United States District Court, M.D. Pennsylvania
William W. Caldwell United States District Judge
before the court are two motions filed by petitioner Rafael
Ignacio Guerrero Sanchez (“Petitioner”). Petitioner
has moved for the reopening or reconsideration (Doc. 25) of
this court's September 19, 2016 order. Petitioner has
also moved for enforcement (Doc. 26) of the same order. For
the following reasons, Petitioner's motion for
reconsideration will be denied, and his motion for
enforcement will be granted.
to Petitioner, he entered the United States in July of 1990
without inspection. (Doc. 9-1 at 13). In August of 1997, he
married a lawful permanent resident-now United States
citizen-Sandra Guerrero, née Avila. (See Doc.
26-1 at 12, 49). Together Petitioner and his wife have three
children-all United States citizens. (Id. at 12). At
some later point, he left the United States and traveled to
Mexico, and then attempted to re-enter the United States on
January 24, 1998, using multiple false
documents. (Doc. 9-1 at 13). On the same date, he was
found to be inadmissible and an expedited order of removal
was entered against him for having attempted to illegally
enter the United States. (Id. at 7). Petitioner was
removed from the United States to Mexico that day pursuant to
the expedited removal order, see 8 U.S.C. §
thereafter, Petitioner illegally re-entered the United
States. (Doc. 9-1 at 13). In 2012, Petitioner was arrested
and eventually pleaded guilty in the United States District
Court for the District of Idaho to conspiracy to distribute
in excess of fifty grams of methamphetamine, 21 U.S.C.
§§ 846, 841(a)(1). (Doc. 9-1 at 9). In April 2013,
he was sentenced to forty-two months' imprisonment.
(Id. at 9-10).
to his guilty plea and sentencing, on December 5, 2012,
Petitioner was served with a notice of intent to reinstate
the January 24, 1998 order of removal. (See id. at
13-14). At that time he expressed a fear of returning to
Mexico and was referred to a Department of Homeland Security
(“DHS”) asylum officer for a reasonable- fear
interview. (Id. at 14). On August 23, 2013, the
removal order was reinstated. (Id. at 3). On April
9, 2015, Petitioner filed with the Third Circuit a petition
for review and a motion for a stay of removal. (See
id. at 14). On June 12, 2015, the Third Circuit
dismissed the petition and denied the motion to stay.
Petitioner served his time in prison for the drug offense and
was taken into custody by Immigration and Customs Enforcement
(“ICE”) on May 19, 2015. (Doc. 1-1 at 7; Doc. 9-1
at 14). He had served only thirty-seven months of the
forty-two-month sentence due to good behavior. (Doc. 26-1 at
44). On June 1, 2015, ICE conducted a file custody review of
Petitioner's detention, informing him that he was
currently being detained but that he would be considered for
supervised release if he was not removed within the statutory
removal period set forth in 8 U.S.C. § 1231(a). (Doc.
1-1 at 8). Petitioner was also informed that his custody
status would be reviewed on or about August 2, 2015.
29, 2015, an asylum officer found Petitioner's fear of
return to Mexico to be reasonable and referred him to an
immigration judge for consideration of an application for
withholding of removal under 8 U.S.C. § 1231(b)(3), and
for protection under the Convention Against Torture
(“CAT”), see 8 C.F.R. § 1208.16.
(Doc. 9-1 at 17). On September 23, 2015, the immigration
judge denied withholding of removal under section 1231(b)(3)
because Petitioner's drug offense qualified as a
“particularly serious crime, ” thus making
Petitioner ineligible for relief under that section.
(Id. at 21).
immigration judge also decided that Petitioner was not
entitled to protection under the CAT for two reasons: (1) he
could not show that torture would result from the consent of
the Mexican government; and (2) he could not show that the
government would turn “a blind eye” to the
potential torture of Petitioner by a drug cartel.
(Id. at 24). On October 19, 2015, Petitioner
appealed the immigration judge's decision on his CAT
claim to the Board of Immigration Appeals
(“BIA”). (Doc. 1-1 at 36).
meantime, Petitioner's custody status was reviewed on
August 5, 2015. (See id. at 33-34). ICE decided to
keep him in custody as a flight risk because he had attempted
to enter the United States using false documents and then
entered the country after being removed, indicating an
“intent to evade the immigration controls of the United
States.” (Id. at 34). Petitioner's custody
status was again reviewed on November 17, 2015. (Id.
at 36). ICE again decided to keep him in custody, stating,
“Due to your pending case, ICE is unable to move
forward with your removal from the United States at this
time. Pending a final determination of your fear case, you
are to remain in ICE custody at this time.”
