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Bokole v. McAleenan

United States District Court, D. New Mexico

May 8, 2019

DIEU DONNE UMBA BOKOLE A# 209-983-110, Petitioner,
v.
KEVIN K. McALEENAN,[1] in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; WILLIAM P. BARR,[2] in his official capacity as Attorney General of the United States; WILLIAM P. JOYCE, in his official capacity as Acting Field Office Director, El Paso Field Office, U.S. Immigration and Customs Enforcement; DIANE L. WITTE, in her official capacity as Deputy Field Office Director, El Paso Field Office, U.S. Immigration and Customs Enforcement; and WILLIAM JEPSEN, in his official capacity as Assistant Field Office Director, Albuquerque Sub-Field Office under the El Paso Field Office, U.S. Immigration and Customs Enforcement; BRIAN KOEHN, in his official capacity as Warden of the Cibola County Correctional Center, Respondents.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on Respondents Kevin K. McAleenan, William P. Barr, William P. Joyce, Diane L. Witte, William Jepsen, and Brian Koehn’s (collectively “respondents” or the “government”) Motion to Dismiss Petition for Writ of Habeas Corpus for Lack of Jurisdiction, filed December 26, 2018. Doc. 11. Petitioner Dieu Donne Umba Bokole filed his Response in Opposition to the Government’s Motion to Dismiss on January 21, 2019. Doc. 16. Respondents filed their Reply to Petitioner’s Response in Opposition the Government’s Motion to Dismiss on February 4, 2019. Doc. 18. On March 11, 2019, Mr. Bokole filed a Notice about the Status of Petitioner Bokole’s Immigration Proceedings. Doc. 19. The government filed a response to the notice on March 25, 2019. Doc. 21. Mr. Bokole filed a reply in support of his notice on April 1, 2019, along with supporting exhibits on April 2, 2019. Docs. 22, 23. The Court set a hearing on the government’s motion to dismiss and heard the argument of counsel on April 5, 2019. Docs. 20, 24.

         Having read the submissions of the parties and the relevant case law, and having heard the argument of counsel, I find that the government’s motion is well-taken, and I recommend that the Court GRANT it.

         I. Background Facts

         Mr. Bokole is a citizen of the Democratic Republic of Congo (“DRC”). Doc. 11-1 at 2. On June 13, 2017, Mr. Bokole presented himself at a United States port of entry in El Paso, Texas, without valid entry documents and asked for asylum. Doc. 1 at 6; Doc. 11 at 2; Doc. 16 at 3. The U.S. Customs and Border Protection (“CBP”) detained Mr. Bokole the same day.[3]Doc. 11-1 at 2; Doc. 16 at 3. Because Mr. Bokole did not have valid entry documents, CBP processed him for expedited removal pursuant to 8 U.S.C. §1182(a)(7)(A)(ii). Doc. 11-1 at 2. Mr. Bokole expressed a fear of returning to the DRC, and CBP referred him for a credible fear interview. Doc. 11-1 at 2; Doc. 16 at 3. On July 3, 2017, an asylum officer conducted a credible fear interview. Doc. 11-1 at 2. Although the U.S. Citizenship and Immigration Services (“USCIS”) issued a positive credible fear determination, Doc. 11-2 at 1, an immigration judge issued a written decision in March 2018[4] denying all relief, and he ordered Mr. Bokole removed to the DRC. Doc. 11-1 at 2-3; Doc. 11-3. Mr. Bokole filed an appeal with the Board of Immigration Appeals (“BIA”). Doc. 11-1 at 3. On September 20, 2018, the BIA affirmed the immigration judge’s decision, and the order of removal became administratively final. Doc. 11-1 at 3; Doc. 11-6 at 4-7. Mr. Bokole did not file a petition for review with the Tenth Circuit Court of Appeals at that time. Doc. 11-1 at 3.

         In late September 2018, Mr. Bokole was transferred to a detention facility in Texas to effectuate the removal order.[5] Doc. 11-1 at 3. Although Mr. Bokole has been ordered removed, he has refused to complete the documentation necessary to effectuate the removal order. Id. at 3, 4. On November 2, 2018, Mr. Bokole filed a motion with the BIA requesting that it reissue its decision to allow him to file a timely petition for review with the Tenth Circuit. Id. at 4. On February 27, 2019, the BIA rescinded and reissued its September 20, 2018 decision denying Mr. Bokole relief. Doc. 19 at 2; Doc. 19-1 at 2–6. The BIA’s reissuance of its decision and final order of removal allowed Mr. Bokole to petition the Tenth Circuit Court of Appeals for review of the BIA’s final decision. Doc. 19 at 2. On March 27, 2019, Mr. Bokole filed an appeal with the Tenth Circuit. Doc. 22 at 2; see also Bokole Umba v. Barr, Tenth Cir. No. 19-9513, Petition for Review filed 3/27/2019. Mr. Bokole also filed an emergency motion for stay of removal, which the Tenth Circuit denied on April 1, 2019. See Bokole Umba v. Barr, Tenth Cir. No. 19-9513, Emergency Motion filed 3/27/2019, Order filed 4/1/2019.

