for relief from removal on April 6, 2018. (Id.) Then, on May 11, 2018, the IJ denied Petitioner's requests for relief from removal and ordered him removed from the United States to India. (Id.)

         Petitioner appealed the adverse rulings to the Board of Immigration Appeals (BIA). (Id.) Between June 2018 and August 24, 2018, Petitioner filed two motions to remand the matter based on an incomplete record of the proceedings below-the BIA granted the second motion to remand on October 25, 2018. (Id. at 3-4). On remand, the IJ held two status conferences (November 20, 2018 and December 4, 2018) to determine how to proceed. (Id. at 4) Counsel for Petitioner requested, and was granted, a new individual merits hearing. After the second hearing, the IJ again denied all relief from removal and, on January 14, 2019, ordered Petitioner removed from the United States. (Id.)

         Petitioner again appealed to the BIA. He was scheduled to file a brief with the BIA on March 19, 2019, but requested an extension of time to do so. (Id.) That request was granted with the Petitioner's brief deadline extended to April 9, 2019. (Id.) The appeal remains pending at this time. (Id.)

         With his appeal pending before the BIA, Petitioner commenced this habeas action in the United States District Court for the Northern District of California. (ECF No. 1.) Because Petitioner is held at the Aurora Contract Detention facility in Aurora, Colorado, the case was transferred to this Court on March 26, 2019. (ECF No. 10.) The Court issued an Order Directing Petitioner to Cure Deficiencies on March 27, 2019. (ECF No. 13.) He cured the identified deficiencies by paying the applicable filing fee and submitting an amended habeas application on the court-approved form. (ECF Nos. 14 and 16.)

         Petitioner's application first seeks to terminate the removal proceedings against him because a defective Notice to Appear was filed in the immigration proceedings. (ECF No. 16 at 4.) Petitioner further asserts that the removal proceedings were defective because the IJ failed to inform him of his eligibility to seek a waiver of inadmissibility to remain with his spouse and daughter. (Id. at 2.) Finally, Petitioner requests an individualized bond hearing before a neutral decision-maker to determine whether his continued detention is justified by clear and convincing evidence of flight risk and danger. (Id. at 4.) The Court will address the claims in turn.

         II. DISCUSSION

         A. Challenges to Removal Proceedings

         Petitioner seeks to invalidate the removal proceedings based on an allegedly defective Notice to Appear and because the IJ failed to inform him that he was eligible to seek a waiver of inadmissibility. The government responds to Petitioner's challenges to the removal proceedings by arguing: one, the removal order is not a final, appealable order because Petitioner's appeal is pending with the BIA; and, two, even if the order were final, this Court lacks jurisdiction to consider ...