Glushchenko v. U.S. Dep't of Homeland Sec.

566 F.Supp.3d 693

Eugenii GLUSHCHENKO, Plaintiff,

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY; Alejandro Mayorkas, Secretary of the United States Department of Homeland Security; Tae Johnson, Director of United States Immigration and Customs Enforcement; Corey Price, Executive Associate Director for Enforcement and Removal Operations; Juan Acosta, El Paso Field Office Director, Office of Detention and Removal, Defendants.

EP-21-CV-00174-FM

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

Signed October 8, 2021

Alexey V. Tarasov, Pro Hac Vice, Law Office of Alexey Tarasov, Rosenberg, TX, for Plaintiff.

Manuel Romero, Western District of Texas, El Paso, TX, Lacy L. McAndrew, U.S. Attorney's Office, San Antonio, TX, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO DISMISS AND GRANTING SUMMARY JUDGMENT

FRANK MONTALVO, UNITED STATES DISTRICT JUDGE

On this day, the court considered the "Verified Petition for a Writ of Habeas Corpus and Complaint for Declaratory Relief and Motion for Immediate Rule to Show Cause Hearing" [ECF No. 1] ("Petition") filed on August 2, 2021 by Eugenii Glushchenko ("Petitioner"); "Respondents’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" [ECF No. 11] ("Motion"), filed on August 10, 2021 by Juan Acosta, Tae Johnson, Alejandro Mayorkas, Corey Price, and the United States Department of Homeland Security ("Respondents"); and "Petitioner's Response to Respondents’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" [ECF No. 12] ("Response"), filed on September 24, 2021.

For the following reasons, the court will DENY IN PART and GRANT IN PART Respondents’ motion.

I. BACKGROUND

A. Factual Background

Petitioner is a 38-year-old native of Russia.¹ Petitioner's wife, Ekaterina Azarova, and minor child both reside in Maricopa County, Arizona.² Petitioner alleges he is in poor health and suffers from numerous ailments.³ On August 19, 2019, Petitioner was removed to Russia pursuant to a final order of deportation after entering the United States unlawfully.⁴

On November 14, 2019, Petitioner again unlawfully entered the United States near Lukeville, Arizona, and was re-arrested by United States Border Patrol ("USBP").⁵ Petitioner alleges he was shot in his upper thigh while crossing the United States border by USBP,⁶ and Respondents allege Petitioner resisted arrest with violence.⁷ After his arrest, Petitioner was referred for federal prosecution for illegal re-entry and assault on a federal officer.⁸ USBP then reinstated Petitioner's prior removal order pursuant to 8 U.S.C. § 241(a)(5) on November 21, 2019.⁹

On February 12, 2020, a United States District Court Judge in Arizona ordered Petitioner released from criminal custody under certain conditions and upon posting a $2,000 bond.¹⁰ Once Petitioner's bond was paid, United States Marshals Service officials released Petitioner to the custody of Immigration and Customs Enforcement's ("ICE") Enforcement and Removal Office ("ERO").¹¹ Petitioner has remained in ICE custody since April 10, 2020.¹² Ultimately, the charge of assault on a federal officer was dismissed, and Petitioner assented to a plea agreement for the charge of illegal re-entry.¹³ On June 29, 2021, Petitioner was sentenced to "time served."¹⁴

Respondents allege that although Petitioner complied with removal efforts on a few occasions, Petitioner has, for the most part, obstructed his removal to Russia. On April 27, 2020 and May 13, 2020, Petitioner refused to fill out or sign a Russian Travel Document application and was served with a Warning for Failure to Depart ("Form I-229") after each incident.¹⁵ On May 15, 2020 Petitioner filled out the Russian Travel Document application, and it was forwarded to the Russian Consulate in Houston, Texas.¹⁶ However, on May 26, 2020, the government attempted to have Petitioner fill out additional information for the Russian Travel Document application as per the request of the Russian Consulate, but he refused and was served with another Form I-229.¹⁷ Petitioner finally filled out the Russian Travel Document application with the additional information requested by the Russian Consulate on May 29, 2020.¹⁸

On July 8, 2020, when Petitioner was in ICE custody for approximately 90 days, Petitioner was served with a 90–day Post Order Custody Review ("POCR") decision made by the El Paso Field Office.¹⁹ The officials determined Petitioner should remain in ICE custody pending removal.²⁰ Thereafter, the government continued to make efforts to remove Petitioner. On October 21, Petitioner was served with a 180–day POCR decision made by the Head Quarters Removals and International Operations ("HQ-RIO"), where they also determined that Petitioner should remain detained.²¹

