PINA v. CASTILLE

Filing 11

OPINION. Signed by Judge Kevin McNulty on 3/9/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUADALUPE PINA,
Petitioner,

Civ. No. 16-4280 (1(M)

V.

TISH CASTILLE,

OPINION

Respondent.

KEVIN MCNULTY, U.S.D.J.
1.

INTRODUCTION

The petitioner, Guadalupe Pina, a native of Mexico, is an immigration detainee currently
lodged at the Hudson County Correctional Facility. She is proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C.

§ 2241.

She challenges her prolonged immigration

detention and requests a bond hearing before an Immigration Judge (“IJ”). Ms. Pina, who
illegally reentered the country after being removed in 2005, was detained pursuant to a reinstated
order of removal beginning on December 7, 2015. On January 23, 2017, however, she obtained
an order barring her removal to Mexico, where she faces a credible threat of torture. The
government is currently seeking a third country that will accept her.
The threshold legal issue is whether Ms. Pina should be considered a pre-removal-order
detainee or a post-removal-order detainee (and, if post-removal, when that status began). I
conclude that Ms. Pina has been a post-removal-order detainee since she was placed in detention
on December 7, 2015. The habeas petition will be denied without prejudice to the filing of an
amended habeas petition that raises a claim under the post-removal-order standards of Zadvydas
v. Davis, 533 U.S. 678 (2001).

II.

BACKGROUND

The factual and procedural background does not appear to be in dispute. Ms. Pina is a
native and citizen of Mexico. She entered the United States in the 1 980s and became a lawful
permanent resident. However, beginning in 1997, Ms. Pina had a number of arrests and criminal
convictions. In January 2005, an U ordered that Ms. Pina be removed from the United States.
Ms. Pina appealed that decision to the Board of Immigration Appeals (“BIA”). The BIA affirmed
the IJ’s decision on June 17, 2005, rendering the order of removal final. Ms. Pina was removed
to Mexico on June 22, 2005.
Sometime thereafter, Ms. Pina reentered the United States illegally. Since then, she has
been convicted of several other criminal charges. On April 23, 2015, the United States
Department of Homeland Security reinstated Ms. Pina’s 2005 removal order. (See Dkt. No. 6-2
at p.2) Pending removal, she was placed into immigration detention on December 7, 2015.
Ms. Pina then claimed that her life and freedom would be threatened if she were returned
to Mexico. Her claim was referred to the United States Citizenship and Immigration Services
(“USd5”) for adjudication. On January 7, 2016, USCIS determined that Ms. Pina had
established a reasonable fear of torture, and referred the case to an IJ so that she could apply for
withholding of removal under the Convention Against Torture (“CAT”). (See Dkt. No. 6-4 at
p.2-5; Dkt. No. 6-5 at p.2-3)
On March 15, 2016, Immigration and Customs Enforcement (“ICE”) reviewed Ms.
Pina’s custody status and decided to continue her immigration detention. (See Dkt. No. 6 at p.23) Ms. Pina’s custody status was again reviewed by ICE on June 14, 2016. Once again, ICE
decided to continue Ms. Pina’s immigration detention. (See Dkt. No, 6-6 at p.1)

7

In July 2016, Ms. Pina filed this federal habeas petition. The petition states that her
prolonged immigration detention violates the Constitution, and requests a bond hearing before an
IJ. On September 6, 2016, the respondent filed a response in which it stated that a hearing on the
merits of Ms. Pina’s application for withholding of removal to Mexico was scheduled for
October 19, 2016. Ms. Pina did not file a reply.
At the Court’s request, the government submitted a status update on February 3, 2017.
(See Dkt. No. 10) The government states that the IJ granted Ms. Pina’s application for
withholding of removal to Mexico on January 23, 2017. The government is now processing Ms.
Pina’s removal to another country, and continues to oppose her release from custody. Ms. Pina
did not file a response to the government’s February 3, 2017 status report.
II.

