Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 1 of 15

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:19-cv-192

EDWIN JIMENEZ SOTO,

Petitioner,

v.

MATTHEW G. WHITAKER, Acting Attorney General, U.S. Department of Justice, in his

official capacity,
KIRSTJEN NIELSEN, Secretary, U.S. Department of Homeland Security, in her official
capacity,
RONALD D. VITIELLO, Deputy Director and Senior Official Performing the Duties of
Director, U.S. Immigration and Customs Enforcement, in his official capacity,
JOHN P. LONGSHORE, Field Office Director, U.S. Immigration and Customs Enforcement, in
his official capacity,
JOHNNY CHOATE, Warden, Aurora Contract Detention Facility, in his official capacity,

Respondents.

VERIFIED PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. § 2241 AND ORDER TO SHOW CAUSE

Petitioner Edwin Jimenez Soto, through his attorneys Aaron Elinoff and Danielle C.

Jefferis of NOVO LEGAL, L.L.C., hereby petitions this Court to remedy his prolonged, unlawful

detention either by ordering his immediate release or by ordering that he promptly receive an

individualized bond hearing before a neutral arbiter.

INTRODUCTION

1. Edwin Jimenez Soto is just twenty-two years old and has lived in the United States

for more than twenty years—as long as he can remember because he was brought to this country

by his parents when he was a baby. Now, he has been detained by federal immigration officials in
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 2 of 15

the Aurora Contract Detention Facility for more than fifteen consecutive months (and counting)

without an opportunity for a bond determination. Pursuant to 28 U.S.C. § 2241, he petitions this

Court for his release, or in the alternative, a chance to demonstrate his eligibility for bond.

2. While he is a citizen of Mexico, Mr. Jimenez Soto grew up in this country. He

attended school in Denver; he earned a high school diploma from Westminster High School. Prior

to his detention, he worked hard to provide for and care of his mother, his sister, and his niece and

nephew. He paid his taxes. And in 2013 he was granted status under the Obama administration’s

Deferred Action for Childhood Arrivals (“DACA”).

3. Mr. Jimenez has lived a nearly crime-free life. He has just a few minor criminal

convictions, all misdemeanor offenses and most traffic-related, resulting from mistakes he made

when he was a young adult. None required him to serve any sort of prison or jail sentence.

4. Mr. Jimenez Soto poses no safety or flight risk. There is no reason for him to

continue to languish in detention while his immigration case is adjudicated. He should be afforded

the opportunity to secure his liberty during the pendency of the underlying removal proceedings,

as the United States Constitution provides, and return to his family. As the U.S. Supreme Court

has stated, “Freedom from imprisonment—from government custody, detention, or other forms of

physical restraint—lies at the heart of the liberty that [due process] protects,” even for noncitizens.

Zadvydas v. Davis, 533 U.S. 678, 690 (2001). A person who came to the United States through no

choice of his own and made a life for himself here, Mr. Jimenez Soto deserves that constitutional

protection.

2
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 3 of 15

PARTIES

Petitioner

5. Mr. Jimenez Soto was born in Mexico. He arrived in the United States when he was

a baby and has lived in this country ever since. In 2013, he was granted immigration status under

DACA. U.S. Immigration and Customs Enforcement (“ICE”) agents arrested him on the steps of

the Adams County courthouse on February 17, 2017, revoked his DACA status, and detained him

at the Aurora Contract Detention Facility in Aurora, Colorado, where he remains today.

Respondents

6. Respondent Matthew G. Whitaker, named in his official capacity, is the Acting

Attorney General in the United States Department of Justice. In that capacity, Mr. Whitaker is

responsible for the execution of the nation’s immigration laws as exercised by the Executive Office

for Immigration Review, pursuant to 8 U.S.C. § 1103(g). He routinely transacts business in the

District of Colorado and is legally responsible for administering Mr. Jimenez Soto’s removal

proceedings and the standards used in those proceedings, and therefore is Mr. Jimenez Soto’s legal

custodian. Acting Attorney General Whitaker’s address is U.S. Department of Justice, 950

Pennsylvania Avenue NW, Washington, D.C., 20530.

7. Respondent Kirstjen Nielsen, named in her official capacity, is the Secretary of

Homeland Security at the United States Department of Homeland Security (“DHS”). In that

capacity, Secretary Nielsen is responsible for the administration of the immigration laws pursuant

to § 103(a) of the Immigration and Naturalization Act (“INA”), 8 U.S.C. § 1103(a), routinely

transacts business in the District of Colorado, supervises Field Director John P. Longshore, and is

legally responsible for pursuing Mr. Jimenez Soto’s detention and removal, and, therefore, is Mr.

