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Larios v. Dolly

United States District Court, M.D. Pennsylvania

March 20, 2018

JOSE LARIOS US, Petitioner
CLAIRE DOLL, Respondent


          SYLVIA H. RAMBO United States District Judge.

         Currently 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.

         I. BACKGROUND

         Petitioner, 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.)

         Since 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.)

         Petitioner's 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.)


         Petitioner 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)).

         While 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.[1]

         Accordingly, 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.

         A. Pre-Removal § 1226 Standards

         8 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).

         Section 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)).

         B. Post-Removal-Order ...

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