Davis v. Gonzales, EP 06-CA-00108-KC.

Page 796

482 F.Supp.2d 796

Remilkun Kayode DAVIS, Petitioner, v. Alberto GONZALES, United States Attorney General, et al., Respondents.

No. EP 06-CA-00108-KC.

United States District Court, W.D. Texas, El Paso Division.

August 25, 2006.

Edgar H. Holguin, Public Defenders Office, El Paso, TX, for Petitioner.

Eduardo R. Castillo, Assistant United States Attorney, El Paso, TX, for Respondents.

ORDER

CARDONE, District Judge.

On this day, the Court considered Respondents' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment ("Motion"). For the reasons set forth herein, Respondents' Motion is DENIED.

I. BACKGROUND

Remilkun Kayode Davis ("Petitioner") failed to include a background section in his response to Respondents' Motion. Accordingly, the following background section is taken from Respondents' Motion.

Petitioner served on active duty in the United States Army and was then honorably discharged in August 2004. Resp't's Mot, 1. After his discharge, he was commissioned as a second lieutenant in the Army Reserves. Id. In order to enlist, Petitioner claimed that he had been born in the United States Virgin Islands and based this claim on a purported United States V.I. birth certificate that named a hospital in St. Croix which had never existed. Id.

On May 30, 2003, Petitioner was convicted of "False statement in application and use of passport" pursuant to 18 U.S.C. § 1542. Id. at 2. This false statement was coupled with the submission of an altered Missouri birth certificate. Id. Thereafter, on February 1, 2005, Petitioner was convicted of "False claim to citizenship" pursuant to 18 U.S.C. § 911 and "False declaration before grand jury or court" pursuant to 18 U.S.C. § 1623. Id.

On March 9, 2005, the Department of Homeland Security (DHS) placed Petitioner in removal proceedings, alleging that he was a native and citizen of Nigeria, present in the United States without having been admitted or paroled and having made a false claim to citizenship. Id. During the removal proceedings, Petitioner attempted to naturalize based on his service in the Army during a time of conflict. Id. United States Citizenship and Immigration Services ("CIS") denied Petitioner's naturalization application in May 2005. Id. CIS found that Petitioner's conviction for "false declaration before grand jury or court" to be a crime involving moral turpitude, and consequently found that Petitioner was unable to meet the good moral character requirement for naturalization.¹ Id.

On June 16, 2005 and with counsel, Petitioner conceded removability before Immigration Judge ("IJ") William Lee Abbott. Id. IJ Abbott entered an order removing Petitioner from the United States to Nigeria. Id. Petitioner waived appeal of the removal order, and it became final on June 16, 2005. Id.

In or about August 2005, Petitioner submitted a custody review packet in which he claims that he believes he was born in Nigeria. Id. at 3. The packet included a formal request for travel documents to Nigeria. Id. After receiving this request, Immigration and Customs Enforcement (ICE) served Petitioner with a Form 229(a), informing Petitioner of his obligation to assist in securing travel documents and detailing actions Petitioner needed to take in order to comply with his obligation. Id.

Subsequently, Petitioner filed multiple requests for release from detention with ICE authorities. Id. ICE, through its Field Operations Director Robert E. Jolicoeur, denied these requests. Id. The alleged basis for this denial was two-fold. Id. First, ICE alleges that Petitioner failed to comply with his obligation to assist in securing travel documents by failing to make timely and good faith efforts to obtain travel documents, effectively preventing his removal from the United States. Id. Second, ICE alleges that Petitioner presents a flight risk based upon his varying false claims to birth. Id. In March 2006, ICE served Petitioner with notice of failure to comply with efforts to aid in removal. Id.

On March 13, 2006, Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2241. On March 27, 2006, this Court issued an order to show cause as to why relief should not be granted. In response, Respondents submitted a Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, which is now before this Court. On August 23, 2006, this Court held an evidentiary hearing, allowing both sides to provide additional testimony and evidence to support their positions.

