United States District Court, M.D. Pennsylvania
before the Court is Petitioner Kevin Martinez-Paredes'
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, challenging the constitutionality of his
prolonged detention by the United States Department of
Homeland Security, Immigration, and Customs Enforcement
(“ICE”), at the Pike County Correctional Facility
without a bond hearing (Doc. No. 1.) Following an Order to
answer the petition (Doc. No. 3), Respondents filed a response,
contending that Petitioner is an “arriving alien”
who is lawfully detained under 8 U.S.C. § 1225(b) and is
not entitled to release or a bond hearing. (Doc. No. 6.) For
the reasons set forth below, the Court will grant the writ of
habeas corpus directing that an immigration judge conduct an
individualized bond hearing.
is a native and citizen of El Salvador. (Doc. 6-1, pp. 2-4,
Record of Deportable/Inadmissible Alien.) On November 15,
2015, Martinez-Paredes applied for admission to the United
States at the Hidalgo, Texas Port of Entry, and was
apprehended by the United States Customs and Border Control.
(Id.) He reported that he sought admission into the
United States because he feared for his life in El Salvador.
(Id.) On that same day, Martinez-Paredes was issued
a Notice and Order of Expedited Removal pursuant to Section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”), because he is inadmissible based on his
lack of documentation. (Id. at Ex. 3, Notice and
Order of Expedited Removal.)
September 14, 2016, an immigration judge ordered that that
Martinez-Paredes be removed from the United States and denied
his applications for asylum and withholding of removal.
(Id. at Ex. 4, Order of the immigration judge.)
Martinez-Paredes appealed the immigration judge's
September 14, 2016 order before the Board of Immigration
Appeals (“BIA”). (Id. at Ex. 5, Filing
Receipt for Appeal.) On March 10, 2017, the BIA remanded
Martinez-Paredes' case to the immigration judge because
the decision did not “contain sufficient factual and
legal analysis to allow [the BIA] to perform adequate
appellate review.” (Id., at Ex. 6, Decision of
the BIA.) Martinez-Paredes is currently awaiting a new
hearing. (Id.) Martinez-Paredes filed the instant
petition for a writ of habeas corpus on February 27, 2017.
(Doc. No. 1.)
The Statutory Basis for Petitioner's Detention
determining whether Petitioner is entitled to relief, the
Court must first determine whether Petitioner's detention
arises out of 8 U.S.C. § 1226(c) or 8 U.S.C. §
1225(b). Petitioner contends that he is being held pursuant
to 8 U.S.C. § 1226(c) and is entitled to release or a
bond hearing (Doc. No. 1), while Respondent argues that
Petitioner is being held pursuant to 8 U.S.C. § 1225(b)
and is not entitled to release or a bond hearing. (Doc. No.
Court has very recently been presented with a number of
factually similar cases as the one currently before it.
See, e.g., Ahmed v. Lowe, Civ. No.
3:16-CV-2082, 2017 WL 2374078 (M.D. Pa. May 31, 2017)
(determining whether petitioner's detention arises out of
8 U.S.C. § 1226(c) or 8 U.S.C. § 1225(b)(2)(A), and
finding that because petitioner was classified as an
“arriving alien, ” petitioner's detention was
controlled by § 1225(b)(2)(A)); Swarray v Lowe,
Civ. No. 1:17-CV-0970 (M.D. Pa. Aug. 18, 2107), adopting
Report and Recommendation, Swarray v. Lowe, Civ. No.
1:17cv-970, 2017 WL 3585868 (M.D. Pa. June 27, 2017) (same);
Singh v. Lowe, Civ. No. 3:17-0119, 2017 WL 1134413
(M.D. Pa. March 27, 2017), adopting Report and
Recommendation, Singh v. Lowe, Civ. No. 3:17-CV-119,
2017 WL 1157899 (M.D. Pa. March 7, 2017) (same).
1226(c) would apply to Petitioner's detention if, prior
to being taken into custody, he was admitted into the United
States and was thereafter being removed because of his
criminal convictions. See, e.g., Leslie v. U.S.
Attorney Gen., 678 F.3d 265, 269-70 (3d Cir. 2012). In
Petitioner's case, however, it is uncontested that he was
never admitted into the United States. Rather, upon arriving
at the border to the United States at the Hidalgo, Texas Port
of Entry, Petitioner was apprehended by the United States
Customs and Border Control. Doc. 6-1, pp. 2-4, Record of
contrast, 8 U.S.C. § 1225(b) applies to “arriving
aliens” such as Martinez-Paredes. Section 1225(b)
provides that arriving aliens are inspected immediately upon
arrival in the United States by an officer of the United
States Customs and Border Control. If the immigration officer
determines that the alien is inadmissible because the alien
cannot produce valid entry documents, see 8 U.S.C.
§ 1182(a)(7), “the officer shall order the alien
removed from the United States without further hearing or
review.” 8 C.F.R. § 1235.3(b)(1)(I), (b)(2)(ii)
(providing that arriving aliens subject to expedited removal
are not entitled to a hearing or appeal of this decision).
however, the alien “indicates an intention to apply for
asylum . . . or a fear of persecution, the officer shall
refer the alien for an interview by an asylum officer.”
8 U.S.C. § 1225(b)(1)(A)(ii); see 8 C.F.R.
§ 235.3(b)(4) (“[I]f an alien subject to the
expedited removal provisions indicates an intention to apply
for asylum, or expresses a fear of persecution or torture, or
a fear of return to his or her country, the inspecting
officer shall not proceed further with removal of the alien
until the alien has been referred for an interview by an
asylum officer . . . .”).
the asylum officer determine that the alien has a credible
fear of persecution, the alien “shall be detained for
further consideration of the application for asylum.” 8
U.S.C. §1225(b)(1)(B)(ii). If the alien receives a
positive credible fear determination, the alien will be
placed in removal proceedings. 8 C.F.R. §
235.6(a)(1)(ii). The alien, however, remains detained
pursuant to 8 U.S.C. § 1225(b)(2)(A) during the pendency
of these proceedings. The only statute which permits an
alien's release from § 1225(b) custody is 8 U.S.C.
§ 1182(d)(5)(A), pursuant to which an alien may be
paroled into the United Sates if the Attorney General
determines “on a case-by-case basis” that
“urgent humanitarian reasons or significant public
benefit” warrant the alien's release. 8 U.S.C.
§ 1182(d)(5)(A). Decisions under § 1182 are purely
discretionary and the regulations prevent an immigration
judge from “redetermin[ing] conditions of
custody” with respect to certain classes of aliens,
including “[a]rriving aliens in removal proceedings,
including aliens paroled after arrival pursuant to section
212(d)(5) of the Act.” 8 C.F.R. §
provided for above, Martinez-Paredes presented himself for
admission at the United States border at the Hidalgo, Texas
Port of Entry, and was immediately detained and classified as
an “arriving alien.” See 8 C.F.R. §
1001.1(q) (“The term arriving alien means an applicant
for admission coming or attempting to come into the United
States at a port-of-entry . . . .”). Accordingly, ...