Songlin v. Crawford

MARVIN ONEAL SONGLIN, Petitioner, v. JEFFREY CRAWFORD, Respondent.

Civil Action No. 3:19CV895

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

September 2, 2020

MEMORANDUM OPINION

Marvin Oneal Songlin, a federal detainee, filed this 28 U.S.C. § 2241 Petition. Songlin is currently detained awaiting deportation. Songlin contends that he is entitled to relief upon the following grounds:¹

Claim One: Songlin failed to receive a valid Notice To Appear ("NTA") for immigration proceedings because Songlin's NTA incorrectly stated Songlin was sentenced on February 14, 2017. (ECF No. 1-1, at 2 (citing Pereira v. Sessions, 138 S. Ct. 2105 (2018))).

Claim Two: Songlin's "continued mandatory detention . . . without a bond hearing during [his] protracted removal proceedings," (ECF No. 1, at 6), violates his "due process right[s]." (ECF No. 1-1, at 1 (citing Demore v. Kim, 538 U.S. 510, 527 (2003))).

Respondent filed a Motion for Summary Judgment. (ECF No. 4.) Songlin responded, (ECF No. 7), and filed his own Motion for Summary Judgment, (ECF No. 8). For the reasons set forth below, Respondent's Motion for Summary Judgment (ECF No. 4) will be GRANTED IN PART and DENIED IN PART. Songlin will be GRANTED limited habeas relief with respect to Claim Two.

I. Standard for Summary Judgment

Summary judgment must be rendered "if 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). The party seeking summary judgment bears the responsibility of informing the Court of the basis for the motion and identifying the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c), (e) (1986)).

In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). A mere "scintilla of evidence," however, will not preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party . . . upon whom the onus of proof is imposed." Id. (quoting Munson, 81 U.S. at 448). Additionally, "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials . . . .").

In support of his Motion for Summary Judgment, Respondent submits the Declaration of Joshua T. Collins, an employee of the Department of Homeland Security, Immigration, and Customs Enforcement ("ICE") and Removal Operations, ("Collins Decl.," ECF No. 5-1).

In light of the foregoing submissions and principles, the following facts are established for purposes of the Motion for Summary Judgment.

II. Undisputed Facts

Songlin is a native and citizen of Jamaica. (Collins Decl. ¶ 5.) In 2015, Songlin was admitted to the United States as a Lawful Permanent Resident. (Id. ¶¶ 14, 15.)

On February 13, 2017, Songlin was convicted in the United States District Court for the District of South Carolina of conspiracy to commit mail fraud, mail fraud, and possession of marijuana with intent to distribute. (Id. ¶ 16.) Songlin was sentenced to 48 months of imprisonment. (Id.)

On March 3, 2019, Songlin was served with a NTA and thereby placed in removal proceedings. (Id. ¶ 17.) Songlin was charged as removeable from the United States based on the above charges. (Id.) Songlin was arrested by ICE on April 16, 2019, and has remained in detention since that date. (Id. ¶ 18.)

On May 14, 2019, Songlin appeared via televideo for his first hearing before the Arlington Immigration Court. (Id. ¶ 19.) "ICE filed evidence of [Songlin's] criminal convictions and orally moved to amend the Notice of Appear to change the date of conviction from 'February 14, 2017' to 'February 13, 2017.' The motion to amend was granted." (Id.)

On June 13, 2019, Songlin, represented by counsel, appeared for his second master calendar hearing. (Id. ¶ 20.) The matter was continued on Songlin's request for additional time to prepare. (Id.) On July 11, 2019, the matter was again continued based on another request by Songlin for additional time to prepare. (Id. ¶ 21.)

On July 30, 2019, Songlin, by counsel, filed a Form I-589, Application for Asylum and Withholding and Removal. (Id. ¶ 22.) Songlin also requested a deferral of removal under the Convention Against Torture ("CAT"). (Id.)

