Bucio-Fernandez v. Sabol et al

Filing 7

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 6/16/17. (rw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JORGE ALBERTO BUCIOFERNANDEZ
Petitioner,
v.
MARY SABOL, WARDEN OF
YORK COUNTY PRISON, et al.,
Respondents

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No. 1:17-CV-00195
(Judge Kane)

MEMORANDUM
On February 2, 2017, the Court received and docketed the instant petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241filed by pro se Petitioner Jorge Alberto BucioFernandez, a native and citizen of Mexico, who has been in the custody of the United States
Immigration and Customs Enforcement (“ICE”), since July 28, 2016. (Doc. No. 1.)
Respondents have filed an answer (Doc. No. 5), and Petitioner has filed what he has entitled a
notice of supplemental authority. (Doc. No. 6.) Having considered the parties’ positions,
relevant legal authority, and the record in this case, the Court will deny the petition for the
reasons set forth below.
I.

BACKGROUND
Petitioner, a native and citizen of Mexico, alleges that he entered the United States

around 1984. (Doc. No. 1, at 2.) On February 13, 2000, Petitioner was removed from the United
States. (Doc. No. 5, at 2, Respondents’ Brf.) Petitioner subsequently re-entered, and on
February 15, 2005, was convicted of the sale of heroin and sentenced to two years’
imprisonment. (Id.) Petitioner was removed from the United States two additional times
following his release from prison—once in 2007 and again in 2009. (Id.) Then, on July 22,
2013, upon reentering the United States for a fourth time, Petitioner was administratively

arrested as a suspected alien illegally present in the United States and was served with a Notice
of Intent/Decision to Reinstate Prior Order (Form I-871) pursuant to 8 U.S.C. § 1231(a)(5). (Id.;
Doc. No. 1, at 2; Doc. No. 5-2.) On April 1, 2014, Petitioner was convicted of Illegal Reentry,
and a 41-month incarceration period was imposed. (Id.)
Upon Petitioner’s release from the Bureau of Prisons on July 28, 2016, he was taken into
the custody of ICE for removal. (Doc. No. 1 at 2; Doc. No. 5-2.) On July 22, 2013, ICE
reinstated Petitioner’s February 13, 2000 removal order. (Id.) It was at this time that Petitioner
expressed a fear of returning to Mexico. (Id.) His claim was forwarded to an asylum officer
who determined that Petitioner’s fear was reasonable, and his case was referred to an
Immigration Judge for withholding-only proceedings. (Id.) On February 15, 2017, the
Immigration Judge denied Petitioner all forms of withholding of removal. (Doc. No. 5, at 3.) It
appears from the record that Petitioner appealed this decision and the appeal is currently pending
before the Board of Immigration Appeals (“BIA”). (Doc. No. 6, at 3, Petitioner’s supplemental
authority.)
On February 2, 2017, Petitioner filed the instant petition for writ of habeas corpus
seeking either immediate release from confinement, or alternatively, an individualized bond
hearing before an immigration judge on the basis that his detention for over 10 months without a
bond hearing is unreasonable. On February 27, 2017, Respondents filed a response to the
petition, arguing that Petitioner’s continued detention without a bond hearing is authorized under
8 U.S.C. § 1231(a)(6), as Petitioner was previously removed and is subject to a reinstated final
order of removal. (Doc. No. 5.) Petitioner filed a reply, captioned as a “notice of supplemental
authority,” on May 22, 2017. (Doc. No. 6.) Having been fully briefed, this matter is now ripe
for disposition.

II.

