Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Martinez-Paredes v. Lowe

United States District Court, M.D. Pennsylvania

October 30, 2017

KEVIN MARTINEZ-PAREDES, Petitioner
v.
CRAIG A. LOWE, et al., Respondents

          MEMORANDUM

          KANE JUDGE

         Presently 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[1] 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.

         I. BACKGROUND

         Martinez-Paredes 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.)

         On 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.)

         II. DISCUSSION

         A. The Statutory Basis for Petitioner's Detention

         Before 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. 6.)

         This 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).

         Section 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 Deportable/Inadmissible Alien.)

         In 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).

         If, 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 . . . .”).

         Should 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. § 1003.19(h)(2)(i)(B).

         As 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, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.