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Dasilva v. Holder

United States District Court, N.D. Alabama, Middle Division

September 4, 2014

MAURICIO DASILVA, Petitioner,
v.
ERIC HOLDER, Attorney General, et. al., Respondents.

MEMORANDUM OPINION

ROBERT B. PROPST, Senior District Judge.

This is an action on a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, in which Petitioner Mauricio DaSilva challenges his detention pending his removal from the United States pursuant to the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. (Doc.[1] 1 ("Petition" or "Pet.")). Petitioner has been granted leave to proceed in forma pauperis. Upon consideration, the court finds that the Petition is due to be summarily denied.

I. BACKGROUND

Petitioner is a native and citizen of Brazil. (Smith Dec. at ¶ 8)[2]. He attempted to enter the United States at Dulles Airport in Washington, D.C., on March 6, 2004, using a fraudulent passport. ( Id. at ¶ 2). He was arrested by Customs and Boarder Protection officers. ( Id. ) He was subsequently convicted on March 8, 2004, in the United States District Court for the Eastern District of Virginia for visa fraud under 18 U.S.C. § 1546(a).

DaSilva was issued a Notice and Order of Expedited Removal on March 31, 2004. ( Id. at ¶ 4). He was then removed from the United States.

At some unknown time and place, DaSilva illegally reentered the United. States. He was arrested by Massachusetts State Police in Brockton, Massachusetts, for cocaine trafficking. ( Id. at ¶ 6). The charge was dismissed on December 7, 2011. ( Id. )

DaSilva was taken into ICE custody and again ordered removed from the United States to Brazil on February 7, 2012. ( Id. at ¶ 8). ICE requested the necessary travel documents from the Consulate General of Brazil on February 10, 2012. ( Id. at ¶ 9). DaSilva was served with a Form I-229(a), warning him of the consequences of failing to depart the United States. ( Id. at ¶ 10). He was interviewed by the Consulate General of Brazil on March 23, 2012. DaSilva refused to sign for his travel document. ( Id. at ¶ 11). The Consulate General has informed ICE that DaSilva's travel document cannot be issued unless he voluntarily signs for it. ( Id. at ¶ 12). DaSilva was served with a "Notice of Failure to Comply, " informing him of the consequences of not cooperating. ( Id. at ¶ 13).

On April 20, 2012, DaSilva was given a "Post Order Custody Review" by ICE. A decision continuing his detention was issued. ICE also submitted an assistance request to ICE Headquarters Travel Document Unit. ( Id. at ¶ 14). On May 7, 2012, another notice regarding the consequences of a failure to depart was provided to DaSilva. ( Id. at ¶ 15).

On June 12, 2012, DaSilva again was interviewed by the Consulate General of Brazil. DaSilva once again refused to sign for his travel document. ( Id. at ¶ 16).

In July 2012, ICE submitted another assistance request to the Travel Document Unit. ( Id. at ¶ 17). DaSilva was served with another notice concerning the consequences of a failure to comply. ( Id. at ¶ 18). On August 10, 2012, he was served with another warning concerning the consequences of a failure to depart. At that time, he informed ICE personnel that he would not sign for his Brazilian Travel Document. ( Id. at ¶ 19).

He was served with additional notices of the consequences of a failure to comply and with warnings concerning the consequences of failing to depart the United States on August 15, 2012, October 3, 2012, October 15, 2012, December 2, 2012, and December 19, 2012. However, DaSilva again told ICE officials that he would not sign for his Brazilian Travel Document on October 3, 2012, and December 2 and 19, 2012. ( Id. at ¶¶ 20-24).

On December 20, 2012, DaSilva filed the present petition asserting that he is being illegally detained. (Doc. 1). The court entered an order requiring the defendants to appear and show cause why the requested relief should not be granted. (Doc. 2). The defendants filed their response on February 4, 2013. (Doc. 4). DaSilva was afforded an opportunity to respond. (Doc. 5). He filed an affidavit, stating the evidence against him is "fictitious" and cannot be substantiated. (Doc. 6 at 3). He also asserts that "he has sign[ed] and accepted every document given to him by ICE DHS." ( Id. )

On June 13, 2014, the court entered an order requiring the respondents to provide DaSilva with any necessary forms that he needs to complete and/or sign for his travel document. (Doc. 12 at 2). After doing so, they were required to inform the court whether DaSilva completed the necessary documents. ( Id. )

On June 20, 2014, the respondents reported to the court that on June 18, 2014, ICE interviewed DaSilva, with the assistance of a telephonic translator who verbally read the contents of the ICE Form I-229(a), Warning for Failure to Depart and Instruction Sheet. (Doc. 14 at 2). He was then presented with a form from the Brazilian Government authorizing the issuance of a travel document for his removal. DaSilva "adamantly refused to sign his application for a Brazilian Travel Document." ( Id. ) He advised ICE that he believed the form to be fraudulent and he wanted to contact the Brazilian Consulate General to verify the authenticity of the Travel Document application. On June 19, 2014, ICE emailed the Consulate of Brazil requesting an interview for DaSilva. ( Id. ) The Consulate stated that they had the travel document application packet and would speak with DaSilva telephonically. ( Id. at 2-3). On the same day, ICE contacted the Vice Consular for the Consulate General of Brazil. He telephonically ...


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