Ortiz v. U.S. Department of Homeland Security

Background

Luis Ortiz filed a petition under 28 U.S.C. § 2241, a law allowing a person to challenge certain unlawful custody or detention, while he was incarcerated in the custody of the New York State Department of Corrections and Community Supervision. He proceeded without a lawyer. Ortiz challenged an immigration detainer issued by the U.S. Department of Homeland Security (DHS). He asserted that the detainer violated his rights and argued that he was a United States citizen through marriage.

The record described two removal orders against Ortiz. An immigration judge ordered his removal to El Salvador in 1998 after he did not appear for a removal hearing. A second removal order was issued in 2006 after Ortiz again did not appear. Ortiz did not appeal either order or ask to reopen either proceeding. He later returned to the United States under temporary parole to face a state criminal charge, pleaded guilty, and received a 10-year sentence. DHS issued the challenged detainer while he was held in county custody. Ortiz was not then physically detained by DHS, although DHS stated that it intended to detain him after his release from state custody.

Claims and Requests

DHS moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), which permits dismissal when the district court lacks authority to hear the case. Ortiz sought permission to amend his petition, add Edward Burnett and the New York State Department of Corrections and Community Supervision as respondents, challenge his eventual DHS confinement, and transfer the case to the Court of Appeals for the Second Circuit. He later asked the court to appoint immigration counsel.

The court granted Ortiz leave to amend. Because his arguments about the detainer challenged the validity of the 1998 and 2006 removal orders, the court treated the amended petition as an indirect challenge to those orders. The court did not construe the petition as challenging Ortiz’s current state confinement.

Court’s Analysis

The court relied on the REAL ID Act, which makes a petition for review filed in the appropriate federal court of appeals the sole and exclusive means of obtaining judicial review of a removal order. Because the district court was not the appropriate court of appeals, it held that it lacked jurisdiction to review either removal order. The court therefore dismissed the amended petition for lack of jurisdiction without deciding whether Ortiz was actually a United States citizen through marriage or whether he had received proper notice of the removal proceedings.

The court separately denied transfer under 28 U.S.C. § 1631. A removal-order review petition generally must be filed within 30 days after the order becomes final. Ortiz filed his original petition in 2022, more than 16 years after the 2006 order. The court stated that, even assuming the deadline could be extended under equitable-tolling principles, Ortiz had not shown the required diligence or extraordinary circumstances. The court noted that Ortiz acknowledged receiving notice of the immigration detainer in 2017 and still waited more than five years to file.

The court denied Ortiz’s request for appointed counsel as moot because the petition was jurisdictionally barred. It also stated that, even without the jurisdictional dismissal, the record did not warrant appointed counsel because Ortiz had not shown a viable claim.

Disposition

The court dismissed the amended petition for lack of jurisdiction, denied the request to transfer the petition to the Court of Appeals for the Second Circuit, and denied the request for appointed counsel as moot. It declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, denied fee-free status for an appeal, terminated the pending motions, and closed the case.