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Montoya v. Department of Homeland Security

United States District Court, E.D. Wisconsin

December 20, 2017

PASCUAL SOLER MONTOYA, Petitioner,
v.
DEPARTMENT OF HOMELAND SECURITY, IMMIGRATION AND CUSTOMS ENFORCEMENT, and SHERIFF DALE J. SCHMIDT, Respondents.

          ORDER

          J. P. Stadtmueller U.S. District Judge

         1. INTRODUCTION

         On December 7, 2017, Pascual Soler Montoya (“Montoya”) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his detention in connection with removal proceedings. (Docket #1). As an initial matter, the Court must screen Montoya's petition under Rule 4 of the Rules Governing Section 2254 Proceedings, which requires the Court to promptly examine the petition and dismiss it “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief[.]”[1]

         2. FACTUAL BACKGROUND

         According to the allegations of the petition, Montoya is a native and citizen of Cuba. (Docket #1 at 2). He lawfully entered the United States in 1980. Id. His last criminal conviction was in 1990, when he was convicted in Wisconsin of a drug offense. Id. Until 2017, he “was living a normal life here in America[.]” Id.

         On March 22, 2017, the Department of Homeland Security issued a warrant for Montoya's detention for possible deportation to Cuba. (Docket #1-1). On July 7, 2017, an immigration judge ordered Montoya deported. (Docket #1-2). This has not yet occurred. (Docket #1 at 3). On September 26, 2017, Immigration and Customs Enforcement notified Montoya that it would continue his detention because it expected him to be deported in the reasonably foreseeable future. (Docket #1-4). Montoya has made a number of attempts to inquire about the status of his deportation, but those have not borne fruit. (Docket #1-3; Docket #1-5; Docket #1-6).

         Montoya remains detained at the Dodge County Detention Center in Juneau, Wisconsin. (Docket #1 at 1). He asserts that there is no significant likelihood that he will be deported in the near future because the United States and Cuba lack a repatriation agreement. Id. He requests that the Court order his immediate release from custody and placement on supervision pending his removal. Id. at 4.

         3. LEGAL STANDARDS

         An alien ordered removed from this country generally must be removed within ninety days. 8 U.S.C. § 1231(a)(1)(A). This is called the “removal period.” Id. During that period, the alien must be detained. Id. § 1231(a)(2). If not removed within the removal period, the alien is normally to be released under the government's supervision. Id. § 1231(a)(3). However, the Attorney General may continue to detain him beyond the removal period if the alien presents a risk to the community or is unlikely to comply with the order of removal. Id. § 1231(a)(6).

         In Zadvydas v. Davis, 533 U.S. 678, 682 (2001), the Supreme Court addressed “whether [the] post-removal-period statute authorizes the Attorney General to detain a removable alien indefinitely beyond the removal period or only for a period reasonably necessary to secure the alien's removal.” The Court determined that the latter was the appropriate standard. Id. at 689. To find that the statute permitted indefinite detention would, in the Court's view, raise serious due process concerns. Id. at 690. Although the text of the statute says nothing about reasonableness, the Court read that limitation into it to avoid a collision with the Constitution. See Id. at 690-98.

         Thus, the Court concluded that “once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute.” Id. at 699. In such a case, “the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions.” Id. at 699-700. Further, if removal is reasonably foreseeable, “the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period.” Id. at 700.

         To provide clarity to later courts, the Court specified that a presumptively reasonable period of detention for purposes of removal should not exceed six months. Id. at 701. Once that period expires, and once the alien “provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the government must respond with evidence sufficient to rebut that showing.” Id. The alien need not show “the absence of any prospect of removal-no matter how unlikely or unforeseeable, ” but merely that removal is not reasonably foreseeable. Id. at 702. Similarly, the government cannot rest solely on assertions of good-faith efforts to secure removal. Id. As the period of post-removal confinement grows, “what counts as the ‘reasonably foreseeable future' conversely would have to shrink.” Id. at 701. However, the six-month presumption “does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.” Id.

         4. ANALYSIS

         In this case, the Court cannot say that Montoya's petition is plainly without merit. Although the presumptively reasonable period of detention following an order of removal has not yet elapsed (he has been detained just over five months), Montoya has alleged that his removal will not be effected in the near future because there is no repatriation agreement between the United States and Cuba. Thus, the Court finds-as a preliminary matter of screening only-that he has proffered sufficiently good reasons to believe that his removal is not reasonably foreseeable. Under Zadvydas, the burden must now rest with the government to justify Montoya's continued detention. See Cesar v. Achim, 542 F.Supp.2d 897, 903 (E.D. Wis. 2008) (the burden shifts to the government “if the alien can offer any legitimate argument as to why there is no significant likelihood of ...


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