3
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 4 of 15

Jimenez Soto’s legal custodian. Secretary Nielsen’s address is U.S. Department of Homeland

Security, Washington, D.C., 20528.

8. Respondent Ronald D. Vitiello, named in his official capacity, is the Deputy

Director and Senior Official Performing the Duties of Director of ICE within DHS. In that

capacity, Deputy Director Vitiello has supervisory capacity over ICE personnel in Colorado, and

he is the head of the agency that retains legal custody of Mr. Jimenez Soto. The address for ICE

Headquarters is 500 12th Street, SW, Washington, D.C., 20536.

9. Respondent John P. Longshore, named in his official capacity, is the Field Office

Director for the Denver Field Office for ICE within DHS. In that capacity, Field Director

Longshore has supervisory authority over the ICE agents responsible for making the initial custody

decision for Mr. Jimenez Soto and over the agents responsible for Mr. Jimenez Soto’s detention at

the Aurora Contract Detention Facility. The address for the Denver Field Office is 12445 East

Caley Avenue, Centennial, Colorado, 80111.

10. Respondent Johnny Choate, named in his official capacity, is the Warden of the

Aurora Contract Detention Facility, a private prison owned and operated by the GEO Group, Inc.

and under contract with ICE. In that capacity, Warden Choate oversees the physical location where

Mr. Jimenez Soto has been in custody for more than fifteen consecutive months. The address for

the Aurora Contract Detention Facility is 3130 North Oakland Street, Aurora, Colorado, 80010.

JURISDICTION AND VENUE

11. This Court has subject-matter jurisdiction over this petition pursuant to 28 U.S.C.

§ 2241, 28 U.S.C. § 1331, and Article I, § 9, cl. 2 of the United States Constitution; the All Writs

Act, 28 U.S.C. § 1651; and the Declaratory Judgment Act, 28 U.S.C. § 2201. Mr. Jimenez Soto’s

4
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 5 of 15

current detention as inflicted and enforced by Respondents constitutes a “severe restraint[] on [his]

individual liberty,” such that Mr. Jimenez Soto is “in custody” in violation of the laws of the United

States. See Hensley v. Municipal Court, 411 U.S. 345, 351 (1973). While the federal circuit courts

of appeal have jurisdiction to review removal orders directly through petitions for review, see 8

U.S.C. § 1252(a)(1), (b), the federal district courts have jurisdiction to determine the legality of a

person’s detention by ICE. See, e.g., Jennings v. Rodriguez, ___ U.S. ___, 138 S.Ct. 830 (2018);

Demore v. Kim, 538 U.S. 510, 516-17 (2003); Zadvydas, 533 U.S. at 687.

12. Mr. Jimenez Soto resided in this district prior to his detention, is detained in

Respondents’ custody in this district, and is subject to removal proceedings that are being

conducted in this district. Therefore, pursuant to 28 U.S.C. § 2241(d), the District of Colorado is

the proper venue to hear this petition.

13. Mr. Jimenez Soto has exhausted any and all administrative remedies to the extent

required by law.

FACTUAL ALLEGATIONS

Mr. Jimenez Soto’s Childhood and Early Adulthood.

14. Mr. Jimenez Soto was born in Mexico on April 28, 1996. When he was a year old,

his parents obtained for him a tourist visa to visit the United States. On April 11, 1998, the family

presented themselves at the U.S. border for inspection. There, U.S. immigration officials revoked

the family’s visas based on a statement allegedly made by Mr. Jimenez Soto’s father but they

granted Mr. Jimenez Soto and his mother permission to enter the United States for a single day to

visit Mr. Jimenez Soto’s sick grandmother. The pair did so, and they returned to Mexico the next

day, as required.

5
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 6 of 15

15. Several months later, Mr. Jimenez Soto’s family brought him back to the United

States. With his older brother and sister, he grew up in Denver. He went to school, where he worked

hard and earned decent grades. His favorite subject was math, and he loved to play basketball.

Aside from the typical sibling rivalries, Mr. Jimenez Soto got along well with his brother and

sister, their relationships becoming stronger as he grew up.

16. Mr. Jimenez Soto graduated from Westminster High School. Up until that point, he

had not realized fully the disadvantages he faced without lawful immigration status in the United

States. Fortunately, he did not have to experience many of those disadvantages because in 2013 he

obtained deferred status through the Obama administration’s DACA, which aims to help people

like Mr. Jimenez Soto who were brought to the United States as children.

