United States District Court, M.D. Pennsylvania
H. RAMBO UNITED STATES DISTRICT JUDGE
the Court is Petitioner Alfredo Chica-Iglesia's petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241,
challenging the constitutionality of his detention by the
United States Department of Homeland Security, Immigration,
and Customs Enforcement (“ICE”) at the Pike
County Correctional Facility, Pennsylvania since May 22,
2017. (Doc. No. 1.) Following an Order to show cause (Doc.
No. 5), Respondent 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. 7.) For the reasons set
forth below, the Court will dismiss Petitioner's writ of
is a citizen and national of El Salvador. (Doc. 7-1, Ex. 1,
Record of Deportable/Inadmissible Alien.) On August 31, 2016,
Petitioner was encountered via the PARS terminal at ICE/ERO
Philadelphia, Pennsylvania Field Office. (Id. at 3.)
While Petitioner claimed to have entered the United States in
1992 on a Visa, ICE indices showed no record of legal entry
into the United States at any time. (Id.)
February 2, 2017, Petitioner was convicted of violating 18
Pa. C.S.A. § 2706(A1), terroristic threats, and
sentenced to two years of probation. (Id., Ex. 1 at
4-5; Ex. 2 at 3.) He was also convicted of violating 18 Pa.
C.S.A. § 6106(A1), firearms not to be carried without a
license, on the same day, and was sentenced to 9-23 months of
incarceration and 3 years of probation. (Id., Ex. 1
at 4-5.) On April 19, 2017, ICE/ERO requested to interview
Petitioner at the Curran-FromHold Correctional Facility in
Philadelphia, Pennsylvania, but was denied by the facility.
(Id. at 3.) Petitioner was subsequently released
from the Curran-Fromhold facility on April 27, 2017.
22, 2017, Petitioner was charged with being removable for the
following reasons: (1) he is an alien present in the United
States without being admitted or paroled; and (2) his
conviction of a crime involving moral turpitude.
(Id.) On the same day, he was served with a warrant
for arrest and notice to appear, and taken into ICE custody.
(Id., Ex. 1 at 2; Ex. 2 at 3; Ex. 3; Ex. 4.) On June
6, 2017, an immigration judge denied Petitioner's request
for a change in custody status and ordered him removed from
the United States to El Salvador. (Id., Ex. 5.; Ex.
6.) On June 23, 2017, Petitioner appealed the immigration
judge's decision to the Board of Immigration Appeals
(“BIA”). (Id., Ex. 7.) Subsequently, on
February 2, 2018, the BIA denied Petitioner's appeal.
(Id., Ex. 11.) On February 12, 2018, the United
States Court of Appeals for the Third Circuit granted
Petitioner a temporary stay of removal until his motion for a
stay of removal is considered. (Id., Ex. 12.)
Petitioner filed the instant petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241 on January 5, 2018.
(Doc. No. 1.)
Third Circuit has granted Petitioner a temporary stay of
removal, hence, the order of removal has not become
administratively final, and Petitioner is still considered to
be in pre-removal immigration detention. See 8
U.S.C. § 1231(a)(1)(B)(i) (providing removal period
begins on the “date the order of removal becomes
administratively final”). 8 U.S.C. § 1225(b)
governs the detention of “aliens arriving in the United
States, ” and mandates the detention of “arriving
aliens” who do not possess valid entry or travel
documents when they arrive. See Ahmed v. Lowe, Civ.
No. 3:16-CV-2082, 2017 WL 2374078 (M.D. Pa. May 31, 2017)
(finding that because petitioner was classified as an
“arriving alien, ” his detention is controlled by
§ 1225(b)). 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) 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 States 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, Petitioner is subject to removal pursuant
to § 212(a)(6)(A)(i) of the Immigration and Nationality
Act (“INA”), as an alien present in the United
States without being admitted or paroled and §
212(a)(2)(A)(i)(I) of the INA, as an alien convicted of
committing acts which constitute the essential elements of a
crime involving moral turpitude. (Doc. No. 7-1 at 10.)
Respondent contends that because Petitioner was never
admitted into the United States, he is an inadmissible
arriving alien and his detention is controlled by 8 U.S.C.
§ 1225(b), rather than § 1226(c). (Doc. No. 7.) In
his petition, Petitioner originally claimed that his
detention was controlled by § 1226(c) (Doc. No. 1), but
now, through the filing of his traverse, appears to agree
with Respondent that his detention is controlled by §
1225(b) (Doc. No. 8). As will be discussed below, whether
Petitioner is detained pursuant to § 1225(b) or §
1226(c) does not alter the outcome of his case.
United States Supreme Court issued a recent opinion that
controls this Court's analysis of the instant matter. In
Jennings v. Rodriguez, __ U.S. __, 138 S.Ct. 830
(Feb. 27, 2018), the Supreme Court reversed the Ninth
Circuit's holding that non-citizens detained under
§§ 1225(b)(1), (b)(2), and 1226(c) are entitled to
bond hearings every six months. Jennings, 138 S.Ct.
at 842. The Court provided:
§ 1225(b) applies primarily to aliens seeking entry into
the United States (“applicants for admission” in
the language of the statute). Section 1225(b) divides these
applicants into two categories. First, certain aliens
claiming a credible fear of persecution under §
1225(b)(1) “shall be detained for further consideration
of the application for asylum.” §
1225(b)(1)(B)(ii). Second, aliens falling within the scope of
§ 1225(b)(2) “shall be detained for a [removal]
proceeding.” § 1225(b)(2)(A).
Read most naturally, §§ 1225(b)(1) and (b)(2) thus
mandate detention of applicants for admission until certain
proceedings have concluded. Section 1225(b)(1) aliens are
detained for “further consideration of the application
for asylum, ” and § 1225(b)(2) aliens are in turn
detained for “[removal] proceeding[s].” Once
those proceedings end, detention under § 1225(b) must
end as well. Until that point, however, nothing in the
statutory text imposes any limit ...