Chica-Iglesia v. Lowe
Decision Date | 25 April 2018 |
Docket Number | No. 1:18-cv-0035,1:18-cv-0035 |
Parties | ALFREDO CHICA-IGLESIA, Petitioner v. WARDEN CRAIG LOWE, Respondent |
Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Rambo)
Before 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 habeas corpus.
Petitioner 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.)
On 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. (Id.)
On May 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.)
The 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) ( ). 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) ( ). 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 alienremoved from the United States without further hearing or review." 8 C.F.R. § 1235.3(b)(1)(I), (b)(2)(ii) ( ).
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) ().
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) 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. § 1003.19(h)(2)(i)(B).
As 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.
The 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:
Based upon the Supreme Court's holding in Jennings, this Court must conclude that Petitioner's detention under 8 U.S.C. § 1225(b) does not entitle him to a bond hearing pending his removal proceedings. See id. at 842. Similarly, even if this Court construed Petitioner's detention as controlled by § 1226(c), the result is no different. With regard to § 1226(c), the Supreme Court stated:
To continue reading
Request your trial-
Innocent v. Attorney Gen. of United States, 1:19-cv-184
...31, 2018) (citing Patel v. Doll, No. 1:17-CV-01594, 2018 WL 2307017, at *3 (M.D. Pa. Apr. 11, 2018); Chica-Iglesia v. Lowe, No. 1:18-CV-0035, 2018 WL 1960438 (M.D. Pa. Apr. 25, 2018)), Report and Recommendation adopted by 2018 WL 4680054 (M.D. Pa. Sept. 28, 2018). Regardless of whether Peti......