On August 30, 2019, the Immigration Court conducted a merits hearing on Songlin's previously filed application for asylum and deferral of removal based on CAT. (Id. ¶ 23.) The Immigration Court denied Songlin's application for asylum and deferral of removal. (Id. ¶ 24.) Songlin appealed that decision and as of the time the Motion for Summary Judgment was filed, the appeal remains pending before the Board of Immigration Appeal. (Id. ¶¶ 25, 27.) "A post order custody review of [Songlin's] detention has not been done because the order of removal is not administratively final while the appeal remains pending with the Board." (Id. ¶ 28.)

III. Claim One

Citing Pereira v. Sessions, 138 S. Ct. 2105 (2018), Songlin suggests that the Immigration Court lacks jurisdiction because his NTA incorrectly stated that he was sentenced on February 14, 2017. As explained below, this clerical error fails to provide a basis for federal habeas relief.

The Attorney General may cancel a removal order and grant noncitizens the ability

to remain in the United States if they meet certain eligibility requirements under 8 U.S.C. § 1229b(b)(1). One of those requirements is that the alien "has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application." Id. § 1229b(b)(1)(A). Under the "stop-time" rule set forth in § 1229b(d)(1), the accrual period of continuous physical presence is "deemed to end . . . when the alien is served a notice to appear under section 1229(a)." A "notice to appear," as defined [] in § 1229(a)(1), specifies that the noncitizen be provided with written notice of several different categories of information, described in subsections (A)-(G) of that statutory provision. One of those categories is "[t]he time and place at which the [removal] proceedings will be held." Id. § 1229(a)(1)(G).

Garcia-Romo v. Barr, 940 F.3d 192, 196 (6th Cir. 2019) (alterations in original). "[I]n Pereira [the Supreme Court] addressed a 'narrow question' of whether a notice to appear that omits the time or place of the initial hearing triggers the statutory stop-time rule for cancellation of removal." Pierre-Paul v. Barr, 930 F.3d 684, 689 (5th Cir. 2019) (quoting Mauricio-Benitez v. Sessions, 908 F.3d 144, 148 n.1 (5th Cir. 2018)), cert. denied, 206 L. Ed. 2d 854 (2020). Looking to the intersection of the statutory provisions quoted above, "the Supreme Court held that '[a] putative notice to appear that fails to designate the specific time or place . . . is not a 'notice to appear under [8 U.S.C. §] 1229(a).'" Id. (alteration in original) (quoting Pereira, 138 S. Ct. at 2110, 2113-14).

Songlin seeks to extend Pereira's narrow holding beyond the stop-time rule context to suggest that his NTA was "invalid" and the Immigration Court "does not have jurisdiction to order [his] removal" because there was a clerical error with respect to the date of criminal sentence. (ECF No. 1-1, at 2.) Initially, the Court notes that

Pereira was not in any way concerned with the Immigration Court's jurisdiction. Rather, the Court considered what information a notice to appear must contain to trigger the stop-time rule, which determines whether a noncitizen has been continuously present in the United States long enough to be eligible for cancellation of removal.

Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019) (citing Pereira, 138 S. Ct. at 2110), cert. denied sub nom. Karingithi v. Barr, 140 S. Ct. 1106 (2020)).

Moreover, the United States Court of Appeals for the Fourth Circuit has concluded that a purported defect in a NTA, such as "the failure of the notice to appear filed with the immigration court to include a date and time for [a] removal hearing — does not implicate the immigration court's adjudicatory authority or 'jurisdiction.'" United States v. Cortez, 930 F.3d 350, 358 (4th Cir. 2019); see U.S.A. v. Medina, No. CR 18-653-GW, 2019 WL 4462701, at *7 (C.D. Cal. Sept. 4, 2019) (observing that "subject matter jurisdiction is not destroyed by the failure to include particular information within a charging document itself." (citing Cortez, 930 F.3d at 350; Pierre-Paul v. Barr, 930 F.3d 684 (5th Cir. 2019); Ortiz-Santiago v. Barr, 924 F.3d 956 (7th Cir. 2019))). Further, the pertinent regulations do not require the NTA to contain the specific date on which the detainee was sentenced for any particular...