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Sanchez v. Sabol

United States District Court, M.D. Pennsylvania

December 23, 2016

RAFAEL IGNACIO GUERRERO SANCHEZ, Petitioner
v.
MARY SABOL, et al., Respondents

          MEMORANDUM

          William W. Caldwell United States District Judge

         I. Introduction

         Presently before the court are two motions filed by petitioner Rafael Ignacio Guerrero Sanchez[1] (“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.

         II. Background

         According 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.[2] (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.[3] (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. § 1225(b)(1).

         Soon 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).

         Prior 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. (Id.)

         Meanwhile, 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. (Id.)

         On June 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).

         The 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).

         In the 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.” (Id.)

         On 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).

         Prior 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).

         Petitioner's 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 7).

         Prior 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 determination, (id.).

         Notably, 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).

         Respondents 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.

         III. ...


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