Shabanov v. Mayorkas, No. 4:2023cv03136 - Document 24 (S.D. Tex. 2024)
Court Description: MEMORANDUM OPINION AND ORDER - The government has presented evidence showing that the petitioner has actively frustrated his removal by refusing to cooperate with efforts to obtain a travel document. Under these circumstances, thepetitioner fails to show that his continued detention violates his constitutional rights. Because the petitioner does not establish a valid claim for relief, Respondent's Motion will be granted and the Petition will be dismissed. Based on the foregoing, the court ORDERS as follows: 1. Respondent's 10 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus is GRANTED. 2. The 1 Petition for a Writ of Habeas Corpus Under 28 U.S. C. § 2241 FIled by Alim B. Shabanov is DISMISSED WITH PREJUDICE. (Signed by Judge Sim Lake) Parties notified. (sra4)
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Shabanov v. Mayorkas Doc. 24 United States District Court Southern District of Texas ENTERED April 24, 2024 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ALIM B. SHABANOV, A#094586997, § § § § § § § § § § § Petitioner, v. WARDEN TATE, Montgomery Processing Center, Respondent. Nathan Ochsner, Clerk CIVIL ACTION NO. H-23-3136 MEMORANDUM OPINION AND ORDER The petitioner, Alim B. Shabanov (A#094587997), is a native and citizen of Russia who is in custody of United States Immigration and Customs Enforcement ("ICE") at the Montgomery Processing Center in Conroe, Texas. He has filed a Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 ("Petition") (Docket Entry No. 1), challenging his continued confinement while awaiting removal from the United States. Warden Randy Tate filed Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus under Rules 12(b) (1) and 12(b) (6) of the Federal Rules of Civil Procedure ("Respondent's Motion") (Docket Entry No. 10). The petitioner filed Petitioner's Opposition to Respondent's Motion to Dismiss ("Petitioner's Response") (Docket Entry No. 11) and Warden Tate filed Respondent's Reply in Support of Motion to Dismiss Dockets.Justia.com Petition for Writ of Habeas Corpus ("Respondent's Reply") (Docket Entry No. 14). In an Order entered on March 14, 2024, the court converted the Respondent's Motion to a motion for summary judgment and granted both parties an opportunity to supplement the record pursuant to Fed. R. Civ. P. 12(d). p. 8. Warden Tate has See Order, Docket Entry No. 15, led Respondent's Supplement in Support of Motion for Summary Judgment ("Respondent's Supplement") (Docket Entry No. 19}. The petitioner has not filed a supplement and his time to do so has expired. the exhibits, After considering all of the pleadings, and the applicable law, the court will grant the Respondent's Motion and will dismiss this action for the reasons explained below. I. Background The petitioner has been in custody of immigration officials since October 1, 2022. 1 Officials encountered the petitioner at the Fort Bend County Jail on September 29, 2022, 2 where he was incarcerated following a conviction for burglary of a habitation, which resulted in a sentence of 737 days' confinement. 3 Petition, Docket Entry No. 1, p. 1 2(a}, p. 4 ll(a}. For purposes of identification all page numbers refer to the pagination imprinted at the top of each docket entry by the court's Electronic Case Filing ("ECF"} system. 1 Record of Deportable/Inadmissible Alien, Respondent's Motion, Docket Entry No. 10-3, p. 2. 2 Exhibit 3 to Judgment of Conviction by Court - Waiver of Jury Trial, Exhibit 4 to Respondent's Motion, Docket Entry No. 10-4, p. 1. 3 -2- Immigration officials noted that the petitioner had several (1) unauthorized other previous arrests and convictions, including: use of a motor vehicle in 2017, resulting in a 60-day sentence; (2) manslaughter in 2018, resulting in a 4-year sentence; (3) unauthorized use of a motor vehicle in 2019, resulting in a 12-month sentence; and (4) theft in 2021, resulting in a 2-year sentence. 4 Officials concluded that the peti oner was subject to removal from the United States under Section 237 (a) (2) (A) (iii) of the Immigration and Nationality Act ("INA") for having been convicted of a theft offense with a term of imprisonment of at least one year, which qualifies as an aggravated felony as defined under Section 101 (a) (43) (G) of the INA. 5 On February 10, 2023, an immigration judge concluded that the petitioner was removable based on his conviction for an aggravated felony. 