DISCUSSION
As noted above, Petitioner challenges the constitutionality of his prolonged detention

without a bond hearing. A review of the record reveals that Petitioner is subject to a 2000 order
of removal, which was reinstated on July 22, 2013 after his illegal reentry. Petitioner has been
detained by ICE pursuant to that reinstated order beginning on July 28, 2016. He has petitioned
for withholding of removal because he alleges he faces a threat if returned to his native country,
Mexico. However, even if his withholding claim is ultimately granted, this does not mean that
Petitioner cannot be removed from the United States; it means only that he will not be sent to
Mexico. See Reyes v. Lynch, No. 15-CV-0442, 2015 WL 5081597, at *3 (D. Colo. 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 threshold question before this Court is whether Petitioner, for the period from July
28, 2016 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. § 1231(a).
Petitioner advocates that he falls under § 1226(a) as a pre-removal-order immigration detainee,
while the Respondents argue that he is a post-removal-order immigration detainee under §
1231(a). The issue is a consequential one, because it determines the legal standard which will
govern Petitioner’s application for release from custody.
A.

Pre-removal § 1226 Standards vs. Post-removal-order § 1231 Standards

Relevant here, two statutory provisions govern ICE’s authority to detain an alien: 8
U.S.C. § 1226, INA § 236 (pre-removal order), and 8 U.S.C. § 1231, INA § 241 (post-removal-

order). See Leslie v. Attorney Gen., 678 F.3d 265, 268-69 (3d Cir. 2012). § 1226 governs
detention while removal proceedings are ongoing and before the issuance of a final order of
removal. Leslie, 678 F.3d at 268 (providing that § 1226(a) allows for detention pending a
decision in removal proceedings unless mandatory detention under subsection (c) is required for
aliens who have committed certain offenses). Conversely, § 1231 authorizes detention after a
final order of removal has been imposed. Leslie, 678 F.3d at 270 (“[T]he purpose of § 1231
detention is to secure an alien pending the alien’s certain removal.”).
If detention is under § 1226, the alien is entitled to a bond hearing wherein the
government, having the burden, must show that the alien is a flight risk or a danger to the
community if detention is to continue. See Chavez-Alvarez v. Warden York Cnty. Prison, 783
F.3d 469, 475 (3d Cir. 2015) (stating that detention is authorized “‘for a reasonable amount of
time, after which the authorities must make an individualized inquiry into whether detention is
still necessary to fulfill the statute’s purposes of ensuring that an alien attends removal
proceedings and that his release will not pose a danger to the community’”) (quoting Diop v.
ICE/Homeland Sec., 656 F.3d 221, 231 (3d Cir. 2011)).
If detention is under § 1231, the Attorney General has ninety days to effectuate removal
after an order of removal becomes final. During this “removal period,” detention of the alien is
mandatory. See 8 U.S.C. § 1231(a)(2). If the alien has not been removed and remains in the
United States after the ninety-day period, the alien’s detention may continue, or he may be
released under the supervision of the Attorney General. See 8 U.S.C. §§ 1231(a)(3) and (6).
Section 1231(a) allows ICE to detain an alien for a “reasonable time” necessary to effectuate the
alien’s deportation, but indefinite detention is not authorized. Zadvydas v. Davis, 533 U.S. 678
(2001). In Zadvyda, the United States Supreme Court stated that six months is the presumptively

