Celimen Savino v. Souza

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

MARIA ALEJANDRA CELIMEN SAVINO, )

)

Petitioner, )

) Civil Action

v. ) No. 20-10259-PBS

)

STEVEN J. SOUZA, )

)

Respondent. )

______________________________ )

MEMORANDUM & ORDER

April 9, 2020

Saris, D.J.

Pro se petitioner Maria Alejandra Celimen Savino brought a

habeas petition seeking relief pursuant to the Court’s

declaratory judgment in Brito v. Barr, 415 F. Supp. 3d 258 (D.

Mass. 2019) (“Brito”). On March 19, 2020, the Court dismissed

the petition, stating that Petitioner was “no longer a member of

the Brito class” because she was “detained pursuant to 8 U.S.C.

§ 1231, rather than 8 U.S.C. § 1226(a).” Dkt. No. 10. Now,

Petitioner moves for reconsideration of that Order. Dkt. No. 13.

I. Standard of Review

Federal Rule of Procedure 60(b) “grants federal courts the

power to vacate judgments whenever such action is appropriate to

accomplish justice.” Bouret-Echevarria v. Caribbean Aviation

Maintenance Corp., 784 F.3d 37, 41 (1st Cir. 2015) (citation

omitted); see also Fed. R. Civ. P. 60(b)(6) (allowing a court to

“relieve a party or its legal representative from a final

judgment, order, or proceeding . . . [for any] reason that

justifies relief”).

Courts evaluating motions for reconsideration under Rule

60(b)(6) typically “examine four factors: (1) the motion’s

timeliness, (2) whether exceptional circumstances justify

extraordinary relief, (3) whether the movant can show a

potentially meritorious claim or defense . . . and, (4) the

likelihood of unfair prejudice to the opposing party.” Bouret-

Echevarria, 784 F.3d at 43. Courts are not required to conduct

an “in-depth, multi-factored analysis,” particularly where “one

factor predominates to such an extent that it inexorably

dictates the result.” Id. (citing Ungar v. Palestine Liberation

Org., 599 F.3d 79, 83-84 (1st Cit. 2010)); see also Guadalupe-

Baez v. Pesquera, 819 F.3d 509, 518 (1st Cir. 2016) (explaining

that a motion for reconsideration under Federal Rule of Civil

Procedure 59(e) “must either establish a clear error of law or

point to newly discovered evidence of sufficient consequence to

make a difference”).

II. Legal Framework

The Brito Post-Hearing Class consists of: “All individuals

who (1) are or will be detained pursuant to 8 U.S.C. § 1226(a),

(2) are held in immigration detention in Massachusetts or are

otherwise subject to the jurisdiction of the Boston Immigration

Court, and (3) have received a bond hearing before an

immigration judge.” Brito, 415 F. Supp. 3d at 263.

Under 8 U.S.C. § 1226(a), “an alien may be arrested and

detained pending a decision on whether the alien is to be

removed from the United States.” 8 U.S.C. § 1226(a). During the

course of removal proceedings, an alien may receive an

administratively final order of removal. Immigration regulations

provide that an order of removal is administratively final,

inter alia, “[u]pon dismissal of an appeal by the Board of

Immigration Appeals.” 8 C.F.R. § 1241.1(a).1

1 An order of removal is also considered administratively final:

(b)Upon waiver of appeal by the respondent;

(c) Upon expiration of the time allotted for an appeal if

the respondent does not file an appeal within that time;

(d)If certified to the Board [of Immigration Appeals] or

Attorney General, upon the date of the subsequent decision

ordering removal;

(e)If an immigration judge orders an alien removed in the

alien’s absence, immediately upon entry of such order; or

(f) If an immigration judge issues an alternate order of

removal in connection with a grant of voluntary departure,

upon overstay of the voluntary departure period, or upon

the failure to post a voluntary departure bond within 5

business days. If the respondent has filed a timely appeal

with the Board, the order shall become final upon an order

of removal by the Board or the Attorney General, or upon

overstay of the voluntary departure period granted or

reinstated by the Board of the Attorney General.

8 C.F.R. § 1241.1.

In certain circumstances, the detention of an alien is

governed not by 8 U.S.C. § 1226, but rather by 8 U.S.C. § 1231.