(Id.) ICE also advised Petitioner that the decision
to detain him did not preclude him from producing evidence in
the future that his removal was “unlikely.”
January 19, 2016, the BIA denied Petitioner's appeal and
affirmed the immigration judge's denial of
Petitioner's application for protection under the CAT,
citing 8 C.F.R. §§ 1208.16-18. (Doc. 9-1 at 29).
Petitioner filed with the Third Circuit a petition for review
of the BIA's decision accompanied by a motion for a stay
of removal. Guerrero v. U.S. Att'y Gen., No.
16-1217 (3d Cir. Feb. 1, 2016). On the same day, the Third
Circuit granted a temporary stay of removal, pursuant to a
standing order, while it considered the motion for a stay of
removal. (Doc. 9-1 at 31). On May 4, 2016, the Third Circuit
granted a stay of removal while it considered the petition
for review, citing Nken v. Holder, 556 U.S. 434-36
(2009) (setting out the factors to be considered by a court
when implementing a stay in removal cases, including that the
stay applicant must make “a strong showing that he is
likely to succeed on the merits” and demonstrate that
he would be “irreparably injured absent a stay”).
(Doc. 26-1 at 42).
to the BIA determination and Third Circuit grant of a stay of
removal, on December 17, 2015, Petitioner-acting pro
se-filed for habeas corpus relief in this court pursuant
to 28 U.S.C. § 2241. (Doc. 1). In his petition, he
sought a bond hearing due to his continued detention while
his removal proceedings made their way through the
administrative system. (Id.) The habeas case was
referred to a magistrate judge, who recommended that the
petition be denied. (Doc. 19 at 20). Upon de novo
review, this court rejected the magistrate judge's
recommendation, and on September 19, 2016, ordered that
Petitioner be given a bond hearing before an immigration
judge within twenty-one days. (Doc. 24).
bond hearing was initially scheduled for September 28, 2016,
(Doc. 26-1 at 3), but was canceled at the last minute and
rescheduled for October 6, 2016, (id. at 5).
Petitioner did not receive notice of the change until
September 29, 2016. (Id. at 2). On October 6, 2016,
a bond hearing was conducted by Immigration Judge John P.
Ellington, who denied bail, finding that Petitioner was a
flight risk and a danger to the community. (Id. at
to the rescheduled bond hearing, on October 3, 2016,
Petitioner had submitted a “motion to
reopen/reconsider, ” which was not docketed until
October 11, 2016, presumably due to a lag in the prisoner
(or, here, detainee) mail system. (See Doc. 25). In
this motion, Petitioner requested that his bond hearing be
conducted by the district court rather than an immigration
judge. (Id. at 2). On October 14, 2016, Petitioner
filed a “motion for the court to enforce its prior
order, ” (Doc. 26), claiming that the bond hearing
before the IJ was deficient for a number of reasons, and
requesting that this court conduct its own bail
several days after Petitioner filed the motion to enforce,
the Third Circuit granted his petition for review based on
his application for protection under the CAT, vacated the
January 19, 2016 order of the BIA, and remanded the matter to
the BIA for further proceedings. Guerrero v. U.S.
Att'y Gen., No. 16-1217 (3d Cir. Oct. 19, 2016);
(Doc. 37-1). In its opinion, the Third Circuit found that the
IJ and the BIA had too narrowly construed the
government-acquiescence-to-torture standard under the CAT.
Guerrero v. U.S. Att'y Gen., No. 16-1217, at 6
(3d Cir. Nov. 30, 2016). The Third Circuit concluded that
the BIA erred by failing to consider whether record evidence
of the violence caused by the Sinaloa cartel and corruption
of law enforcement officials demonstrated that it is more
likely than not that Guerrero will be tortured “by or
at the instigation of or with the consent or acquiescence of
a public official . . . .” If it is, Guerrero may have
met his burden under the CAT.
Id. at 7 (citation omitted).
contend that Petitioner's motion for reconsideration
should be denied because he failed to meet the standard
necessary to entitle reconsideration of the case, and also
because the motion is moot. (Doc. 30 at 4-9). Respondents
further argue that Petitioner's motion to enforce should
be denied because Petitioner's “sole remedy to
grieve his bond hearing is to appeal the decision to the
[BIA].” (Id. at 4, 9-12). The motions have
been fully briefed and are ripe for disposition.