II. DISCUSSION

A. Standard

A motion to dismiss pursuant to Rule 12(b)(6) challenges a complaint on the basis that it fails to state a claim upon which relief may be granted. FED.R.Crv.P. 12(b)(6). In ruling on a Rule 12(13)(6) motion, the court must accept well-pleaded facts as true, and view them in a light most favorable to the plaintiff. Id.; Calhoun v. Hargrove, 312 F.3d 730, 733 (5th Cir.2002). A court will dismiss a complaint pursuant to Rule 12(b)(6) only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. S. Christian Leadership Conference v. Supreme Court of Louisiana, 252 F.3d 781, 786 (5th Cir.2001).

A summary judgment movant, by contrast, must show by affidavit or other evidence that there is no genuine issue regarding any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To establish that there is no genuine issue as to any material fact, the movant must either submit evidence that negates the existence of some material element of the nonmoving party's claim or defense, or, if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidence in the record is insufficient to support an essential element of the nonmovant's claim or defense. Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 178 (5th Cir.1990). Once the movant carries the initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate. See Fields v. City of S. Houston, 922 F.2d 1183, 1187 (5th Cir.1991).

Summary judgment is required if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. In order for a court to conclude that there are no genuine issues of material fact, the court must be satisfied that no reasonable trier of fact could have found for the nonmovant, or, in other words, that the evidence favoring the nonmovant is insufficient to enable a reasonable jury to return a verdict for the nonmovant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 4, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. Motion to Dismiss

Relying on the United States Supreme Court's decision in Rumsfeld v. Padilla, 542 U.S. 426, 434, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004), Respondents argue that Robert Jolicouer is the only proper Respondent in the instant suit because he is Petitioner's custodian. Resp't's Mot 4. Petitioner, while recognizing that Respondent filed a motion to dismiss, appears to have mistaken the motion as a motion to dismiss the entirety of the suit, rather than most of the Respondents. Pet'r's Resp. to Resp't's Mot. 2. Consequently, Petitioner failed to respond to Respondents' substantive argument regarding the proper parties to this suit.

In habeas challenges to present physical confinement or "core challenges," the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other supervisory official. Padilla, 542 U.S. at 435, 124 S.Ct. 2711. For example, in Padilla, the Supreme Court held that the warden of the military brig holding Padilla, an alleged enemy combatant, was the proper respondent, rather than Secretary of Defense Donald Rumsfeld. Id. at 435-36, 124 S.Ct. 2711. However, in this same opinion, the Supreme Court specifically "left open the question whether the Attorney General is a proper respondent to a habeas petition filed by an alien detained pending deportation." Id. at 436 n. 8, 124 S.Ct. 2711. In fact, the Supreme Court noted a circuit court split with respect to this very issue — a split on which the Fifth Circuit has not yet taken a position. Id.

In similar cases where the relevant circuit court of appeals has not yet decided the range of appropriate respondents to a removable alien's petition for writ of habeas corpus, district courts have refused to decide the matter in the first instance when the Government responds on the merits. See, e.g. Gnokane v. Ashcroft, 2005 WL 1006355, "8-9, 2005 U.S. Dist. LEXIS 7561, at *24-25 (D.Pa. Apr. 28, 2005); Pham v. United States Immigration Servs., 2005 WL 2104460, "1-2, 2005 U.S. Dist. LEXIS 37237, at *4-5 (D.Or. Aug. 25, 2005); Arriola-Arenas v. Ashcroft, 2004 WL 2517924, "1-2, 2004 U.S. Dist. LEXIS 22517, at *4-5 (E.D.Pa. Nov. 8, 2004). Moreover, the instant case is distinguishable from Padilla because it involves an alien detained pending removal, rather than a United States citizen and alleged enemy combatant detained in military custody pending a determination of whether or not his detention violates the United States Constitution. Compare Davis v. Gonzales, et al., No. 06-CV7108-KC (filed Mar. 13, 2006), with Padilla, 542 U.S. at 426, 124 S.Ct. 2711. In light of the current state of the law, Respondents cannot rely on Padilla to support their argument that Jolicouer is the only proper Respondent in the instant suit. In addition, as Respondents have addressed the merits, this Court declines to address the' matter in the first instance, especially in light of the briefing on this issue submitted by both parties.

Accordingly, Respondents' Motion to Dismiss is ...