The latter statute provides:

(A) In general -- Except as otherwise provided in this

section, when an alien is ordered removed, the

Attorney General shall remove the alien from the

United States within a period of 90 days (in this

section referred to as the “removal period”).

(B) Beginning of period – The removal period begins on the

latest of the following:

(i) The date the order of removal becomes

administratively final.

(ii) If the removal order is judicially reviewed and

if a court orders a stay of the removal of the

alien, the date of the court’s final order.

(iii) If the alien is detained or confined (except

under an immigration process), the date the

alien is released from detention or

confinement.

8 U.S.C. § 1231(a)(1) (emphases added).

Several circuit courts have held that “Section 1231 does

not govern the detention of immigrants whose removal has been

stayed pending judicial review.” Hechavarria v. Sessions, 891

F.3d 49, 56 (2d Cir. 2018); see Leslie v. Att’y Gen. of the

U.S., 678 F.3d 265, 270 (3d Cir. 2012) (“[E]very circuit to

consider the issue has held that § 1226, not § 1231, governs

detention during a stay of removal.”), abrogated in part and on

other grounds by Jennings v. Rodriguez, 138 S. Ct. 830, 847

(2018); Prieto-Romero v. Clark, 534 F.3d 1053, 1057-58 (9th Cir.

2008) (holding that the Government’s statutory authority to

detain an alien “whose administrative review is complete but

whose removal is stayed pending the court of appeals’ resolution

of his petition for review, must be grounded in § 1226(a)”); see

also Reid v. Donelan, 64 F. Supp. 3d 271, 276-77 (D. Mass. 2014)

(holding that an alien “is simply not being held under § 1231”

where “a removal order has been stayed”). But cf. Akinwale v.

Ashcroft, 287 F.3d 1050, 1052 n.4 (11th Cir. 2002) (assuming

Section 1231 provided authority to detain petitioner who had

obtained a judicial stay, without considering the applicability

of Section 1226).

III. Analysis

Respondent argues that once an administratively final order

of removal is entered, the Government’s statutory authority for

detention is grounded in Section 1231 rather than Section 1226,2

even where a court has granted a stay of removal pending

judicial review of the removal order. Many of Respondent’s

arguments in support of this interpretation have been considered

and rejected in the circuit-level cases cited above.

First, Respondent argues that “Section 1231 governs the

authority for Petitioner’s detention because she currently has

an administratively final order of removal.” Dkt. No. 16 at 4-5.

2 As Respondent notes, this discussion pertains to aliens who

have received administratively final orders of removal in

standard removal proceedings pursuant to 8 U.S.C. § 1229(a).

As the Second Circuit has explained, this reading of Section

1231 is “untenable,” because it would “render section (ii) mere

surplus” to hold that “any immigrant with an administratively

final order of removal is subject to detention under 8 U.S.C.

§1231,” even if the immigrant’s removal has been stayed pending

judicial review. Hechavarria, 891 F.3d at 55.

Respondent further claims that ICE’s detention authority

“falls within Section 1231” because “ICE’s ability to carry out

Petitioner’s removal was [only] temporarily interrupted upon the

issuance of a stay of removal by the First Circuit.” Dkt. No. 16

at 7. But “removal is not inevitable” where a judicial stay has

been granted. Hechavarria, 891 F.3d at 56 (rejecting

Government’s argument that a stay of removal “simply

‘temporarily interrupted’ ‘DHS’s ability to carry out [the

Petitioner’s] removal’”); see also Leslie, 678 F.3d at 270

(“[I]nsofar as the purpose of § 1231 detention is to secure an

alien pending the alien’s certain removal, § 1231 cannot explain

nor authorize detention during a stay of removal pending further

judicial review.”).

Second, Respondent argues that “Section 1226 is not a

‘default’ detention provision.” Dkt. No. 16 at 5. It is not

necessary to regard Section 1226 as a “default” detention

provision in order to find that it governs the detention of

Petitioner in this case. Multiple circuit courts have held that

Section 1226 governs the detention of an immigrant “whose

administrative review is complete but whose removal is stayed

pending the court of appeals’ resolution of his petition for

review.” Prieto-Romero, 534 F.3d at 1057-58; see also

Hechavarria, 891 F.3d at 57; Leslie, 678 F.3d at 270.

