Martinez-Paredes v. Lowe et al
Filing
8
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 10/30/17. (rw)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN MARTINEZ-PAREDES,
Petitioner
v.
CRAIG A. LOWE, et al.,
Respondents
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No. 1:17-CV-00353
(Judge Kane)
MEMORANDUM
Presently before the Court is Petitioner Kevin Martinez-Paredes’ petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his prolonged
detention by the United States Department of Homeland Security, Immigration, and Customs
Enforcement (“ICE”), at the Pike County Correctional Facility without a bond hearing (Doc.
No. 1.) Following an Order to answer the petition (Doc. No. 3), Respondents1 filed a response,
contending that Petitioner is an “arriving alien” who is lawfully detained under 8 U.S.C. §
1225(b) and is not entitled to release or a bond hearing. (Doc. No. 6.) For the reasons set forth
below, the Court will grant the writ of habeas corpus directing that an immigration judge conduct
an individualized bond hearing.
I.
BACKGROUND
Martinez-Paredes is a native and citizen of El Salvador. (Doc. 6-1, pp. 2-4, Record of
Deportable/Inadmissible Alien.) On November 15, 2015, Martinez-Paredes applied for
admission to the United States at the Hidalgo, Texas Port of Entry, and was apprehended by the
United States Customs and Border Control. (Id.) He reported that he sought admission into the
1
Warden Craig Lowe is the immediate custodian of Petitioner and the only properly named
Respondent in this action. The Court will dismiss all other named respondents from this action.
See Maher v. Pa. Bd. of Probation & Parole, No. 3:04-CV-1277, 2005 WL 1324879, at *1 n.2
(M.D. Pa. June 3, 2005).
United States because he feared for his life in El Salvador. (Id.) On that same day, MartinezParedes was issued a Notice and Order of Expedited Removal pursuant to Section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”), because he is inadmissible
based on his lack of documentation. (Id. at Ex. 3, Notice and Order of Expedited Removal.)
On September 14, 2016, an immigration judge ordered that that Martinez-Paredes be
removed from the United States and denied his applications for asylum and withholding of
removal. (Id. at Ex. 4, Order of the immigration judge.) Martinez-Paredes appealed the
immigration judge’s September 14, 2016 order before the Board of Immigration Appeals
(“BIA”). (Id. at Ex. 5, Filing Receipt for Appeal.) On March 10, 2017, the BIA remanded
Martinez-Paredes’ case to the immigration judge because the decision did not “contain sufficient
factual and legal analysis to allow [the BIA] to perform adequate appellate review.” (Id., at Ex.
6, Decision of the BIA.) Martinez-Paredes is currently awaiting a new hearing. (Id.) MartinezParedes filed the instant petition for a writ of habeas corpus on February 27, 2017. (Doc. No. 1.)
II.
DISCUSSION
A.
The Statutory Basis for Petitioner’s Detention
Before determining whether Petitioner is entitled to relief, the Court must first determine
whether Petitioner’s detention arises out of 8 U.S.C. § 1226(c) or 8 U.S.C. § 1225(b). Petitioner
contends that he is being held pursuant to 8 U.S.C. § 1226(c) and is entitled to release or a bond
hearing (Doc. No. 1), while Respondent argues that Petitioner is being held pursuant to 8 U.S.C.
§ 1225(b) and is not entitled to release or a bond hearing. (Doc. No. 6.)
This Court has very recently been presented with a number of factually similar cases as
the one currently before it. See, e.g., Ahmed v. Lowe, Civ. No. 3:16-CV-2082, 2017 WL
2374078 (M.D. Pa. May 31, 2017) (determining whether petitioner’s detention arises out of 8
U.S.C. § 1226(c) or 8 U.S.C. § 1225(b)(2)(A), and finding that because petitioner was classified
as an “arriving alien,” petitioner’s detention was controlled by § 1225(b)(2)(A)); Swarray v
Lowe, Civ. No. 1:17-CV-0970 (M.D. Pa. Aug. 18, 2107), adopting Report and Recommendation,
Swarray v. Lowe, Civ. No. 1:17cv-970, 2017 WL 3585868 (M.D. Pa. June 27, 2017) (same);
Singh v. Lowe, Civ. No. 3:17-0119, 2017 WL 1134413 (M.D. Pa. March 27, 2017), adopting
Report and Recommendation, Singh v. Lowe, Civ. No. 3:17-CV-119, 2017 WL 1157899 (M.D.