DISCUSSION

A. Introduction: The Legal Framework of the Issue
As noted above, Ms. Pina is subject to a 2005 order of removal, which was reinstated in
2015 after her illegal reentry. She was detained pursuant to that reinstated order beginning on
December 7, 2015. She petitioned for, and on January 23, 2017, was granted, withholding of
removal because she faces a threat if returned to her native Mexico. That does not mean that Ms.
Pina caimot be removed from the United States; it means only that she will not be sent to
Mexico. See Reyes v. Lynch, No. 15-0442 2015 WL 5081597, at *3 (D. Cob. Aug. 28, 2015)
(“Even if Petitioner prevails on his withholding claim, the United States may remove Petitioner
to a country other than Mexico if such country will accept him, and there is no administrative or
judicial relief to which Petitioner would be entitled against such a removal.”) (citing 8 C.F.R.
1208.2(c)(3)(i)). The United States is currently processing her removal to a third country.

3

§

The threshold question is whether Ms. Pina, for the period from December 7, 2015, to the
present, should be considered a pre-removal-order immigration detainee under 8 U.S.C.
1226(a), or a post-removal-order immigration detainee under 8 U.S.C.

§

§

123 1(a)(1). The issue is
1

a consequential one, because it determines the legal standard that would govern Ms. Pina’s
application for release from custody. I briefly survey those pre-removal and post-removal
standards.
i.

Pre-removal

( 1226) Standards

Title 8, Section 1226 of the United States Code grants the Attorney General the authority
to detain aliens in removal proceedings before the issuance of a final order of removal. This
period of detention is known as the “pre-removal” period. The permissible period of detention,
however, is not unlimited. After a certain point it may become unreasonable, and the detainee
may be entitled to release on bail. See also Diop v. ICE/Homeland Sec., 656 F.3d 221 (3d Cir.
2011) (period of pre-removal detention must be reasonable); Chavez-Alvarez v. Warden York
Cnty. Prison, 783 F.3d 469, 474 (3d Cir. 2015) (under Diop, after six months, and certainly
within a year, the burden to the petitioner’s liberties would outweigh any justification to detain
the petitioner without a bond hearing).
ii.

Post-removal-order

(‘

1231) Standards

Title 8 of the United States Code Section 1231(a) governs detention after an order of
removal has been entered. This is known as the “removal period” or “post-removal-order”

There are well-reasoned decisions on both sides of that issue. Compare Guerra v. Shanahan, 831
F.3d 59, 63-64 (2d Cir. 2016) (holding that immigration detainee’s detention during pendency of
withholding-only proceedings is under § 1226(a)); Rafael Ignacio v. Sabol, No. 15-2423, 2016 WL
4988056, at *4 (M.D. Pa. Sept. 19, 2016) (same); Guerrero v. Aviles, No. 14-4367, 2014 WL 5502931, at
*9 (D.N.J. Oct. 30, 2014) (same); with, Padilla-Ramirez v. Bible, 180 F. Supp. 3d 697, 701-02 (D. Idaho
2016) (petitioner detained under a reinstated order of removal proceeding with withholding of removal
proceedings detained under § 123 1(a)); Reyes, 2015 WL 5081 597, at *3_4 (same); Dutton-Myrie v Lowe,
No. 13-2160, 2014 WL 5474617, at *3..4 (M.D. Pa. Oct. 28, 2014) (same).
4

period. The statute provides that, ‘except as otherwise provided in this section, when an alien is
ordered removed, the Attorney General shall remove the alien from the United States within a
period of 90 days (in this section referred to as the ‘removal period’).” Id.

§ 123 1(a)(l)(A).

Section 123 1(a)(2) requires that the alien be detained during the ninety-day post-removal-order
period. See 8 U.S.C.

§ 1231 (a)(2). If the alien is not removed during that ninety-day period, then

§ 123 1(a)(6) authorizes either continued detention or release on bond:
An alien ordered removed who is inadmissible under section 1982
of this title, under section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4)
of this title or who has been determined by the Attorney General to
be a risk to the community or unlikely to comply with the order of
removal, may be detained beyond the removal period and, if
released, shall be subject to the terms of supervision in paragraph
(3).
8 U.S.C.

§ 123 1(a)(6).

