Reinoso Pichardo v. Department of Homeland Security (DHS)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

GERALD FREDE REINOSO )

PICHARDO, )

)

Petitioner, )

) Civil Action No.

v. ) 21-11887-FDS

)

DEPARTMENT OF HOMELAND )

SECURITY, et al., )

)

Respondents. )

____________________________________)

AMENDED MEMORANDUM AND ORDER

SAYLOR, C.J.

This is a pro se petition for a writ of habeas corpus that includes a request for a stay of

removal. For the reasons set forth below, the petition will be denied without prejudice, and the

request for a stay will be transferred to the Court of Appeals for consideration as possible a

petition for judicial review of an order of removal under 8 U.S.C. § 1252(a)(5).

I. Background

On November 18, 2021, petitioner Gerald Frede Reinoso Pichardo, an immigration

detainee currently confined at the Plymouth County Correctional Facility, filed a one-page

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition also seeks a stay of

removal to provide petitioner “time for further filings and proceedings.” (Petition, 1 at p. 1).

The petition names as respondents the Department of Homeland Security, Immigration and

Customs Enforcement, and the Plymouth County Sheriff’s Department. Id.

The petition states that petitioner “was convicted in the state of Rhode Island for

possession of guns and intent to deliver fentanyl and mail fraud.” (Petition, 1 at p. 1). It further

states that his “application for relief was denied by the Immigration Judge based on the finding

that the petitioners’ conviction qualified as an aggravated felony under the Immigration and

Nationality Act.” Id. He appealed to the Board of Immigration Appeals, but his “counsel

[withdrew] the application and it was dismissed.” Id. The petition alleges that he has been held

in immigration custody for more than six months. Id.

On November 23, 2021, petitioner filed a letter with the Court “with the purpose of

getting mercy [and] explaining [his] case and situation.” (Letter, 3 at p. 1). In the letter, he

recounts the circumstances surrounding his state-court convictions. Id.

II. Preliminary Screening

The petition has not been served pending the court’s preliminary review. See 28 U.S.C. §

2243 (providing that, if “it appears from the application [for a writ of habeas corpus] that the

applicant . . . is not entitled [to the writ],” the district court is not required to serve the petition on

the respondent); see also Rule 4 of the Rules Governing Habeas Corpus Cases under Section

2254 (providing that, if it “plainly appears from the face of the [habeas] petition . . . that the

petitioner is not entitled to relief in the district court,” the court “must dismiss the petition”).1

III. The Petition Fails to State a Plausible Claim for Relief

Section 2241 gives district courts jurisdiction to hear a habeas corpus petition alleging

that the petitioner is held “in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (holding “§ 2241

1 Rule 4 may be applied at the discretion of the district court to other habeas petitions. See Rule 1(b) of the

Rules Governing Habeas Corpus Cases under Section 2254.

habeas corpus proceedings remain available as a forum for statutory and constitutional

challenges to post-removal-period detention” in immigration cases).

In Zadvydas, the Supreme Court addressed whether 8 U.S.C. § 1231(a)(6) authorized the

Government to detain an alien subject to a final order of removal for more than the ninety-day

statutory period to secure his removal. Zadvydas, 533 U.S. at 682. Because “indefinite detention

of [such] aliens . . . would raise serious constitutional concerns,” the court read § 1231(a)(6) to

“contain an implicit ‘reasonable time’ limitation.” Id. “[T]o guide lower court determinations,”

the court concluded that a “presumptively reasonable period of detention” was six months after

entry of the final order of removal. Id. at 701. After six months, “once the alien provides good

reason to believe that there is no significant likelihood of removal in the reasonably foreseeable

future, the Government must respond with evidence sufficient to rebut that showing.” Id.

Here, the petition fails to plead any facts, or provide any evidence, showing that

petitioner’s removal is not likely in the reasonably foreseeable future or that there is a legal

impediment to his removal from the United States. And other than the statement that he has been

in immigration custody for more than six months, there are no factual allegations concerning his

continued detention. Thus, any challenge to his continued detention is subject to dismissal

because the petition fails to include “enough facts to state a claim to relief that is plausible on its

face.” Bell Atl. Corp. v Twombly, 550 U.S. 544, 570 (2007).

The petition will therefore be dismissed without prejudice to the filing of a renewed

petition alleging that petitioner has been detained beyond the presumptively reasonable six-

month period and that there is no significant likelihood of his removal in the reasonably

foreseeable future.

IV. This Court Is Without Jurisdiction to Issue a Stay of Removal

To the extent petitioner seeks a stay of removal, this court is without jurisdiction to grant

such relief. The relevant statutes provide that the courts of appeals shall have exclusive

jurisdiction over such claims. See 8 U.S.C. § 1252(a), (b)(9) and (g). Judicial review lies

exclusively in the appropriate court of appeals. See 8 U.S.C. § 1252(a)(5) (“a petition for review

filed with an appropriate court of appeals in accordance with this section shall be the sole and

exclusive means for judicial review of an order of removal entered or issued under any provision

of this chapter”). The request for a stay therefore cannot be granted by this Court.

V. The Request for a Stay Will Be Transferred to the Court of Appeals

Pro se submissions are subject “to less stringent standards than formal pleadings drafted

by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Under the circumstances, a transfer

of the request for stay of removal may be warranted in the interests of justice pursuant to 28

U.S.C. § 1631. That statute provides that if a court lacks jurisdiction over an action, that court

may transfer such action to any other court in which the action could have been brought at the

time it was filed or noticed, if it is in the interests of justice, and the action shall proceed as if it

had been filed on the date upon which it which it was actually filed in the transferee court. As

noted, a court of appeals has the authority to review an order of removal. While it is unclear

whether the First Circuit is the appropriate court to conduct such a review, in the interests of

justice the Court will transfer the request for stay to that court rather than deny it outright.

VI. Order

For the foregoing reasons

1. The petition for a writ of habeas corpus is DENIED without prejudice.

2. The request for a stay of removal is hereby TRANSFERRED to the United States

Court of Appeals for the First Circuit for consideration as a possible petition for

judicial review of an order of removal under 8 U.S.C. § 1252(a)(5).

3. The clerk is directed to close this matter.

So Ordered.

/s/ F. Dennis Saylor IV

F. Dennis Saylor IV

Dated: November 30, 2021 Chief Judge, United States District Court