United States District Court, D. Colorado
ORDER ON APPLICATION FOR WRIT OF HABEAS
Kristen L. Mix United States Magistrate Judge.
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. (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.
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.
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).
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.)
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.
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.)
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.
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.)
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.
Challenges to Removal Proceedings
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 ...