reasonable period of post-removal detention under § 1231(a)(6). Id. at 701. After this period, an
alien must be released if he provides good reason to believe that there is no significant likelihood
of removal in the reasonably foreseeable future. Id. However, this six-month presumption “does
not mean that every alien not removed must be released after six months. To the contrary, an
alien may be held in confinement until it has been determined that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id.
Admittedly, there appears to exist well-reasoned decisions on either side of the issue now
presently before the Court; that is, whether Petitioner should be considered a pre-removal-order
immigration detainee under § 1226(a) or a post-removal-order immigration detainee under §
1231(a). 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-CV-2423, 2016 WL 4988056, at *4 (M.D. Pa. Sept.
19, 2016) (same); Guerrero v. Aviles, No. 14-CV-4367, 2014 WL 5502931, at *9 (D.N.J. Oct.
30, 2014) (same); with, Pina v. Castille, No. 16-CV-4280, 2017 WL 935163, at *8 (D.N.J.
March 9, 2017) (finding petitioner detained under a reinstated order of removal with withholding
of removal proceedings under § 1231(a)); (Padilla-Ramirez v. Bible, 180 F. Supp. 3d 697, 70102 (D. Idaho 2016) (same); Reyes v. Lynch, No. 15-CV-0442, 2015 WL 5081597, at *3-4 (D.
Colo. Aug. 28, 2015) (same); Castaneda v. Aitken, 15-CV-01635, 2015 WL 3882755, at *5
(N.D. Calif. June 23, 2015) (same); Dutton-Myrie v. Lowe, No. 13-CV-2160, 2014 WL
5474617, at *3-4 (M.D. Pa. Oct. 28, 2014) (same); Santos v. Sabo, No. 14-CV-0635, 2014 WL
2532491, at *3-4 (M.D. Pa. June 5, 2014) (same). The Court subscribes to the latter camp of
case law aforementioned; that is, Petitioner’s detention is authorized by § 1231(a) and not by §
1226(a). We explain our reasoning below.

B.

Withholding-of-Removal Proceedings

If an alien removed pursuant to a removal order subsequently re-enters the United States
illegally, the original removal order may be reinstated by an authorized official. See 8 C.F.R. §
241.8. Thus, illegal reentry after an order of removal does not entitle the alien to restart the
process. Rather, pursuant to 8 U.S.C. § 1231(a)(5), where the Attorney General determines that
an individual has illegally reentered the country following his 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 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 the reentry.” 8 U.S.C. §
1231(a)(5); see Verde-Rodriguez v. Attorney Gen., 734 F.3d 198, 2013 (3d Cir. 2013) (providing
that a reinstated order of removal is considered administratively final on the date the original
removal order was issued); Dinnall v. Gonzales, 421 F.3d 247, 251 n.6 (3d Cir. 2005) (“[A]n
order reinstating a prior removal order is [otherwise] the functional equivalent of a final order of
removal”). Thus, 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.”
Pina, 2017 WL 935163, at *4.
8 C.F.R. § 241.8(e), however, creates an exception by which an alien who asserts 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 reasonable fear of persecution or torture in
accordance with 8 C.F.R. § 208.31. See 8 U.S.C. § 1231(b)(3)(A) (stating that 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”). If the asylum officer makes a positive reasonable

fear determination, as in Petitioner’s case, the matter is referred to an immigration judge “for
consideration of the request for withholding of removal only.” Id. § 208.31(e). The immigration
judge’s decision to grant or deny withholding of removal may be appealed to the BIA. Id. §
208.31(g)(2)(ii). Indeed, that is Petitioner’s current procedural posture: a pending appeal with
the BIA on the immigration judge’s decision to deny Petitioner all forms of withholding of
removal. (Doc. No. 5, at 3; Doc. No. 6, at 3.)
“Withholding of removal” however, only means that such an alien may not be sent to his
home country where he faces a danger; he remains subject to the order of removal and may be
sent to a safe third country that will accept him. See 8 U.S.C. § 123(b)(2)(E)(vii). Alas, the
question becomes whether the review or grant of such a removed alien’s application for
withholding of removal will, in effect, reopen a final order of removal and return the individual
to pre-removal status.1
C.

Post-removal-order § 1231 Authorizes Petitioner’s Detention

As provided for above, it is clear that Petitioner is subject to a reinstated removal order
under § 1231(a)(5). Petitioner does not contest this. Specifically having been found to have
illegally reentered the United States after being removed, ICE served Petitioner with a Notice of
Intent/Decision to Reinstate Prior Order (Form I-871), pursuant to 8 U.S.C. § 1231(a)(5), and
reinstated his 2000 removal order. (Doc. Nos. 1 and 5.) Accordingly, Petitioner was found to be
subject to removal through the reinstatement of his 2000 final removal order.
The Third Circuit has upheld the reinstatement procedure of removal orders under 8
U.S.C. § 1231(a)(5). See Ponta-Garcia v. Attorney Gen., 557 F.3d 158, 160 (3d Cir. 2009)
(stating that if “an alien has reentered the United States illegally after having been removed …,