Third, Respondent argues that the titles of the applicable

statutory and regulatory provisions support its interpretation

of Sections 1226 and 1231. Dkt. No. 16 at 6. However, “the title

of a statute . . . cannot limit the plain meaning of the text.

For interpretive purposes, [the title] is of use only when it

sheds light on some ambiguous word or phrase.” Pa. Dep’t of

Corr. v. Yeskey, 524 U.S. 206, 212 (1998) (cleaned up); see also

INS v. St. Cyr, 533 U.S. 289, 308-09 (2001) (declining to rely

on a statute’s title where “the actual text of [the] provision”

did not support a party’s proposed interpretation). Here, the

“plain language” of Sections 1226 and 1231 indicate that Section

1226 governs the detention of an alien who has received both an

administratively final order of removal and a stay of that

removal pending judicial review. See Hechavarria, 891 F.3d at

53, 57.

Respondent cites but does not address this Court’s prior

holding on this question in Reid v. Donelan, 64 F. Supp. 3d 271,

276-77 (D. Mass. 2014). Nor does he explain why the Court ought

to disregard the holdings of the Second, Third, and Ninth

Circuits.

Instead, Respondent relies primarily on Eleventh Circuit

opinions, many of which do not directly examine the relationship

between Section 1226 and Section 1231. See Dkt. No. 16 at 6-7;

Linares v. Dep’t of Homeland Sec., 598 F. App’x 885, 887 n.2

(11th Cir. 2015) (assuming without deciding that petitioner’s

application for a judicial stay, along with other “obstructive

actions” such as refusing to provide a signature or board a

plane, warranted extension of Section 1231’s 90-day removal

period); De La Teja v. United States, 321 F.3d 1357, 1362-65

(11th Cir. 2003) (discussing applicability of Section 1231 in

case where petitioner had not appealed his removal order to the

court of appeals); Dini v. Warden, Etowah Cty. Detention Ctr.,

No. 4:19-cv-01065-RDP-JEO, 2019 WL 4888018, at *1 (N.D. Ala.

Oct. 3, 2019) (“In this Circuit, a stay of removal suspends the

time period set forth by § 1231(a)(1), rather than causing the

detention to revert to § 1226.”).

Respondent also cites this Court’s opinion in Rodriguez-

Guardado v. Smith, for the proposition that Section 1231’s

removal period is extended where an alien “secur[es] a

discretionary stay.” 271 F. Supp. 3d 331, 334 (D. Mass. 2017).

However, the petitioner in Rodriguez-Guardado sought stays of

removal from only ICE and the Board of Immigration Appeals,

rather than the circuit court. See id. at 333-34 & n.3. Thus,

the “judicial[] review[]” of Section 1231(a)(1)(B)(ii) was not

implicated. The Court need not address here the effect of an

administrative stay of removal.

After review of case law, the Court agrees with the

majority of the circuit courts and the Reid court that Section

1226 “continues to govern detention” where “a removal order has

been stayed” pending judicial review. Reid, 64 F. Supp. 3d at

276-77. Here, the First Circuit has stayed Petitioner’s removal

pending consideration of her petition for review. As such, the

90-day removal period under 8 U.S.C. § 1231(a)(1)(A) has not

begun. See 8 U.S.C. § 1231(a)(1)(B)(ii). Petitioner is therefore

currently detained under 8 U.S.C. § 1226(a). She remains a

member of the Brito Post-Hearing Class and may seek relief

consistent with the Court’s declaratory judgment in that case.

Petitioner has submitted a timely motion for

reconsideration and has demonstrated extraordinary circumstances

justifying extraordinary relief. Petitioner has established that

the Court’s March 19, 2020 order contained a clear legal error,

because Petitioner is currently detained under 8 U.S.C.

§ 1226(a) and therefore remains a member of Brito’s Post-Hearing

Class. Though it is unclear whether Petitioner will ultimately

prevail on her underlying Brito claim, the Government has not

argued that it will suffer unfair prejudice from a vacatur of

the Court’s March 19, 2020 order.

ORDER

The Court ALLOWS Petitioner’s motion for reconsideration

(Dkt. No. 13) and VACATES its March 19, 2020 Order (Dkt. No.

10). The Petitioner shall file a reply to Respondent’s response

(Dkt. No. 9) to the petition within 7 days of entry of this

Order.

SO ORDERED.

/s/ PATTI B. SARIS

Patti B. Saris

United States District Judge