United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL JUDGE
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).
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).
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.,
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.
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
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).
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
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).
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
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).
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.)
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
August 13, 2015,  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.
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