1

As noted in Section III a, supra, the cases are in conflict.

under an order of removal, the prior order of removal is reinstated from its original date and is
not subject to being reopened or reviewed … and the alien shall be removed under the prior
order at any time after the reentry”). Similarly, in Buquez v. Attorney Gen. of U.S., 394 F.
App’x 932, 935 (3d Cir. 2010), the Third Circuit provided that “[i]n order to reinstate a prior
order of removal, the statute requires that an alien has reentered the United States illegally and
that he reentered after having been removed or having departed voluntarily under an order of
removal. 8 U.S.C. § 1231(a)(5).” Thus, Petitioner’s removal order was administratively final
when it was reinstated on July 22, 2013.
8 U.S.C. § 1231(a) is the applicable statute since Petitioner is subject to a final order of
removal. Petitioner’s prior order of removal was reinstated under 8 U.S.C. § 1231(a)(5) when he
was found to have illegally reentered the United States. See Aziz v. Attorney Gen. of U.S. No.
12-CV-673, 2012 WL 5207459, at *1 n.3 (M.D. Pa. Oct. 22, 2012) (“8 U.S.C. § 1231 is the
applicable statute, because Petitioner is subject to a final order of removal.”).
Further, Petitioner’s pending review with the BIA is not a judicial review of his removal
order. Rather, as discussed above, Petitioner’s pending appeal with the BIA involves only the
immigration judge’s February 15, 2017 Order denying his application for withholding removal
under INA § 241(b)(3) and under the Convention Against Torture (“CAT”), 64 Fed. Reg. 8478,
8479. Accordingly, Respondents are correct in asserting that Petitioner has an administratively
final order of removal. Petitioner has no further action pending regarding his removal order
because his removal order is final pursuant to 8 U.S.C. § 1231(a)(5). The BIA’s review of
Petitioner’s application for withholding removal does not alter his prior removal proceedings and
his removal order in any way. Rather, Petitioner’s appeal of the immigration judge’s February
15, 2017 Order denying his application for withholding removal INA § 241(b)(3) and under

CAT affects only whether Petitioner may be removed to Mexico. Thus, the pendency of a
reasonable fear determination does not impact the finality of a reinstated removal order under 8
U.S.C. § 1231(a)(5). See Santos, 2014 WL 2532491, at *3. Thus, even if Petitioner prevails on
his pending appeal with BIA and BIA overturns the denial of Petitioner’s application for
withholding removal, Petitioner can still be removed from the United States, just not Mexico.
See Id. Accordingly, because Petitioner’s reinstated removal order was administratively final at
the time it was reinstated, his detention is authorized by § 1231(a) and not § 1226(a).
D.

Zadvydas Analysis

Petitioner’s rights with respect to detention and release are governed by the post-removalorder standards of Zadvydas, set forth in Section III a, supra. Although in post-removal-order
status, the government may not detain Petitioner indefinitely. See Zadvydas, 533 U.S. at 701.
Petitioner has been detained in ICE custody since July 28, 2016. This certainly has exceeded the
six month period that is deemed presumptively reasonable under Zadvydas. To obtain habeas
relief, however, Petitioner must show that there is no reasonable likelihood of actual removal in
the reasonably foreseeable future. Id. The burden rests upon Petitioner to make this showing.
Id.; see Barenboy v. Attorney Gen. of U.S. 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, Petitioner has failed to demonstrate
that such removal is not likely to occur in the reasonably foreseeable future. Accordingly, the
petition must be denied.
III.

CONCLUSION

For the foregoing reasons, the Petitioner’s 28 U.S.C. § 2241 petition (Doc. No. 1), will be
denied. An appropriate Order follows.