Opinion
C/A No. 0:17-463-TMC-PJG
03-17-2017
Joel Brito-Ramirez, A# 209-012-165, Petitioner, v. John Kelly, Secretary, Department of Homeland Security, Sean Gallagher, Atlanta Field Office Director, U.S. Immigration and Customs Enforcement, Respondents.
REPORT AND RECOMMENDATION
The petitioner, Joel Brito-Ramirez, a detainee in the custody of the United States Immigration and Customs Enforcement ("ICE"), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (ECF No. 1.) This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(c) (D.S.C.). On February 17, 2017, the court recommended denying Petitioner's motion for a temporary restraining order, (ECF No. 8), and this recommendation was subsequently adopted by the district judge. Now, having reviewed the Petition in accordance with applicable law, the court concludes that it should be summarily dismissed for lack of jurisdiction.
I. Factual and Procedural Background
According to the Petition, Petitioner, a native of Mexico, was taken into custody by ICE on February 7, 2017 and placed in a detention center in Forsyth County, North Carolina. (ECF No. 1 at 2, 6.) On February 9, 2017, Petitioner, through counsel, filed a motion for bond redetermination with the Immigration Court in Charlotte, North Carolina. (Id. at 6.) A hearing on the motion was scheduled for February 13, 2017, but, on February 10, Petitioner was moved by ICE to the Charleston County Detention Center in South Carolina. (Id.) On February 13, counsel for Petitioner appeared at the Charlotte Immigration Court with thirty witnesses and a fully executed waiver of appearance signed by Petitioner, who remained in Charleston County. (Id. at 6-7.) Petitioner indicates the Immigration Judge, by oral decision, declined to exercise its authority to hear the case, citing Petitioner's absence from the hearing as the only basis for his decision. (Id. at 7, ECF No. 1-6 at 2.)
On February 16, 2017, Petitioner filed this Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 and a motion for a temporary restraining order, arguing the Immigration Judge's decision violated Petitioner's procedural and substantive right to due process. The motion sought an order enjoining Respondents from transferring Petitioner out of the jurisdiction of this court during the pendency of these proceedings. The Petition asks the court to direct Respondents to immediately release Petitioner from custody under reasonable conditions of supervision.
On February 17, 2017, the court held a telephonic hearing with all parties appearing through counsel, in which the parties agreed that Petitioner was no longer housed in the District of South Carolina. (ECF No. 8.) Consequently, the court recommended that the motion for a temporary restraining order be denied as moot.
To date, no responses or objections to the Report and Recommendation have been filed.
II. Discussion
Under established local procedure in this judicial district, a careful review has been made of the Petition filed in this case pursuant to the Rules Governing § 2254 Cases. See Rule 4. The court finds it is without jurisdiction to hear the instant Petition. Federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court is required, sua sponte, to determine if a valid basis for its jurisdiction exists, "and to dismiss the action if no such ground appears." Id. at 352; see also Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); 13 Charles Alan Wright et al., Federal Practice and Procedure § 3522 (3d ed. 2008) ("[P]arties cannot waive lack of subject matter jurisdiction by express consent, or by conduct, or even by estoppel."). Moreover, Rule 4 of the Rules Governing Section 2254 Cases requires that when a petition for a writ of habeas corpus is filed, the petition must be forwarded to the assigned judge, who must dismiss the petition if it "plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court[.]"
The Rules Governing Section 2254 are applicable to habeas actions brought under § 2241. See Rule 1(b).
In this case, Petitioner seeks immediate release from custody based on the Immigration Judge's decision not to review an initial bond determination by ICE. See generally 8 C.F.R. § 1003.19 (providing procedures for review of custody and bond determination by an immigration judge). Petitioner argues that his continued detention without a hearing violates his substantive and procedural right to due process.
