Singh v. Moniz
| Kawalpreet Singh |
| Acting Secretary CHAD F. WOLF, FOD Todd Lyons, Joseph G. McDonald and US Attorney General William Barr |
| Chad F Wolf, William Barr, Todd Lyons and Antone Moniz |
| 1:2020cv10826 |
| April 29, 2020 |
| US District Court for the District of Massachusetts |
| Allison D Burroughs |
| Habeas Corpus - Alien Detainee |
| None |
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| Filing 16 Judge Allison D. Burroughs: ORDER entered. ORDER DISMISSING CASE(McDonagh, Christina) |
| Filing 15 Judge Allison D. Burroughs: ELECTRONIC ORDER entered. Petitioner's motion to stay proceedings, [ECF No. #12 ], is DENIED. Respondent's motion to dismiss the petition, [ECF No. #9 ], is GRANTED. Petitioner concedes that he "does not qualify for Brito protection as he is subject to a final order of removal and his detention is governed by 8 U.S.C. 1231, 'the mandatory detention statute,' and not 1226(a)...." [ECF No. #11 at 2]. Petitioner's remaining challenge under the petition is to the duration of his detention pending removal. [ECF No. #11 at 3]. Once Petitioner became subject to a final order of removal, the clock reset on the amount of time he may be detained prior to removal. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) (stating that Due Process claim under 1226 rendered moot when petitioner became subject to a final order of removal and was detained under 1231); Lovepreet v. Barr, No. 19-cv-06628, 2019 U.S. Dist. LEXIS 191091, at *2 (W.D.N.Y. Nov. 4, 2019) ("Petitioner asserts that his detention has become unconstitutional because he has been detained for over one year. However, prior to Petitioner's removal order becoming final, immigration authorities detained him under different statutory authority, so any claim pertaining to the earlier period of detention is immaterial to the validity of his present detention under 1231(a)(2)."); Flores v. Crawford, No. 06-cv-01089, 2008 U.S. Dist. LEXIS 20974, at *3 (D. Ariz. Mar. 14, 2008) ("Neither statute allows for extended periods of detention, but because the 'clock' restarts every time his status changes, he remains in custody to date."). Because Petitioner has been in custody under 1231 effective March 2, 2020, Petitioner's petition, filed on April 29, 2020, is premature under Zadvydas v. Davis, 533 U.S. 678, 701 (2001). "Under Zadvydas, an alien subject to a final order of removal cannot challenge his detention until [a] six-month period has elapsed." Reid v. Donelan, 390 F. Supp. 3d 201, 220 (D. Mass. 2019); Lamotte v. Holder, No. 13-cv-00582, 2013 WL 1629135, at *2 (D. Mass. Apr. 9, 2013) (same). Petitioner remains a party in Augusto v. Moniz, 20-cv-10685, in which he can pursue his concerns related to confinement during the ongoing pandemic. (McDonagh, Christina) |
| Filing 14 ELECTRONIC NOTICE of Reassignment. Judge Allison D. Burroughs added. Judge Patti B. Saris no longer assigned to case. (Finn, Mary) |
| Filing 13 Judge Patti B. Saris: ELECTRONIC ORDER REASSIGNING CASE. Pursuant to Local Rule 40.1, the Court orders that this action be reassigned to Judge Allison D. Burroughs.(Lara, Miguel) |
| Filing 12 MOTION to Stay by Kawalpreet Singh. (Attachments: #1 Appendix Memorandum of Law in Support, #2 Text of Proposed Order PROPOSED ORDER)(Ghazialam, Bashir) |
| Filing 11 MEMORANDUM in Opposition re #9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Kawalpreet Singh. (Ghazialam, Bashir) |
| Filing 10 MEMORANDUM in Support re #9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by William Barr, Todd Lyons, Joseph G. McDonald, Chad F Wolf. (Attachments: #1 Exhibit Marfissi Declaration, #2 Exhibit IJ Bond (1-24-2019), #3 Exhibit IJ Bond (3-26-2019), #4 Exhibit BIA Decision (3-2-2020), #5 Exhibit First Cir. Order (4-20-20))(Farquhar, Rayford) |
| Filing 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by William Barr, Todd Lyons, Joseph G. McDonald, Chad F Wolf.(Farquhar, Rayford) |
| Filing 8 NOTICE of Appearance by Rayford A. Farquhar on behalf of Antone Moniz (Farquhar, Rayford) |
| Filing 7 Judge Patti B. Saris: ORDER entered. Antone Moniz is substituted as the respondent. See Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004) (immediate custodian of petitioner is proper respondent in habeas action); Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir. 2000) (same, as applied to immigration detainee). The other respondents are dismissed from this action without prejudice. The Clerk shall serve the petition on the Respondent and the United States Attorney for the District of Massachusetts. Within 7 days of the entry of this Order, Respondent shall file a brief with supporting documentation, including the Order of the Immigration Judge with Respect to Custody, and if possible the transcript of the bond hearing. Petitioner shall file a reply brief with supporting documentation within 7 days of the filing of Respondents brief. The reply brief shall specify whether the Petitioner has received a stay of removal from the First Circuit pending review of his removal order. In order to give the Court time to consider the matter, unless otherwise ordered by the Court, Petitioner shall not be moved outside the District of Massachusetts pending decision. (PSSA, 4) |
| Filing 6 Judge Patti B. Saris: ELECTRONIC ORDER entered granting #2 Motion for Leave to Appear Pro Hac Vice Added Bashir Ghazialam. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Lara, Miguel) |
| Filing 5 Judge Patti B. Saris: ORDER entered. STANDING ORDER on 2241 petitions regarding detention and removal of the Petitioner from the District of Massachusetts. (Lara, Miguel) |
Filing 4
General Order 19-02, dated June 1, 2019 regarding Public Access to Immigration Cases Restricted by Federal Rule of Civil Procedure 5.2(c). (Baker, Casey)
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| Filing 3 ELECTRONIC NOTICE of Case Assignment. Judge Patti B. Saris assigned to case. (Finn, Mary) |
| Filing 2 MOTION for Leave to Appear Pro Hac Vice for admission of Bashir Ghazialam Filing fee: $ 100, receipt number 0101-8219255 by Kawalpreet Singh. (Attachments: #1 Declaration)(Estrada, Carlos) (Attachment 1 replaced on 4/30/2020) (Lara, Miguel). |
| Filing 1 PETITION for Writ of Habeas Corpus (2241) Filing fee: $ 5, receipt number 0101-8219240 Fee status: Filing Fee paid., filed by Kawalpreet Singh. (Attachments: #1 Civil Cover Sheet, #2 Category Form)(Estrada, Carlos) |
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