In Zadvydas v. Davis, 533 U.S. 678 (2001), the United States Supreme Court held that

§

1231 (a)(6) “limits an aliens post-removal-period detention to a period reasonably necessary to
bring about that alien’s removal from the United States. It does not permit indefinite detention.”
533 U.S. at 689. To state a habeas claim under

§ 2241 for release, the petitioner must provide

facts showing good reason to believe that there is no reasonable likelihood of her actual removal
in the reasonably foreseeable future. See Zadvydas, 533 U.S. at 701. “Zadvydas does not
delineate the boundaries of evidentiary sufficiency, but it suggests that an inversely proportional
relationship is at play: the longer an alien is detained, the less he must put forward to obtain
relief.” Alexander v. Attorney Gen. of United States, 495 F. App’x 274, 276—77 (3d Cir. 2012)
(citing Zathydas, 533 U.S. at 701). As a rule of thumb, the Supreme Court stated that six months
is a presumptively reasonable period of post-removal detention under
Zadvydas, 533 U.S. at 701.

5

§ 1231 (a)(6). See

Whether Ms. Pina is entitled to relief under the post-removal standards of Zadvydas, then,
depends on (a) whether, and (b) for how long, she has been in post-removal-order detention. If
Ms. Pina’s post-removal-order detention pursuant to

§ 1231(a) began on December 7, 2015

(when she was placed in detention after her reentry and conviction of criminal charges), then she
has been detained far longer than the six month period that is presumptively reasonable under
Zadvydas, and the Court would be obligated to consider her release under post-removal

standards.

B. Withholding-of-Removal Proceedings While Alien is in Immigration Detention on a
Reinstated Order of Removal
Generally speaking, an alien graduates from pre-removal to post-removal status when an
2
order of deportation or removal becomes final. An order of removal becomes final when the
BIA has affirmed it on appeal, or when the time to seek review with the BIA expires without an
appeal having been filed. 8 U.S.C.

3
§ 1 lOl(a)(47)(B).

Illegal reentry after an order of removal does not entitle the alien to restart the process.
Pursuant to 8 U.S.C.

§ 1231 (a)(5), where the Attorney General determines that an individual has

illegally reentered the country following her removal or deportation, that alien’s “prior order of
removal is reinstated from its original date and is not subject to being reopened or reviewed, the

2

There is no distinction, by the way, between the terms deportation and removal for any purpose
relevant to this Opinion. See Avila-Macias v. Ashcrofl, 328 F.3d 108, 111-12 (3d Cir. 2003) (the term
order of removal encompasses orders of deportation and exclusion, and there is no meaningful distinction
between deportation and removal under the current statutory scheme).

A final order of removal will revert to pre-final status, however (and the alien will revert to pre
removal status), if the “removal order is judicially reviewed and if a court orders a stay of the removal of
the alien.” In such a case the order does not become final until the court entering the stay issues a final
order. See 8 U.S.C. § 123 1(a)(l)(B)(ii).
6

alien is not eligible and may not apply for any relief under this chapter, and the alien shall be
removed under the prior order at any time after [his] reentry.” What that means is that the old
order of removal may simply be reinstated, and the alien will then resume her post-removalorder status. As of December 2015, that is what happened here.
At first glance, this statutory scheme appears to embody a principle of “once removed,
always removed.” And there is good case law support for that view. See Verde-Rodriguez v. Att

‘

Gen., 734 F.3d 198, 203 (3d Cir. 2013) (for purposes of the jurisdictional thirty-day time limit
for seeking review of a final order of removal in the Court of Appeals, a reinstated order of
removal is considered administratively final on the date the original removal order was issued);
see also Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (“an order reinstating a prior
removal order is [otherwise] the functional equivalent of a final order of removal”). A reinstated
removal order is not subject to review and is final at the moment of its issuance, because it is
merely a reassertion of the prior, already-final order of removal.
There is a wrinkle, however. In one narrow respect, a removed alien who has illegally
reentered the country does not stand in the same shoes as before. Even though the prior removal
order has been reinstated, is final, and is not otherwise subject to review, ICE may consider an
alien’s current application for withholding of renewal, based on her claim that she faces a threat
to her life or freedom if returned to her native country. (I will call this a “threat” application for
short.) Specifically, under 8 U.S.C.

§ 123 1(b)(3)(A), the Attorney General “may not remove an

alien to a country [where] the alien’s life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a particular social group, or political
opinion.”

7

“Withholding of removal,” however, is a somewhat misleading term. It means only that
such an alien may not be sent to her home country, where she faces a danger; she remains subject
to the order of removal, and may be sent to a safe third country that will accept her. See 8 U.s.c.

