Coreas v. Lucero

MANUEL COREAS Petitioner,

v.ENRIQUE LUCERO, et al., Respondents.

1:11cv00898 (JCC/TRJ)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

Dated: November 2, 2011

MEMORANDUM OPINION

This matter is before the Court on Respondents' Motion to Dismiss [Dkt. 5] and Motion for Summary Judgment [Dkt. 6]. For the following reasons, the Court will grant Respondents' Motion to Dismiss and deny Respondents' Motion for Summary Judgment as moot.

I. Background

This case arises out of the detention by Immigration and Customs Enforcement ("ICE") of Petitioner Manuel Coreas ("Petitioner") following a third driving under the influence ("DUI") offense within ten years. Respondents are Enrique Lucero, District Director for Interior Enforcement at ICE, Janet Napolitano, Secretary for the Department of Homeland Security ("DHS"), and Ernest Toney, Superintendent of Piedmont Regional Jail (collectively, the "Respondents").

A. Factual Background

Petitioner is a citizen of El Salvador and a lawful permanent resident of the United States. (Petition [Dkt. 1] ("Pet.") ¶¶ 12-13.) Petitioner was placed in removal proceedings after an immigration judge ("IJ") on September 30, 2009 found him removable based on a petit larceny conviction dated April 26, 2001. (Pet. ¶ 12.)

The IJ released petitioner on $2,000 bond pursuant to Petitioner's motion for release. (Pet. ¶ 13.) On October 1, 2009, Petitioner posted bond and was released from custody. (Pet. ¶ 14.)

On November 21, 2010, Petitioner was arrested for DUI in Loudon County. (Id.) The General District Court denied bond. (Id.) On March 15, 2011, Petitioner was indicted by a grand jury on a felony charge of a third DUI offense within ten years. (Id.) The Circuit Court ordered Defendant to be held without bond on April 11, 2011. (Id. )

As a result of Petitioner's arrest, ICE lodged a detainer. (Id.) On April 11, 2011, Petitioner pleaded guilty to one count of a third DUI offense within ten years. (Pet. ¶ 15.) On May 26, 2011, Petitioner was sentenced to five years, with the sentence suspended except for time served, and placed on supervised probation for a period of two years. (Id.)Petitioner was then transferred to ICE custody pursuant to the detainer. (Id.)

B. Procedural Background

On August, 22, 2011, Petitioner filed a petition for a writ of habeas corpus (the "Petition"). [Dkt. 1.] Petitioner first argues that the $2,000 bond granted by the IJ prior to his DUI remains in effect, and that ICE is without statutory or regulatory authority to detain him. (Pet. ¶¶ 19-20, 34.) Second, Petitioner argues that his detention by ICE violates the Due Process Clause of the Fifth Amendment. (Pet. ¶¶ 30-32, 36-38.) Petitioner seeks a declaration that ICE's conduct exceeds its statutory and regulatory authority and requests immediate release.

On September 22, 2011, Respondents filed their Motion to Dismiss [Dkt. 5] and Motion for Summary Judgment [Dkt. 6]. Petitioner filed an opposition on October 5, 2011 [Dkt. 9] to which Respondents replied on October 11, 2011 [Dkt. 10]. Respondents' Motions are before the Court.

II. Standard of Review

A. Rule 12(b)(1)

Pursuant to Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Defendants may attack subject matter jurisdiction in one of two ways. First, defendants may contend that thecomplaint fails to allege facts upon which subject matter jurisdiction may be based. See Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); King v. Riverside Reg'l Med. Ctr., 211 F. Supp. 2d 779, 780 (E.D. Va. 2002). In such instances, all facts alleged in the complaint are presumed to be true. Adams, 697 F.2d at 1219; Virginia v. United States, 926 F. Supp. 537, 540 (E.D. Va. 1995).

Alternatively, defendants may argue that the jurisdictional facts alleged in the complaint are untrue. Adams, 697 F.2d at 1219; King, 211 F. Supp. 2d at 780. In that situation, "the Court may 'look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Virginia v. United States, 926 F. Supp. at 540 (quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)); see also Velasco v. Gov't of Indonesia, 370 F.3d 393, 398 (4th Cir. 2004) (holding that "the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment") (citations omitted).

In either circumstance, the burden of proving subject matter jurisdiction falls on the plaintiff. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams, 697F.2d at 1219; Johnson v. Portfolio Recovery Assocs., 682 F. Supp. 2d 560, 566 (E.D. Va. 2009) (holding that "having filed this suit and thereby seeking to invoke the jurisdiction of the Court, Plaintiff bears the burden of proving that this Court has subject matter jurisdiction").

B. Summary Judgment

Summary judgment is appropriate only if the record shows that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs. Apps. & Serv. Co., 80 F.3d 954, 958-59 (4th Cir. 1996) (citations omitted). The party seeking summary judgment has the initial burden of showing the absence of a material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248.

Once a motion for summary judgment is properly made and supported, the opposing party must come forward and show that a genuine dispute exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The party opposing summary judgment may not rest upon mere allegations or denials. Rather, the non-moving party "must setforth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250 (quotation omitted).

Unsupported speculation is not enough to withstand a motion for summary judgment. See Ash v. United Parcel Serv., Inc. , 800 F.2d 409, 411-12 (4th Cir. 1986). Summary judgment is appropriate when, after discovery, a party has failed to make a "showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In reviewing the record on summary judgment, the court "must draw any inferences in the light most favorable to the non-movant" and "determine whether the record taken as a whole could lead a reasonable trier of fact to find for the non-movant." Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253, 1259 (4th Cir. 1991) (citations omitted).

III. Analysis

A. Subject Matter Jurisdiction

Respondents argue that the Petition must be dismissed because after Petitioner was detained by ICE, he appeared before an IJ who declined to alter Petitioner's custody status. (Memorandum in Support [Dkt. 7] ("Mem.") at 8.) According to Respondents, this exercise of discretion is not reviewable by this Court under the Immigration and Nationality Act ("INA"). (Mem. at 6-7).

Specifically, Respondents argue that the Court lacks jurisdiction to review discretionary decisions by the Attorney General exercised pursuant to Section 236 of the INA, 8 U.S.C. § 1226.¹ Section 1226(a) provides that "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." 8 U.S.C. § 1226(a). Unless detention is mandatory (the parties agree it is not here), the Attorney General may either (1) continue to detain the arrested alien or (2) release the alien on bond or conditional parole. Id. Section 1226(b) goes on to state that "[t]he Attorney General at any time may revoke a bond or parole authorized under subsection (a) of this section, rearrest the alien under the original warrant, and detain the alien." 8 U.S.C. § 1226(b). Finally, section 1226(e) provides that:

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. § 1226(e).

Respondents also contend that Section

1252(a)(2)(B)(ii) of the INA deprives this Court of jurisdiction. That section provides that:

Notwithstanding any other provision of law (statutory or nonstatutory), . . . and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review--

(ii) 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.

8 U.S.C. § 1252(a)(2)(B)(ii).²

The Court need not reach these questions because, under the circumstances, the Court declines to find that the IJ made a discretionary decision regarding Petitioner's custody status. While Respondents maintain that the IJ "implicitly upheld ICE's detention decision" (Mem. at 8), they also concede that Petitioner neither requested the IJ to reinstate his previous bond nor requested a new bond.³ (Mem. at 4.) Moreover,the hearing at which Petitioner appeared before the IJ was a master calendar hearing, not a bond redetermination hearing. (Opposition [Dkt. 9] ("Opp.") at 14 n.11.) While it may have been possible for Petitioner to challenge his detention at this hearing, the fact remains that he did not. And an...