On December 1, 2020, Russian Consular Officials interviewed Petitioner, but he again refused to sign the travel document issued by their office.²² The Russian Consulate advised the government that they could not issue a travel document without Petitioner's signature.²³ Subsequently, Petitioner's scheduled ICE Air Operations charter removal flight to Russia was canceled.²⁴ Due to these incidents, ERO El Paso served Petitioner with a Notice of Failure to Comply pursuant to 8 C.F.R. § 241.4(g) and a Form I-229 on February 23, 2021.²⁵

On March 4, 2021, ERO El Paso was advised that the Russian Consulate requested a telephonic interview with Petitioner.²⁶ ERO El Paso facilitated the telephonic interview between the Russian Consulate and Petitioner, but Petitioner refused to cooperate and repeatedly walked away from officers while the Russian Consulate was on speakerphone.²⁷ In light of the unsuccessful telephonic interview, ERO El Paso requested assistance from HQ-RIO to coordinate an in-person interview between Petitioner and the Russian Consulate.²⁸

On April 7, 2021, the government received a letter from the Counselor-Minister from the Embassy of the Russian Federation stating that according to Russian legislation, an individual can only obtain a travel document by signing the travel document application in person and in the presence of the consul.²⁹ Additionally, the Russian Federation advised they would only issue travel documents for those individuals who have had their citizenship confirmed and voluntarily wished to return to Russia.³⁰

On April 22, 2021, ERO El Paso renewed efforts to schedule a telephonic interview with Petitioner and the Russian Consulate.³¹ Thereafter, the Russian Consulate advised the government that it was essential for Petitioner to be prepared and cooperative during his interview.³² On May 11, 2021 ERO Miami was informed that the Russian Consulate had requested an in-person interview with Petitioner.³³

On August 2, 2021, Petitioner filed a writ of habeas corpus challenging his prolonged detention. To date, Petitioner has been in ICE custody for over 17 months.

B. Parties’ Arguments

1. Petitioner's Arguments

Petitioner's writ of habeas corpus pursuant to 28 U.S.C. § 2241 raises three grounds for relief. Two of these arise under Zadvydas , although one is presented as a statutory violation of 8 U.S.C. § 1231 and the other as a violation of Petitioner's right to substantive due process under the Fifth Amendment to the United States Constitution.³⁴ Petitioner's third ground alleges the denial of a neutral and impartial decision-maker to review his continued custody violates his right to procedural due process under the Fifth Amendment to the United States Constitution.

2. Respondents’ Arguments

Respondents filed a Federal Rule of Civil Procedure ("FRCP") 12(b)(1) motion to dismiss, and in the alternative, a FCRP 56 motion for summary judgment. First, Respondents argue this court lacks subject-matter jurisdiction to review the discretionary decision of the Attorney General to detain Petitioner pending removal and, therefore, Petitioner's claims should be dismissed according to FRCP 12(b)(1). In the alternative, Respondents argue they are entitled to summary judgment under FRPC 56 since Petitioner cannot assert a viable claim under Zadvydas where ICE is holding an alien longer than the 90–day removal period under the exception in 8 U.S.C. § 1231(a)(1)(C).³⁵

II. APPLICABLE LAW

A. Motion to Dismiss under FRCP Rule 12(b)(1)

A motion to dismiss pursuant to FRCP 12(b)(1) challenges a federal court's subject-matter jurisdiction.³⁶ "Federal courts are courts of limited jurisdiction" and, therefore, have the power to adjudicate claims only when jurisdiction is conferred by statute or the Constitution.³⁷ "A case is properly dismissed, for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case."³⁸

While the burden of proof falls on the plaintiff to show that jurisdiction does exist, "[u]ltimately, a motion to dismiss for lack of subject matter jurisdiction should be granted only if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle [the] plaintiff to relief."³⁹ A district court may base its determination on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts."⁴⁰

B. Summary Judgment under FRCP Rule 56

Summary judgment under FRCP 56 is proper where the pleadings, discovery, and affidavits demonstrate that there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."⁴¹ A dispute over a material fact is genuine "when there is evidence sufficient for a rational trier of fact to find for the non-moving party."⁴² Substantive law defines which facts are material.⁴³

The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits demonstrating the absence of a genuine issue of material fact.⁴⁴ When considering only admissible evidence in the...