Hniguira v. Mayorkas et al, No. 4:2023cv03314 - Document 24 (S.D. Tex. 2024)
Court Description: MEMORANDUM OPINION AND ORDER - Because the respondents have not otherwise addressed the merits of the petitioner's constitutional claims, the court will request additional briefing in the form of an answer or other appropriate responsive pleadi ng. Based on the foregoing, the court ORDERS as follows: 1. Respondents' 13 MOTION to Dismiss is DENIED. 2. The government is directed to file an answer or other appropriate responsive pleading no later than 60 days from the date of this Memorandum Opinion and Order. 3. The petitioner will have 30 days from the date shown on the respondents' certificate of service to file any reply. (Signed by Judge Sim Lake) Parties notified. (SheilaRAnderson, 4)
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Hniguira v. Mayorkas et al Doc. 24 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION SAID HNIGUIRA, A#200741174, Petitioner, v. ALEJANDRO MAYORKAS, et al., Respondents. § § § § § § § § § § March 20, 2024 Nathan Ochsner, Clerk CIVIL ACTION NO. H-23 3314 MEMORANDUM OPINION AND ORDER The petitioner, Said Hniguira (A#200741174), is a detainee in custody of United States Immigration and Customs Enforcement at the Montgomery Processing Center in Conroe, Texas (Docket Entry No. 11). He has filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 ("Petition 11 ) (Docket Entry No. 1), challenging his mandatory detention without bond. Now pending is Respondents' Motion to Dismiss (Docket Entry No. 13) for lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 12 (b) (1) and 12 (b) (6). The petitioner has filed Plaintiff's Motion to Reply, which is construed as a response ("Petitioner's Response") (Docket Entry No. 17). The respondents have submitted Respondents' Reply in Support of Motion to Dismiss ("Respondents' Reply") (Docket Entry No. 22). After considering all of the pleadings and the applicable law, the Respondents' Motion to Dismiss will be denied for the reasons explained below. Dockets.Justia.com I. Background The petitioner is a native and citizen of Morocco. 1 He was admitted to the United States on May 26, 2011, on a K-1 visa as the fiancé of a United States citizen.2 He married Penny V. Whitaker/Humphrey, 3 and was granted permanent resident status in the United States on July 3, 2012.4 The petitioner acknowledges that he has accumulated a criminal record with multiple United States.5 convictions since his arrival in the According to the available records the petitioner was convicted of driving under the influence in 2016 and 2020. 6 He was also convicted of several other offenses, including burglary, Form I-485 Application to Register Permanent Residence or Adjust Status ("Form I-485 Application"), Exhibit 2 to Respondents' Motion to Dismiss, Docket Entry No. 13-2, p. 1. For purposes of identi cation all page numbers refer to the pagination imprinted at the top of each docket entry by the court's Electronic Case Filing ("ECF") system. 1 3 at 3. See Petition, Docket Entry No. 1, p. 6; see also United States Permanent Resident Card, Exhibit to Petitioner's Response, Docket Entry No. 17-10, p. 1. 4 Petition, Docket Entry No. 1, p. 6; Petitioner's Response, Docket Entry No. 17, pp. 3-4. 5 Record of Deportable/Inadmiss Alien, Exhibit 3 to Respondents' Motion to Dismiss, Docket Entry No. 13-3, p. 2. "Evidence of two or more convictions for driving under the influence during the relevant period establishes a presumption that an al lacks good moral character under INA§ l0l(f), 8 U.S.C. § ll0l(f)." Matter of Castillo-Perez, 27 I&N Dec. 664, 664, Interim Decision 3965, 2019 WL 5546809, at *l (Oct. 25, 2019). 6 -2- fraud, multiple counts of assault causing bodily injury to a family member, and sexual assault: 1. On October 27, 2020, the petitioner pled guilty in the 426th District Court of Bell County, Texas, to the state jail ony offense of burglary of a building.' He received a six-year term of deferred adjudication for that offense, which was committed on October 10, 2019. 8 2. On October 27, 2020, the petitioner pled guilty in the 426th District Court of Bell County, Texas, to the third-degree felony offense claiming a He received a six-year lottery prize by fraud. 