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Mendoza-Ordonez v. Lowe

United States District Court, M.D. Pennsylvania

July 26, 2017

LUIS JAVIER MENDOZA-ORDONEZ, Petitioner
v.
CRAIG A. LOWE,, Respondents

          MEMORANDUM

          WILLIAM W. CALDWELL JUDGE

         I. Introduction

         Petitioner Luis Javier Mendoza-Ordonez (“Petitioner” or “Mendoza”) is a native and citizen of Honduras, and has been in the custody of U.S. Immigration and Customs Enforcement (ICE) for almost two years, since July 28, 2015. (Doc. 1 ¶¶ 6, 12, 22). Mendoza is currently incarcerated at Pike County Correctional Facility in Hawley, Pennsylvania, and is detained by ICE pending his ongoing withholding-of-removal proceedings under the Immigration and Nationality Act (INA) and apparently also the Convention Against Torture (CAT). (Id. ¶ 6). The United States Court of Appeals for the Third Circuit has granted a stay of removal as it considers Mendoza's petition for review of the Board of Immigration Appeals' (BIA) decision denying his application for withholding of removal. (Id. ¶¶ 37-38); (Doc. 1-14 at 2). Respondents are various Government and prison officials (“Respondents” or “Government”). (Id. ¶ 7-11).

         On August 26, 2016, Mendoza filed the instant counseled Petition (Doc. 1) for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, alleging: (1) that his continued detention without a bond hearing is not authorized by INA § 236, 8 U.S.C. § 1226 (“§ 1226”), which governs an alien's detention while removal proceedings are ongoing; and (2) that even if INA § 241, 8 U.S.C. § 1231 (“§ 1231”), governs his detention, such a prolonged detention without a bond hearing violates due process guarantees of the Fifth Amendment. (Doc. 1 at 14-21).

         The petition was reviewed by Magistrate Judge Karoline Mehalchick, who, on May 24, 2017, issued a thorough Report and Recommendation (“Report”). (Doc. 22). In her Report, Judge Mehalchick, relying on this court's recent decision in Rafael Ignacio v. Sabol, No. 1:15-CV-2423, 2016 WL 4988056 (M.D. Pa. Sept. 19, 2016) (Caldwell, J.), appeal docketed sub. nom., [1] Guerrero-Sanchez v. Sabol, No. 16-4134 (3rd Cir. Nov. 17, 2016), found that Mendoza's continued detention was pursuant to § 1226 and therefore recommended that the petition be granted and that we enter an order referring this matter to an Immigration Judge (IJ) to conduct an initial individualized bond hearing at which the Government will bear the burden of proving that Mendoza's continued detention is necessary to secure his removal. (Id. at 16).

         Before this court are both parties' objections (Docs. 23 & 25) to Judge Mehalchick's Report. We have reviewed Judge Mehalchick's thorough and well-reasoned Report, Mendoza's Petition, its supporting documentation, and the parties' objections. As we did in Ignacio, we have again carefully considered the applicable statutes at issue, and we will sustain Mendoza's objections to the Report and will overrule the Government's objections. We will adopt Judge Mehalchick's Report, as modified by this opinion.

         II. Background

         We review the facts from Mendoza's petition and the underlying withholding-of-removal proceedings. Mendoza was born in 1989 in Choluteca, Honduras, and has six siblings living in Honduras: four live in its capital, Tegucigalpa, and two live in Apacilagua. (Doc. 1 ¶ 12; Doc 1-2 at 4). Mendoza's mother lives in the United States and is pursuing an affirmative asylum claim. (Doc. 1-2 at 4; Doc. 1-7 at 3). Mendoza's father was a political activist for Honduras's Liberal Party, one of the country's two chief political parties, and was married to another woman. (Doc. 1-2 at 4). As a child, Mendoza saw his father weekly, and would attend Liberal Party meetings or accompany his father while his father did political work. (Id. at 4, 7). In 1997, Mendoza's father lost an Apacilagua mayoral race to Armenja Aguilar, but was later elected as a councilman. (Id. at 4-5) As a result of his attempts to challenge the fairness of the election and demand financial transparency within the municipality, Mendoza's father made political enemies in the mayor's office and in Honduras's National Party, the country's other chief political party. (Id. at 5, 7).

         In the early morning of January 1, 2000, when Mendoza was eleven years old, three National Party activists shot and killed Mendoza's father for his political activities and his opposition to the National Party; Mendoza was at his aunt's house when the assassination occurred. (Id.). One of the activists who carried out the murder was Geraldo Valladares (“Valladares”), who was later convicted of the attack but served only a six-month prison sentence. (Id.) Approximately two years later, on August 24, 2002, Mendoza's uncle, who also appears to have been politically active in the Liberal Party, was stabbed and killed by a different National Party activist, Dimas Amardor. (Id. at 5). Amardor was convicted of the murder, but also served a short prison sentence. (Id.)

         Like his father and uncle, Mendoza was active in the Liberal Party. (Id. at 5, 7). In 2007, after he turned eighteen years old, Mendoza became president of a local youth division of the Party, actively participated in meetings, assisted in recruitment, and gave political speeches in villages for the Party. (Id.) Mendoza gave these speeches up until 2014, when the National Party won the local and national elections. (Id. at 5).