6 Because the petitioner did not pursue an appeal, the removal order became final on March 13, 2023. 7 On August 21, 2023, the petitioner filed his federal habeas corpus Petition under 28 U.S.C. § 2241, seeking relief from Record of Deportable/Inadmissible Alien, Respondent's Motion, Docket Entry No. 10-3, p. 4. 4 5 Exhibit 3 to Id. at 3, 6. Order of the Immigration Judge, Motion, Docket Entry No. 10-3, p. 13. 6 Exhibit 3 to Respondent's Declaration of Deportation Officer Tyson Declaration"), Exhibit 1 to Respondent's Motion, No. 10-1, p. 3 21. 7 -3- Owen ( "Owen Docket Entry prolonged confinement while awaiting his removal. 8 He appears to argue that there is no prospect of removal and that his detention on an indefin basis violates the Constitution. 9 He seeks immediate release from custody. 10 The respondent argues that the pet rel ioner is not entitled to f because he cannot show that his removal is unlikely to occur in the reasonably foreseeable future. 11 provides a sworn declaration from In support, the respondent a deportation officer who explains that travel documents were requested from the Russian government to facilitate the petitioner's removal in 2023, but the process was taking longer than usual to complete because there was no physical copy of the petitioner's Russian passport. 12 On February 5, 2024, the Embassy of the Russian Federation advised immigration officials that it was ready to issue a travel document for the petitioner. 13 The deportation officer made arrangements for the petitioner to travel to Washington D. C. for an in-person Petition, Docket Entry No. 1, pp. 8, 9. The itioner executed the Petition on August 21, 2023, and filed this proceeding with the assistance of counsel, who was granted leave to withdraw on April 4, 2024. See Order, Docket Entry No. 22. 8 9 Pet on, Docket Entry No. 1, p. 9. 11 Respondent's Motion, Docket Entry No. 10, pp. 7-12. Owen Declaration, Exhibit 1 to Respondent's Motion, Docket Entry No. 10-1, p. 4 11 24-30. 12 Addendum Declaration of Deportation Of ( Addendum to Owen Declaration"), Exhibit 6 Supplement, Docket Entry No. 19-1, p. 2 1 8. 13 -4- cer Tyson Owen to Respondent's interview with Embassy officials and a "repatriation flight. nH During the in-person interview, which occurred on March 12, 2024, the petitioner refused to sign the proffered travel document. 15 Because petitioner has refused to comply or cooperate with the removal process, the respondent argues that the petitioner cannot establish a constitutional violation or show that he is entitled to habeas corpus relief. 16 The parties' arguments are considered below under the applicable standard of review. II. Standard of Review Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Under this rule a reviewing court "shall grant summary judgment 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) (2021); see also Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986). pa A fact is "material" if its resolution in favor of one might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). An issue is "genuine" if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. Id. at 3 5(5[ 15 Id. at 3 5[ 16 Respondent's Supplement, Docket Entry No. 19, pp. 2-6. 14 9-11. 12. -5- The respondent's motion for summary judgment must be considered in connection with the federal habeas corpus statutes.17 See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke, 124 S. Ct. 2562 (2004); .§.§.§. also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). To prevail in a case governed by the federal habeas corpus statutes a petitioner must show that he is "in custody in violation of the Constitution or laws or treaties of the United States [.]" U.S.C. § 2241(c)(3). 28 It is the petitioner's burden to demonstrate that a constitutional violation has occurred. