United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge.
before the Court is Petitioner Jose Larios Us' petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
2241, challenging his detention at the York County Prison,
York, Pennsylvania, in the custody of the Department of
Homeland Security (“DHS”), Immigration and
Customs Enforcement (“ICE”), without a bond
hearing. Petitioner requests that he either be released from
ICE detention or accorded a bond hearing. For the reasons
that follow, the Court will deny the petition.
a citizen and national of Guatemala, has been in the custody
of ICE since May 10, 2017, when he was arrested in
Philadelphia, Pennsylvania and taken into custody. (Doc. Nos.
1 at 2, 8 at 5.) Petitioner was issued a Notice of
Intent/Decision to Reinstate Prior Order the same day,
charging him as being removable from the United States. (Doc.
No. 8, Ex. 2, 3.) On May 15, 2017, Petitioner claimed a fear
of returning to Guatemala, which an immigration judge
ultimately denied his applications and ordered him removed to
Guatemala on September 28, 2017. (Id. Exs. 4, 5.)
Petitioner appealed this decision to the Board of Immigration
Appeals (“BIA”) on October 18, 2017.
(Id. Ex. 6.)
his detention by ICE, Petitioner's custody status has
been reviewed twice. (Id. Ex. 7.) ICE determined at
both reviews that Petitioner would not be released from
custody. (Id.) Petitioner subsequently filed the
instant petition for a writ of habeas corpus on December 28,
2017. (Doc. No. 1.)
habeas petition seeks release from confinement or at least a
bond hearing before an immigration judge, arguing that his
detention has exceeded the six month presumptively reasonable
time set forth in Zadvydas v. Davis, 533 U.S. 678,
701 (2001). Respondent argues that Petitioner's
post-order detention is not unreasonable and does not violate
due process or the INA. (Doc. No. 8.)
is subject to a 2013 order of removal, which was reinstated
on May 11, 2017. Petitioner has been detained by ICE pursuant
to that reinstated order beginning on May 11, 2017. He has
petitioned for withholding of removal because he alleges fear
of returning to his native country, Guatemala. However, even
if his withholding claim is ultimately granted, this does not
mean that Petitioner cannot be removed from the United
States; it only means that he will not be sent to Guatemala.
See Reyes v. Lynch, Civ. No. 15-0442, 2015 WL
5081597, at *3 (D. Colo. Aug. 28, 2015) (“Even if
Petitioner prevails on his withholding claim, the United
States may remove Petitioner to a country other than Mexico
if such country will accept him, and there is no
administrative or judicial relief to which Petitioner would
be entitled against such a removal.”) (citing
8 C.F.R. § 1208.2(c)(3)(i)).
not raised by Petitioner, the Court observes the current
split within this district and numerous courts of appeals as
to whether an alien subject to a reinstated order of removal
who applies for withholding of removal, is subject to a
“final” order of removal for the purposes of
challenging his prolonged detention pursuant to 8 U.S.C.
§ 1231 or 8 U.S.C. § 1226.
the initial question is whether Petitioner should be
considered a pre-removal-order immigration detainee under 8
U.S.C. § 1226, or a post-removal-order immigration
detainee under 8 U.S.C. § 1231. While Petitioner has not
taken a position on this issue, Respondent argues that he is
a post-removal-order immigration detainee under § 1231.
As judges in this Court have observed, “the issue is a
consequential one, because it determines the legal standard
which will govern Petitioner's application for release
from custody.” Bucio-Fernandez, 2017 WL
2619138, at *2.
Pre-Removal § 1226 Standards
U.S.C. § 1226, INA § 236 governs ICE's
pre-removal detention. See Leslie v. Attorney Gen.,
678 F.3d 265, 268-69 (3d Cir. 2012). Section 1226 governs
detention while removal proceedings are ongoing and before
the issuance of a final order of removal. Leslie,
678 F.3d at 268 (providing that § 1226(a) allows for
detention pending a decision in removal proceedings unless
mandatory detention under subsection (c) is required for
aliens who have committed certain offenses).
1226 places the burden on the government to show that the
alien is a flight risk or a danger to the community if
detention is to continue. See Chavez-Alvarez v. Warden
York Cnty. Prison, 783 F.3d 469, 475 (3d Cir. 2015)
(stating that detention is authorized “ ‘for a
reasonable amount of time, after which the authorities must
make an individualized inquiry into whether detention is
still necessary to fulfill the statute's purposes of
ensuring that an alien attends removal proceedings and that
his release will not pose a danger to the community.'
”) (quoting Diop v. ICE/Homeland Sec., 656
F.3d 221, 231 (3d Cir. 2011)).