Bardales-Rivera v. Holder et al

Filing 27

ORDER denying 1 Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241, filed by Misael Bardales-Rivera, by Magistrate Judge Michael E. Hegarty on 8/31/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00443-MEH
MISAEL BARDALEZ-RIVERA,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,1 et al.,
Respondents.

ORDER ON PETITION FOR A WRIT OF HABEAS CORPUS
UNDER 28 U.S.C. § 2241

Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Petitioner Misael Bardalez-Rivera’s Application for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241 [filed March 3, 2015; docket #1]. The application is fully
briefed, and the Court heard oral argument on August 27, 2015. Based on the argument and the
record contained herein, the Court denies the Petitioner’s Application.2
BACKGROUND
The parties agree on all of the material facts in this case. Petitioner, a citizen of Mexico, has
had several illegal entries into the United States. On one such occasion, he incurred a final order
of removal dated November 23, 2012. He re-entered the United States illegally on December 12,
2012. On August 13, 2014, the United States Immigration and Customs Enforcement (ICE) agency

1

Loretta E. Lynch replaced Eric Holder as U.S. Attorney General on April 27, 2015, after the
filing of this action.
2

Pursuant to 28 U.S.C. § 636(c) and the Pilot Program to Implement the Direct Assignment
of Civil Cases to Full Time Magistrate Judges, the parties consented to the jurisdiction of this Court
to conduct all proceedings in this civil action. Docket #13.

reinstated his prior order of removal pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8. He
has been detained since that date. At or about the time of his detention, Petitioner expressed a fear
of returning to Mexico, which set into motion an administrative process to determine whether the
United States should refrain from deporting him to Mexico. That is, an alien who has a reinstated
prior order of removal and who expresses a fear of returning to his home country is referred to an
asylum officer (and, if unsuccessful, to an immigration judge)3 to determine whether the alien has
a reasonable fear of persecution or torture. 8 C.F.R. § 241.8(e). If the alien succeeds in this process,
he may obtain “withholding of removal,” under which the Department of Homeland Security cannot
execute the reinstated removal order to his country of origin. 8 U.S.C. § 1231(b)(3) (an alien may
not be removed to his home country if the Attorney General decides that the alien’s life or freedom
would be threatened in that country due to one of the stated reasons). Even if an alien obtains relief
in the reasonable fear proceedings, the reinstated removal order is not vacated or withdrawn; only
its execution to the alien’s home country is withheld. See Matter of I-S & C-S-, 24 I & N Dec. 432,
433–34 (BIA 2008) (holding that an order granting withholding of removal must include an explicit
order of removal because “in order to withhold removal, there must first be an order of removal that
can be withheld”).
In the present case, Petitioner convinced an asylum officer of his reasonable fear. An
immigration judge then placed Petitioner in a “withholding only” proceeding but, on April 14, 2015,
found that Petitioner was not eligible for withholding of removal. That decision was appealed to,
and affirmed by, the Board of Immigration Appeals (BIA), in a decision dated July 28, 2015. The

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If the alien is unsuccessful before both an asylum officer and an immigration judge, that is
the end of the matter, and he is deported. If the alien convinces either or both of those persons, the
matter is appealable (by the loser) to the Board of Immigration Appeals. Luna-Garcia v. Holder,
777 F.3d 1182, 1184 (10th Cir. 2015).
3

Petitioner has filed a Petition for Review with the Tenth Circuit Court of Appeals, dated August 28,
2015, No 15-9562.
The only issue before this Court is whether the August 13, 2014 reinstated removal order is
“administratively final” as that term is used 8 U.S.C. § 1231(a)(1) and (2). If administratively final,
Petitioner’s detention is governed by Section 1231, and such detention is mandatory, at least until
it runs afoul of the constitutional prohibition against indefinite detention. If Petitioner’s removal
order is not administratively final under Section 1231(a)(1), his detention is governed by 8 U.S.C.
§ 1226, under which he is entitled to a bond hearing utilizing the typical risk of flight or risk to the
community analysis.
I entered an Order is a substantially similar case, Gregorio Sanchez Reyes v. Loretta E.
Lynch, Attorney General, et al., No. 15-cv-00442-MEH (August 28, 2015). The only factual
difference between the current case and Reyes is that in the latter, the matter is pending before the
BIA, while in the case at hand, it is on Petition for Review in the circuit court. Such a difference
does not impact my analysis. For the reasons expressed in Reyes, Docket #29, the petition must be
denied. Petitioner’s continued detention by the Attorney General is authorized and controlled by
8 U.S.C § 1231. Petitioner is not entitled to an individualized bond hearing under 8 U.S.C. § 1226.
Consequently, he has failed to demonstrate that his current detention is unlawful. Given the fact that
Petitioner’s detention has substantially exceeded six months, he has a remedy for seeking review
of his detention order, which is the filing of a habeas corpus petition pursuant to Zadvydas v. Davis,
533 U.S. 678 (2001). See Morales-Fernandez v. I.N.S., 418 F.3d 1116 (10th Cir. 2005). Therefore,
Petitioner may amend his current Petition for a Writ of Habeas Corpus to include a request for relief
under Zadvydas. See Soberanes, 388 F.3d at 1310 (“Challenges to immigration detention are
properly brought directly through habeas . . . [a]nd the exhaustion deficiencies we have noted in

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other respects do not affect habeas jurisdiction over such claims.”) (citations omitted). Any such
amended Petition should be filed on or before 10 days after entry of this decision.
CONCLUSION
Accordingly, based upon the foregoing and the entire record herein, the Court denies
Petitioner Misael Bardalez-Rivera’s Application for a Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2241 [filed March 3, 2015; docket #1].
Dated at Denver, Colorado, this 31st day of August, 2015.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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