United States District Court, M.D. Pennsylvania
MEMORANDUM AND ORDER
THOMAS M. BLEWITT, Magistrate Judge.
Petitioner, Victor Alfonso Santos, is a native and citizen of Honduras. (Doc. 1, ¶ 9). On August 14, 2008, Petitioner entered the United States without inspection and was apprehended by the United States Customs and Border Patrol ("CBP"). (Id. at ¶ 11). Petitioner was screened for expedited removal, pursuant to 8 U.S.C. § 1225(b)(1), and removed to Honduras on August 25, 2008. ( Id. at ¶¶ 11 and 13). On January 12, 2013, Petitioner again entered the United States without inspection and was apprehended by CBP the same day. (Id. at ¶ 25). On January 13, 2013, U.S. Immigration and Customs Enforcement ("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 removal order. (Doc. 1-4).
Petitioner expressed fear of returning to Honduras. (Doc. 1, ¶ 26). Consequently, ICE did not execute Petitioner's final removal order and referred Petitioner's case to USCIS. ICE also found that Petitioner should remain in custody during the reasonable fear process. Petitioner was then transferred to the York County Prison in York, Pennsylvania, to await a reasonable fear interview in accordance with 8 C.F.R. §§ 208.31, 241.8(e), and 1208.31. (Id. at ¶¶ 26 and 28). On March 22, 2013, Petitioner was interviewed by an asylum officer regarding his alleged fear of returning to Honduras. (Id. at ¶ 30). On April 25, 2013, the asylum officer found that Petitioner demonstrated a reasonable fear of prosecution or torture and referred his case to an immigration judge to determine the merits of Petitioner's application for withholding of removal under INA §241(b)(3) [8 U.S.C. §1231(b)(3)] and under the Convention Against Torture ("CAT") (Form I-589). (Doc. 1, ¶ 33 & Doc. 1-9).
The immigration judge held a hearing and issued a written opinion on August 12, 2013, denying Petitioner's application for withholding removal under INA §241(b)(3) and denying Petitioner's application for withholding removal under CAT. The immigration judge also ordered Petitioner removed to Honduras. (Doc. 1, ¶ 38 & Doc. 1-12). Petitioner appealed the immigration judge's decision denying his request for withholding of removal with the Board of Immigration Appeals ("BIA"). We note that Petitioner's appeal to the BIA only dealt with the immigration judge's August 13, 2013, decision denying Petitioner's request for withholding of removal under INA §241(b)(3) and under CAT. ( See Doc. 1-16, p. 3 n.1 & Doc. 1-17). On December 23, 2013, the BIA issued a decision which upheld the immigration judge's August 13, 2013, decision denying Petitioner's request for withholding of removal under INA §241(b)(3) and under CAT. (Id. at ¶ 45 & Doc. 1-17). The BIA stated that Petitioner "provided insufficient evidence to suggest that he was tortured in the past in Honduras or that any government official in Honduras would either torture him upon his return or acquiesce in his torture by others." (Doc. 1-17, p. 4). The BIA also noted that insofar as Petitioner continued to claim he was eligible for asylum despite his prior order of removal, "the Regulations provide that when a matter is referred to an Immigration Judge, an aline's request for withholding of removal only shall be considered. See 8 C.F.R. §208.31(e) and §1208.31(e)." ( Id. ).
On January 8, 2014, Petitioner filed a Petition for Review of the BIA's decision with the the Third Circuit Court of Appeals, and a Motion to Stay Removal. (Doc. 1-18). On February 28, 2014, the Third Circuit issued a stay of removal while Petitioner's appeal was pending. ( Id. at ¶¶ 46 and 49 & Doc. 1-18). On March 24, 2014, the Third Circuit granted Petitioner an extension of time until May 1, 2014, to file his appeal brief regarding his challenge to the immigration judge's August 13, 2013 Order denying his application for withholding removal under INA §241(b)(3) and under CAT. (Doc. 1-18 & Doc. 13). On May 7, 2014, the Third Circuit granted Petitioner's second Motion for an extension of time to file his appeal brief until May 22, 2014. (Doc. 13-1, p. 15).
Petitioner's appeal of the immigration judge's August 13, 2013 Order denying his application for withholding removal under INA §241(b)(3) and under CAT is currently pending with the Third Circuit. Also, the stay of removal issued by the Third Circuit remains in effect.
On April 2, 2014, Petitioner Santos, an inmate at York County Prison ("YCP"), York, Pennsylvania, filed, through counsel, a Petition for Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2241. (Doc. 1). Petitioner attached several Exhibits to his habeas petition. Petitioner paid the filing fee. Petitioner named several Respondents. However, the only appropriate Respondent is Mary Sabol, Warden of YCP, where Petitioner is currently detained. On April 21, 2014, we issued a Show Cause Order and Respondents were served with Petitioner's habeas petition. (Docs. 4-8 & 11). On May 1, 2014, both parties filed a Notice, Consent, and Reference of a Civil Action to a Magistrate Judge. (Docs. 9 & 10). Respondents filed their Response to Petitioner's habeas petition on May 12, 2014, with Exhibits. (Doc. 13 & Doc. 13-1, pp. 1-15). Petitioner filed a traverse on May 27, 2014. (Doc. 14).
As such, Petitioner Santos' habeas petition is ripe for review. As mentioned, the parties consented to proceed before the undersigned pursuant to 28 U.S.C. §636(c).
Since Petitioner's initial detention on January 12, 2013, he has received custody reviews by ICE on January 25, 2013, April 24, 2013, July 18, 2013, October 26, 2013, and March 20, 2014. (Docs. 1-7, 1-8, 1-10, 1-15, 1-23). Petitioner also requested the immigration court to provide him with an individualized bond hearing, which was denied on September 4, 2013. On December 9, 2013, the BIA upheld the denial of Petitioner's request for an individualized bond hearing. (Docs. 1-11, 1-12, 1-16). Petitioner also requested release on parole pending his appeal with the Third Circuit, and on February 11, 2014, ICE denied his request. (Docs. 1-14 & 1-20).
This Court has venue and jurisdiction with respect to Petitioner's habeas petition challenging his continued physical custody by ICE at York County Prison. See Rumsfeld v. Padilla , 542 U.S. 426, 447 (2004)(finding that a petition pursuant to 28 U.S.C. § 2241 challenging an alien's present physical custody in the United States should be filed in the district where the petitioner is confined). Petitioner claims that his continued detention by ICE, without a bond hearing, is unauthorized and a violation of procedural due process. Petitioner requests this Court to order his immediate release from ICE's detention or to direct that a bond hearing be held. For the reasons that follow, we shall deny Petitioner's habeas petition.
A. Petitioner's Case Is Properly Governed Under 8 U.S.C. § 1231
As stated, Petitioner Santos is subject to a reinstated removal order under 8 U.S.C. §1231(a)(5). Specifically, on January 13, 2013, Petitioner was found to have illegally reentered the United States after he was previously removed. ( See Doc. 1-10). Thus, 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 2008 removal order. As such, Petitioner was found ...