Supplemental filings by the parties indicate Petitioner was provided a hearing regarding his request to change his custody status pursuant to 8 C.F.R. § 236.1(c) before an Immigration Judge in Atlanta, Georgia on March 1, 2017. (ECF No. 11-1.) The judge denied Petitioner's request, noting Petitioner was not candid about his criminal history and that he is a danger to the community. (Id.) Accordingly, even if the court had jurisdiction over the Petition, the action would be moot because Petitioner received a bond redetermination hearing, the denial of which is the basis of his claim in this Petition.
The Attorney General may arrest and detain an alien pending a decision on whether the alien is to be removed from the United States, release the alien on bond or parole, and revoke the bond or parole and rearrest and detain the alien. 8 U.S.C. § 1226(a) & (b). Such decisions rest in the discretionary judgment of the Attorney General and are not subject to review by the courts. 8 U.S.C. § 1226(e) ("The Attorney General's discretionary judgment regarding the application of this section shall not be subject to review. No court may set aside any action or decision by the Attorney General under this section regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole."); 8 U.S.C. § 1252(a)(2)(B)(ii) ("Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, and except as provided in subparagraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review . . . any other decision or action of the Attorney General or the Secretary of Homeland Security the authority for which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title."); see also 8 U.S.C. § 1252(a)(5) ("For purposes of this chapter [which includes §§ 1226 & 1252], in every provision that limits or eliminates judicial review or jurisdiction to review, the terms 'judicial review' and 'jurisdiction to review' include habeas corpus review pursuant to section 2241 of Title 28, or any other habeas corpus provision, sections 1361 and 1651 of such title, and review pursuant to any other provision of law (statutory or nonstatutory).").
Moreover, the United States Supreme Court has implicitly recognized that although a detained alien may challenge the statutory framework that permits his detention without bail by way of a habeas corpus petition, he may not challenge in a United States district court the discretionary judgment by the Attorney General or a decision that the Attorney General has made regarding the alien's detention or release. See Denmore v. Kim, 538 U.S. 510 (2003) (rejecting the argument of amicus that the court lacked jurisdiction to hear alien's habeas petition challenging the constitutionality of 8 U.S.C. § 1226(c) because the alien's petition challenged the statutory framework that permitted his detention without bail, but implying that § 1226(e) would bar an alien's habeas challenge to the "discretionary judgment" or "decision" by the Attorney General regarding the alien's detention or release); see also Hatami v. Chertoff, 467 F. Supp. 2d 637 (E.D. Va. 2006) (finding the district court lacked jurisdiction over habeas petitioner's challenge to an immigration judge's decision to deny him bond during the pendency of his removal proceedings, citing 8 U.S.C. §§ 1252(a)(2)(B)(ii) & 1226(e)).
In the instant case, Petitioner does not make a facial challenge to the statutory framework pursuant to which he is detained; rather, he challenges the Immigration Judge's decision not to hold a bond redetermination hearing pursuant to the regulatory framework establishing procedures for the Immigration Court that leave such decisions in the discretion of immigration judges. See 8 C.F.R. § 1003.19 ("Custody and bond determinations made by the service pursuant to 8 CFR part 1236 may be reviewed by an Immigration Judge pursuant to 8 CFR part 1236.") (emphasis added); 8 C.F.R. § 1003.25(a) ("The Immigration Judge may, for good cause, and consistent with section 240(b) of the Act, waive the presence of the alien at a hearing when the alien is represented[.]") (emphasis added). Petitioner's challenge to the Immigration Judge's application of this regulatory framework is not subject to review in this court. See generally Loa-Herrera v. Trominski, 231 F.3d 984, 991 (5th Cir. 2000) (" '[T]he Attorney General's discretionary judgment regarding the application of' parole—including the manner in which that discretionary judgment is exercised, and whether the procedural apparatus supplied satisfies regulatory, statutory, and constitutional constraints—is 'not . . . subject to review.' ") (quoting 8 U.S.C. § 1226(e)). Consequently, the court lacks jurisdiction to entertain the Petition.
III. Conclusion
Accordingly, the court recommends that the Petition in the above-captioned case be dismissed for lack of subject matter jurisdiction and without requiring the respondent to file a return. March 17, 2017
Columbia, South Carolina
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).