UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
G.P.
v. Case No. 1:23-cv-322-PB Opinion No. 2024 DNH 001 Merrick B. Garland, U.S. Attorney General, et al.
MEMORANDUM AND ORDER
The petitioner in this habeas corpus case is a noncitizen who is subject
to a reinstated removal order. The government has detained the petitioner
while he litigates his claim that the Convention Against Torture (CAT) bars
his removal to his home country. The sole issue before the court, which is
presented on cross-motions for summary judgment, is whether the petitioner
is entitled to immediate release based on the Supreme Court’s decision in
Zadvydas v. Davis, 533 U.S. 678 (2001). For the reasons set forth in this
Memorandum and Order, I grant the government’s motion for summary
judgment and deny the petitioner’s cross-motion.
I. BACKGROUND
G.P. is a fifty-year-old citizen of the Dominican Republic who first
unlawfully entered the United States in 1993. Doc. 4 at 4. Shortly after he
arrived, G.P. was arrested on drug trafficking charges. Id. He was later
convicted and sentenced to seventeen years in prison. Id. In 2003, while G.P. was serving his prison sentence, he was charged
with removability under 8 U.S.C. §§ 1182(a)(6)(A)(i) (entering the United
States without inspection), (a)(7)(A)(i)(I) (failing to possess a valid
immigration document), (a)(2)(A)(i)(II) (having been convicted of a controlled
substance violation), and (a)(2)(C) (having reason to believe he was a
controlled-substance trafficker). Doc. 15-1 at 4. In February 2004, an
immigration judge (IJ) sustained the charges against G.P. and ordered his
removal to the Dominican Republic. Id.; Doc. 4-2 at 195-96. After G.P.
completed his criminal sentence, he was placed in immigration detention
while the government procured his travel documents. Doc. 15-1 at 5. In
January 2011, he was removed to the Dominican Republic. Id.; see Doc. 4-2 at
194.
G.P. unlawfully returned to the United States in 2017 and became
involved in a large fentanyl trafficking organization led by Sergio Martinez.
Doc. 4 at 4. He was later arrested and charged for his role in the scheme,
along with Martinez and more than thirty other individuals. Id. G.P.
subsequently entered into a cooperation agreement and testified against
Martinez at trial. Id. During G.P.’s testimony, Martinez abandoned the trial,
pleaded guilty, and received a forty-five-year prison sentence. Id. Although
G.P. also pleaded guilty to multiple drug charges, he was sentenced to only
2 three years in prison, in part because of his cooperation. Id.; see Doc. 4-2 at
167.
When G.P. completed his second prison sentence in October 2020, the
government reinstated his original removal order and continued to detain
him. 1 Doc. 15-1 at 4; Doc. 4-2 at 85, 194. Soon thereafter, G.P. informed the
government of his fear of returning to the Dominican Republic. Doc. 4 at 4.
The government referred him to an asylum officer for a reasonable fear
interview, and the officer determined that G.P.’s fear was credible. 2 Doc. 15-1
at 6; Doc. 4-2 at 200-215. He was then referred to an IJ for withholding-only
proceedings to determine whether he was entitled to deferral of removal
under the CAT. 3 Doc. 15-1 at 6; Doc. 4-2 at 198-199.
1 When a noncitizen reenters the United States without authorization after having been removed, he is subject to the expedited removal process set forth in 8 U.S.C. § 1231(a)(5). Under this provision, a noncitizen’s “prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed.” Id.
2 Reasonable fear interviews are provided to noncitizens who express a fear of returning to their country of removal during the removal or reinstatement processes but who, by virtue of their reinstated removal orders, are only eligible for withholding of removal or CAT relief. Rivera- Medrano v. Garland, 47 F.4th 29, 33 n.3 (1st Cir. 2022).
3 The CAT prohibits a noncitizen from being returned to his home country “where there are substantial grounds for believing that he would be in danger of being subjected to torture.” Convention Against Torture, 1465 U.N.T.S. 85 (1984). A noncitizen may not be removed from the United States to his home country if he can demonstrate “that it is more likely than not
3 An IJ held a hearing on G.P.’s CAT claim over the course of several
days between December 2, 2020, and March 30, 2021. Doc. 4-1 at 131-346.
During the hearing, G.P. testified that he feared retaliation by government
officials and Martinez’s affiliates because of his testimony in the Martinez
case and status as a criminal deportee. Doc. 4-1 at 115; G.P. v. Garland, No.
