United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Raroule Occivil's 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 York County Correctional Facility, York, Pennsylvania,
without a bond hearing (Doc. No. 1.) Following an Order to
show cause (Doc. No. 6), 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. 8.) For
the reasons set forth below, the Court will deny without
prejudice Petitioner's writ of habeas corpus.
Occivil is a citizen and national of Haiti and a citizen of
Venezuela. (Doc. 8 at 1.) On October 23, 2016, Occivil
applied for admission to the United States from Mexico, via
the San Ysidro Port of Entry. (Doc. No. 8, Ex. 1, Record of
Deportable/Inadmissible Alien at 2.) Occivil was charged as
inadmissible because he did not have valid entry documents.
(Id., Notice to Appear at 1.) While Occivil
initially stated that he left Haiti for a better life
(id. at 2), a few months later, he claimed fear of
persecution and applied for asylum and withholding of
removal. (Id. Ex. 3, Record of
Determination/Credible Fear Worksheet at 3.)
23, 2017, an immigration judge denied all pending
applications (id. Ex. 4, Order of the immigration
judge), and on June 14, 2017, Occivil filed an appeal with
the Board of Immigration Appeals (“BIA”), which
is currently pending. (Id. Ex 5, Filing Receipt for
Appeal.) ICE is currently detaining Occivil pursuant to 8
U.S.C. § 1225(b)(1)(B)(ii). (Doc. No. 8 at 4.) Occivil
filed the instant petition for a writ of habeas corpus on
July 18, 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). While Petitioner relies on case law involving aliens
found inside the United States and held pursuant to 8 U.S.C.
§ 1226(c) (Doc. No. 1), 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 presently 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 is
controlled by § 1225(b)(2)(A)); Swarray v Lowe,
Civ. No. 1:17-CV-0970, 2017 WL 3581710 (M.D. Pa. Aug. 18,
2017), adopting Report and Recommendation, Swarray v.
Lowe, Civ. No. 1:17-cv-970, 2017 WL 3585868 (M.D. Pa.
June 27, 2017) (Carlson, M.J.) (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) (Carlson, M.J.) (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.
Attorney Gen. of United States, 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 boarder to the United
States from Mexico, via the San Ysidro Port of Entry,
Petitioner was apprehended by the United States Customs and
Border Control. (Doc. No. 8, Ex. 1, Record of
Deportable/Inadmissible Alien at 2.)
contrast, 8 U.S.C. § 1225(b) applies to “arriving
aliens” such as Occivil. 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
Boarder 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) (“if 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
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, Occivil presented himself for admission
at the United States border from Mexico, via the San Ysidro
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 …”). ...