Ramos De La Rosa v. Department of Homeland Security

Background

Jonathan Silvano Ramos de la Rosa filed a petition under 28 U.S.C. § 2241 seeking release from custody and an order stopping his removal. He challenged the removal order issued in 2010, arguing that his prior convictions did not support removal and that he was entitled to relief based on his circumstances and pending applications for immigration relief.

Ramos had been removed to the Dominican Republic in 2010 after an immigration judge found him removable based on convictions for drug-trafficking and firearm offenses. He later reentered the United States and was detained by the Bureau of Prisons at the Metropolitan Correctional Center while awaiting trial on a federal charge of illegal reentry. The opinion states that he was not detained by the Department of Homeland Security and that the record did not show DHS was trying to remove him before the federal criminal charge was resolved.

The Department of Homeland Security moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). It argued that the court lacked subject-matter jurisdiction because DHS was not detaining Ramos, that the petition was premature, that the REAL ID Act barred the district court from reviewing his removal order, and that the petition failed to state a plausible claim for relief.

Jurisdictional rulings

The report concluded that the court lacked jurisdiction under § 2241 because Ramos was not in DHS custody. A petition seeking release from present physical confinement generally must name the official who can produce the detained person. Ramos named DHS, but the record showed that the Bureau of Prisons held him at the Metropolitan Correctional Center on the federal criminal charge. The report also concluded that any § 2241 challenge to his Bureau of Prisons detention was premature because his criminal trial had not begun.

The report separately concluded that the REAL ID Act barred the district court from considering Ramos’s challenge to the removal order. Under that law, a petition for review in a federal court of appeals is the exclusive means of judicial review of a removal order. The report found that Ramos’s arguments directly or indirectly challenged the validity of the removal order because success on those arguments would invalidate it. It also concluded that the district court could not stay removal while Ramos’s motion to reopen and applications for immigration relief were pending.

Alternative failure-to-state-a-claim analysis

The report stated that, even if the court had jurisdiction, the petition failed to state a plausible claim. Ramos’s filings did not include or quote the notice to appear or the removal order. The report also concluded that his drug-trafficking conviction and his firearm conviction under 18 U.S.C. § 924(c)(1)(A)(i) qualified as aggravated felonies for immigration purposes. It rejected his argument that the Supreme Court’s decision in United States v. Davis invalidated the firearm conviction because that conviction was based on a drug-trafficking crime rather than the statutory provision for crimes of violence.

The report further stated that Ramos had applied to DHS for relief under the Convention Against Torture and for U and T visas, but that those applications were pending. Because the petition did not show that DHS was attempting to remove him before those applications were decided, the report concluded that it did not state a viable due-process claim.

Recommended disposition

Magistrate Judge Sarah L. Cave recommended that DHS’s motion be GRANTED and that Ramos’s petition be DISMISSED WITH PREJUDICE, both because the district court lacked jurisdiction and, alternatively, because the petition failed to state a claim. The document is a report and recommendation addressed to Judge Lorna G. Schofield, not an opinion stating that Judge Schofield had adopted it. The notice allowed the parties 14 days to file objections and stated that failure to object would waive objections and preclude appellate review.