Wekesa v. United States Attorney

Case: 22-10260 Document: 00516554976 Page: 1 Date Filed: 11/22/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED November 22, 2022 No. 22-10260 Lyle W. Cayce Summary Calendar Clerk David Wekesa, Petitioner—Appellant, versus United States Attorney; United States Department of Homeland Security; Immigration and Customs Enforcement; Warden, Eden Detention Center, Respondents—Appellees. Appeal from the United States District Court for the Northern District of Texas USDC No. 6:21-CV-46 Before Smith, Dennis, and Southwick, Circuit Judges. Leslie H. Southwick, Circuit Judge:* David Wekesa appeals the district court’s dismissal of his 28 U.S.C. § 2241 petition challenging his continued detention pursuant to 8 U.S.C. § 1226(c). He has also filed a motion for an emergency temporary restraining * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-10260 Document: 00516554976 Page: 2 Date Filed: 11/22/2022 No. 22-10260 order. Wekesa argues that, while originally lawful, his continued detention without an individualized bond hearing violates his due process rights. A district court has subject matter jurisdiction to hear an alien’s Section 2241 petition challenging the lawfulness of his or her detention. See Demore v. Kim, 538 U.S. 510, 517 (2003). In the context of a Section 2241 petition, this court reviews the district court’s determinations of law de novo and its findings of facts for clear error. Tran v. Mukasey, 515 F.3d 478, 481 (5th Cir. 2008). Section 1226(c) provides that the Attorney General shall detain aliens who are inadmissible or removable based on having committed certain criminal offenses. § 1226(c)(1). Any alien detained under Section 1226(c)(1) may be released only if the alien’s release is necessary for witness-protection purposes, and (2) the Attorney General is satisfied that the alien does not pose a danger to persons or property and that the alien is likely to appear for scheduled proceedings. § 1226(c)(2). In Jennings v. Rodriguez, 138 S. Ct. 830, 846 (2018), the Supreme Court stated that the language of the statute “reinforces the conclusion that aliens detained under its authority are not entitled to be released under any circumstances other than those expressly recognized by the statute.” The Court held that “§ 1226(c) mandates detention of any alien falling within its scope and that detention may end prior to the conclusion of removal proceedings ‘only if’ the alien is released for witness-protection purposes.” Id. at 847. Because Wekesa does not meet the statutory requirements for release under Section 1226(c)(2), the district court did not err by denying Wekesa’s Section 2241 petition. His motion for an emergency temporary restraining order is also denied. AFFIRMED; MOTION DENIED. 2 Case: 22-10260 Document: 00516554976 Page: 3 Date Filed: 11/22/2022 No. 22-10260 James L. Dennis, Circuit Judge, dissenting: With respect to my learned colleagues in the majority, I disagree that Wekesa’s prolonged detention—he has been held for almost two-and-a-half years—without a bond hearing does not violate …

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