§

1231 (b)(2)(E)(vii). It is not removal as such, but removal to Mexico that is “withheld.”
The question becomes whether the review or grant of such a removed alien’s threat

petition will in effect reopen a final order of removal and return the person to pre-removal status.
As to that issue, the cases are in conflict. See p.4, n.1, supra.
Emblematic of the “pre-removal” side of the split is Guerrero v. Aviles, No. 14-4367
(WJM), 2014 WL 5502931, at *9 (D.N.J. Oct. 30, 2014). In considering whether the order of
removal remained final during withholding proceedings, Guerrero looked to Mebuin v. Attorney
General, 570 F. App’x 161 (3d Cir. 2014), which viewed the finality issue through the lens of
appellate jurisdiction. In that non-precedential opinion, the Third Circuit reasoned that the
jurisdiction of the Court of Appeals is limited to final orders of removal. See 8 U.S.C.

§

1252(a)(l). That finality may be subverted, however, by subsequent actions at the administrative
level. For example, the grant of a motion to reopen, or a BIA remand on issues that are not
independent of removability, might vitiate finality and rob the Court of Appeals ofjurisdiction
over the order from which an appeal was taken. 570 F. App’x at 16 1—2.
Guerrero reasoned by extension from Mebuin that when withholding proceedings are
pending, the IJ’s decision could affect the reinstated order of removal, at least to the extent of
barring removal to a specific country. The IJ’s decision, moreover, is subject to reversal or
modification on appeal to the BIA, and perhaps ultimately the Court of Appeals. See Guerrero,
2014 WL 5502931 at *5..8. Those circumstances, says Guerrero, are sufficient to render a

8

removal order non-final. And the order being non-final, the detainee should be regarded as
having reverted to pre-rernoval status.
Guerrero therefore held that the permissibility of continued detention is governed by the
pre-rernoval standards of § 1226(a) during withholding of removal proceedings on a reinstated
order of removal. Although I do not ultimately agree with the result, the reasoning of the opinion
is powerful and worth quoting at length:
[T]he question in this case is whether Guerrero’s reinstated order of
removal to Honduras is administratively final where the
Immigration Judge has scheduled a hearing on whether to withhold
Guerrero’s removal to Honduras. Determining the date of
administrative finality is important under the INA for two reasons.
First, the removal period, and the six-month presumptively
reasonable period of detention under § 123 1(a)(6), do not begin
until “the order of removal becomes administratively final.” 8
U.S.C. § 123 1(a)(1)(B)(i). Second, courts of appeals have
jurisdiction to review orders of removal only where the orders are
final (and the alien has exhausted all available administrative
remedies). See 8 U.S.C. § 1252(b)(9) (“Judicial review of all
questions of law and fact ... arising from any action taken or
proceeding brought to remove an alien from the United States
under this subchapter shall be available only in judicial review of a
final order under this section.”); 8 U.S.C. § 1252(d) (“A court [of
appeals] may review a final order of removal only if—(1) the alien
has exhausted all administrative remedies available to the alien as
of right, and (2) another court has not decided the validity of the
order ...“).

Finality is defined by 8 U.S.C. § 1 101(a)(47)(B), which provides
that removal orders “become final upon the earlier of—(i) a
determination by the Board of Immigration Appeals affirming such
order; or (ii) the expiration of the period in which the alien is
permitted to seek review of such order by the Board of
Immigration Appeals.” 8 U.S.C. § 1101 (a)(47)(B). It follows that,
if Guerrero is entitled to appeal the Immigration Judge’s order that
will be issued after the judge conducts the hearing regarding the
withholding of Guerrero’s removal to Honduras, then Guerrero’s
order of removal is not administratively final under §
1 10l(a)(47)(B).

