Hamada v. Gillen

616 F.Supp.2d 177

Mohamed Amine HAMADA, Plaintiff, v. Brian GILLEN, Superintendent, Plymouth County Correctional Facility, Defendant.

Civil Action No. 2008-11807-RBC.

United States District Court, D. Massachusetts.

May 21, 2009.

Adam S. Elman, Newton, MA, for Plaintiff.

Mark J. Grady, United States Attorney's Office, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON MOTION TO DISMISS (# 4)

COLLINGS, United States Magistrate Judge.

I. INTRODUCTION

Plaintiff Mohamed Amine Hamada ("petitioner" or "Hamada"), petitions for habeas corpus relief under 28 U.S.C. § 2241. (# 1) Petitioner is currently in the custody of the Department of Homeland Security Immigration Customs and Enforcement ("ICE") and is detained pending a removal decision pursuant to 8 U.S.C. § 1226(a) at the Plymouth County Correctional Facility in Plymouth, Massachusetts. He challenges the legality of his detention. The respondent Brian Gillen ("respondent") has moved to dismiss the petition for lack of subject matter jurisdiction. (#4) The Court concludes that, despite the petitioner's efforts to cast his challenges as constitutional in nature, the substance of the petition disputes solely the discretionary decision to detain petitioner, and to deny his release on bond. Because the Court is precluded from reviewing such discretionary decisions under 8 U.S.C. § 1226(e), the Court shall grant the motion to dismiss.

II. BACKGROUND

The facts as recited here are gleaned from the allegations of the petition. Hamada, who was born on December 24, 1986, is a native and citizen of Algeria. (#1 ¶ 7) In 1990, Hamada entered the United States with his family and has continuously resided in the United States since that time. (# 1 ¶ 7) His immigration status in 1990 at the time of entry into the United States is unknown.

On June 13, 1995, Hamada's father filed an 1-589 Application for Asylum to establish permanent residence for himself and his immediate family. (#1 ¶ 8) On about August 14, 1995, the Immigration Service issued an Order to Show Cause, and the petitioner and his family refiled the asylum case in the Boston Immigration Court. (#1 ¶ 9) On July 7, 1997, the application for asylum was denied, and Hamada appealed to the Board of Immigration Appeals ("BIA"). On March 19, 2002, the BIA administratively closed the case so that removal proceedings could be initiated. (# 1 ¶ 9; Exh. 1, Order of the BIA) No further action appears to have been taken at that time.

On June 20, 2008, Hamada was arrested in Boston for assault and battery and resisting arrest. (#1 ¶ 11) He was released on $400.00 cash bail, and the state criminal charges remain pending in Boston Municipal Court.¹ (# 1 ¶ 11). After Hamada was released from state custody, ICE placed Hamada in federal custody. Hamada is currently detained at the Plymouth County Correctional Facility in Plymouth, Massachusetts. Sometime in July 2008, Hamada moved to reinstate proceedings. (#1 ¶ 9) On August 19, 2008, the BIA granted the motion and remanded for further proceedings, inasmuch as the evidence had become stale since the immigration judge's decision of July 7, 1997. (#1 ¶ 9 & Exh. 2)

On July 11, 2008, Hamada moved for bond redetermination to contest his custody. (#1 ¶ 12 & Exh. 3) Hamada's motion was denied by an immigration judge on July 30, 2008, who determined, citing Hamada's past criminal record and the recent charges of assault, battery and resisting arrest, that Hamada posed a danger to the community. (# 1, Exh. 3) On August 12, 2008, Hamada sought reconsideration of that decision, and the immigration judge again denied the motion. (# 1 ¶ 12 & Exh. 4) On October 16, 2008, the BIA granted Hamada's motion to consolidate the two decisions, and affirmed the immigration judge's decision to deny bond, and to continue to detain Hamada. (See # 1 ¶ 13 & Exh. 5)

On October 28, 2008, Hamada filed this habeas petition pursuant to 28 U.S.C. § 2241. Hamada seeks review of the BIA's decision to detain him; he specifically seeks release from custody and determination of a reasonable bond. He asserts also that his continued detention violates due process inasmuch as it impedes him from defending against the state criminal charges, and from being able to proceed with the proper adjudication of his asylum application. (# 1 ¶ 18) The respondent now moves to dismiss the petition for lack of subject matter jurisdiction.

III. ANALYSIS

A. Standard of Review

In deciding a motion to dismiss for lack of subject matter jurisdiction, a court must "give weight to the well-pleaded factual averments in the operative pleading ... and indulge every reasonable inference in the pleader's favor." Aguilar v. U.S. Immigration and Customs Enforcement Div. of Dept. of Homeland Sec, 510 F.3d 1, 8 (1st Cir.2007). Dismissal "is appropriate only when the facts ..., taken as true, do not justify the exercise of subject matter jurisdiction." Muniz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir.), cert. denied, 540 U.S. 873, 124 S.Ct. 224, 157 L.Ed.2d 134 (2003). The party asserting subject matter jurisdiction has the burden of establishing its existence. See McBee v. Delica Co., Ltd., 417 F.3d 107, 122 (1st Cir.2005).

B. Jurisdiction under INA Statutory Framework

Hamada is currently being detained pursuant to 8 U.S.C. § 1226(a), which provides:

Apprehension and detention of aliens

(a) Arrest, detention, and release

On 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. Except as provided in subsection (c) of this section and pending such decision, the Attorney General—

(1) may continue to detain the arrested alien; and

(2) may release the alien on—

(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General[.]

The respondent argues that this Court lacks subject matter jurisdiction to review the IJ's decision to detain Hamada under 8 U.S.C. § 1226(e), which provides:

(e) Judicial review 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.

In his petition, Hamada claims that, in determining whether to detain him, the IJ and the BIA "abused their discretion in minimizing significant equitable factors in Petitioner's favor ...." (#1 at 9). The Court concludes that Hamada, with such allegations,² challenges a quintessential discretionary decision. Cf. Cruz-Camey v. Gonzales, 504 F.3d 28, 29 (1st Cir.2007) (rejecting effort to recast challenge to BIA's discretionary judgment as due process claim because petitioner "merely challeng[ed] the manner in which the BIA balanced the various positive and negative factors"); Saint Fort v. Ashcroft, 329 F.3d 191, 203 (1st Cir.2003) (habeas petitioner "may not challenge the agency's decision to exercise or not exercise its discretion to grant relief). The Court therefore agrees with the respondent that the provision above precludes this Court from reviewing the decision to detain Hamada and to deny bond.³ Saint Fort, 329 F.3d at 200 (noting that the Supreme Court has "read the jurisdiction-limiting provision in § 1226(e) as applying only to review of the Attorney General's discretionary judgment") (citing Demore v. Kim, 538 U.S. 510, 516-517, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003)); see also Loa-Herrera v. Trominski, 231 F.3d 984, 991-992 (5th Cir.2000).

Still, "district courts retain jurisdiction over challenges to the legality of detention in the immigration context," Aguilar, 510 F.3d at 11 (citing Hernandez v. Gonzales, 424 F.3d 42, 42 (1st Cir.2005)), and "[t]his carve-out seemingly encompasses constitutional challenges regarding the availability of bail," id. (citing Demore, 538 U.S. at 516, 123 S.Ct. 1708); see also Saint Fort, 329 F.3d at 203 ("At a minimum, habeas review encompasses constitutional challenges that are at least colorable."). Hamada thus contends that the Court can review the legality of his detention because he alleges certain constitutional violations in his petition. (# 7, Plaintiff/Petitioner Mohamed Amine Hamada's Response to Defendants' Motion to Dismiss, at 5) Specifically, Hamada alleges that his detention violated his due process rights⁴ because he is prevented from "proceed[ing] with the proper adjudication of his I-589 Application for Asylum." (# 1 ¶ 18) The Court rejects this contention out of hand because "[d]etention during removal proceedings is a constitutionally permissible part of that process." Demore, 538 U.S. at 531, 123 S.Ct. 1708. By Hamada's lights, any detention during removal proceedings would offend the due process clause.

Hamada also suggests a due process violation because, he contends, the denial of his release on bond has prevented him from appearing before the state court on his assault and battery charge. Specifically, he alleges that

Counsel for the Petitioner criminal case [sic] has made numerous requests for Petitioner presence [sic] in the Boston Municipal Court to defend the charges that are pending in the Boston Municipal Court Case no. 0801 CR4841 however the Defendants have ignored the requests of the Massachusetts Courts and Petitioner counsel to produce the Petitioner at the Boston Municipal Court, which has jeopardizes [sic] Petitioner rights to defend the case at the Boston Municipal Court.

# 1 ¶ 14.

The issue strikes the Court as an administrative matter (and one which Hamada did not raise before the IJ or BIA in his bond determination hearings), not as a constitutional one. In any event, Hamada has cited to no case law to support this contention. If that were not enough, on the Court's inquiry to the Boston Municipal Court, it appears that the pending state criminal charges were dismissed...