The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
JANITO DECARVALHO, )
)
Petitioner, )
)
v. ) CIVIL ACTION
) NO. 21-10060-WGY
STEVEN J. SOUZA, )
Superintendent of Bristol County )
House of Correction, )
)
Respondent. )
)
YOUNG, D.J. May 12, 2021
MEMORANDUM & ORDER
I. INTRODUCTION
The question before this Court is whether a detainee’s
removal is “reasonably foreseeable” when his pending appeal
before the First Circuit almost certainly will result in a
remand to the Board of Immigration Appeals. In the limited
circumstances at bar, this Court finds and rule that Petitioner
Janito DeCarvalho will be removed in the reasonably foreseeable
future because he remains practically deportable at this time.
See generally Zadvydas v. Davis, 533 U.S. 678 (2001).
II. BACKGROUND
A. Procedural History
On November 4, 2019, ICE Officers arrested DeCarvalho, and
the Department of Homeland Security initiated removal
proceedings. Pet. Writ Habeas Corpus (“Pet.”) ¶ 19, ECF No. 1.
On January 2, 2020, a hearing officer denied DeCarvalho’s
application for protection under the United Nations Convention
Against Torture (“U.N. Convention”). Id. ¶ 20. The hearing
officer “refused to allow . . . DeCarvalho to apply for
withholding of removal, finding him ineligible for withholding
based on former Attorney General John Ashcroft’s decision in
Matter of Y-L-, A-G-, R-S-R-, 23 I & N Dec. 270 (AG 2002)
(“Matter of Y-L”), which held that drug trafficking offenses are
particularly serious crimes that bar eligibility for withholding
of removal unless the individual can overcome the presumption by
meeting a stringent, six-criteria test.”1 Id.
This decision is significant because after the Board of
Immigration Appeals upheld the hearing officer’s decision,
DeCarvalho filed a petition of review in the First Circuit. Id.
¶ 23; see generally Opening Brief, DeCarvalho v. Rosen, No. 20-
1711 (1st Cir. Oct. 13, 2020), Doc. 117654788. His appeal
1 Despite the hearing officer finding DeCarvalho to be
credible, he ruled against DeCarvalho’s application for U.N.
Convention protection. Pet. ¶ 5.
challenges the legality of Matter of Y-L- and the denial of his
application for U.N. Convention protection both because the
Board of Immigration Appeals applied the wrong standard of
review and because the denial was not supported by substantial
evidence. Id. ¶ 24. The Department of Justice, acknowledging
that the Board of Immigration Appeals erred, moved to remand the
matter to allow the Board to apply Matter of Y-L- properly and
analyze whether DeCarvalho’s conviction is a particularly
serious crime. Id. ¶ 25. The First Circuit declined to remand
the matter because DeCarvalho’s appeal challenges both the
standard applied and the legality of the standard. Id.
Although the matter was fully briefed on January 11, 2021,
the First Circuit has not indicated whether it will schedule
oral argument. Id. With the Department of Justice
acknowledging that the Immigration Board of Appeals applied the
wrong standard, any decision by the First Circuit almost
certainly will require the matter to be reheard. Id. ¶ 26.
Accordingly, the government has yet to schedule DeCarvalho’s
removal. Id. ¶ 17.
In May 2020, after the hearing officer made his decision
but before DeCarvalho’s appeal, DeCarvalho filed a petition for
writ of habeas corpus under Reid v. Donelan, which Judge Saris
denied without prejudice because DeCarvalho had not been
detained for a year. 390 F. Supp. 3d 201 (D. Mass. 2019);
DeCarvalho v. Sousa, No. 1:20-cv-11036-PBS, at 6-8 (D. Mass June
29, 2020).
In November 2020, this Court denied DeCarvalho’s request
for release under Savino v. Souza. No. 1:20 cv-10617-WGY, at 5-
6 (D. Mass Apr. 10, 2020). This Court reasoned that there had
been a “dramatic reduction in the number of detainees presently
being held” at the Bristol County House of Correction. Order,
Savino v. Souza, No. 1:20 cv-10617-WGY (D. Mass. Dec. 18, 2020).
On January 12, 2021, DeCarvalho filed his petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. See Pet.
Respondent Steven Souza moved to dismiss the petition on
February 3, 2021. Mot. Dismiss, ECF No. 8; Mot. Dismiss Mem.,
ECF No. 9; see generally Opp’n, ECF No. 13. On April 1, 2021,
this Court denied the motion to dismiss, Electronic Clerk’s
Notes (Apr. 1, 2021), and held a show-cause hearing on April 15,
2021 for Souza to show that DeCarvalho’s removal is reasonably
foreseeable, Electronic Clerk’s Notes (Apr. 15, 2021).