9 term of deferred adjudication for that offense, which was committed on September 20, 2019. 10 3. On October 30, 2020, the petitioner pled nolo contendere in County Court at Law Number Two/Three, Bell County, Texas, to the Class A misdemeanor offense of assault causing bodily injury to a family member. 11 He received a sentence of 120 days confinement in jail for that offense, which was committed on July 10, 2020. 12 4. On January 7, 2022, the petitioner pled nolo contendere in County Court at Law Number Two/Three, Bell County, Texas, to the Class A misdemeanor offense of assault causing bodily ury to a family member. 13 He received a sentence of 200 days Order of Deferred Adjudication in Cause No. 81739, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 1. 7 Order of Deferred Adjudication in Cause No. 81740, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 6. 9 11 Judgment and Sentence in Cause No. 2C2003659, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 11. Judgment and Sentence in Cause No. 21CCR04310, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 21. 13 -3- confinement in jail for that offense, committed on July 15, 2021. 14 which was 5. On October 4, 2022, the petitioner pled guilty in the 426th District Court of Bell County, Texas, to the second-degree felony offense of sexual assault. 15 He received a four-year term of deferred adjudication probation for that offense, which was committed on July 4, 2021. 16 6. On December 12, 2022, the petitioner pled guilty in the 478th District Court of Bell County, Texas, to the third-degree felony offense of assault on a family or household member with a previous conviction. 17 He received a four-year term of adjudication probation for that offense, which occurred on July 4, 2021. 18 Each of the petitioner's convictions for assault involved domestic violence perpetrated against his wife, Penny. 19 Written Plea Agreement, Compliance Statement, and Waivers in Cause 22DCR8 6003, Exhibit 4 to Respondents' Motion to smiss, Docket Entry No. 13-4, pp. 47, 51. 15 Id. at 47; Indictment Cause 22DCR8603, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 45. 16 17 Order of Deferred Adjudication in Case No. 22DCR86003 Count No. Two, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 35. Information - General, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 15 (assault causing bodily injury to a family member on July 10, 2020); Affidavit Submitted for Probable Cause Determination, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 17 (assault causing bodily injury to a family member on July 10, 2020); Affidavit for Arrest Warrant, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 23 (assault causing bodily injury to a family member on July 15, 2021); Information - General, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 33 (assault causing bodily injury to a family member on July 15, 2021); Affidavit for Arrest, Exhibit 4 to Respondents' Motion to Dismiss, Docket Entry No. 13-4, p. 43 (sexual assault on July 4, 2021). 19 -4- The petitioner was charged with being a deportable alien under two separate statutory § 1227 (a)(2}(A) (ii} moral turpitude; and provisions: under ( 1} 8 u.s.c. for having been convicted of two crimes of (2} under 8 U.S.C. § 1227(a)(2) (E) (i) for having domestic violence convictions. 20 immigration custody since January 12, removed on May 22, 2023. 22 The petitioner has been in 2023. 21 On August 21, 2023, appeared in court and requested release on bond. 23 He was ordered the petitioner The immigration judge denied the request, citing the removal order that had been entered against him, which was on appeal. 24 After the matter was remanded by an appellate tribunal for additional fact finding, the immigration judge entered a second order of removal on October 16, 2023, describing the petitioner's criminal record with detail and denying him relief in the form of cancellation of removal. 25 see Record of Deportable/Inadmissible Alien, Exhibit 3 to Respondents' Motion to Dismiss, Docket Entry No. 13-3, p. 2; Notice to Appear, Exhibit 5 to Respondents' Motion to Dismiss, Docket Entry No. 13-5, p. 4. 20 21 Petition, Docket Entry No. 1, p. 6. 22 See Order of the Immigration Judge, Exhibit 6 to Respondents' Motion to Dismiss, Docket Entry No. 13-6, pp. 1, 3. 23 See id. at 5. See Decision of the Board of Immigration Appeals, Exhibit 7 to Respondents' Motion to Dismiss, Docket Entry No. 13-7, pp. 3-4 (remanding the proceeding for additional fact finding); Remand Decision and Order of the Immigration Judge, Exhibit 8 to Respondents' Motion to Dismiss, Docket Entry No. 13-8, pp. 6-8 (denying the petitioner's application for cancellation of removal and ordering him removed to Morocco}. 25 -5- The petitioner reports that he was denied release on bond without a hearing under Section 236(c) of the Immigration and Nationality Act ("INA"), codified at 8 U.S.C. § 1226(c), because of the removal order entered against him. 26 This statute provides that the Attorney General •shall take into custody any alien" who is deportable due to convictions for certain criminal offenses, including those having two or more convictions for crimes involving moral turpitude 8 § 1226(c) (1) (B). U.S.C. § 1227 (a) (2) (A) (ii). See 8 U.S.C. A person subject to mandatory detention pursuant to Section 236(c) may be released on bond only if he is part of a w ness protection program and is not a flight others. S. See 8 U.S.C. § 1226(c) (2); sk or a danger to Jennings v. Rodriguez, 138 Ct. 830, 838 (2018). On August 31, 2023, the petitioner filed his habeas corpus Petition under 28 U.S.C. § 2241, challenging the denial of release on bond while awaiting his removal. 27 He argues that his continued detention without consideration for bond or a hearing violates his right to due process under the Fifth Amendment. 28 He seeks release from detention or, alternatively, an individual bond hearing before an impart 1 tribunal. 29 26 Petitioner's Response, Docket Entry No. 17, p. 1. 27 Petition, Docket Entry No. 1, pp. 6, 8. 28 Id. at 6. 29 at 7. -6- The respondents argue that the court lacks jurisdiction over the Petition because the petitioner's challenge to his removal The respondents note order is barred by the REAL ID Act of 2005. 30 further that although an appeal from his order of removal remains pending, the petitioner did not pursue an appeal immigration judge's decision to deny a bond. 31 from the The respondents argue, therefore, that the Petition should be dismissed because petitioner has not exhausted administrative remedies as required before seeking relief in federal court. 32 These arguments are addressed below under the standard of review. II. A. Standard of Review Motions Under Fed. R. Civ. P. 12(b) (1) Motions to dismiss for lack of subject matter jurisdiction are governed by Rule 12(b)(1) of the Federal Rules of Civil Procedure. Federal courts are "courts of limited jurisdiction, having only the authority Congress." F.3d 290, endowed by the Constitution and that conferred by Halmekangas v. State Farm Fire and Casualty Co., 603 292 (5th Cir. 2010) (internal quotation citations omitted). marks and "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Hooks v. Landmark 30 Respondents' Motion to Dismiss, Docket Entry No. 13, pp. 6-8. 31 Id. at 9. 32 at 9-10. -7- Industries, Inc., 797 F.3d 309, 312 (5th Cir. 2015) (internal quotation marks and citation omitted). A district court may dispose of a motion to dismiss for lack of subject matter jurisdiction based "'on (1) the complaint alone; (2) the complaint supplemented by undisputed facts; or {3) the complaint court's supplemented by undisputed resolution of disputed facts.'" facts plus the Flores v. Pompeo, 936 F.3d 273, 276 {5th Cir. 2019) (quoting Robinson v. TCI/US W. Communications Inc., 117 F.3d 900, 904 {5th Cir. 1997)). "If the court determines at any time that it lacks subject-matter j must dismiss the action." B. sdiction, the court Fed. R. Civ. P. 12(h)(3). Motions Under Fed. R. Civ. P. 12(b) (6) Motions to dismiss for failure to state a claim are governed by Rule 12 (b)( 6) of the Federal Rules of Civil Procedure. A pleading is sufficient if it contains a "short and plain statement of the c Fed. im showing that the pleader is entitled to relief[.]" R. Civ. P. 8(a)(2). Because the petitioner represents himself, the court is required to give his pro liberal construction. submissions a Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (citation omitted); see also Haines v. Kerner, 92 S. Ct. 594, 595-96 (1972) (per curiam) (noting that allegations in a pro se complaint, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers). In reviewing a motion under Rule 12(b)(6), a court must "'accept[] all well-pleaded facts as true and view[] those facts in -8- the light most favorable to the plaintiff.'" Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010) (citation omitted). To withstand a motion to dismiss under Rule 12(b)(6), a plaintiff need only provide "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007). In considering a Rule 12(b)(6) motion to dismiss, review is typically confined to the contents of the pleadings. When deciding a Rule 12(b)(6) motion a court may refer to "matters of public record." Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir. 1994)). In limited circumstances a district court may also consider documents attached to a motion to dismiss. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 99 (5th Cir. 2000). The Fifth Circuit made it clear, however, that "such consideration [is limited] to documents that are referred to in the plaintiff's complaint and are central to the plaintiff's claim." Scanlan v. Texas A&M University, 343 F.3d 533, 536 (5th Cir. 2003) (citing Collins, 224 F.3d at 498-99). III. A. Discussion Jurisdiction and the REAL ID Act The petitioner seeks a writ of habeas corpus to secure his release from unlawful confinement.33 33 "Writs of habeas corpus may Petition, Docket Entry No. 1, pp. 6-7. -9- be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions ,, 28 U.S.C. § 2241(a). The writ of habeas corpus is available to any individual who can demonstrate that he is " custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). A federal district court has subject matter jurisdiction under § 2241 to hear an alien's constitutional claims concerning the lawfulness of his detention. See Demore v. Kim, 123 S. Ct. 1708, 1714 (2003). The respondents move to dismiss for lack of subject matter jurisdiction nonetheless, arguing that a federal writ of habeas corpus is not available to the petitioner because judicial review is barred by the REAL ID Act. 34 at 8 U.S.C. § 1252(a), The REAL ID Act of 2005, codified makes a petition for review to the applicable circuit court of appeals the "sole and exclusive means for judicial review" for orders of removal: Exclusive means of review 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 tit , a ition for review filed with an appropriate court of appeals in accordance with this section shall be the sole and exclusive means for judicial review of an order of removal entered or issued under any provision of this chapter, except as provided in [8 U.S.C. § 1252(e)]. 8 U.S.C. § 1252(a)(5). The Fifth Circuit has recognized that the REAL ID Act "divested district courts of jurisdiction over removal 34 Respondents' Motion to Dismiss, Docket Entry No. 13, pp. 6-8. -10- orders and designated the courts of appeals as the sole forums for such challenges via petitions for review." Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007) (citing 8 U.S.C.§ 1252 (a) (5)). such, habeas corpus review is not available, As and there is no jurisdiction for a federal district court to hear an immigration detainee's challenge to a removal order. The petitioner argues that the respondents' arguments are misplaced because he is not challenging the validity of his removal order. 35 The petitioner clari es that he is challenging the constitutionality of his mandatory detention under INA§ 236(c), 8 U.S.C. § 1226(c). 36 He contends that the mandatory detention statute violates his right to substantive and procedural due process and is unconstitutional as applied to him. 37 The Petition seeks "an individual bond hearing" for purposes of release on bond and does not include a challenge to the order of removal. 38 Because the petitioner is not challenging his removal order, the respondents' arguments concerning the REAL ID Act are inapplicable. See Maldonado v. Macias, 150 F. Supp. 3d 788, 794 (W.D. Tex. 2015) ("[E]ven after the passage of the REAL ID Act, district 35 courts retain the power to statutory Petitioner's Response, Docket Entry No. 17, p. 7. 