17. To be eligible for DACA, a person must not have any felony or serious

misdemeanor convictions.

18. With his DACA status, Mr. Jimenez Soto obtained work authorization and got a

job delivering drywall. With the money he earned, Mr. Jimenez Soto supported his mother and his

sister and her family. He tried to be a good uncle, watching his niece and nephew when he could

and buying the children small presents here and there. He took care of his aging mother by driving

her to appointments and giving her a portion of his paychecks.

19. Overall, Mr. Jimenez Soto worked hard to make a life for himself and his family,

and to be a caring son, brother, and uncle.

“Entry Without Inspection” versus “Arriving Alien.”

20. The federal government classifies noncitizens in a number of ways, including based

on the manner in and time at which the person entered the country. For noncitizens who are already

6
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 7 of 15

inside the country without lawful status, the law generally considers them to have “entered without

inspection.” See 8 U.S.C. § 1182(6)(A)(i) (a noncitizen who is “present in the United States

without being admitted or paroled, or who arrives in the United States at any time or place other

than as designated by the Attorney General, is inadmissible”). This status is known as Entry

Without Inspection (“EWI”).

21. Because they possess no valid document permitting their presence in the country,

the government is authorized to arrest and charge people with EWI status with one or more grounds

of inadmissibility to the United States. See 8 U.S.C. § 1226(a) (authorizing arrest and detention

pending decision on removability), 8 U.S.C. § 1229a(a)(2) (authorizing charging of any applicable

ground of inadmissibility). Detention of people with EWI status is discretionary, and DHS is

authorized to make the initial custody determination. See 8 U.S.C. § 1226(a). However, those

people who are detained may seek review of an adverse custody determination by the Immigration

Judge in the jurisdiction in which he or she is detained. See 8 C.F.R. § 1003.19(a); 8 C.F.R.

§ 236.1(d) (appeal to immigration judge from initial custody determination).

22. In contrast to EWI status, which is based on the noncitizen being already present in

the United States when apprehended by immigration officials, a noncitizen who arrives at a U.S.

port of entry without a valid visa or other entry document and is apprehended by immigration

officials is considered an “arriving alien.” See 8 U.S.C. § 1182(7)(A)(i)(I). Noncitizens whom the

government classifies as arriving aliens are subject to mandatory detention while their removal

proceedings are pending pursuant to 8 U.S.C. § 1225(b)(2)(A). While a person classified as an

arriving alien may request parole—or release from detention—from DHS, Department of Justice

regulations prohibit immigration judges from reviewing any and all custody determinations for

7
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 8 of 15

arriving aliens. See 8 C.F.R. § 1003.19(h)(2)(i)(B) (“arriving aliens in removal proceedings”

among list of classes of noncitizens for which immigration judge may not re-determine conditions

of custody). Importantly, Section 1225(b) contains no limitations on the length of a person’s

detention.

DACA and Advance Parole.

23. DACA status provides a temporary reprieve from the threat of arrest and initiation

of removal proceedings for those people with EWI status. In other words, it instructs immigration

officials to exercise prosecutorial discretion with respect to people, like Mr. Jimenez Soto, who

were brought to this country as children, have been present in this country for years, and know

only this country as home. See Janet Napolitano, Memorandum: Exercising Prosecutorial

Discretion with Respect to Individuals Who Came to the United States as Children, U.S. Dep’t of

Homeland Security (June 15, 2012), available at https://www.dhs.gov/xlibrary/assets/s1-

exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf (hereinafter,

“DACA Memo”).

24. The government requires people DACA status to “continuously reside” in the

United States to maintain their status. See DACA Memo. Generally, this provision precludes

DACA recipients from leaving the country, even for short periods of time. Those who do so risk

automatic termination of their DACA status. See id.; Instructions for Application for Travel

Document, USCIS Form I-131, available at https://www.uscis.gov/i-131 (last visited Jan. 22,

2019) (hereinafter, “I-131 Instructions”).

25. Recognizing the importance of family connections and opportunities abroad,

however, the government may grant a DACA recipient “advance parole” if he or she wishes to

8
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 9 of 15

travel outside the country. See, e.g., Frequently Asked Questions, U.S. Citizenship and

Immigration Services, https://www.uscis.gov/archive/frequently-asked-questions (last visited Jan.

22, 2019). A grant of advance parole is permission for a DACA recipient to travel outside of the

United States temporarily without disrupting his or her continuous residence in the United States

and, therefore, protecting his or her DACA status. The government generally grants advance parole

for educational, employment, or humanitarian reasons, including to visit elderly or sick relatives.