9

The regulations governing the withholding of a reinstated order of
removal to a particular country are set forth in 8 C.F.R. § 241.8.
Section 241.8(a) provides that an alien “who illegally reenters the
United States after having been removed shall be removed from
the United States by reinstating the prior order,” and specifies that
“[tjhe alien has no right to a hearing before an Immigration Judge
in such circumstances.” 8 C.F.R. § 241.8(a). However, § 24 1.8(e)
creates an exception by which an alien who expresses a fear of
returning to the country designated in his reinstated removal order
is “immediately” referred to an asylum officer, who must
determine if the alien has “a reasonable fear” of returning to the
country designated in the reinstated order, in accordance with 8
C.F.R. § 208.31. See 8 C.F.R. § 241.8(e) (“If an alien whose prior
order of removal has been reinstated under this section expresses a
fear of returning to the country designated in that order, the alien
shall be immediately referred to an asylum officer for an interview
to determine whether the alien has a reasonable fear of persecution
or torture pursuant to § 208.31 of this chapter.”) 1f as in Guerrero’s
case, the asylum officer finds that the alien has a reasonable fear of
being removed to the country designated in the reinstated removal
order, then the officer must refer the matter to an Immigration
Judge “for full consideration of the request for withholding of
removal only.” 8 C .F.R. § 208.3 1(e) (“If an asylum officer
determines that an alien described in this section has a reasonable
fear of persecution or torture, the officer shall issue a Form I—
863, Notice of Referral to the Immigration Judge, for full
consideration of the request for withholding of removal only. Such
cases shall be adjudicated by the immigration judge in accordance
with the provisions of § 208.16.”). This regulation expressly
provides that “[ajppeal of the immigration judges decision shall lie
to the Board of Immigration Appeals.” 8 C.F.R. § 208.3 1(e).
...

...

Since § 208.31(e) gives the Immigration Judge jurisdiction over
the withholding of Guerrero’s removal to Honduras, and it also
gives Guerrero the right to appeal to the BIA the Immigration
Judge’s order regarding withholding his reinstated order of removal
to Honduras, the order of removal to Honduras is not at this time
administratively final within 8 U.S.C. § I 101(a)(47)(B). As
previously explained, an order of removal does not become final
until “(i) a determination by the Board of Immigration Appeals
affirming such order; or (ii) the expiration of the period in which
the alien is permitted to seek review of such order by the Board of
Immigration Appeals.” 8 U.S.C. § 1 10l(a)(47)(B). Since the
reinstated order to remove Guerrero to Honduras is not
administratively final under § 1101 (a)(47)(B), his removal period
will not begin until the reinstated order becomes administratively
10

final, see § 123 l(a)(l)(B)(i), and Guerrero’s detention is governed
by § 1226(a).
Guerrero, 2014 WL 5502931, at *3_4 (footnotes omitted).
As I say, the matter is not free from doubt, and I have given respectful consideration to

the reasoning of Guerrero and similar cases. In my view, however, the “threat” bar, requiring
removal to a third country, despite its significant practical effects, does not really undermine the
alien’s post-removal-order status as such. See Reyes, 2015 WL 5081597, at * 1. I therefore
disagree with the conclusions reached in Guerrero. Rather, I adopt the reasoning of the United
States District Court for the District of Colorado in Reyes.
The approach of Reyes is two-pronged. First, Reyes declined to apply the analogy to
finality as it bears on appealability:
Petitioner asks that I conflate administrative finality and judicial
finality, so that only when Petitioner’s appeals of any adverse
administrative decision on his withholding claim are complete, the
matter is considered “final” for purposes of the detention statutes. I
decline to do that, because these two aspects of “finality” are
distinct and serve fundamentally different and important purposes.
As a matter of subject matter jurisdiction, federal courts must await
exhaustion of all administrative appeals before reviewing
immigration decisions, whether by a habeas corpus action or a
petition for review. Soberanes v. Comfort, 388 F.3d 1305, 1308—09
(10th Cir. 2004). Thus, in the judicial review context, an
immigration decision is final only if the BIA has rendered its
decision and, even then, it is only final as to arguments actually
made to the BIA. E.g., Calderon—Rodriguez v. Terry, 547 Fed.
Appx. 867, 869 (10th Cir. 2013) (citing Soberanes, id); Garcia—
Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) (“To
satisfy § 1252(d)(l), an alien must present the same specific legal
theory to the BIA before he or she may advance it in court.”). In
the present case, no court of appeals will review Petitioner’s final
order of removal—as noted above, it is not reviewable [under §
1231 (a)(5)]. The federal courts may only review the [immigration
courts’] decision[s} on whether Petitioner has established his claim
for withholding of removal. I do not believe this state of affairs
logically renders the final order of removal “administratively non
Ii

