Gutierrez-Soto v. Sessions

317 F.Supp.3d 917

Emilio GUTIERREZ-SOTO and Oscar Gutierrez-Soto, Petitioners,

v.Jefferson SESSIONS III, in his official capacity as Attorney General of the United States; Kirstjen Nielsen, in her official capacity as Secretary of U.S. Department of Homeland Security; Thomas Homan, in his official capacity as Director of U.S. Immigrations and Customs Enforcement; William Joyce, in his official capacity as Acting El Paso Field Office Director for U.S. Immigration and Customs Enforcement; and United States Department of Homeland Security, Respondents.

EP-18-CV-00071-DCG

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

Signed July 10, 2018

Eduardo Beckett, Beckett Law Firm, P.C., El Paso, TX, Penny M. Venetis, Pro Hac Vice, Newark, NJ, for Petitioners.

Magdalena G. Jara, Assistant U.S. Attorney, Manuel Romero, Western District of Texas, El Paso, TX, for Respondents.

ORDER

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE

Presently before the Court is Respondents Jefferson Sessions III, Kirstjen Nielsen, Thomas Homan, William Joyce, and United States Department of Homeland Security's "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment" ("Motion") (ECF No. 22) filed on April 24, 2018. Therein, Respondents argue that the Court lacks jurisdiction over this matter and that Petitioners' constitutional and statutory claims are meritless. Mot. at 5–20. For the reasons that follow, the Court GRANTS IN PART AND DENIES IN PART Respondents' Motion.

I. BACKGROUND

Petitioners Emilio Gutierrez-Soto ("Mr. Gutierrez-Soto") and Oscar Gutierrez-Soto, Mr. Gutierrez-Soto's son, are citizens of Mexico who are currently being detained by Respondents in El Paso, Texas.¹ Respondent Jefferson Sessions III ("Sessions") is the United States Attorney General.² Respondent Kirstjen Nielsen ("Nielsen") is the Secretary of the United States Department of Homeland Security ("DHS").³ Respondent Thomas Homan ("Homan") is the Director of United States Immigration and Customs Enforcement ("ICE").⁴ William Joyce ("Joyce") is the Acting El Paso Field Office Director for ICE.⁵

The circumstances that led Petitioners to the United States began with Mr. Gutierrez-Soto reporting on the misdeeds of the Mexican military while he worked as a reporter in Ciudad Juarez, Chihuahua, Mexico.⁶ After Mr. Gutierrez-Soto reported that members of the Mexican military committed a series of violent armed robberies in 2005, he was summoned to a location in Ciudad Juarez and threatened by members of the military.⁷ However, Mr. Gutierrez-Soto persisted in defying the Mexican military by penning an article detailing the threats he received; in response, the military raided his home and made more threats against his person and his family.⁸ The two events that finally convinced Mr. Gutierrez-Soto to flee Mexico were him noticing that he was being followed by persons he believed to be affiliated with the Mexican military and a friend warning him that the military intended to kill him.⁹

Thus, Petitioners presented themselves at the United States border and applied for admission on June 16, 2008.¹⁰ Nevertheless, Petitioners were deemed inadmissible because they did not have valid entry documents.¹¹ Subsequently, after being processed for expedited removal, Petitioners claimed fear of returning to Mexico and were interviewed by an asylum officer on June 19.¹² The asylum officer found that Petitioners had a credible fear of persecution, so Petitioners were placed in detention until a decision could be made on whether to parole them.¹³ After spending months in detention,¹⁴ Petitioners were paroled as arriving aliens with a credible fear of persecution.¹⁵

Due to Petitioners not having valid entry documents when they appeared at the border, they were placed in removal proceedings and charged as inadmissible under the Immigration and Nationality Act.¹⁶ In accordance with their status as parolees, though, Petitioners were placed on the non-detained docket, and their hearing before an immigration judge was originally set for January 21, 2011.¹⁷ However, due to a series of delays, Petitioners' hearings were reset a number of times and finally occurred in November and December of 2016.¹⁸ On July 19, 2017, the immigration judge issued his order denying Petitioners' applications for asylum and ordered them removed.¹⁹ On August 21, Petitioners appealed the immigration judge's decision to the Board of Immigration Appeals (the "BIA"), but the BIA dismissed the appeal as untimely on November 2.²⁰