21-2002, 2023 WL 4536070, at *1 (1st Cir. July 13, 2023). He also called an
expert witness on Dominican Republic country conditions, Dr. David
Brotherton, who “testified extensively about the treatment removed criminals
face in the Dominican Republic . . . as well as about extrajudicial killings by
police, government corruption by cartels, and the consequences that members
of criminal organizations face for cooperating with the government.” G.P.,
2023 WL 4536070, at *2; see Doc. 4-1 at 125-27.
The IJ denied G.P.’s CAT claim in an April 2021 decision. Doc. 4-1 at
109-18. Although the IJ determined that G.P. and Dr. Brotherton were both
credible witnesses, he assigned “limited weight” to Dr. Brotherton’s
testimony and concluded that the remaining evidence was “too speculative” to
support G.P.’s claim. Id. at 125-27. In reaching these conclusions, the IJ
discounted Dr. Brotherton’s expertise on country conditions in the Dominican
Republic because he lacked “recent first-hand knowledge, research, or
that he . . . would be tortured” there. 8 C.F.R. § 1208.16(c) (2023); see also 8 C.F.R. § 208.16(c) (2023).
4 connections in the Dominican Republic.” Id. at 125. He similarly concluded
that Dr. Brotherton’s opinion as to G.P.’s risk of torture was not persuasive
because he lacked direct knowledge of the risk posed by the Martinez group.
Id. at 127. G.P. appealed the IJ’s decision to the Board of Immigration
Appeals (BIA), which dismissed his challenge in December 2021. Id. at 6-12.
G.P. then appealed the BIA’s decision to the First Circuit, Doc. 5, and that
court stayed his removal pending its review of his CAT claim, Doc. 4-8.
In July 2023, the First Circuit vacated the BIA and IJ’s decisions and
remanded the case for further proceedings, finding that the IJ had
improperly discounted Dr. Brotherton’s testimony. G.P., 2023 WL 4536070, at
*1, *8. The court disagreed with the IJ’s finding that Dr. Brotherton’s country
conditions expertise was “stale” in light of the undisputed evidence that
conditions in the Dominican Republic had not substantially changed since Dr.
Brotherton acquired his expertise. Id. at *5. The court also determined that
the IJ should have credited Dr. Brotherton’s testimony even though he did
not have “direct knowledge” of the Martinez group because, as an expert, Dr.
Brotherton was entitled to base his opinions on the undisputed evidence
supplied by G.P. about the group. Id. at *7. Accordingly, the court concluded
that “[i]n deciding whether G.P. is entitled to relief on remand, Brotherton’s
testimony should be afforded full weight.” Id. at *8.
5 While his appeal was still pending, G.P. filed a motion for temporary
release with the First Circuit. See Doc. 1; Doc. 4. That court transferred the
motion to this court in June 2023 with instructions to treat it as a habeas
corpus petition under 28 U.S.C. § 2241(b). June 15, 2023 Docket Entry. The
parties then filed cross-motions for summary judgment in August 2023. Doc.
17; Doc. 18.
II. STANDARD OF REVIEW
Summary judgment is warranted when the record shows “no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Tang v. Citizens Bank, N.A., 821 F.3d
206, 215 (1st Cir. 2016). A “material fact” is one that has the “potential to
affect the outcome of the suit.” Cherkaoui v. City of Quincy, 877 F.3d 14, 23
(1st Cir. 2017) (quoting Sanchez v. Alvarado, 101 F.3d 223, 227 (1st Cir.
1996)). A “genuine dispute” exists if a factfinder could resolve the disputed
fact in the nonmovant’s favor. Ellis v. Fid. Mgmt. Tr. Co., 883 F.3d 1, 7 (1st
Cir. 2018).
The movant bears the initial burden of presenting evidence that “it
believes demonstrate[s] the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); accord Irobe v. U.S. Dep’t
of Agric., 890 F.3d 371, 377 (1st Cir. 2018). Once the movant has properly
presented such evidence, the burden shifts to the nonmovant to designate
6 “specific facts showing that there is a genuine issue for trial,” Celotex, 477
U.S. at 324, and to “demonstrate that a trier of fact could reasonably resolve
that issue in its favor.” Irobe, 890 F.3d at 377 (cleaned up) (quoting Borges ex
rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010)). If the
nonmovant fails to adduce such evidence, the motion must be granted.
Celotex, 477 U.S. at 324. In considering the evidence, the court must draw all
reasonable inferences in the nonmoving party’s favor. Theriault v. Genesis
HealthCare LLC, 890 F.3d 342, 348 (1st Cir. 2018). On cross-motions for
summary judgment, the standard of review is applied “to each motion
separately.” See Am. Home Assurance Co. v. AGM Marine Contractors, Inc.,
467 F.3d 810, 812 (1st Cir. 2006).
III. ANALYSIS
G.P. is being detained pursuant to 8 U.S.C. § 1231(a)(6). In Zadvydas,
the Supreme Court construed § 1231(a)(6) narrowly to limit the government’s
detention authority when a noncitizen faces the prospect of indefinite
detention because there is no significant likelihood that he will be removed in
the reasonably foreseeable future. 533 U.S. at 701. The issue presented by
G.P.’s habeas corpus petition is whether Zadvydas applies to noncitizens, like
him, who are engaged in ongoing efforts to challenge their return to their
home country.
