United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
BROOKE JACKSON, JUDGE
Dalvir Singh Rani, a native and citizen of India, is in the
custody of the federal government awaiting his removal from
the United States at an immigration detention center in
Aurora, Colorado. This matter is before the Court on the
amended Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (“Amended
Application”) filed pro se by Petitioner
challenging his custody. (ECF No. 11.) On August 13, 2019,
the Court ordered Respondent William P. Barr (referred to as
“the Government”) to show cause why the
application should not be granted. (ECF No. 12.) On September
12, 2019, the Government filed a Response to Order to
Show Cause. (ECF No. 17.) On October 11, 2019, Mr. Rani
filed Petitioner's Traverse to Respondent's Reply
to 28 U.S.C. § 2241. (ECF No. 18.)
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. For the reasons discussed below, the Court
concludes the Amended Application should be denied.
pertinent facts are undisputed. Petitioner Dalvir Singh Rani
is a native and citizen of India. (Decl. of Michael Ketels,
ECF No. 17-1 at ¶ 2.) He first entered the United States
at a border-crossing with Mexico in November of 2010. (Ketels
Decl. ¶ 2.) On December 21, 2010, the Department of
Homeland Security issued a Notice to Appear (NTA) which
commenced removal proceedings against Petitioner because he
was alleged to have entered the United States without a valid
visa, reentry permit, border crossing identification card, or
other valid entry document. (Id. ¶ 3.) He was
granted bond on December 23, 2010, pending a final decision
in the removal proceedings. (Id. ¶ 4.) On
February 9, 2012, Petitioner appeared before an immigration
judge (IJ) and conceded the charge in the NTA. (Id.
¶ 7.) Instead of contesting the allegations in the NTA,
it appears that Petitioner applied for relief from removal.
(Id.) Neither side explains the final disposition of
those proceedings nor what occurred between February of 2012
and June of 2017.
both parties agree that on June 14, 2017, Petitioner was
convicted of one count of Assault with a Deadly Weapon in the
Superior Court of California, County of Fresno. (Id.
¶ 8; ECF No. 18 at 2.) As a result, Petitioner was
sentenced to two years in prison. (Id.) On January
25, 2018, after serving his sentence, and upon being released
from state prison, immigration officials detained Petitioner
to proceed with removal 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). (Ketels Decl. ¶ 9.)
February 15, 2018, Petitioner appeared before an IJ with
counsel, but counsel withdrew from the case the same day.
(Id. ¶ 10.) A status conference was then held
on March 7, 2018. (Id. ¶ 11.) The IJ held an
individual merits hearing on Petitioner's applications
for relief from removal on April 2, 2018. (Id.
¶ 12.) That hearing was continued for completion of
testimony until April 16, 2018. (Id.) According to
the Government, the April 16th hearing was continued again
“due to the Petitioner's belated, extensive filing
of documents in support of his claim for relief.”
(Id. ¶ 13.) Then, on May 2, 2018, the IJ
completed the individual hearing, denied Petitioner's
requests for relief from removal, and ordered him removed
from the United States to India. (Id. ¶ 14.)
appealed to the Board of Immigration Appeals (BIA).
(Id. ¶ 15.) He was scheduled to file a brief
with the BIA, but requested an extension of time to do so on
July 20, 2018. (Id. ¶ 17.) That request was
granted with the Petitioner's brief deadline extended.
(Id.) Petitioner filed a second request for
extension of time to file his brief on August 6, 2018, which
the BIA denied. (Id. ¶ 18.) On October 5, 2018,
the BIA dismissed Petitioner's appeal and denied his
motion to remand the matter. (Id. ¶ 20.)
April 12, 2019, 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 July 12, 2019. (ECF
Nos. 6, 7.) The Court issued an Order Directing
Petitioner to Cure Deficiencies on July 12, 2019. (ECF
No. 10.) He cured the identified deficiencies by submitting
an amended habeas application on the court-approved form.
(ECF No. 11.)
Amended Application asserts a single claim, presenting the
following issue: “Whether [Petitioner] an alien who is
detained during an immigration proceeding may challenge the
constitutionality of the statutory framework that permits the
detention without bail through [a] habeas corpus
petition.” (Id. at 2.) As relief, Petitioner
requests “that the Court grant him release in [the]
form of parole and order [a] bail hearing pending [the]
decision on his habeas corpus petition.” (Id.
at 4.) The Court will now turn to the claim.
Court has jurisdiction under 28 U.S.C. § 2241 to
consider Petitioner's “constitutional challenge to
the legislation authorizing his detention without
bail[.]” Demore v. Kim, 538 U.S. 510, 517
(2003). The Court begins with an overview of the statutory
authority to detain removable aliens followed by an analysis
of Petitioner's due process challenge to his detention
Statutory authority to detain.
of aliens within the United States is governed by 8 U.S.C.
§ 1226 and 8 U.S.C. § 1231. Section 1226 grants
authority to detain aliens before entry of a final removal
order and § 1231 authorizes detention during the
“removal period, ” which commences after entry of