B. Facts
DeCarvalho, a forty-one-year-old citizen of Cape Verde, has
been held by ICE in immigration detention for the past sixteen
months. Decl. Supervisory Detention Deportation Officer Yolanda
Marfissi ¶¶ 11, 21, ECF No. 9-1. He has a criminal history.
Id. ¶¶ 6-7. The Cape Verde government verified DeCarvalho’s
nationality in September of 2020, and ICE resumed removals to
Cape Verde in November of 2020. Id. ¶ 21. DeCarvalho had been
scheduled for removal on manifests to Cape Verde and
subsequently removed from the manifests pending the review of
his appeal before the First Circuit. Id.
III. ANALYSIS
Souza argues that DeCarvalho’s removal remains reasonably
foreseeable because the prerequisites for removal (i.e.,
verification of nationality, scheduled removals to Cape Verde,
inclusion on manifests thereto) are complete. DeCarvalho argues
that removal is not reasonably foreseeable because his appeal
before the First Circuit almost certainly will return to the
Board of Immigration Appeals because, notwithstanding his other
substantive challenges, all parties agree that the Board applied
the wrong standard of review. Souza’s argument is meritorious,
and this Court accordingly finds and rules that he met his
burden at the show-cause hearing.
A. Standard of Review
Chapter 28, section 2243 of the United States Code
provides:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the
writ or issue an order directing the respondent to
show cause why the writ should not be granted, unless
it appears from the application that the applicant or
person detained is not entitled thereto.
28 U.S.C. § 2243. The authority through which the petitioner is
detained dictates the parameters of their lawful detention and
whether he or she is entitled to relief. Under chapter 8,
section 1231 of the United States Code, once an unlawfully
present “alien is ordered removed, the Attorney General shall
remove the alien from the United States within a period of 90
days.” 8 U.S.C. § 1231(a)(1)(A). If, after 90 days, the
government has not removed the detainee, section 1231(a)(6)
allows the government to continue its detention “for a period
reasonably necessary to secure the alien’s removal.” Zadvydas,
533 U.S. at 682 (emphasis added). What qualifies as a period
reasonably necessary, or rather, what qualifies as a period
unreasonably necessary, has less to do with the detention’s
duration and more to do with the practicality of deportation.
See id. at 689-92, 699-700.
In answering that basic question, the habeas court
must ask whether the detention in question exceeds a
period reasonably necessary to secure removal. It
should measure reasonableness primarily in terms of
the statute’s basic purpose, namely, assuring the
alien’s presence at the moment of removal. Thus, if
removal is not reasonably foreseeable, the court
should hold continued detention unreasonable and
no longer authorized by statute.
Id. at 699–700 (emphasis added).
B. DeCarvalho’s Removal Is “Reasonably Foreseeable”
DeCarvalho argues that he is entitled to the writ because
there is no significant likelihood of removal in the reasonably
foreseeable future and section 1231(a) only authorizes detention
beyond the removal period for the purpose of effective removal.
See Pet. ¶¶ 34-49; Zadvydas, 533 U.S. at 699-700; 8 U.S.C. §
1231(a). At the hearing, Souza presented evidence that the
prerequisites for removal are complete and that ICE intends to
remove DeCarvalho after his appeal. Decl. Supervisory Detention
Deportation Officer Yolanda Marfissi ¶¶ 11, 21.2
Because foreseeability of deportation is a function of
whether a deportation is practicable, see Zadvydas, 533 U.S. at
699-700, Souza has demonstrated that DeCarvalho’s removal is
reasonably foreseeable by demonstrating its present
practicality. Therefore, on the present facts, this Court finds
and rules that DeCarvalho’s removal is reasonably foreseeable.
This order, however, does not preclude a future challenge by
DeCarvalho if the First Circuit rules in his favor, at which
point it would be appropriate for him to file another petition
2 Souza attached the same evidence proffered at the show-
cause hearing to his motion to dismiss. See generally Mot.
Dismiss. At that time, this Court did not consider Souza’s
attached evidence because to do so would have collapsed the
motion to dismiss with a show-cause hearing, which itself is a
remedy. See 28 U.S.C. § 2243. To do so would be inappropriate
because “Rule 11 of the Rules Governing Section 2254 Cases in
the United States District Courts provides that the Federal
Rules of Civil Procedure apply ‘to the extent that they are not
inconsistent with [habeas] rules.’” Banks v. Dretke, 540 U.S.
668, 687 n.8 (2004).
for writ of habeas corpus and for a court to consider those
changed circumstances.
IV. CONCLUSION
For the foregoing reasons, this Court DENIES DeCarvalho’s
petition, ECF No. 1.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE