Villatoro Fuentes v. Choate

1

ESPERANZA VILLATORO FUENTES, Petitioner, v. JOHNNY CHOATE, ARTHUR WILSON JR, ALEJANDRO MAYORKAS, PATRICK LECHLEITNER, and MERRICK GARLAND, Respondents.

Civil Action No. 24-cv-01377-NYW

United States District Court, D. Colorado

June 13, 2024

ORDER

Nina Y. Wang, United States District Judge

This matter is before the Court on the Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief, [Doc. 1], and Petitioner's Motion for Temporary Restraining Order, [Doc. 3]. Respondents have filed a combined response, [Doc. 13], and Petitioner has replied [Doc. 17].^[1]The Court has reviewed the Petition, the Motion, and the related briefing, and the applicable case law. No Party has requested a hearing on the matter, and the Court finds that oral argument would not materially assist in the resolution of these matters. For the following reasons, the Motion for Temporary Restraining Order is DENIED and the Petition is DISMISSED without prejudice.

BACKGROUND^[2]

Petitioner Esperanza Villatoro Fuentes (“Petitioner” or “Ms. Villatoro Fuentes”) is a transgender woman and a citizen of El Salvador. [Doc. 1 at ¶¶ 1 21].^[3] During her time in El Salvador, she experienced targeted physical, emotional, and sexual abuse due to her gender expression, gender identity, and sexual orientation. [Id. at ¶¶ 21-22].

In 2010, Ms. Villatoro Fuentes entered the United States for the first time. [Id. at ¶ 24]. She was ordered removed and deported to El Salvador that same year. [Id.; Doc. 6 at 26]. After returning to El Salvador she continued to experience severe physical, sexual, and psychological harm. [Doc. 1 at ¶ 24]. She re-entered and was removed from the United States a few more times, and most recently re-entered the country in 2022. [Id. at ¶ 25; Doc. 13-1 at ¶¶ 7-13]. After arriving, she was apprehended by the United States Border Patrol, and the Department of Homeland Security (“DHS”) reinstated her removal order; however, Petitioner was released from custody “on an Alternative to Detention (ATD) program.” [Doc. 1 at ¶ 31; Doc. 13-1 at ¶¶ 14-15]. In October 2022, she was involved in a “domestic dispute” with her partner and was subsequently charged with assault and battery offenses; this led to her termination from the ATD program. [Doc. 1 at ¶ 26; Doc. 13-1 at ¶ 16].

She is currently in the custody of U.S. Immigration and Customs Enforcement (“ICE”). [Doc. 1 at ¶ 32; Doc. 13-1 at ¶¶ 16-17].^[4]

Petitioner's Withholding-Only Proceedings.

In January 2023, the United States Citizenship and Immigration Services (“USCIS”) conducted a reasonable fear interview and concluded that Petitioner has a reasonable possibility of facing persecution if she returns to El Salvador. [Doc. 1 at ¶ 33; Doc. 13-1 at ¶ 19; Doc. 6 at 6]. USCIS referred Petitioner's case to the Immigration Court. [Doc. 13-1 at ¶ 19]. Petitioner originally proceeded before the immigration judge without counsel, see [id. at ¶¶ 21-35], but was subsequently appointed counsel, who entered an appearance in December 2023, [id. at ¶¶ 35, 37]. The immigration judge set the case for a final hearing for January 22, 2024, but the hearing did not go forward because ICE did not produce Petitioner for the hearing. [Doc. 1 at ¶ 50; Doc. 13-1 at ¶¶ 37, 40]. The immigration judge later set the case for a final hearing for August 12, 2024. [Doc. 1 at ¶ 51; Doc. 13-1 at ¶ 43].

Petitioner's Disabilities and Confinement.

Petitioner was originally detained by ICE in Bowling Green, Virginia, [Doc. 1 at ¶ 32], but in March 2023, she was transferred to an ICE detention center in Aurora, Colorado, where she was primarily detained with other transgender women, [id. at ¶¶ 35-36].

Ms. Villatoro Fuentes has a “history of complex trauma and psychiatric disabilities” and has been diagnosed with gender dysphoria; post-traumatic stress disorder, chronic with dissociative symptoms; bipolar I disorder; and generalized anxiety disorder. [Id. at ¶27; Doc. 6 at 41-42]. She reports that, in early 2023, her “mental health began rapidly deteriorating.” [Doc. 1 at ¶ 34]. When Petitioner is confined in small spaces, she experiences panic and fear, which “results in ‘increased perceptual disturbances (seeing visions, hearing voices),'” such as “experiencing ‘demons violating her.'” [Id. (quoting Doc. 6 at 36)]. She has also experienced days-long vivid delusions and audio-visual hallucinations. [Id. at ¶ 37]. She has reported suicidal ideation, which led to her being placed on suicide watch, and has repeatedly engaged in self-harm behaviors while in custody. [Id. at ¶ 36].

