Gutierrez Flores v. Doll
MEMORANDUM re Petition for Writ of Habeas Corpus 1 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 11/16/17. (ma)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Currently before the Court is Petitioner David Alexander Gutierrez Flores’
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging his
detention at the York County Prison, York, Pennsylvania, in the custody of the
Department of Homeland Security (“DHS”), Immigration and Customs
Enforcement (“ICE”), without a bond hearing. Petitioner requests that he either be
released from ICE detention or accorded a bond hearing. For the reasons that
follow, the Court will deny the petition.
Petitioner, a citizen and national of Honduras, has been in the custody of
ICE since February 8, 2017. (Doc. No. 1; Doc. No. 5 at 7.) On June 15, 2015,
Petitioner was arrested by deportation officers at the Sussex County Parole and
Probation Office in Georgetown, Delaware. (Doc. No. 5, Ex. 1 at 3, Record of
Deportable/Inadmissible Alien.) Petitioner was issued a Notice to Appear and
placed into removal proceedings pursuant to 8 U.S.C. § 1227(a)(2)(A)(ii) of the
Immigration and Nationality Act (“INA”). A removal order was issued on October
7, 2015. (Doc. No. 5, Ex. 2 at 1.) ICE removed Petitioner from the United States
on October 20, 2015. (Doc. No. 5, Ex. 1 at 3.)
ICE again encountered Petitioner near Millsboro, Delaware on February 8,
2017, during a routine fugitive operation. (Id. at 7.) Because of his previous
removal and subsequent re-entry into the United States, ICE took Petitioner into
custody for further processing. (Id.) While being processed, Petitioner claimed a
fear of returning to Honduras. (Id.)
Petitioner’s removal order was reinstated on February 8, 2017. (Id. Ex. 1 at
4; Ex. 2, Notice of Intent/Decision to Reinstate Prior Order.) Petitioner’s
application for withholding of removal was denied by an immigration judge on
July 12, 2017 and Petitioner was ordered removed to Honduras. (Id. Ex. 4 at 10,
Oral Decision of the Immigration Judge.) Petitioner filed an appeal with the Board
of Immigration Appeals (“BIA”) on July 24, 2017 (Id. Ex. 5), which is currently
pending (Doc. No. 5 at 8).
Since his detention by ICE on February 8, 2017, Petitioner’s custody status
has been reviewed twice - once on April 27, 2017, and again on August 17, 2017.
(Id.) ICE determined at both reviews that Petitioner would not be released from
custody. (Id.) Petitioner subsequently filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 on September 19, 2017. (Doc. No. 1.)
Petitioner’s habeas petition seeks release from confinement or at least a bond
hearing before an immigration judge, arguing that his detention has exceeded the
six month presumptively reasonable time set forth in Zadvydas v. Davis, 533 U.S.
678, 701 (2001). Respondent argues that Petitioner’s post-order detention is not
unreasonable and does not violate due process or the INA.
As noted above, Petitioner is subject to a 2015 order of removal, which was
reinstated on February 8, 2017 after his illegal reentry. Petitioner has been
detained by ICE pursuant to that reinstated order beginning on February 8, 2017.
He has petitioned for withholding of removal because he alleges he faces a threat if
returned to his native country, Honduras. However, even if his withholding claim
is ultimately granted, this does not mean that Petitioner cannot be removed from
the United States; it only means that he will not be sent to Honduras. 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)).
While not raised by Petitioner, the Court observes the current split within
this district and numerous courts of appeals as to whether an alien subject to a
reinstated order of removal who applies for withholding of removal under the
Convention Against Torture Act (“CAT”), is subject to a “final” order of removal
for the purposes of challenging his prolonged detention pursuant to 8 U.S.C. §
1231 or 8 U.S.C. § 1226.1
Accordingly, the initial question is whether Petitioner should be considered a
pre-removal-order immigration detainee under 8 U.S.C. § 1226, or a post-removalorder immigration detainee under 8 U.S.C. § 1231. While Petitioner has not taken
a position on this issue, Respondent argues that he is a post-removal-order
immigration detainee under § 1231. As judges in this Court have observed, “the
issue is a consequential one, because it determines the legal standard which will
govern Petitioner’s application for release from custody.” Bucio-Fernandez, 2017
WL 2619138, at *2.
Compare Bucio-Fernandez v. Sabol, No. 1:17-CV-0195, 2017 WL 2619138, at *3 (M.D. Pa.
Jun. 16, 2017) (Kane, J.) (alien subject to reinstated order of removal is governed by 8 U.S.C. §
1231(a) rather than 8 U.S.C. § 1226(a) because order of removal is not subject to review and an
application for withholding of removal does not “reopen a final order of removal and return the
individual to pre-removal status” as it does not alter his prior removal order, it only affects where
the alien may be removed); Smith v. Sabol, No. 3:CV-16-2226, 2017 WL 4269410 (M.D. Pa.
Sept. 25, 2107) (same) Santos v. Sabol, No. 14-CV-0635, 2014 WL 2532491, at *3-4 (M.D. Pa.
