United States District Court, M.D. Pennsylvania
John E. Jones III
before the Court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, filed by Petitioner Farruh
Pulatov (“Petitioner”). (Doc. 1). Petitioner
challenges the constitutionality of his prolonged detention
by the United States Department of Homeland Security,
Immigration and Customs Enforcement (“ICE”).
(Id.). Respondent contends that Petitioner is an
“arriving alien” as defined by 8 U.S.C. §
1101(a)(13), who is lawfully detained under 8 U.S.C. §
1225(b) and is not entitled to release or a bond hearing.
(Doc. 6). For the reasons set forth below, the Court will
grant, in part, Petitioner's writ of habeas corpus.
is a citizen and national of Uzbekistan who, on October 24,
2017, applied for admission into the United States at the San
Ysidro Port of Entry with his wife and four minor children.
(Doc. 6-1, pp. 3-5). Because he was an arriving alien with no
valid immigration or proper entry documents, immigration
officials found him to be inadmissible pursuant to section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act
(“INA”) and detained him. (Id. at 7)
a credible fear interview, the asylum officer determined that
he had a credible fear of return to Uzbekistan and issued a
Notice to Appear. (Id. at 4, 7). Petitioner applied
for asylum; ICE scheduled a hearing for May 15, 2018.
(Id. at 7, 9). In advance of the hearing date,
Petitioner's counsel sought an emergency motion for
continuance to afford time to obtain an expert. (Id.
at 9-13). The Immigration Judge (“IJ”) denied
counsel's motion because “Respondent is detained, 6
months on docket.” (Id. at 26). Counsel
submitted a second motion to continue the hearing date based
on a scheduling conflict. (Id. at 27-31). The IJ
denied the motion on May 2, 2018. (Id. at 42). The
hearing proceeded on May 15, 2018, as scheduled. The IJ
reserved issuing a decision pending Petitioner's
counsel's submission of an amended expert report.
to a recent Notice to the Court filed by Petitioner is a
December 4, 2018 decision of the BIA which indicates that, on
June 15, 2018, the IJ denied Petitioner's applications
for asylum, withholding of removal, and protection under the
Convention Against Torture. (Doc. 9, p. 6). Petitioner
appealed the IJ's decision. On December 4, 2018, the BIA
sustained the appeal and remanded the case to the IJ for
further proceedings and the entry of a new decision.
(Id.). According to Petitioner's Notice, the IJ
scheduled a new hearing for April 16, 2019. (Doc. 9). The
record has not been supplemented since that Notice.
this date, Petitioner has been detained in ICE custody for
approximately twenty months.
U.S.C. §1225(b) governs the detention of “aliens
arriving in the United States, ” and mandates the
detention of “arriving aliens” who, like
Petitioner, do not possess valid entry or travel documents
when they arrive. See Ahmed v. Lowe, 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 Border Protection. 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, [as is the case here, ]
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.”).
asylum officer determines 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.
presentation for admission to the United States at the port
of entry, Petitioner 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.”). Because he 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). There is no statutory entitlement to periodic
bond hearings under §1225(b). In Jennings v.
Rodriguez, ___ U.S.___, 138 S.Ct. 830, 200 L.Ed.2d 122
(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. Id. at 842. The Court reasoned as
§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 ...