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Vargas v. Beth

United States District Court, E.D. Wisconsin

March 22, 2019

FERNANDO VARGAS, Petitioner,
v.
DAVID G. BETH, [1] RICARDO WONG, MATTHEW WHITAKER, and KIRSTJEN NIELSEN, Respondents.

          DECISION AND ORDER ON RESPONDENTS' MOTION TO DISMISS, PETITIONER'S MOTION TO WITHDRAW CLAIM, AND PETITION FOR WRIT OF HABEAS CORPUS

          NANCY JOSEPH UNITED STATES MAGISTRATE JUDGE

         Fernando Vargas, a citizen of Mexico currently detained at Kenosha County Detention Center (“KCDC”) pending removal, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Vargas alleges that his detention violates the Eighth Amendment and the Due Process Clause of the Constitution. He seeks a writ of habeas corpus, declaratory relief, and immediate release with or without bond. Respondents filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons stated below, Respondents' motion to dismiss will be granted in part and denied in part. Petitioner's motion to withdraw Claim Three of his petition will be granted. The petition for a writ of habeas corpus will be granted in part to require an individualized bond hearing within ten (10) days, but otherwise denied.

         BACKGROUND

         Fernando Vargas came to the United States from Mexico in 2002, and was granted legal permanent resident status in 2004. (Docket # 1 ¶¶ 11-12.) In 2005, he pled guilty to unlawful possession of a controlled substance under Illinois law 720 ILCS 570/402(e), for knowingly possessing less than 15 grams of cocaine. (Docket # 7-1 at 8-13.) He was sentenced to twenty-four months of probation, public service, and a fine. (Id.)

         In April 2018, Vargas traveled to Mexico. (Docket # 1 ¶ 14.) When he returned via Midway International Airport in Chicago, Illinois, Customs and Border Protection deemed him an applicant for admission under 8 U.S.C. § 1182(a)(2). (Id.) On June 7, 2018, Vargas was issued a Notice to Appear charging him with removability based on Immigration and Nationality Act (“INA”) § 212(a)(2)(A)(i)(II) as an alien convicted of violating a law relating to a controlled substance as defined in the Controlled Substances Act (“CSA”) (21 U.S.C. § 802) § 102. (Id.) The Notice to Appear ordered Vargas to appear before an immigration judge in Chicago at a date and time to be set. (Docket # 7-1 at 3-5.) Vargas was detained by the Department of Homeland Security pursuant to a warrant for arrest of an alien issued June 7, 2018. (Id. at 6.) The Notice of Custody Determination stated that Vargas would be detained pending final administrative determination of his case pursuant to INA § 236 and 8 C.F.R. § 236. (Id. at 7.) In proceedings before an immigration judge over six months later, on December 17, 2018, Vargas was ordered removed to Mexico. (Docket # 7-2.) Vargas has appealed the decision to the Board of Immigration Appeals (“BIA”). (Docket # 1 ¶ 28.)

         Vargas filed a Form N-400, Application for Naturalization, in August 2018. (Docket # 3 at 9.) USCIS denied his application (Docket # 11-4), but subsequently determined that the denial was in error, reopened the application, and held Vargas' application in abeyance pending resolution of his removal proceedings (Docket # 11-5).

         On January 16, 2019, Vargas filed a petition for a writ of habeas corpus in this court. (Docket # 1.) Vargas argued three grounds for relief: (1) that his detention and classification as an applicant for admission were unlawful, (2) that the order of removal against him was outside the jurisdiction of the immigration court, and (3) that he was entitled to adjudication of his naturalization petition. (Id. ¶¶ 21-27.) On February 14, 2019, Respondents filed their return to the habeas petition along with a motion to dismiss. (Docket # 7.) On February 25, 2019, Vargas filed a reply to Respondents' return to the habeas petition (Docket # 12), a response to the motion to dismiss (Docket # 11), and a motion to withdraw his Claim Three (Docket # 11). The fourteen-day deadline under the Civil Local Rules for filing a reply on the motion to dismiss has passed. I now proceed to resolve Respondents' motion to dismiss, Vargas' motion to withdraw a claim, and Vargas' petition for a writ of habeas corpus.