         In 2014, Mendoza received two death threats as a result of his political activity. (Id.) On September 7, 2014, Valladares sent a message through an intermediary that if Mendoza “continued to speak publically against the National Party, he would suffer the same fate as his father.” (Id.) The intermediary delivered the threat verbally, but did not harm Mendoza. (Id.) The next day, Mendoza filed a complaint with a local judge, Miriam Umanzor Aguilar, who is a National Party member and the niece of his father's 1997 mayoral opponent. (Id.) The judge said she would act on the complaint and call Mendoza if needed. (Id.) There is no indication that action was taken on the complaint.[2]

         After reporting the threat, Mendoza traveled to Tegucigalpa to stay with his sister. (Id. at 6). Mendoza pursued a visa to the United States, but his application was denied on October 21, 2014, after which he traveled to the United States illegally to seek refuge. (Id.) In November 2014, Mendoza unlawfully entered the United States via raft across the Rio Grande River without inspection or parole and without immigration documents. (Id. at 2, 6). On November 28, 2014, Mendoza was apprehended at the border by Customs and Border Protection ("CBP") agents near Hidalgo, Texas. (Id. at 6; Doc. 1-8). Following an interview with CBP agents, Mendoza was determined ineligible for admission pursuant to INA § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(a)(7)(A)(i)(I), and, on November 29, 2014, was ordered removed by a Notice and Order of Expedited Removal issued pursuant to INA § 235(b)(1), 8 U.S.C. § 1225(b)(1). (Docs. 1-2 at 6, 1-3, 1-4, & 1-8). Mendoza was removed to Honduras four days later. (Doc. 1-2 at 6; Doc. 1-4).

         When Mendoza returned to Honduras, he lived in Tegucigalpa with his sister because he felt he could not return to Apacilagua due to its political problems. (Doc. 1-2 at 6). Mendoza hid in his sister's home for four months because the National Party controlled the country, but, on April 17, 2015, he visited his grandfather in Apacilagua. (Id.) On his return to Tegucigalpa the following day, Mendoza stopped at a soccer field with friends. (Id.) Approximately twenty minutes after stopping, Mendoza was confronted by Valladares and other members of the National Party. (Id.) Valladares put a gun to Mendoza's head and threatened to kill Mendoza if he continued to talk against the National Party. (Id.) Mendoza's childhood friend, as well as his father's widow, witnessed and verified this death threat. (Id. at 7-8). On April 20, 2015, Mendoza again filed a complaint with the same local judge, who apparently again did not act on the complaint. (Id. at 6). As such, Valladares was not arrested for either aforementioned threat. (Id.) Mendoza did not file a complaint with a different judge. (Id.)

         On April 22, 2015, Mendoza returned to Tegucigalpa and hid at his sister's house for several days, apparently without venturing out in public. (Id.) On May 5, 2015, Mendoza left Honduras for the United States, but was apprehended in Mexico on May 15, 2015, and deported back to Honduras on May 20, 2015. (Id.) Mendoza again lived with his sister without leaving the house. (Id.) Then, in July 2015, Mendoza again illegally entered the United States near Hidalgo, Texas, without inspection or parole, and, on July 28, 2015, he was apprehended by CBP. (Id. at 3; Doc. 1-4). On July 28, 2015, pursuant to 8 C.F.R. § 241.8, and INA § 241(a)(5), 8 U.S.C. § 1231(a)(5), the Department of Homeland Security ("DHS") issued a “Notice of Intent/Decision to Reinstate” Mendoza's prior expedited order of removal. (Doc. 1-4). Before the reinstated removal order was carried out, Mendoza expressed a fear of harm or persecution if returned to Honduras, and, pursuant to 8 C.F.R. §§ 208.31, 241.8, and 1208.31, was referred to an asylum officer for a credible fear determination. (Doc. 22 at 2).

         On August 13, 2015, [3] Mendoza was advised that he was being detained in ICE custody without bond. (Doc. 1-5). On September 1, 2015, a credible fear interview was conducted by an asylum officer from the Newark Asylum Office. (Doc. 1 ¶ 26). On September 14, 2015, the asylum officer concluded that Mendoza had a reasonable fear of persecution on account of his political affiliation if returned to Honduras, and therefore, pursuant to 8 C.F.R. § 208.31(e), referred Mendoza to the Immigration Court “for full consideration of the request for withholding of removal only.” (Id.; see also Doc. 1-6)

         On September 28, 2015, Mendoza, through his attorney, sent a letter to prison officials and the Newark Asylum Office requesting that Mendoza be released on his own recognizance or, alternatively, released on bond. (Doc. 1-7 at 4). In that letter, counsel detailed factors supporting his request. (Id. at 3-4). Counsel recounted, and provided proof of, Mendoza's family ties to the United States, consisting of his mother, who is currently pursuing an affirmative asylum claim, as well as his aunt, who is a United States citizen, and his uncle, who is a legal permanent resident. (Id.) Counsel provided an affirmation by Mendoza's aunt and uncle in which they “agreed to provide [Mendoza] with a home and financial ...


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