Fernando-Mateo v. Prim

Decision Date02 December 2020
Docket NumberNo. 20-cv-2999,20-cv-2999
PartiesFRANCISCO FERNANDO-MATEO, Petitioner, v. BILL PRIM, McHenry County Sheriff; ROBERT GUADIAN, Field Office Director, Chicago, U.S. Immigration and Customs Enforcement; and CHAD F. WOLF, Secretary (Acting), U.S. Department of Homeland Security, Respondents.
CourtU.S. District Court — Northern District of Illinois

Judge John Z. Lee


Francisco Fernando-Mateo has filed a petition for habeas corpus under 28 U.S.C. § 2241, as well as an emergency motion for a rule to show cause why his petition should not be granted. Fernando-Mateo is an alien from Guatemala who is subject to a reinstated order of removal under 8 U.S.C. § 1231(a)(5). Prior to being removed, he informed the authorities that he is fearful for his life if he is returned to Guatemala. This triggered withholding of removal proceedings under 8 U.S.C. § 1231(b)(3)(A) to determine whether Fernando-Mateo should be returned to Guatemala or another country. In the meantime, he has been detained without a bond hearing, to which he argues that he is entitled under 8 U.S.C. § 1226(a).

Respondents McHenry County Sheriff Bill Prim, the Field Office Director of the U.S. Immigration and Customs Enforcement in Chicago Robert Guadian, and the Acting Secretary of the U.S. Department of Homeland Security Chad Wolf

(collectively "Respondents")1 contend that an alien, like Fernando-Mateo, who is detained subject to a section 1231(a)(5) reinstated removal order does not have the right to a bond hearing.

For the reasons explained below, Fernando-Mateo's petition and motion are granted. Respondent Guadian is directed to provide Fernando-Mateo with an individualized bond hearing no later than three days from the issuance of this Order and to release him on bond if he is eligible.

I. Background

Fernando-Mateo first entered the United States without authorization on November 12, 2014, and was discovered and removed that same day by the United States Department of Homeland Security ("DHS") pursuant to an expedited removal order. He was returned to Guatemala, the country whence he came. Gov't's Ex., Ochoa Decl. ¶ 7, ECF No. 11-1.

Fernando-Mateo again entered the United States without authorization in 2015 and again was discovered by DHS. At that point, DHS reinstated the removal order from November 2014 pursuant to 8 U.S.C. § 1231(a)(5) and returned Fernando-Mateo to Guatemala.2

Similar events unfolded in 2016. Fernando-Mateo entered the United States without authorization; he was discovered; DHS reinstated the 2014 removal order; and he was removed to Guatemala. Id. ¶¶ 8-9.

Undeterred, Fernando-Mateo again entered the United States without authorization on May 20, 2019. Pet. Writ Habeas Corpus & Req. Release Detention ("Pet.") ¶ 5, ECF No. 1. And, like before, he was discovered by DHS. Ochoa Decl. ¶ 10.

On May 22, 2019, DHS notified him of its intent to reinstate the 2014 removal order. Id. Fernando-Mateo acknowledged receipt of the notice and indicated that he did not contest the reinstatement. Id. He also confirmed that Francisco Fernando-Mateo was his true name and admitted that he had used aliases when he had entered the United States in the past. Id. Then, on May 24, 2019, DHS released him on an order of supervision pending removal. Id.

During the subsequent six months, Fernando-Mateo checked in routinely with DHS. Pet. ¶ 16. On one such occasion, on November 21, 2019, DHS again notified Fernando-Mateo of its decision to reinstate the 2014 removal order. Ochoa Decl. ¶ 11. But this time, Fernando-Mateo indicated that he feared returning to Guatemala dueto threats to his life and freedom and requested that he not be returned there pursuant to 8 U.S.C. § 1231(b)(3)(A).3 Pet. ¶¶ 16-17.

Although there is no indication in the record of any change in Fernando-Mateo's circumstances (other than his request), that very day, DHS served him with an arrest warrant, took him into custody, and informed him that he would be detained, without a bond hearing, pending a final administrative decision on his section 1231(b)(3)(A) request. Ochoa Decl. ¶ 11.