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) ('" [N]either habeas nor civil rights relief can be had absent the allegation by a plaintiff that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States.'") (quoting Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985)). III. Discussion The petitioner notes that he has been in custody for over 180 days since the immigration court issued the removal order.18 He 17 Under the Rules Governing Section 2254 Proceedings in the United States District Courts ("Habeas Rules"), which also apply in habeas proceedings governed by 28 U.S.C. § 2241, the Federal Rules of Civil Procedure apply only to the extent that they are not inconsistent with the Habeas Rules or any statutory provision. See Rules l(b) and 12 of the Habeas Rules. 18 Petition, Docket Entry No. 1, p. 5 -6- <JI 12(g). argues that he is entitled to rel f from indefin detention because there is no likelihood that he will be removed. 19 This claim rests on the Supreme Court's decision in Zadvydas v. Davis, 121 S. Ct. 2491, 2504-05 (2001), which requires an immigration detainee's release in certain circumstances after the expiration of a presumptively reasonable six-month period of detention when there is no prospect of removal in the foreseeable future. Once a removal order becomes "final," the Attorney General has ninety days to effect an alien's departure from the United States. 8 U.S.C. § 1231(a)(1)(A); Andrade v. Gonzales, 459 F.3d 538, 543 (5th Cir. 2006). period. Aliens shall be detained during the removal See 8 U.S.C. § 1231(a)(2). If an alien is not promptly removed within the removal period, then he may be eligible for supervised release until removal can be accomplished. § 1231(a)(3). See id. at Certain inadmissible or criminal aliens "may be detained beyond the removal period," or released under terms of supervision, while efforts continue. See id. at§ 1231(a)(6). In Zadvydas the Supreme Court held that the Fifth Amendment Due Process Clause does not permit indefinite detention lasting beyond six months past the ninety-day removal period found § 1231(a). See Zadvydas, 121 S. Ct. at 2498, 2504-05. After the expiration of six months, an alien may seek his release from custody by demonstrating a "good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable 19 at 9. -7- future[.]" Id. at 2505. The alien bears the burden of proof in showing that no such likelihood removal exists. Id. Once this has been shown the burden shifts to the government, which "must furnish evidence suf The government ient to rebut that showing." has presented evidence Id. showing that the petitioner has actively frustrated his removal by refusing to cooperate with efforts to obtain a travel document. 2 ° held that an Courts have ien's refusal to cooperate with the removal process precludes a claim under Zadvydas. Lema v. U.S. Immigration and Naturalization Service, 341 F.3d 853, 856 (9th Cir. 2003) ("[W]hen an alien refuses to cooperate fully and honestly with officials to secure travel documents from a foreign government, the alien" is unlikely to meet the init Glushchenko v. burden under Zadvydas.); see also United States Dep't of F. Supp. 3d 693, 709-11 claim from a Russian deta Homeland Security, (W.D. Tex. 2021) 566 (rejecting a Zadvydas who willfully obstructed the removal process by refusing to sign travel documents during his in-person interview with consular officials). Under these circumstances, the petitioner fails to show that his continued detention violates his constitutional rights. See Hook v. Lynch, 639 F. App'x 229, 230 (5th Cir. 2016) (per curiam) (holding that an alien's failure to cooperate with efforts to remove him tolled the removal period). Addendum to Owen Declaration, Exhibit 6 to Respondent's Supplement, Docket Entry No. 19-1, p. 3 12. 20 -8- Because the petitioner does not establish a valid claim for relief, Respondent's Motion will be granted and the Petition will be dismissed. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus under Rules 12 (b) (1) and 12 (b) (6) of the Federal Rules of Civil Procedure (Docket Entry No. 10) is GRANTED. 2. The Petition for a Writ of Habeas Corpus Under 28 U.S. C. § 2241 led by Alim B. Shabanov (Docket Entry No. 1) is DISMISSED WITH PREJUDICE. The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties of record. SIGNED at Houston, Texas, on this 24th day of April, 2024. 7 SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -9-
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