         ANALYSIS

         1. Motion to Dismiss

         Vargas has moved to withdraw his naturalization claim, Claim Three. Section 1429 of Title 8 requires that “no application for naturalization shall be considered by the Attorney General if there is pending against the applicant a removal proceeding pursuant to a warrant of arrest issued under the provisions of this chapter or any other Act.” Thus, USCIS may not adjudicate Vargas' application at this time.[2] Vargas' motion will be granted, so only Claims One and Two remain.

         Respondents argue for dismissal of this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), or for failure to state a claim on which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). (Docket # 7.)

         1.1. Rule 12(b)(1): Subject Matter Jurisdiction

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the court's subject matter jurisdiction. For purposes of a motion to dismiss under Rule 12(b)(1), the district court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See Bultasa Buddhist Temple of Chi. v. Nielsen, 878 F.3d 570, 573 (7th Cir. 2017); Scanlan v. Eisenberg, 669 F.3d 838, 841 (7th Cir. 2012). However, the court “may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter exists.” Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008).

         Respondents argue that this court lacks subject matter jurisdiction over Vargas' claims because Congress took habeas jurisdiction over orders of removal away from federal district courts and gave it exclusively to federal courts of appeals after exhaustion at the administrative level. (Docket # 6 at 2 (citing 8 U.S.C. § 1252(a)(5)).) Respondents admit that this jurisdiction-stripping provision does not preclude habeas review over challenges to detention that are independent of challenges to removal orders, and concede that Vargas does not yet have an administratively final order of removal against him. (Id. at 6-7.) However, Respondents argue that the jurisdiction-stripping provision also applies to “indirect challenges” to a final order of removal. (Id. at 6.) Respondents argue that because Vargas is presently in removal proceedings, and the issues and arguments in his habeas petition are integral to his removal proceedings, it would be improper to allow parallel proceedings in this forum. (Id. at 7-8.) Furthermore, Respondents argue that Vargas' Count Two claim that the immigration court did not have jurisdiction to decide his case is not properly brought in the context of a habeas petition. (Id. at 8-9.) Respondents argue that these issues must be raised before the BIA and then appealed to the court of appeals, not raised in this court. (Id.)

         Vargas responds that this court retains jurisdiction under 28 U.S.C. § 2241 because the jurisdiction-stripping provision applies only to challenges of final orders of removal, which he does not yet have. (Docket # 11 at 5-6.) Vargas explains that Respondents conflate detention with removal, when in fact removal proceedings can and routinely do occur after a detainee is released. (Id. at 7.) Vargas insists that he is not challenging removal, but the legality of his detention. (Id.) He argues that he has been improperly categorized as an arriving alien and/or applicant for admission, and therefore is being unlawfully subjected to detention without bond. (Docket # 1 ¶ 21-23.) Furthermore, Vargas argues that reading 8 U.S.C. § 1252(a)(5) as stripping the court of jurisdiction to hear the habeas challenge would unconstitutionally deprive him of any adequate forum in which to challenge his detention. (Id. at 7-9.) Vargas also responds that the existence of parallel proceedings does not deprive a court of jurisdiction; in fact, courts have an obligation to exercise jurisdiction where Congress grants it. (Id. at 9.)

         Article 1 of the Constitution states that the “[p]rivilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Accordingly, Congress has empowered federal courts to grant writs of habeas corpus to prisoners in custody under the authority of the United States. 28 U.S.C. §§ 2241(a), 2241(c)(1). In the immigration context, Congress narrowed the availability of the writ by requiring that challenges to removal orders be brought only in a court of appeals. 8 U.S.C. § 1252(a)(5). Furthermore, 8 U.S.C. § 1252(g) blocks review in the district court of the Attorney General's decision to commence, adjudicate, or execute removal orders:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of Title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 482 (1999) (explaining the provision's scope is limited to the three named actions-commencement of proceedings, adjudication of cases, and execution of removal orders); Sharif ex rel. Sharif v. Ashcroft, 280 F.3d 786, 787 (7th Cir. 2002).

         Vargas is currently detained by the Department of Homeland Security, so his case is plainly within the jurisdictional grant of § 2241. To the extent Vargas seeks judicial review of an order of removal, his petition is barred by 8 U.S.C. § 1252(a)(5) and (g). Padilla v. Gonzalez, 470 F.3d 1209, 1214 (7th Cir. 2006). However, Vargas' Count One claim is not a challenge to an order of removal. It is a challenge to detention and, specifically, to the denial of an individualized ...


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