Arevalo-Guasco v. Dubois ( 2019 )

18‐2184‐cv
Arevalo‐Guasco v. Dubois
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 17th day of September, two thousand nineteen.
PRESENT: RICHARD C. WESLEY,
DENNY CHIN,
JOSEPH F. BIANCO,
Circuit Judges.
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CARLOS ARMANDO AREVALO‐GUASCO,
Petitioner‐Appellant,
v. 18‐2184‐cv
CARL E. DUBOIS, ORANGE COUNTY SHERIFF,
Respondent‐Appellee.
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FOR PETITIONER‐APPELLANT: Judy Resnick, Law Office of Judy Resnick, Far
Rockaway, New York.
FOR RESPONDENT‐APPELLEE: Brandon M. Waterman, Benjamin H. Torrance,
Assistant United States Attorneys, for Geoffrey
S. Berman, United States Attorney for the
Southern District of New York, New York,
New York.
Appeal from the United States District Court for the Southern District of
New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Petitioner‐appellant Carlos Armando Arevalo‐Guasco appeals from the
district courtʹs June 22, 2018 order dismissing his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.1
ʺWe review a district courtʹs denial of a petition for a writ of habeas
corpus brought pursuant to § 2241 de novo and review any factual findings for clear
error.ʺ Lugo v. Hudson, 785 F.3d 852, 854 (2d Cir. 2015) (per curiam).
Pursuant to 8 U.S.C. § 1226(a), ʺan alien may be arrested and detained
pending a decision on whether the alien is to be removed from the United States,ʺ and
pending that decision, the alien may continue to be detained or be released on bond or
1 On September 3, 2019, Arevalo‐Guasco moved to withdraw his appeal with prejudice,
on the ground that he has been relocated to a facility outside the Second Circuit. The
government opposed the motion on the ground that Arevalo‐Guasco was detained in the
Southern District of New York when the petition was filed. We agree with the government that
the key is where Arevalo‐Guasco was detained when he filed his petition. See Rumsfeld v.
Padilla, 542 U.S. 426, 441 (2004); Henderson v. INS, 157 F.3d 106, 125 (2d Cir. 1998). Accordingly,
the motion is denied.
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conditional parole. Furthermore, ʺ[t]he Attorney General at any time may revoke a
bond or parole authorized under subsection (a), rearrest the alien under the original
warrant, and detain the alien.ʺ 8 U.S.C. § 1226(b).2 Section 1226(e) limits review of the
agencyʹs decision regarding custody:
The Attorney Generalʹs discretionary judgment regarding the
application of this section shall not be subject to review. No 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.
8 U.S.C. § 1226(e).
In Demore v. Kim, the Supreme Court considered whether § 1226(e)
precluded jurisdiction to grant habeas relief to aliens challenging their detention under
§ 1226. 538 U.S. 510, 516 (2003). The Supreme Court held that because the habeas
petitioner was challenging the ʺstatutory frameworkʺ governing detention and not ʺa
ʹdiscretionary judgmentʹ by the Attorney General or a ʹdecisionʹ that the Attorney
General . . . made regarding his detention or release,ʺ the statute did not preclude
judicial review. Id. at 516‐17; accord Jennings v. Rodriguez, 138 S. Ct. 830, 841 (2018).
Here, as an initial matter, Arevalo‐Guasco has not challenged the district
courtʹs determination that it lacked jurisdiction to the extent that Arevalo‐Guasco asked
the court to review the Immigration Judgeʹs (ʺIJʹsʺ) weighing of evidence and the
2 The parties do not dispute that Arevalo‐Guasco is detained pursuant to § 1226(a) instead
of § 1231.
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discretionary determination that Arevalo‐Guasco should be detained during his
removal proceedings. Accordingly, he has waived any such argument. See Norton v.
Samʹs Club, 145 F.3d 114, 117 (2d Cir. 1998) (ʺIssues not sufficiently argued in the briefs
are considered waived and normally will not be addressed on appeal.ʺ). Furthermore,
because Arevalo‐Guasco has waived any challenge to the district courtʹs decision that it
lacked jurisdiction to review the agencyʹs determination regarding custody, we need
not reach the district courtʹs alternative finding that Arevalo‐Guascoʹs petition failed
because he did not exhaust his administrative remedies.
Likewise, although Arevalo‐Guasco asks this Court to review the IJʹs
factual findings regarding whether he is a danger to the community, this Court lacks
jurisdiction to review those findings. See 8 U.S.C. § 1226(e); Jennings, 138 S. Ct. at 841;
Demore, 538 U.S. at 516. This is not a challenge to the ʺstatutory framework,ʺ but a
challenge to ʺa ʹdecisionʹ that the [IJ] has made regarding his detention or release,ʺ and
§ 1226(e) precludes judicial review of the IJʹs weighing of evidence and factual findings
regarding whether Arevalo‐Guasco is a danger to the community. Jennings, 138 S. Ct. at
841; see Demore, 538 U.S. at 516.
Arevalo‐Guasco also alleges that his continued detention violates due
process and that the IJ engaged in prejudicial factfinding. Although this Court has not
previously addressed whether federal courts have jurisdiction to review immigration
custody determinations for constitutional claims, see Singh v. Holder, 638 F.3d 1196, 1200
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(9th Cir. 2011) (holding that ʺa federal district court has habeas jurisdiction under 28
U.S.C. § 2241 to review [certain] bond hearing determinations for constitutional claims
and legal errorʺ), Arevalo‐Guascoʹs conclusory allegations are insufficient to raise a
constitutional claim, see United States v. Brennan, 650 F.3d 65, 137 (2d Cir. 2011)
(determining that conclusory statement in brief that there was a due process violation
was insufficient to raise the issue on appeal).
Finally, Arevalo‐Guasco argues that his prolonged detention of eleven
months is unconstitutional. Arevalo‐Guasco, however, did not raise specific arguments
regarding the length of his detention in his habeas petition, which he filed less than six
months after he was detained. Accordingly, because Arevalo‐Guasco did not specify
why or how the length of his detention was unconstitutional before the district court,
we decline to address these arguments in the first instance. See Greene v. United States,
13 F.3d 577, 586 (2d Cir. 1994) (ʺ[I]t is a well‐established general rule that an appellate
court will not consider an issue raised for the first time on appeal.ʺ).
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We have considered all of Arevalo‐Guascoʹs remaining arguments and
find them to be without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
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