Pa. March 7, 2017) (same).
Section 1226(c) would apply to Petitioner’s detention if, prior to being taken into
custody, he was admitted into the United States and was thereafter being removed because of his
criminal convictions. See, e.g., Leslie v. U.S. Attorney Gen., 678 F.3d 265, 269-70 (3d Cir.
2012). In Petitioner’s case, however, it is uncontested that he was never admitted into the United
States. Rather, upon arriving at the border to the United States at the Hidalgo, Texas Port of
Entry, Petitioner was apprehended by the United States Customs and Border Control. Doc. 6-1,
pp. 2-4, Record of Deportable/Inadmissible Alien.)
In contrast, 8 U.S.C. § 1225(b) applies to “arriving aliens” such as Martinez-Paredes.
Section 1225(b) provides that arriving aliens are inspected immediately upon arrival in the
United States by an officer of the United States Customs and Border Control. If the immigration
officer determines that the alien is inadmissible because the alien cannot produce valid entry
documents, see 8 U.S.C. § 1182(a)(7), “the officer shall order the alien removed from the United
States without further hearing or review.” 8 C.F.R. § 1235.3(b)(1)(I), (b)(2)(ii) (providing that
arriving aliens subject to expedited removal are not entitled to a hearing or appeal of this
decision).
If, however, the alien “indicates an intention to apply for asylum . . . or a fear of
persecution, the officer shall refer the alien for an interview by an asylum officer.” 8 U.S.C. §
1225(b)(1)(A)(ii); see 8 C.F.R. § 235.3(b)(4) (“[I]f an alien subject to the expedited removal
provisions indicates an intention to apply for asylum, or expresses a fear of persecution or
torture, or a fear of return to his or her country, the inspecting officer shall not proceed further
with removal of the alien until the alien has been referred for an interview by an asylum officer .
. . .”).
Should the asylum officer determine that the alien has a credible fear of persecution, the
alien “shall be detained for further consideration of the application for asylum.” 8 U.S.C.
§1225(b)(1)(B)(ii). If the alien receives a positive credible fear determination, the alien will be
placed in removal proceedings. 8 C.F.R. § 235.6(a)(1)(ii). The alien, however, remains detained
pursuant to 8 U.S.C. § 1225(b)(2)(A) during the pendency of these proceedings. The only statute
which permits an alien’s release from § 1225(b) custody is 8 U.S.C. § 1182(d)(5)(A), pursuant to
which an alien may be paroled into the United Sates if the Attorney General determines “on a
case-by-case basis” that “urgent humanitarian reasons or significant public benefit” warrant the
alien’s release. 8 U.S.C. § 1182(d)(5)(A). Decisions under § 1182 are purely discretionary and
the regulations prevent an immigration judge from “redetermin[ing] conditions of custody” with
respect to certain classes of aliens, including “[a]rriving aliens in removal proceedings, including
aliens paroled after arrival pursuant to section 212(d)(5) of the Act.” 8 C.F.R. §
1003.19(h)(2)(i)(B).
As provided for above, Martinez-Paredes presented himself for admission at the United
States border at the Hidalgo, Texas Port of Entry, and was immediately detained and classified as
an “arriving alien.” See 8 C.F.R. § 1001.1(q) (“The term arriving alien means an applicant for
admission coming or attempting to come into the United States at a port-of-entry . . . .”).
Accordingly, the Court finds that Martinez-Paredes’ detention is controlled by § 1225(b)(2)(A)
and not § 1226(c).
B.
Petitioner’s Due Process Claim
Having resolved that Martinez-Paredes’ detention arises out of 8 U.S.C. § 1225(b)(2)(A),
the Court now addresses whether he is entitled to the relief he seeks. Martinez-Paredes argues
that his detention by ICE for approximately twenty-two (22) months violates due process, and
thus, he should be either released or accorded a bond hearing. (Doc. No. 1.) Respondent asserts
that the § 1225(b) requires detention without a bond hearing, and that arriving aliens who have
never been admitted to the United States do not have the same constitutional protections as
individuals who have entered the United States, and can therefore be subjected to prolonged
detention. (Doc. No. 6.)
