United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING PETITION FOR WRIT OF HABEAS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Kumar,  a citizen of India, is being held in
immigration detention at the Chippewa County Correctional
Facility, in Sault Ste. Marie, Michigan. He has been detained
since August 22, 2018; he was ordered removed from the United
States on November 5, 2018. Kumar's appeal of the final
order of removal is currently pending on appeal before the
Board of Immigration Appeals. He filed a writ of habeas
corpus with this Court under 28 U.S.C. § 2241 claiming
that he was improperly denied bond in violation of his rights
under the Fifth Amendment's Due Process Clause. Kumar
further challenges the length of his detention as well as his
classification as a high-security prisoner and the conditions
of confinement he was subjected to on May 19, 2019. As
relief, he requests that this Court order his immediate
release from immigration detention. Because this Court lacks
subject-matter jurisdiction to review the Attorney
General's discretionary decision to deny Kumar bond and
instead to hold him in custody for the pendency of his
removal proceedings, it will dismiss with prejudice his
application for a writ of habeas corpus.
is a citizen of India who was admitted to the United States
in 2011 as a nonimmigrant visitor in Boston, Massachusetts.
See ECF No. 6-1, PageID.36 (Parminderjit Sidhu
Decl.). He was authorized to remain in the United States only
until January 20, 2012 but stayed well beyond that date.
Id. On March 16, 2018, Kumar filed a Form I-589
Application for Asylum and for Withholding of Removal with
United States Citizenship and Immigration Services
(“USCIS”). Id. While that application
was pending, Kumar was arrested in Grand Rapids, Michigan on
an assault charge and held in the Kent County Jail.
Id. He was released from jail on August 21, 2018 and
taken into custody by Immigration and Customs Enforcement
(“ICE”). Id. The next day, USCIS
initiated removal proceedings against Kumar. Id. He
requested that an immigration judge review his custody status
and on October 2, 2018 an immigration judge in Detroit,
Michigan denied bond, finding that Kumar posed a danger to
the community. Id. The following day, Kumar filed a
motion for reconsideration or for a new bond hearing based on
a material change in circumstances. Id. at
PageID.37. A second bond hearing was held on November 5, 2018
and the immigration judge again denied bond, determining that
Kumar posed a danger to the community as well as a flight
risk. Id. Kumar appealed that bond determination to
the Board of Immigration Appeals (“BIA”) but the
appeal was denied as untimely filed. Id. He then
filed another application for asylum under the Convention
Against Torture. See Id. On November 5, 2018, the
immigration judge deemed Kumar's asylum application
abandoned and ordered his removal from the United States.
Id. Kumar appealed that decision and the BIA
ultimately remanded the case back to the immigration judge,
finding that Kumar had received ineffective assistance from
his counsel, who had not filed a legible copy of the asylum
application, leading to its denial. Id. Finally, on
August 26, 2019, after a hearing, the immigration judge
denied Kumar's applications for asylum. Id. He
appealed that decision to the BIA, where it remains pending.
Id. The appellate briefs from Kumar and ICE were due
to the BIA by October 11, 2019. Id. If the BIA
affirms the immigration judge's order of removal, Kumar
will likely be removed from the United States within the next
several weeks. See Id. at PageID.37-38.
writ of habeas corpus does not act upon the prisoner who
seeks relief, but upon the person who holds him in what is
alleged to be unlawful custody.” Braden v. 30th
Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95
(1973). A court therefore has jurisdiction over a habeas
petition only if it has personal jurisdiction over the
petitioner's custodian. Id. at 405. “As a
general rule, a petition should name as a respondent to his
habeas corpus petition, ‘the individual having
day-to-day control over the facility in which [the alien] is
being detained.'” Roman v. Ashcroft, 340
F.3d 314, 319-20 (6th Cir. 2003) (citing Vasquez v.
Reno, 233 F.3d 688, 696 (1st Cir. 2000)). This is
frequently referred to as the “immediate custodian
rule.” Roman, 340 F.3d at 319-20. The
immediate custodian typically is either the warden of the
facility where the alien is detained or, in the immigration
detention context, the Immigration and Customs Enforcement
(“ICE”) Director of the district where the alien
is being detained. See Id. at 320. Although the
warden of each detention facility “technically has
day-to-day control over alien detainees, the [ICE] District
Director for the district where a detention facility is
located ‘has power over' alien habeas corpus
petitioners” and is therefore an appropriate respondent
according to the Sixth Circuit's decision in
Roman. See Id. (citing Henderson v.
I.N.S., 157 F.3d 106 (2d Cir. 1998)); see also
Kholyavskiy v. Achim, 443 F.3d 946, 950 (7th Cir. 2006)
(explaining that circuits are divided on the question of
whether a detained alien challenging his impending removal
must name the warden of his detention facility in a habeas
petition, or may name an immigration official
Petitioner has named as the only respondent in his case
Michael Klinger, District Director of the Bureau of
Immigration and Customs Enforcement for the Detroit, Michigan
Field Office. Other courts in this district interpreting the
Sixth Circuit's decision in Roman v. Ashcroft
have found that the ICE District Director is an appropriate
party to be sued in a case where the petitioner, like Kumar,
is detained pending completion of removal proceedings.
See, e.g., Hamama v. Adducci, No. 17-cv-11910, 2017
WL 2806144 (E.D. Mich. June 26, 2017); Rosciszewski v.