36Id. 37Id. 38 hear Petition, Docket Entry No. 1, p. 6. -11- and constitutional challenges to civil immigration detention under § 2241 when those claims do not challenge a final order of removal, but instead challenge the detention itself."); Vasguez v. Aleman, Misc. Action No. 5:19-MC-611, 2020 WL 13556584, at *3 (S.D. Tex. April 21, 2020) ("The REAL ID Act does not, however, preclude habeas review over challenges to detention that are independent of challenges to removal orders.") (citing H.R. Conf. Rep. No. 109-72, at 175 (May 3, 2005); Oyelude v. Chertoff, 125 F. App'x 543, 546 (5th Cir. 2005) (holding that federal courts retain "jurisdiction to review [an alien's] detention insofar as that detention presents constitutional issues")). Therefore, Respondents' Motion to Dismiss for lack of subject matter jurisdiction will be denied. B. Exhaustion of Administrative Remedies The respondents note that the petitioner did not file an appeal after he was denied bond by the immigration judge on August 21, 2023. 39 The respondents note further that the petitioner's appeal concerning his removal order remains pending.40 The respondents argue, therefore, that this action must be dismissed for failure to state a claim upon which relief may be granted because petitioner has not exhausted administrative remedies. 41 39 Respondents' Motion to Dismiss, Docket Entry No. 13, p. 9. 40Id. 41 Id . -12- Exhaustion of 1 available administrative remedies is ly required before administrative determinations may be typi subject to federal judicial review. See, e.g., Woodford v. Ngo, 126 S. Ct. 2378, Proper exhaustion requires 2382-83 (2006). compliance with the agency's procedural rules. See id. at 2386. Under the immigration laws exhaustion of administrative remedies is statutorily required only on appeals from final orders of removal. See 8 U.S.C. challenges the § 1252(d) (1). As noted above, constitutionality of the the petitioner mandatory detention statute, 8 U.S.C. § 1226(c), arguing that the refusal to consider him for a bond violates his right to substantive and procedural due process. 42 The Board of Immigration Appeals ("BIA") has expressly stated that it lacks authority to adjudicate this question. See In re Joseph, 22 I&N Dec. 660, 665 Interim Decision 3387, 1999 WL 271357, at *5 (BIA 1999) ("We note that it is not within the purview of this Board to pass upon the constitutionality of the mandatory detention provision in section 236(c)(1) . . ."); see also Liu v. Waters, 55 F.3d 421, 425 (9th Cir. 1995) ("[T)he BIA lacks jurisdiction to decide questions of the constitutionality of governing statutes or regulations."). Exhaustion of administrative remedies is not required where an appeal of the issue to the BIA appears to be futile. Shurney Petition, Docket Entry No. 1, p. 6; Petitioner's Response, Docket Entry No. 17, p. 7. 42 -13- v. Immigration & Naturalization Service, 201 F. Supp. 2d 783, 789 (N.D. Ohio 2001); Galvez v. Lewis, 56 F. Supp. 2d 637, 644 (E.D. Va. 1999); see also Fuller v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (exhaustion of administrative remedies is not required where they are "unavailable or wholly inappropriate to the relief sought, or where the attempt to exhaust such remedies would itself be a patently futile course of action"); Gallegos-Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012) (holding that a prisoner was not required to exhaust a challenge constitutionality of a Bureau of Prisons regulation). to the Therefore, Respondents' Motion to Dismiss for lack of exhaustion will be denied. Because the respondents have not otherwise addressed the merits of the petitioner's constitutional claims, the court will request additional briefing in the form of an answer or other appropriate responsive pleading. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: to Entry Respondents' Motion No. 13) is DENIED. 2. The government is directed to file an answer or other appropriate responsive pleading no later than 60 days from the date of this Memorandum Opinion and Order. 3. The petitioner will have 30 days from the date shown on the respondents' certificate of service to file any reply. -14- Dismiss (Docket 1. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 20th day of March, 2024. SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -15-
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