Jun. 5, 2014) (Blewitt, M.J.) (same); Dutton-Myrie v. Lowe, No. 13-CV-2160, 2014 WL
5474617, at *3-4 (M.D. Pa. Oct. 28, 2014) (Caputo, J.) (same), with Mendoza-Ordonez v. Lowe,
No. 1:16-CV-1777, 2017 WL 3172739, at *8-9 (M.D. Pa. Jul. 26, 2017) (Caldwell, J.) (alien
subject to reinstated removal order while involved in “ongoing withholding-of-removal
proceedings” where the circuit court stayed his removal, is detained under 8 U.S.C. § 1226, not §
1231” in part “to avoid constitutional concerns regarding [alien’s] prolonged detention”).
a. Pre-Removal § 1226 Standards
8 U.S.C. § 1226, INA § 236 governs ICE’s pre-removal detention. See
Leslie v. Attorney Gen., 678 F.3d 265, 268-69 (3d Cir. 2012). Section 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
Section 1226 places the burden on the government to show that the alien is a
flight risk or a danger to the community if detention is to continue. See ChavezAlvarez 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)).
b. Post-Removal-Order § 1231 Standards
8 U.S.C. § 1231, INA § 241, governs detention after removal has become
certain. Leslie, 678 F.3d at 270 (“the purpose of § 1231 detention is to secure an
alien pending the alien’s certain removal”). Detention under § 1231 provides the
Attorney General with ninety days to remove an alien from the United States 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. See Zadvydas v. Davis, 533
U.S. 678 (2001) (six months is the presumptively reasonable period of postremoval detention under § 1231(a)(6), however, 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).
c. Petitioner is Detained Pursuant to 8 U.S.C. § 1231(a)(6)
Acknowledging the split within this judicial district as to whether an alien
subject to a reinstated order of removal is subject to a “final” order of removal
pursuant to 8 U.S.C. § 1231 or 8 U.S.C. § 1226, this Court subscribes to the courts
which have held that an alien detained under a reinstated order of removal who
proceeds with withholding of removal proceedings is detained under 8 U.S.C. §
1231(a) and not 8 U.S.C. § 1226. See Bucio-Fernandez v. Sabol, 2017 WL
2619138; Smith v. Sabol, 2017 WL 4269410; Santos v. Sabol, 2014 WL 2532491;
Dutton-Myrie v. Lowe, 2014 WL 5474617.
Petitioner, who was once removed from the United States on October 20,
2015, and subsequently re-entered, has had his prior order of removal reinstated.
See 8 C.F.R. § 241.8. Petitioner’s illegal reentry after an order of removal does not
entitle him 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) (“an 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 v. Castille, Civ. No. 15-4280, 2017 WL 935163, at *4 (D.
N.J. Mar. 9, 2017).
However, 8 C.F.R. § 241.8(e) 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) (providing 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, 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). This is the precise
procedural avenue taken by Petitioner who has 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 8.) However, “withholding of removal” only means that
the alien may not be sent to his home country where he faces a danger; he still
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).
The reinstatement procedure of removal orders under 8 U.S.C. § 1231(a)(5)
have been upheld by the Third Circuit. 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 …, 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”); Buquez v. Attorney Gen. of U.S., 394 F. App’x 932,
935 (3d Cir. 2010) (“[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).”). Accordingly, Petitioner’s removal order was
administratively final when it was reinstated on February 8, 2017.
Section 1231 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.”).
Moreover, Petitioner’s pending review with the BIA is not a judicial review
of his removal order. Rather, the BIA appeal involves only the immigration
judge’s July 12, 2017 Order denying his application for withholding removal under
INA § 241(b)(3) and under the CAT, 64 Fed. Reg. 8478, 8479. 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 INA § 241(b)(3) and under CAT affects only
whether Petitioner may be removed to Honduras. It has no bearing on his prior
removal proceedings and removal order. 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. As such, even if
Petitioner were to prevail on his pending appeal with BIA and the denial of
Petitioner’s application for withholding removal was overturned, Petitioner is still
removable from the United States, just not Honduras. 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).
d. Petitioner’s Detention Does Not Violate Due Process
Having determined that Petitioner’s entire period of ICE detention since
February 8, 2017, has been governed by 8 U.S.C. § 1231, the Court must now
determine whether his detention, just over nine (9) months, violates his due
process. As set forth above, § 1231(a)(6) does not authorize the Attorney General
to detain aliens indefinitely beyond the removal period, but “limits an alien’s postremoval-period detention to a period reasonably necessary to bring about the
alien’s removal from the United States.” Zadvydas, 533 U.S. at 689. “Once
removal is no longer reasonably foreseeable, continued detention is no longer
authorized by statute.” Id. at 699.
Petitioner has been detained in ICE custody since February 8, 2017. While
this detention has exceeded the six month period that is deemed presumptively
reasonable under Zadvydas, to obtain habeas relief, Petitioner must show that there
is no reasonable likelihood of actual removal in the reasonably foreseeable future.
Id. at 701. 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 not met his burden of proof to show that ICE will not be
able to remove him as they already once have. Indeed, Petitioner’s petition is
silent on this matter and offers no evidence indicating that his removal will not
occur in the reasonably foreseeable future. Accordingly, Petitioner has not
demonstrated that he is entitled to relief under Zadvydas. See, e.g., Joseph v.
United States, 127 F. App’x 79, 81 (3d Cir. 2005) (affirming dismissal of § 2241
petition challenging detention pursuant to § 1231(a)(6) because petition did not
provide “good reason” to believe there is no likelihood of removal); Abdelrahman
v. BICE’s Interim Field Office Director, No. 05-CV-1916, 2005 WL 3320841, at
*2 (M.D. Pa. Dec. 7, 2005) (noting that “the fundamental basis of [the petitioner’s]
argument appear[ed] to be that his removal [was] unlikely simply because it [had]
not occurred to this point.”). Accordingly, the petition will be dismissed without
prejudice to the filing of a new § 2241 petition in the event that Petitioner can
provide evidence of good reason to believe that there is no significant likelihood of
his removal in the reasonably foreseeable future.
For the foregoing reasons, the habeas petition is denied without prejudice.
An appropriate order follows.
Dated: November 16, 2017
SYLVIA H. RAMBO
United States District Judge
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