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Occivil v. Doll

United States District Court, M.D. Pennsylvania

November 7, 2017

RAROULE OCCIVIL, Petitioner
v.
CLAIRE DOLL, Respondent

          MEMORANDUM

          SYLVIA H. RAMBO UNITED STATES DISTRICT JUDGE

         Presently 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.

         I. Background

         Raroule 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.)

         On May 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.)

         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). 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. 8.)

         This 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).

         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. 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.)

         In 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).

         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) (“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 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, 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 …”). ...


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