         Mr. Bokole has been detained by the government since June 13, 2017. Less than a month after Mr. Bokole filed his petition in this case, he asked the Court to stay the proceedings so that he could pursue release through parole. Doc. 5. That stay was in effect until November 30, 2018. Doc. 9. During that time, Mr. Bokole twice sought release through parole. Doc. 7 at 2; see also Docs. 11-4, 11-5. On August 9, 2018, U.S. Immigration and Customs Enforcement (“ICE”) denied parole because Mr. Bokole had “not established to ICE’s satisfaction that [he was] not a flight risk,” or a “danger to the community or U.S. Security.” Doc. 11-4. ICE further determined that “[a]dditional exceptional, overriding factors (e.g., law enforcement interests or potential foreign policy consequences) in [his] case militate against parole,” in that Mr. Bokole “was arrested by the police in his country for demonstrating against the government and escape[d] from detention.”[6] Id. at 2. Within a week of ICE’s denial of parole, Mr. Bokole requested “parole re-determination,” but ICE denied the request shortly thereafter for the same reasons given in its original denial. Doc. 11-1 at 3; Doc. 11-5. ICE also noted that it “previously had provided [Mr. Bokole] with a written decision declining to grant parole, and [he had] failed to provide additional documentation or to demonstrate any significant changed circumstances which would alter ICE’s previous determination.” Doc. 11-5 at 2.

         When it lifted the stay, the Court ordered the government to answer Mr. Bokole’s petition. Doc. 9 at 2. Instead of doing so, and because Mr. Bokole’s status had changed since he filed his petition, the government filed a motion to dismiss his petition. See Doc. 11 at 1-2.

         When Mr. Bokole originally filed his petition in this case, he was in pre-removal proceedings and was not subject to a final order of removal. By the time the stay was lifted, he was subject to a final order of removal. See Doc. 11 at 2; Doc. 11-1 at 3. This is the basis for the government’s motion.

         II. Discussion

         The government moves the Court to dismiss Mr. Bokole’s petition for lack of jurisdiction, which is governed by Fed. R. Civ. P. 12(b)(1). It argues that “[w]ith the issuance of Bokole’s final order of removal on September 20, 2018, [(and subsequent reissuance on February 27, 2019),] the Government’s authority to detain Bokole shifted from 8 U.S.C. § 1225(b)(1), which governed his detention during the consideration of his asylum application, to 8 U.S.C. § 1231(a), which governs his detention now that a final order of removal has issued.” Doc. 11 at 2. Thus, according to the government, Mr. Bokole’s challenge to his detention under 8 U.S.C. § 1225(b)(1) is moot, and his challenge to his detention under 8 U.S.C. § 1231(a) is not yet ripe for review. Id. Mr. Bokole does not directly address the government’s jurisdictional arguments. See generally Doc. 16. Instead, he argues that his petition states a plausible claim for relief[7] because consideration of the entire time that Mr. Bokole has been in custody without a “custody hearing before a neutral arbiter” compels the conclusion that his continued detention has deprived him of his procedural due process rights under the Fifth Amendment. See Id. at 1-2. Mr. Bokole further argues that his continued detention without a “custody hearing before a neutral arbiter” violates the Eighth Amendment’s prohibition of excessive bail. See Id. at 2. For the following reasons, I agree with the government and recommend that the Court dismiss Mr. Bokole’s petition for lack of subject-matter jurisdiction.

         A. Mootness

         Under Article III of the Constitution, federal courts may only adjudicate live controversies. Alvarez v. Smith, 558 U.S. 87, 92 (2009). An “actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Id. (internal quotation marks and citations omitted). “If, during the pendency of the case, circumstances change such that a party’s legally cognizable interest in a case is extinguished, the case is moot, and dismissal may be required.” Green v. Haskell Cnty. Bd. of Comm’rs, 568 F.3d 784, 794 (10th Cir. 2009).

         Mr. Bokole filed his habeas petition while he was in pre-removal proceedings and before he was subject to a final order of removal. During that time, he was detained under 8 U.S.C. § 1225(b)(1)(B)(ii). Section 1225(b)(1)(A) governs the screening of individuals who arrive in the United States but are found inadmissible because of, among other things, a lack of valid documentation. See 8 U.S.C. ยงยง 1182(a)(7) (documentation requirements), 1225(b)(1)(A)(i) (referring to aliens ...


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