United States District Court, D. Maryland
K. Bredar, United States District Judge.
Jose Ruben Ventura, a citizen of Mexico, filed this habeas
action pursuant to 28 U.S.C. § 2241, challenging his
detention in immigration custody pending completion of
proceedings seeking his removal from this country. Ventura
seeks immediate release and argues the length of his
detention surpasses the presumptively reasonable period of
time for detention pending removal under Demore v.
Kim, 538 U.S. 510 (2003). ECF 1.
the Warden of the Worcester County Detention Center, through
counsel, argues that Ventura has received all the due process
and relief to which he is entitled and seeks dismissal of the
petition for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be granted.
ECF 5. Ventura has filed an opposition response to the motion
(ECF 7), and respondent has filed a reply. ECF 8. A hearing
is not needed to resolve the case. See Loc. Rule
105.6 (D. Md. 2016). For reasons stated herein, the petition
shall be DENIED and DISMISSED without prejudice.
following facts are uncontested. Ventura entered the United
States without permission and is now the subject of removal
proceedings pursuant to § 212(a)(6)(A)(i) of the
Immigration and Nationality Act (INA). In January of 2016,
the Circuit Court for Wicomico County charged VenturA with
assault, reckless endangerment, possession of a firearm while
under the age of 21, and related charges. See State of
Maryland v. Ventura, Case No. 22-K-16-000019 (Cir. Ct.
Wico. Co.). ECF 5-1 at pp. 3-9. On February 6, 2016, while
appearing in Circuit Court for a preliminary hearing on his
criminal charges, Ventura was taken into custody by
Immigration Customs Enforcement (ICE) personnel. ECF 5-1 at
p. 2. At his March 9, 2016, initial bond hearing before an
Immigration Judge (IJ), Ventura was ordered to remain in
custody because he did not meet his burden of showing that he
is not a danger to the community. ECF 5-1 at p. 10.
April 26, 2016, Ventura was transferred to Wicomico County
custody to adjudicate his state criminal charges. ECF 5-1 at
p. 9. Ventura pleaded guilty to possession of a firearm while
being under the age of 21 and was sentenced to 14 months in
jail. Id. at pp. 3, 6. Because he was in state
custody serving his criminal sentence, his removal
proceedings before the immigration court were
administratively closed on May 16, 2016. ECF 5-1 at p. 11.
serving his state sentence, Ventura was returned to ICE
custody on September 12, 2016. ECF 5-1 at p. 12. Ventura has
spent nearly one year in immigration custody under 8 U.S.C.
§ 1226(a), pending the completion of his removal
proceedings. Following counseled proceedings held on March 9,
2016, and September 21, 2016, an IJ denied bond and ordered
that Ventura remain in detention based on his threat to the
community. ECF 5-1, pp. 11, 14. At a master calendar
hearing on November 30, 2016, Ventura again moved for a bond
hearing and advised the IJ that on November 25, 2016, he had
applied for a U-visa with the United States Citizenship and
Immigration Services (“USCIS”). ECF 1 at p. 7; ECF
5-1 at p. 16. The IJ granted Ventura's request for
continuance of the removal proceedings, but on December 13,
2016, again denied his motion for a bond hearing because
Ventura did not show changed circumstances to warrant
re-determination of bond. ECF 5-1 at p. 16.
31, 2017, the IJ ordered Ventura removed from the United
States to Mexico. ECF 5 -1 at p. 17. Ventura's counseled
appeal of the removal order remains pending before the Board
of Immigration Appeal (“BIA”). ECF 5-1, pp.
review of a removal order becomes final either (1) upon a
determination by the BIA affirming the IJ's order of
removal, or (2) after expiration of the period during which
the alien is permitted to seek review of an order of removal
by the BIA. See 8 U.S.C. § 1101(a)(47)(B).
Ventura is exercising the first option and is appealing the
IJ's decision before the BIA. ECF 1 at p. 7; ECF 1-1 at
pp. 10-12. Because his appeal is pending before the BIA, the
removal order is not administratively final.
as Ventura is raising a constitutional challenge to his
continued pre-removal order of detention, the court shall
summarily dismiss the action. Until a final decision is
rendered on Ventura's removal, his detention is governed
by 8 U.S.C. § 1226, which applies to an alien whose
removal is sought but not yet determined. Under §
1226(e), such discretionary determinations are not subject to
federal judicial review. See 8 U.S.C. §
1226(e); Hyacinthe v. U.S. Attorney General, 215 F.
App'x 856, 862 n.7 (11th Cir. 2007) (holding that the
court lacks jurisdiction to review plaintiff's claims
regarding the immigration judge's denial of bond);
Galvez, 56 F.Supp.2d at 641 (§ 236e divests
this Court of the authority to review discretionary decisions
by the IJ under § 236(a) regarding petitioner's
detention and bond). Having received all the relief to which
he was entitled-individualized bond hearings-his claims are
moot. See Friedman's Inc. v. Dunlap, 290 F.3d
191, 197 (4th Cir. 2002) (case becomes moot “when the
claimant receives the relief he or she sought to obtain
through the claim”) (internal citations and quotations
omitted); Watkins v. Napolitano, 2012 WL 4069763 *3
(D. Md. Sept. 14, 2012) (petition for writ of mandamus is
moot because USCIS has already adjudicated plaintiff's
Form I-130). This court therefore lacks jurisdiction to hear
the removal decision is final, detention during the removal
period is governed by 8 U.S.C. § 1231. However,
completion of removal proceedings does not necessarily
entitle Ventura to the relief he seeks, because ICE is
permitted to release certain aliens and detain others, based
on mandatory detention language found in 8 U.S.C. §
1226(c). In Demore v. Kim, 538 U.S. 510 (2003), the
Supreme Court found that the mandatory detention provision of
an alien under § 1226(c) was a constitutionally
permissible part of the removal process for the
―limited period- necessary to complete the removal
proceedings. Id. at 531. Demore generally
upheld the constitutionality of 8 U.S.C. § 1226, with
the caveat that the Attorney General may detain an alien
without conducting an individualized bail hearing where the
alien concedes he is removable within the meaning of 8 U.S.C.
§ 1226(c)(1)(B). See Demore, 538 U.S. at
Demore Court distinguished Zadvydas v.
Davis, 533 U.S. 678 (2001), a case in which the Supreme
Court held that an alien subject to a final order of removal
could not be indefinitely detained pursuant to 8 U.S.C.
§ 1231, on the grounds that (1) an alien detained for
the limited period necessary to effect a removal pursuant to
§ 1226(c) was not detained indefinitely; and (2)
mandatory detention pursuant to 8 U.S.C. § 1226(c) was
generally of a much shorter duration than post-removal-period
detention pursuant to § 1231. See Demore, 538
U.S. at 530.
the issuance of Demore, courts have looked to the
length and duration of an alien's mandatory detention
under § 1226(c). For example, in Tijani v.
Willis, 430 F.3d 1241 (9th Cir. 2005), the Ninth Circuit
concluded that § 1226(c) applied to
“expedited” removal proceedings and found that
mandatory detention for a period of two years and four months
was not “expeditious.” See Tijani, 430
F.3d at 1242; see also Rodriguez v. Robbins, 715
F.3d 1127, 1137-38 (9th Cir. 2013). The Ninth Circuit also
concluded that the length of the detention must be for a
reasonable period and the alien must provide ...