7 A. Detention During Removal Proceedings
The Immigration and Nationality Act, codified at 8 U.S.C. § 1101 et
seq., includes several provisions that authorize the government to detain
noncitizens who are subject to removal. Before a removal order is issued, the
government’s detention authority is governed by 8 U.S.C. § 1226. But once a
noncitizen is “ordered removed,” that authority shifts to 8 U.S.C. § 1231.
Section 1231(a)(1)(A) establishes a ninety-day “removal period” during which
the noncitizen must be detained. 4 If, however, the government is unable to
remove the noncitizen during the removal period, he ordinarily must be
released under supervision pursuant to § 1231(a)(3). Notwithstanding this
general directive, § 1231(a)(6) provides that a noncitizen “may be detained
beyond the removal period” if he (1) is inadmissible, (2) has violated his
nonimmigrant status or conditions of entry, (3) has been previously convicted
of certain crimes, including most controlled substance offenses, (4) is
removable for national security or foreign policy reasons, or (5) has been
deemed a risk to the community or unlikely to comply with the removal order
by the Attorney General.
Zadvydas addressed the consolidated habeas corpus petitions of two
noncitizens who were subject to final removal orders but faced the prospect of
4 The removal period begins to run on the latest of: (1) the date the order of removal becomes “administratively final”; (2) if a court reviewing the
8 permanent detention pursuant to § 1231(a)(6) because the government could
not find a country to accept them. 533 U.S. at 684-86. There, the Court
framed the issue as whether § 1231(a)(6) “authorizes the Attorney General to
detain a removable alien indefinitely beyond the removal period or only for a
period reasonably necessary to secure the alien’s removal.” Id. at 682
(emphasis in original). In answering that question, the Court construed
§ 1231(a)(6) to include an “implicit ‘reasonable time’ limitation” that was
required to avoid the “serious constitutional concerns” that would otherwise
arise if noncitizens could be detained indefinitely after removal proceedings
had come to an end. Id. As the Court explained the new limitation, if a
noncitizen has been detained for more than six months, and he provides
“good reason to believe that there is no significant likelihood of removal in
the foreseeable future,” then the noncitizen must be released under
supervision unless the government can rebut the noncitizen’s showing. Id. at
701. “[A]s the period of prior postremoval confinement grows,” the Court
noted, “what counts as the ‘reasonably foreseeable future’ conversely would
have to shrink.” Id.
removal order stays removal, “the date of the court’s final order”; or (3) if the noncitizen is detained for nonimmigration-related reasons, “the date the alien is released from detention or confinement.” § 1231(a)(1)(B). A reinstated removal order becomes administratively final when it is reinstated. Johnson v. Guzman Chavez, 594 U.S. ----, 141 S. Ct. 2271, 2284 (2021).
9 B. G.P.’s Argument
G.P. has been detained for more than three years as he awaits the
resolution of his CAT claim. Unlike the petitioners in Zadvydas, however, he
does not face the prospect of indefinite detention. If his claim fails, he will be
removed to the Dominican Republic. If it succeeds, the government will have
to release him unless it can promptly find another country to accept him. G.P.
nevertheless argues that he does not need to wait to claim his right to
immediate release because Zadvydas’s reasonable time limitation applies at
any point during the removal process so long as a noncitizen can show there
is no significant likelihood that he will be removed in the reasonably
foreseeable future. See Doc. 18-1 at 3. He then argues that he is entitled to be
released now because he has already been detained for more than three
years, he faces a long period of additional detention, and the First Circuit’s
remand order will eventually require the IJ to grant his CAT claim, leaving
the government with no ability to remove him to the Dominican Republic or,
potentially, anywhere else. Id. at 3, 8, 11. I am unpersuaded by G.P.’s
arguments because Zadvydas does not apply to cases like his where there is
no prospect of indefinite detention.