26. A DACA recipient who wishes to apply for advance parole must complete an

Application for Travel Document, Form I-131, before he or she travels outside of the United States.

The instructions for Form I-131 outline a number of provisions under the title Travel Warning for

potential applicants to consider before seeking advance parole. See I-131 Instructions. This

warning informs potential applications that if they use an Advance Parole Documents to leave and

return to a U.S. port-of-entry, they will be considered upon their return an applicant for admission.

For a person like Mr. Jimenez Soto, this means that upon his reentry with advance parole, the

government is likely to classify him as an arriving alien, not a person with EWI status.

27. On November 1, 2015, DHS granted Mr. Jimenez Soto advance parole so that he

could travel to Mexico to visit family. Mr. Jimenez Soto returned to the United States on December

5, 2015, just as his advance parole status permitted him to do.

28. Upon his return, Mr. Jimenez Soto resumed his life as he had been living it prior to

his travel, working and supporting his family.

The Government’s Removal Case and Bond Proceedings.

29. In January 2016, Mr. Jimenez Soto was charged in Adams County with a

misdemeanor offense of Driving While Ability Impaired. He pleaded guilty in exchange for a five-

9
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 10 of 15

day suspended jail sentence (meaning he did not actually serve any time), twenty-four hours of

community service, and eighteen months of probation. He viewed his guilty plea as an opportunity

to make things right after the mistake that lead to the charge. He began taking alcohol classes in

compliance with the terms of his probation.

30. On or around February 17, 2017, as Mr. Jimenez Soto was walking out of the

Adams County courthouse following a hearing in his criminal case, he heard someone calling his

name. He turned toward to voice and saw a man in plain clothes approaching him. The man asked

him if he was Edwin Jimenez Soto, and when Mr. Jimenez Soto answered that he was, the man

pulled a badge from around his neck and identified himself as an ICE agent. At the same time,

another man in plain clothes approached the pair and also identified himself as an ICE agent. One

of the men told Mr. Jimenez Soto he was not allowed to be in this country anymore because of his

misdemeanor conviction. The two handcuffed and arrested Mr. Jimenez Soto, and transported him

to the Aurora Contract Detention Facility, an ICE facility owned and operated by the GEO Group,

Inc., in contract with the federal government.

31. The government served Mr. Jimenez Soto with Notice to Appear, charging him as

an arriving alien and initiating removal proceedings against him pursuant to 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). DHS denied Mr. Jimenez Soto’s request for a bond and ordered him detained

pending the adjudication of the proceedings pursuant to 8 U.S.C. § 1225(b).

32. Mr. Jimenez Soto requested an immigration judge review DHS’s custody

determination. On April 10, 2017, the immigration judge granted Mr. Jimenez Soto’s request for

bond and set the bond amount at $12,500. Mr. Jimenez Soto posted the bond and was released

from the Aurora Contract Detention Facility shortly thereafter.

10
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 11 of 15

33. The next day, DHS filed a motion with the immigration judge asking for

reconsideration of the bond determination. DHS argued the immigration judge did not have

jurisdiction to review the initial bond determination because, the agency asserted, Mr. Jimenez

Soto was an arriving alien and therefore subject to mandatory detention pursuant to 8 U.S.C.

§ 1225(b). As explained above, DHS argued custody determinations pursuant to this statute are

unreviewable. The immigration judge agreed and granted the motion on May 4, 2017, revoking

Mr. Jimenez Soto’s bond.

34. Meanwhile, Mr. Jimenez Soto had complied with all court orders and appeared at

all of his hearings while he was released. He posed no danger to the public. He resumed taking

care of his mother, sister, and niece and nephew. He even got married.

35. In an incident remarkably similar to the one on the steps of the Adams County

courthouse, Mr. Jimenez Soto appeared for a hearing in his immigration case on October 5, 2017.

At the end of the hearing, as he was walking out of the building, ICE agents, again, approached

him and told him he was, again, under arrest. He tried to explain to them that he had posted bond

but he had not yet been informed of the immigration judge’s revocation of his bond. In front of his

sister, who pleaded with the agents to let her brother go home with her, the officials handcuffed

Mr. Jimenez Soto and put him back into detention.

36. Mr. Jimenez Soto appealed the revocation of his bond to the Board of Immigration

Appeals (“BIA”). In his brief, he argued he was not classified properly as an arriving alien because

he had been readmitted to the country after traveling to Mexico on advance parole and, therefore,

reverted back to his DACA and EWI status.