final” for purposes of detention. Although the Judicial Branch has
the constitutional authority to determine finality for judicial review
purposes, Congress has the constitutional authority to define
administrative finality for purposes of detention, and it has done
so. See Wang v. Ashcrofl, 320 F.3d 130, 147 (2d Cir. 2003) (“The
determination of when an alien becomes subject to detention under
[ 1231(a)] rather than [ 1226] is governed by
[123 1(a)(l)(B)j.”).
The decision in Luna—Garcia v. Holder, 777 F.3d 1182 (10th Cir.
2015) is an example of the courts’ application of finality for
purposes ofjudicial review, holding that “where an alien pursues
reasonable fear proceedings following the reinstatement of a prior
order of removal, the reinstated removal order is not final until the
reasonable fear proceedings are complete.” Id. at 1186. The court’s
finality analysis was focused on the issue of withholding of
removal proceedings and the point at which government action is
judicially reviewable. Because, in Luna—Garcia, all administrative
and judicial proceedings concerning the issue of withholding
(which was the only issue before the court) had not been
completed, the removal order was not final. The court stated,
“With regard to agency action generally, the Supreme Court has
said that to be final, agency action must ‘mark the consummation
of the agency’s decisionmaking process,’ and it must determine
‘rights or obligations’ or occasion ‘legal consequences.” Id. at
1185.
And second, Reyes held that withholding of removal does not call into question the
alien’s post-removal status or return the alien to pre-removal status:

Here, on the other hand, the immigration agency has completed the
decisionmaking process on whether the Petitioner has a legal right
to remain in the United States and has determined that he does not
have that right. What has yet to be determined is whether he can be
returned to Mexico, or whether the government must look to
another country to which Petitioner will be removed. Huang v.
iNS., 436 F.3d 89, 95 (2d Cir. 2006) (“[W]ithholding of removal
is a ‘country-specific’ form of relief, i.e., it bars removal to the
nation of persecution, but it does not prevent exclusion and
deportation to a hospitable third country.”). During the pendency
of that determination, there is no compelling legal reason, for
purposes of detention, to treat Petitioner as an alien who is
“pending a decision on whether [he] is to be removed from the
United States,” 8 U.S.C. § 1226(a), as opposed to an alien who “is
12

ordered removed.” 8 U.S.C. § 123 1(a)(1)(A). See Joseph v.
Holder, 600 F.3d 1235, 1241 (9th Cir. 2010) (“The BIA has noted
that ‘bond and removal are distinctly separate proceedings.”)
(citations omitted). The ultimate purpose of a removal proceeding
(for persons who do not have legal status here) is, of course, to
determine an alien’s admissibility into the United States. Clark v.
Martinez, 543 U.S. 371, 373 (2006); YanezMarquez v. Lynch, 789
F.3d 434, 448 (4th Cir. 2015) (“[R]emoval proceedings determine
the alien’s ‘eligibility to remain in this country ...‘ “) (quoting INS
v. Lopez—Mendoza, 468 U.S. 1032, 1038 (1984)). “A removal
proceeding is generally ‘the sole and exclusive procedure for
determining whether an alien may be admitted to the United States
or, if the alien has been so admitted, removed from the United
States.’ 8 U.S.C. § 1229a(a)(3).” Dormescar v. US. Attorney Gen.,
690 F.3d 1258, 1260 (11th Cir. 2012).
When an alien has not yet been ordered removed, as under Section
1226(a), he is, as noted above, fighting to establish eligibility to
remain in the United States. An alien who has received an
administratively final order of removal has lost that battle.
Castellano—Chacon v. iNS., 341 F.3d 533, 544 (6th Cir. 2003)
(“Unlike an application for asylum. . a grant of an alien’s
application for withholding is not a basis for adjustment to legal
permanent resident status[.]”). Treating these two classes of
persons differently for detention purposes is not only rational but
mandated by the Immigration and Nationality Act. Indeed, if
Petitioner is eligible for a bond hearing under Section 1226, then
by illegally re-entering the United States once again, he has
attained greater rights (in terms of potential freedom to avoid
detention) than he had when he was last removed in 2007. I do not
believe Congress intended such a result. Even more importantly,
even if Petitioner succeeds in his withholding-only case, his
detention will still be governed by Section 123 l(a)(5), because his
status will be that of an alien with a final order of removal. Al—
Bare/i v. Chertofj 552 F. Supp. 2d 794, 798—99 (N.D. Ill. 2008). If
Petitioner had a final order of removal (and was subject to
detention under Section 1231) prior to expressing a fear of torture,
and he will have a final order of removal (and will be subject to
detention under Section 1231) after his withholding proceedings
are completed (no matter what the outcome is), I cannot see how
his detention status should change as a matter of law during his
withholding proceedings. Such a transitory appearance of new
rights vis-a-vis an alien’s ability to obtain bond makes no legal
sense.
.

