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Rani v. Barr

United States District Court, D. Colorado

December 6, 2019

WILLIAM P. BARR, Attorney General of the United States, Respondent.



         Petitioner 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.)

         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. For the reasons discussed below, the Court concludes the Amended Application should be denied.

         I. BACKGROUND

         The 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.

         But 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.)

         On 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.)

         Petitioner 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.)

         On 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.)

         Petitioner's 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.


         The 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 without bail.

         1. Statutory authority to detain.

         Detention 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 ...

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