Adducci, 983 F.Supp.2d 910 (E.D. Mich. 2013); Khodr
v. Adduci, 697 F.Supp.2d 774, 776 (E.D. Mich. 2010);
Uljic v. Baker, No. 06-13106, 2006 WL 2811351 (E.D.
Mich. Sep. 28, 2006). As the ICE District Director for the
State of Michigan, Klinger is therefore properly named as a
respondent in this case. But the Court lacks subject-matter
jurisdiction to review the Attorney General's
discretionary bond termination and accordingly must dismiss
Kumar's petition. See 8 U.S.C. § 1226(e).
Fifth Amendment's Due Process Clause forbids the
government from depriving any person of liberty without due
process of law. Zadvydas v. Davis, 533 U.S. 678, 690
(2001). It is “well settled” that the Due Process
Clause applies to all individuals within the United States,
including aliens, whether their presence here is unlawful or
lawful. Cuello v. Adduci, No. 10-13641, 2010 WL
4226688, at *5 (E.D. Mich. Oct. 21, 2010) (citing
Zadvydas, 533 U.S. at 693). Before removal, the
authority to detain an alien is governed by 8 U.S.C. §
1226, which provides that, “[o]n a warrant issued by
the Attorney General, an alien may be arrested and detained
pending a decision on whether the alien is to be removed from
the United States.” Parlak v. U.S. Immigration and
Customs Enf't, Case No. 05-2003, 2006 WL 3634385, at
*1 (6th Cir. Apr. 27, 2006). The Attorney General “may
continue to detain the arrested alien” or release the
alien on bond or conditional parole so long as the alien has
not been convicted of one of the enumerated categories of
criminal offenses or terrorist activities, which it appears
from the record Kumar has not been. 8 U.S.C. §§
1226(a)(1), (2); 8 U.S.C. § 1226(c)(1); see
Cuello, 2010 WL 4226688 at *5 (citing Agyeman v.
INS, 74 Fed.Appx. 691, 693 (9th Cir. 2003)). This
discretion is exercised in the form of an individualized bond
hearing at the outset of detention, which the alien is
entitled to under 8 C.F.R. §§ 236.1(d)(1),
1236.1(d)(1). See Cuello, 2010 WL 4226688 at *5
(citing Contant v. Holder, 352 Fed.Appx. 695 (3d
Cir. 2009)). Whether bond is granted depends on consideration
of factors such as flight risk and danger to the community.
Kira v. Jennifer, No. 01-CR-70559-DT, 2001 WL
558231, at *2 (E.D. Mich. Mar. 29, 2001). Once the Attorney
General exercises his or her discretion by deciding whether
the alien should be detained or released on bond, the alien
may seek review of that decision by an immigration judge, as
Kumar did in this case. 8 C.F.R. § 236.1(d); see
Cuello, 2010 WL 4226688 at *5; Pisciotta v.
Ashcroft, 311 F.Supp.2d 445, 449 (D.N.J. 2004);
Zavala v. Ridge, 310 F.Supp.2d 1071, 1074 (N.D. Cal.
2004). Critically, the Attorney General's exercise of his
or her discretion in making a bond determination regarding
aliens detained pursuant to § 1226(a) is not reviewable
by this Court. 8 U.S.C. § 1226(e). As stated by §
1226(e), “[n]o court may set aside any action or
decision by the Attorney General under this section regarding
the detention or release of any alien or the grant,
revocation, or denial of bond or parole.” The Court
thus lacks subject-matter jurisdiction to review the Attorney
General's decision to twice deny Kumar bond.
this Court had jurisdiction to review denial of Kumar's
bond, the Supreme Court's decision in Jennings v.
Rodriguez, 138 S.Ct. 830 (2018) expressly foreclosed any
argument that Kumar is entitled to additional periodic bond
hearings under the Due Process Clause or that the length of
his detention prior to the bond hearings should inform the
decision about whether he will be released on bond.
Additionally, the Sixth Circuit, in Ly v. Hansen,
351 F.3d 263, 268 (6th Cir. 2003), held that pre-removal
detention is permissible “for a time reasonably
required to complete removal proceedings in a timely
manner.” Kumar has been held in custody only during the
pendency of his removal proceedings, which have included
several appeals to the BIA. This is not the type of case
where “actual removal is not reasonably foreseeable,
” as was the case in Ly. 351 F.3d at 273
(citing Zadvydas, 533 U.S. at 690). To the contrary,
here an immigration judge has already ordered Kumar's
removal and that order is now pending on appeal to the BIA,
with briefs from the parties due on October 11, 2019. A final
decision on whether Kumar will be removed from the United
States is likely imminent.
Petitioner's claim regarding his security classification
is not cognizable because incarcerated individuals have no
constitutional right to be held in a specific security
classification. Simmons v. Curtin, No. 10-cv-14751,
2010 WL 5279914, at *2 (E.D. Mich. Dec. 17, 2010) (citing
Olim v. Wakinekona, 461 U.S. 238, 245-46 (1983)).
Similarly, his challenge to the conditions of confinement
that existed on a particular night during his detention must
be litigated via a civil rights suit, not a habeas petition.
See Martin v. Overton, 391 F.3d 710, 714 (6th Cir.
2004). Habeas petitions submitted pursuant to § 2241 may
challenge only the fact of conviction or detention, or the
duration of the petitioner's sentence.
these reasons, Petitioner Naresh Kumar's petition for a
writ of habeas corpus under 28 U.S.C. § 2241 is
DISMISSED with prejudice.