13

Reyes, 2015 WL 5081597 at *3..4
This country, for humanitarian reasons, has recognized the threat Ms. Pina would face if
returned to Mexico. Ms. Pina’s illegal reentry to the United States, however, does not entitle her
to rights greater than those she possessed at the time of her prior removal. See, e.g., VerdeRodriguez, 734 F.3d at 203 (“The contrary conclusion would create a new and wholly
unwarranted incentive for aliens who have previously been removed to reenter the country
illegally in order to take advantage of this self-help remedy. It would also make a mockery of
aliens who do respect our laws and wait patiently outside our borders seeking lawful
admission.”) (quoting Morales-Izquierdo v. Gonzales, 486 F.3d 484, 497 (9th Cir. 2007)). I am
also persuaded by the Reyes Court’s recognition that the statute denies any court the authority to
review or re-detennine a petitioner’s removability with respect to a reinstated order of removal.
See Reyes, 2015 WL 5081597 at *3..4; Santos, 2014 WL 2532491, at *3..4 (“Petitioner.
to recognize that his [withholding proceedings are] not a.

.

.

.

.

fails

review of his removal order[, but

riather” are limited to “withholding of removal” to his home country). The statute having
prohibited such review of a removal order, a Court must hesitate in concluding that withholding
of removal is really tantamount to such review.
To the Reyes discussion, I add only the following. Withholding of removal does not
adjust the alien’s status. As to removal, it affects not the question whether, but the question
where. By that I mean that it governs the manner in which removal is to be effected, not
removability per se. To be sure, the alien may have a keen interest in whether she is removed to
Mexico, or some other country. Indeed, the latter option is a result of her having petitioned for it.
That is different from saying that, by virtue of her having petitioned for it, she is no longer in
removal status; only her destination, not her removability, is in play.

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For these reasons then, I hold that Ms. Pina has been in post-removal-order detention,
pursuant to

§

1231(a), since December 7, 2015.

C. Zadvydas Analysis
It follows that Ms. Pina’s rights with respect to detention and release are governed by the
post-removal-order standards of Zadvyas, outlined at pp. 4—6, supra. To say that she is in postremoval status is not to say that the government may detain her indefinitely while it searches for
a country that will have her.
Ms. Pina’s detention since December 7, 2015, has surely exceeded the six month period
that is deemed presumptively reasonable under Zadvydas. The inquiry, however, is not a rigid
one; it must take all circumstances, presumably including time necessarily spent in Ms. Pina’s
petition for withholding of removal, into account. To obtain habeas relief:, the alien must also
show that there is no reasonable likelihood of actual removal in the reasonably foreseeable future.
See Zadvydas, 533 U.S. at 701. The burden is on Ms. Pina to make this showing. See Barenboy
v. Attorney General of US., 160 F. App’x 258, 261 n.2 (3d Cir. 2005) (“Once the six-month
period has passed, the burden is on the alien to ‘provide good reason to believe that there is no
significant likelihood of removal in the reasonably foreseeable future....’ Only then does the
burden shift to the Government, which ‘must respond with evidence sufficient to rebut that
showing.”) (quoting Zadvydas, 533 U.S. at 701).
Here, while Ms. Pina can no longer be removed to Mexico, she may be removed to
another country. See 8 U.S.C.

§

123 1(b)(2)(E)(vii). Ms. Pina has not made a showing that such a

removal is not likely to occur in the reasonably foreseeable future.
I recognize, however, that Ms. Pina filed her habeas petition without the benefit of the
Court’s ruling that she occupies post-removal-order status. I therefore will deny the habeas

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petition as presented, but without prejudice to the filing of an amended petition within thirty
days. Such an amended petition, if it is to succeed, must address the Zadvydas standard and state
reasons for believing that removal is not likely to occur in the reasonably foreseeable future.
III.

CONCLUSION

For the foregoing reasons, the habeas petition is denied without prejudice. An appropriate
order will be entered.
DATED: March 9, 2017

WN MCNULTY
United States District Judge

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