Emerson Garcia Alvarez v. Christopher Brackett, Superintendent, Strafford County Department of Corrections

2020 DNH 039

• Court: District Court, D. New Hampshire
• Decided: March 13, 2020
• Docket: 20-cv-334-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Emerson Garcia Alvarez Case No. 20-cv-334-PB v. Opinion No. 2020 DNH 039

Christopher Brackett, 1 Superintendent, Strafford County Department of Corrections

O R D E R

Before me is Emerson Garcia Alvarez’s petition for a writ

of habeas corpus under 28 U.S.C. § 2241 (Doc. No. 1), which

petitioner filed pro se while in the custody of Immigration and

Customs Enforcement (“ICE”) at the Strafford County Department

of Corrections (“SCDC”). Garcia Alvarez asks that I order his

release, pending the adjudication of his immigration claim under

the Violence Against Women Act (“VAWA”) and stop his impending

removal. Compl., Doc. No. 1 at 2, 7. The petition is before me

to determine whether it is facially valid and may proceed. See

Rule 4 of the Rules Governing Section 2254 Cases (“Section 2254

Rules”); see also Section 2254 Rule 1(b) (authorizing court to

1 When petitioner filed this petition in the District of Massachusetts, he named the “Department of Homeland Security” as a respondent. Compl., Doc. No. 1 at 1. When Chief Judge Patti Saris transferred this matter to this District, she determined that Superintendent Brackett was a proper respondent because he is the petitioner’s immediate custodian. Transfer Order, Doc. No. 6 at 1. apply Section 2254 Rules to Section 2241 petitions); LR

4.3(d)(4).

It is not apparent on the face of the petition that I have

jurisdiction to hear this matter. Cf. E.F.L. v. Prim, No. 20-cv-

72, 2020 WL 586803, at * 3–7 (N.D. Ill. Feb. 6, 2020)

(concluding that the district court lacked jurisdiction over

habeas petition because petitioner’s only available route to

challenge her detention and removal pending the outcome of her

VAWA case was an appeal to the Circuit Court). It it is,

however, similarly not clear that the claims are meritless.

Service shall, therefore, be effected by the clerk’s immediate

delivery of the Petition and this Order to the United States

Attorney for the District of New Hampshire, and by sending the

same documents by certified mail to the Acting Director of the

ICE Field Office in Burlington, MA. See Section 2254 Rule 3(b).

Service upon the SCDC Superintendent shall be effected by

providing the same documents to the U.S. Marshals Service for

service upon Brackett, pursuant to Fed. R. Civ. P. 4(j)(2).

Petitioner shall have seven days to supplement the pro se

petition, including by adding any necessary federal respondents.

The federal government respondents shall then respond to the

supplemented petition. The clerk shall set a status conference

for March 16, 2020 at 5:00 pm. The Superintendent shall not be

required to respond until further order of the court.

2 The clerk’s office is directed to immediately provide a

copy of this order to the District of New Hampshire United

States Attorney’s Office Civil Bureau Chief. In addition, going

forward, respondents shall provide this court with at least 48

hours’ advance notice of any scheduled removal or transfer of

Petitioner out of this court’s jurisdiction.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

March 13, 2020

cc: U.S. Attorney’s Office Emerson Garcia Alvarez, pro se