Petitioner attempted suicide in December 2023. [Id. at ¶ 38; Doc. 6 at 36]. She was subsequently transferred to the El Paso Behavioral Health System in Texas for psychiatric hospitalization. [Doc. 1 at ¶ 39]. There, she was misgendered and denied gender affirming clothing and hygiene products, which caused her to again engage in self-harm. [Id.; Doc. 6 at 36]. She was returned to the Aurora detention center on February 8, 2024. [Doc. 13-1 at ¶ 41].

After her return from Texas, Aurora facility staff regularly misgendered Petitioner and made disrespectful comments to her. [Doc. 1 at ¶ 41]. On March 27, 2024, Petitioner formally requested release from detention, which ICE denied on April 17, 2024. [Id. at ¶ 40; Doc. 6 at 109]. Petitioner was placed on suicide watch on April 26, 2024, after engaging in self-harm. [Doc. 1 at ¶ 41; Doc. 6 at 100]. She explains that her mental state is severely dysregulated, “which is reflected in her behavior,” and she states that she has been placed in solitary confinement as punishment “for conduct that is directly linked to her disabilities.” [Doc. 1 at ¶ 41]. Another request for Petitioner's release was denied by ICE on May 3, 2024. [Id. at ¶ 42; Doc. 6 at 113-14].

Petitioner's Current Placement.

Petitioner remained in solitary confinement in the Aurora facility through May 13, 2024. [Doc. 1 at ¶ 43]. On May 14, 2024, Petitioner's counsel was informed by an ICE officer that ICE had decided to transfer Ms. Villatoro Fuentes back to the El Paso Behavioral Health System. [Id.]. Petitioner informed counsel that she did not wish to be transferred to El Paso because “conditions were even worse there than in the Aurora facility.” [Id.]. Counsel immediately notified ICE and the United States Attorney's Office for the District of Colorado that Ms. Villatoro Fuentes did not want to be transferred, [id. at ¶¶ 43-44], but this did not stop Petitioner's transfer. Petitioner was transferred to “Florence, Arizona, a staging facility in route to El Paso Behavioral Health System,” on May 14, 2024, and was transferred from Arizona to the El Paso Behavioral Health System on May 16, 2024 “to receive a higher level of mental health treatment.” [Doc. 13-1 at ¶¶ 44-45].

At 9:45 P.M. on May 15, 2024, Petitioner filed her Verified Petition for Writ of Habeas Corpus and Complaint for Declaratory and Injunctive Relief (the “Petition” or “Complaint”). [Doc. 1]. This filing purports to be both seek habeas corpus relief under 28 U.S.C. § 2241 and raise substantive civil claims for declaratory and injunctive relief, asserting three counts: (1) a Fifth Amendment due process claim; (2) a claim under the Rehabilitation Act; and (3) a claim under the Administrative Procedures Act. [Id. at 52-54].

She requests that the Court order her immediate release from custody or, in the alternative, that the Court order Respondents to conduct a bond hearing for Petitioner; that the Court enjoin her from being transferred outside of the District of Colorado or order that she be returned to the District of Colorado; that the Court enjoin Respondents from placing her in solitary confinement; and declare that her detention violates the Rehabilitation Act. [Id. at 54-55]. She subsequently filed the Motion for Temporary Restraining Order, wherein she requests that the Court order her “immediate release from ICE custody,” or, in the alternative, order “Respondents to return her to the District of Colorado.” [Doc. 3 at 2].

LEGAL STANDARDS

I. Habeas Corpus Relief

Section 2241 of Title 28 authorizes a court to issue a writ of habeas corpus when a person is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). Habeas corpus proceedings under 28 U.S.C. § 2241 “remain available as a forum for statutory and constitutional challenges to post-removalperiod detention.” Singh v. Choate, No. 23-cv-02069-CNS, 2024 WL 309747, at *1 (D. Colo. Jan. 26, 2024) (quoting Zadvydas v. Davis, 533 U.S. 678, 688 (2001)); see also Hernandez-Ceren v. Wolf, No. 20-cv-01628-RM, 2020 WL 3036074, at *1 (D. Colo. June 6, 2020) (“[A] person subject to removal is in custody for habeas purposes.”).

The writ of habeas corpus is designed to challenge “the fact or duration” of a person's confinement. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). “In other words, habeas corpus, and thus § 2241, offers detainees release from custody when the very fact that they are detained, or detained for a certain length of time, is unlawful.” Codner v. Choate, No. 20-cv-01050-PAB, 2020 WL 2769938, at *4 (D. Colo. May 27, 2020).

II. Temporary Restraining Order

To obtain a temporary restraining order, the moving party must establish “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party and (4) that the injunction, if issued, will not adversely affect the public interest.” Dine Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (quotation omitted); see also Wiechmann v. Ritter, 44 Fed.Appx. 346, 347 (10th...