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Petitioner,
v.
Respondents.
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
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
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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.
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
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.
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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
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
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.
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Jimenez Soto’s legal custodian. Secretary Nielsen’s address is U.S. Department of Homeland
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
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
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.
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
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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
13. Mr. Jimenez Soto has exhausted any and all administrative remedies to the extent
required by law.
FACTUAL ALLEGATIONS
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.
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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
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
19. Overall, Mr. Jimenez Soto worked hard to make a life for himself and his family,
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
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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
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
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.
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
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
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among list of classes of noncitizens for which immigration judge may not re-determine conditions
detention.
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
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,
however, the government may grant a DACA recipient “advance parole” if he or she wishes to
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travel outside the country. See, e.g., Frequently Asked Questions, U.S. Citizenship and
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
28. Upon his return, Mr. Jimenez Soto resumed his life as he had been living it prior to
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-
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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
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,
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
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
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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
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
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,
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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
38. Mr. Jimenez Soto’s next hearing in immigration court is set for February 19, 2019.
39. Mr. Jimenez Soto has been detained at the Aurora Contract Detention Facility now
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
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
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
CAUSE OF ACTION
FIFTH AMENDMENT — DUE PROCESS VIOLATION
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.
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unjustified,” a noncitizen is entitled to a constitutionally adequate bond hearing. Demore, 538 U.S.
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
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
(b) Enjoin Respondents from transferring Mr. Jimenez Soto outside this Court’s
(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;
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(e) Issue a Writ of Habeas Corpus requiring Respondents to release Mr. Jimenez Soto
(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.
Respectfully Submitted,
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
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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.
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
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