This Court notes that neither the Supreme Court nor the United States Court of Appeals
for the Third Circuit has provided clear guidance as to whether Diop v. ICE/Homeland Sec., 656
F.3d 221 (3d Cir. 2011) (laying out a two step-process for a reviewing court to determine
whether a detention has been unreasonably long, and then whether the unreasonable detention is
necessary to fulfill § 1226’s purposes), and Chavez-Alvarez v. Warden York County Prison, 783
F.3d 469 (3d Cir. 2015) (providing a clear guidance in assessing the reasonableness of the
duration of any mandatory immigration detention and setting forth a balancing framework which
is highly fact-specific), applies to detention of arriving aliens pursuant to 8 U.S.C. § 1225(b).
However, the Court recognizes that “while admissible aliens are not afforded the fully panoply
of protections under the Constitution, the Supreme Court has recognized that inadmissible aliens
are entitled to some modicum of due process under the Fifth Amendment.” Singh, 2017 WL
1134413, at *7 (citing Zadvydas v. Davis, 533 U.S. 678, 694 (2001) (holding that, although the
Due Process Clause protects an alien subject to a final order of deportation, “the nature of that
protection may vary depending upon status and circumstances.”)) Moreover, the Third Circuit
has provided that “[e]ven an excludable alien is a ‘person’ for purposes of the Fifth Amendment
and is thus entitled to substantive due process.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 396 (3d
Cir. 1999).
Additionally,
[I]n the context of the post-removal order detention statute, 8 U.S.C. §
1231, the Supreme Court has held that the distinction between
admissible aliens, and those who have not been admitted to the United
States, does not call [for] the denial of a basic requisite of due process:
the opportunity to have an individualized bond determination when an
alien faces protracted detention of an undefined and unreasonable
nature. See Clark v. Martinez, 543 U.S. 371 (2005).
Likewise, in the context of pre-removal mandatory detention of
criminal aliens, it is now well-settled that there exists a due process
right to individualized bond consideration once pre-removal detention
has reached a presumptively unreasonable duration . . . .
Singh, 2017 WL 1134413, at *7.
Given the due process rights afforded to excludable aliens in a post-final removal and
pre-removal setting, many courts have rejected the very argument advanced by Respondent to
completely deny arriving aliens who are detained pursuant to § 1225(b) any opportunity for bond
consideration. Rather, courts have held that arriving aliens detained pursuant to § 1225(b) enjoy
the same basic due process right afforded to many other classes of detained aliens; that is, the
right to an individualized bond determination once the length of their pre-removal detention has
become unreasonable. See, e.g, Swarray v. Lowe, Civ. No. 1:17-CV-0970, 2017 WL 3581710
(M.D. Pa. Aug. 18, 2017) (holding that “due process protection for a § 1225(b)(2)(A) detainee is
subject to consideration of reasonableness of the length of detention of that alien”); Singh v.
Lowe, Civ. No. 3:17-CV-119, 2017 WL 1134413 (M.D. Pa. March 7, 2017) (finding that
arriving aliens detained “pursuant to § 1225(b) have a due process right to an individualized
bond consideration once it is determined that the duration of their detention has become
unreasonable” and further finding that a sixteen (16) month duration reached the presumptively
unreasonable length), appeal docketed, No. 17-2178, 2017 WL 1134413 (3d Cir. May 26, 2017);
Ahmed v. Lowe, Civ. No. 3:16-CV-2082, 2017 WL 2374078 (M.D. Pa. May 31, 2017) (finding
that petitioner who is an “arriving alien” detained pursuant to § 1225(b), has a due process right
to an individualized bond hearing, and his detention for nearly twenty-seven (27) months was
presumptively unreasonable), appeal docketed, No. 17-2653, 2017 WL 2374078 (3d Cir. Aug. 3,
2017); Ahad v. Lowe, 235 F. Supp. 3d 676 (M.D. Pa. 2017) (holding that developing due process
jurisprudence supports the finding that § 1225(b) contains an implicit statutory reasonableness
requirement and detention of twenty (20) months is presumptively unreasonable), appeal
docketed, No. 17-1492 (3d Cir. Mar. 9, 2017).
In light of these cases, the Court finds that Martinez-Paredes is an “arriving alien”
detained pursuant to § 1225(b), has been detained for a prolonged period of at least twenty-two
(22) months, which is presumptively unreasonable, and therefore, is entitled to an individualized
bond hearing before an immigration judge.
III.
CONCLUSION
For the foregoing reasons, the Court will grant Martinez-Paredes’ petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1), insofar as it seeks an individualized
bond hearing before an immigration judge. An appropriate Order follows.
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