11
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 12 of 15

37. On February 1, 2018, the BIA dismissed the appeal, concluding Mr. Jimenez Soto

is properly considered an “arriving alien” and, therefore, the immigration judge has no authority

to review DHS’s custody determination.

38. Mr. Jimenez Soto’s next hearing in immigration court is set for February 19, 2019.

Mr. Jimenez Soto’s Prolonged Detention.

39. Mr. Jimenez Soto has been detained at the Aurora Contract Detention Facility now

for fifteen consecutive months and counting.

40. He copes with his ongoing detention by reading, exercising, and listening to

music—anything to distract him from the walls that surround him. If he makes it through another

day, he considers that a victory.

41. Yet while he tries to take each day at a time, detention is especially difficult for Mr.

Jimenez Soto because it feels indefinite. There is no end date to which he may count down, a day

to look forward to a release.

42. Mr. Jimenez Soto realizes he made some mistakes and he is eager to correct them.

But unless this Court intervenes, there will not be a day Mr. Jimenez Soto may even look forward

to challenging his detention, let alone walking out of the facility’s doors, while the government’s

removal proceedings are pending.

CAUSE OF ACTION
FIFTH AMENDMENT — DUE PROCESS VIOLATION

43. The allegations in the preceding paragraphs are incorporated herein.

44. The Due Process Clause of the Fifth Amendment of the United States Constitution

prohibits prolonged civil deprivation of liberty without an adequate justification and strong

procedural protections.

12
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 13 of 15

45. Once detention pending removal proceedings becomes “unreasonable or

unjustified,” a noncitizen is entitled to a constitutionally adequate bond hearing. Demore, 538 U.S.

at 532 (Kennedy, J., concurring).

46. Mr. Jimenez Soto has been detained for more than fifteen consecutive months. His

detention is both likely to continue absent relief from this Court and does not further its stated

purposed. Therefore, Mr. Jimenez Soto’s detention has become unreasonably prolonged and

arbitrary, violating his Fifth Amendment substantive due process rights.

47. Mr. Jimenez Soto’s continued detention also violates the Fifth Amendment’s

requirement of procedural due process because he has been detained for a prolonged period of time

with no procedural safeguards in place to prevent an erroneous deprivation of liberty.

PRAYER FOR RELIEF

WHEREFORE, Mr. Jimenez Soto requests respectfully that this Court:

(a) Assume jurisdiction over this matter;

(b) Enjoin Respondents from transferring Mr. Jimenez Soto outside this Court’s

jurisdiction pending the resolution of this action;

(c) Order Respondents to show cause, within three days of filing this petition, why the

Writ of Habeas Corpus should not be granted; and set a hearing on this matter

within five days of Respondents’ return on the order to show cause, pursuant to 28

U.S.C. § 2243;

(d) Enter a judgment declaring that Respondents’ detention of Mr. Jimenez Soto is

unconstitutional;

13
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 14 of 15

(e) Issue a Writ of Habeas Corpus requiring Respondents to release Mr. Jimenez Soto

immigration or, in the alternative, hold a constitutionally valid, individualized bond

hearing within fourteen days;

(f) Award Mr. Jimenez Soto reasonable costs and attorneys’ fees in this action as

provided by the Equal Access to Justice Act, 28 U.S.C. § 2412, or other statute; and

(g) Grant any further relief as this Court may deem fit and proper.

Dated: January 23, 2019

Respectfully Submitted,

NOVO LEGAL L.L.C.

s/ Aaron Elinoff
4280 Morrison Road
Denver, Colorado 80219
T: 303-335-0250
F: 303-296-4586
E: aaron@novo-legal.com

s/ Danielle C. Jefferis
Danielle C. Jefferis, Of Counsel
2255 East Evans Avenue, Suite 335
Denver, CO 80208
T: 303-871-6155
F: 303-871-6818
E: djefferis@law.du.edu

Counsel for Petitioner

14
 Case 1:19-cv-00192 Document 1 Filed 01/23/19 USDC Colorado Page 15 of 15

VERIFICATION

I, Danielle C. Jefferis, hereby verify under penalty of perjury pursuant to 28 U.S.C. § 1746

that the factual allegations in the foregoing petition are true and correct, on information and belief,

based on my review of the petition with Petitioner, Edwin Jimenez Soto, and Mr. Jimenez Soto’s

immigration counsel.

Dated: January 23, 2019

s/ Danielle C. Jefferis
Danielle C. Jefferis, Of Counsel
2255 East Evans Avenue, Suite 335
Denver, CO 80208
T: 303-871-6155
F: 303-871-6818
E: djefferis@law.du.edu

Counsel for Petitioner

15