The Zadvydas Court adopted a narrow reading of the government’s
detention authority under § 1231(a)(6) to address the serious constitutional
concerns that arise when the government seeks to detain noncitizens who are
10 subject to removal orders but cannot be removed because no country will
accept them. As the Court noted, detention during the removal process can be
justified to the extent that it serves two goals: “ensuring the appearance of
aliens at future immigration proceedings and preventing danger to the
community.” Id. at 690 (cleaned up). Once removal proceedings have
concluded, however, the first justification fades away. Id. Although the
second justification continues to be a legitimate concern even when detention
may be permanent, that concern can ordinarily justify permanent detention
only if the risk to the community is severe, the authority to detain is subject
to strong procedural protections, and special circumstances such as mental
illness increase the danger to the community. Id. at 691. Accordingly, when a
statute authorizes the government to indefinitely detain a noncitizen without
any special evidence of dangerousness and only minimal procedural
protections, neither assuring the noncitizen’s appearance at future
immigration proceedings nor protecting the public can justify his indefinite
detention, and any statute that authorizes such detention is constitutionally
suspect. Id. at 692.
Construing § 1231(a)(6) to authorize detention while withholding-only
proceedings are ongoing ordinarily does not present the same constitutional
concerns that the Court faced in Zadvydas. Because proceedings have not
ended, the government retains a strong interest in ensuring the noncitizen’s
11 presence at future proceedings. And because the detention will end when the
noncitizen is granted or denied withholding-only relief, the constitutional
concerns presented by a noncitizen’s temporary detention are less compelling.
Accordingly, I follow those courts that have declined to extend Zadvydas to
cases where a noncitizen is engaged in ongoing immigration proceedings. See
e.g. Martinez v. LaRose, 968 F.3d 555, 565 (6th Cir. 2020) (detention
pursuant to § 1231(a)(6) pending withholding-only proceedings); Prieto-
Romero v. Clark, 534 F.3d 1053, 1065 (9th Cir. 2008) (detention pursuant to
§ 1226(a) pending judicial review of his removal order); Soberanes v. Comfort,
388 F.3d 1305, 1311 (10th Cir. 2004) (detention during ongoing effort to
reopen removal proceedings); Obikanye v. I.N.S., 78 F. App’x 769, 772 (2d
Cir. 2003) (detention during pendency of asylum and withholding only
proceedings); Castellanos v. Holder, 337 F. App’x 263, 267-68 (3rd Cir. 2009)
(detention during ongoing challenge to removal); Cabrera Galdamez v.
Mayorkas, No. 22 Civ. 9847, 2023 WL 1777310, at *8 (S.D.N.Y. Feb. 6, 2023)
(detention under § 1231(a)(6) pending the resolution of withholding-only
proceedings); Mezan v. U.S. Dep’t of Homeland Sec., 2019 DNH 175, 2019 WL
4804804, at *3 (D.N.H. Oct. 1, 2019) (detention under § 1231(a)(6) pending
efforts to challenge removal order).
G.P. nevertheless argues that he is entitled to immediate release even
if Zadvydas generally does not apply when withholding-only proceedings are
12 ongoing because the First Circuit’s remand order makes it so likely that he
will prevail on his CAT claim that I should conclude that his removal to the
Dominican Republic is no longer reasonably foreseeable. Doc. 18-1 at 9-10. I
am unpersuaded by this argument. Although I agree that the First Circuit’s
direction to the IJ to give “full weight” to Dr. Brotherton’s testimony on
remand makes it more likely that he will prevail, his success is not
guaranteed, and I am in no position to speculate as to how the hearing on
remand will unfold. Accordingly, I decline to grant G.P. the relief he seeks at
the present time.
In rejecting G.P.’s Zadvydas claim, I do not leave noncitizens who are
detained during protracted withholding-only proceedings without a means to
challenge the lawfulness of their detention. Zadvydas is a statutory
construction case. Noncitizens who have been detained during lengthy
withholding-only proceedings retain the right to challenge their detention on
constitutional grounds even though their proceedings are ongoing. See e.g.
Cabrera Galdamez, 2023 WL 1777310, at *7-8 (rejecting the petitioner’s
Zadvydas claim but finding a right to a bond hearing based on the Due
Process Clause). Moreover, when a court addresses a Zadvydas claim, the
only remedy the court can produce is immediate release under conditions. See
Johnson v. Arteaga-Martinez, 596 U.S. 573, 583 (2002) (rejecting a claim that
Zadvydas entitled the petitioner to a bond hearing before an IJ). In contrast,
13 when a court considers a due process claim, it may tailor relief to the specific
problem that gives rise to the due process violation. See e.g., Cabrera
Galdamez, 2023 WL 1777310, at *7-8. Because, however, G.P. has made a
deliberate decision not to assert a constitutional claim, I need not determine
what procedural protections noncitizens are entitled to when they face
prolonged detention while removal proceedings are ongoing.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion for summary
judgment (Doc. 17) is granted, and petitioner’s motion (Doc. 18) is denied.
SO ORDERED.
/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge
January 29, 2024
cc: Counsel of Record