Following the dismissal of their appeal, Petitioners filed an emergency motion to stay removal with the immigration judge, which was denied on November 17.²¹ Petitioners also filed a request for a stay of removal with ICE, which was denied on December 7.²² On that same day, Petitioners reported to their previously scheduled meeting with ICE and were taken into custody.²³ After being taken into custody on December 7, ICE placed Petitioners in a vehicle and proceeded towards the El Paso/Juarez border.²⁴ However, before Petitioners could be deported that day, the BIA granted them a stay pending consideration of their motion to reopen filed on November 20.²⁵ On December 22, the BIA granted Petitioners' motion to reopen and reinstated their appeal.²⁶

Nevertheless, despite the reinstatement of their appeal, Petitioners have remained in detention since ICE took them into custody on December 7, 2017.²⁷ On March 6, 2018, Petitioners filed the instant habeas petition asserting the following: 1) a Substantive Due Process claim under the Fifth Amendment to the United States Constitution, 2) a Procedural Due Process claim under the Fifth Amendment to the United States Constitution, 3) an Equal Protection claim under the Fifth and Fourteenth Amendments to the United States Constitution, 4) a Freedom of the Press claim under the First Amendment to the United States Constitution, 5 ) a Freedom of Speech claim under the First Amendment to the United States Constitution, and 6) a claim under the Administrative Procedures Act ("APA").²⁸ Subsequent to filing their habeas petition, Petitioners received some good news. On April 17, the University of Michigan invited Mr. Gutierrez-Soto to join the Knight-Wallace Fellowship class of 2018-19, an esteemed program for journalists that offers a $75,000 stipend.²⁹ Further, on May 15, the BIA remanded Petitioners' asylum claim back to the immigration judge for consideration of new evidence and the issuance of a new decision.³⁰ Nevertheless, Petitioners' positive developments do not dispose of this cause or moot the instant motion. Thus, the Court must address Respondents' contentions that it lacks jurisdiction and that Petitioners' claims are meritless.³¹

II. STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A genuine dispute of fact exists when evidence is sufficient for a reasonable jury to return a verdict for the non-moving party, and a fact is material if it ‘might affect the outcome of the suit.’ " Willis v. Cleco Corp. , 749 F.3d 314, 317 (5th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ) ). In deciding whether a genuine dispute as to any material fact exists, a trial court considers all of the evidence in the record and "draw[s] all reasonable inferences in favor of the nonmoving party" but "refrain[s] from making credibility determinations or weighing the evidence." Turner v. Baylor Richardson Med. Ctr. , 476 F.3d 337, 343 (5th Cir. 2007) (citation and internal quotation marks omitted). Instead, the court "only ‘give[s] credence to the evidence favoring the nonmovant [and] that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.’ " Orr v. Copeland , 844 F.3d 484, 490 (5th Cir. 2016) (second alteration in original) (quoting Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ).

Procedurally, the party moving for summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." E.E.O.C. v. LHC Grp., Inc. , 773 F.3d 688, 694 (5th Cir. 2014) (alterations in original) (quotation marks and citation omitted). When the nonmoving party will bear the burden of proof at trial, the moving party may satisfy this responsibility by "point[ing] out the absence of evidence supporting the nonmoving party's case." Latimer v. Smithkline & French Labs. , 919 F.2d 301, 303 (5th Cir. 1990) ; see also Boudreaux v. Swift Transp. Co. , 402 F.3d 536, 544–45 (5th Cir. 2005).

If the moving party succeeds, "the onus shifts to the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." LHC Grp. , 773 F.3d at 694 (internal quotation marks and citation omitted). However, the nonmoving party "cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions, or only a scintilla of evidence." Davis v. Fort Bend Cty. , 765 F.3d 480, 497 n.20 (5th Cir. 2014) (quotation marks and citation omitted).

III. DISCUSSION

A. Jurisdiction

As a threshold matter, there is a dispute regarding whether the Court has jurisdiction over this case. Respondents allege that Petitioners are attempting to challenge a discretionary decision of the Attorney General, the revocation of Petitioners' humanitarian parole. Mot. at 6–10. See also 8 U.S.C. § 1182(d)(5)(A) (providing the Attorney General with the discretion to grant and revoke humanitarian parole). Respondents further contend that such...