On December 30, 2019, an asylum officer found that Fernando-Mateo had not established a reasonable fear of returning to Guatemala as required under section 1231(b)(3)(A). Id. 12. Fernando-Mateo appealed that determination to an immigration judge, who disagreed with the asylum officer and vacated the prior finding. Id. Fernando-Mateo then was placed in what is commonly referred to as "withholding-only" proceedings. Id. ¶¶ 12, 13

After two separate days of hearings in April and May 2020, an immigration judge granted Fernando-Mateo's application for withholding on June 9, 2020. Pet'r's Notice of Filing, Ex., Decision of Immigration Judge, at 1, ECF No. 15-1. DHS has appealed that determination to the Board of Immigration Appeals ("BIA"). See Pet'r's Notice of Filing at 2. That appeal is pending, and the non-prevailing party will beable to seek review of the BIA's decision before the Seventh Circuit Court of Appeals. See 8 U.S.C. § 1252; see also Garcia-Arce v. Barr, 946 F.3d 371, 375-76 (7th Cir. 2019) (reviewing the BIA's order affirming an immigration judge's denial of withholding of removal where alien was subject to a reinstated removal order).

Having been held in custody since November 21, 2019, without a bond hearing, Fernando-Mateo has filed this petition and his motion requesting that the Court order DHS to provide him with an individualized bond hearing during the pendency of his withholding-only proceedings as required by 8 U.S.C. § 1226(a).4 Fernando-Mateo's petition poses a thorny question of law that has bedeviled numerous circuit courts: whether an alien who is subject to a reinstated removal order under 8 U.S.C. § 1231(a)(5) and is detained during a withholding-only proceeding under 8 U.S.C. § 1231(b)(3)(A) is entitled to a detention hearing under 8 U.S.C. § 1226(a). See Aleman Gonzalez v. Barr, 955 F.3d 762, 786 n.18 (9th Cir. 2020) (recognizing the circuit split).

The Second Circuit and Fourth Circuit have answered yes, while the Third, Sixth, and Ninth Circuits have said no. Compare Guzman Chavez v. Hott, 940 F.3d 867, 878 (4th Cir. 2019), cert. granted sub nom. Albence v. Guzman Chavez, No. 19-897, 2020 WL 3146678 (U.S. June 15, 2020); and Guerra v. Shanahan, 831 F.3d 59, 62-64 (2d Cir. 2016), with Martinez v. Larose, 968 F.3d 555, 560-64 (6th Cir. 2020); Guerrero-Sanchez v. Warden York Cty. Prison, 905 F.3d 208, 217 (3d Cir. 2018); andPadilla-Ramirez v. Bible, 882 F.3d 826, 831-32 (9th Cir. 2017). The Supreme Court is poised to resolve the circuit split in the near future. See Albence, 2020 WL 3146678. The Seventh Circuit has yet to address the issue.

For the reasons explained below, the Court agrees with the reasoning of the Second and Fourth Circuits and concludes that Fernando-Mateo is entitled to an individualized bond hearing under section 1226(a). The petition and the motion are therefore granted.

II. Legal Standard

A federal district court is authorized to grant a writ of habeas corpus under 28 U.S.C. § 2241 where the petitioner is "in custody under or by color of the authority of the United States . . . [or] in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(1), (3). "Section 2241 habeas proceedings are available as a forum for statutory and constitutional challenges to post-removal-period detention." Zadvydas v. Davis, 533 U.S. 678, 678 (2001); see Parra v. Perryman, 172 F.3d 954, 957 (7th Cir. 1999) (holding that jurisdiction under § 2241 is proper when petitioner raises due process challenge to legislative framework).

III. Analysis

Fernando-Mateo's petition hinges on whether the government's authority to detain him stems from 8 U.S.C. § 1231 or 8 U.S.C. § 1226. If this power comes from section 1231, then Fernando-Mateo is subject to mandatory detention until he establishes that there is not a significant likelihood of removal in the reasonably foreseeable future. See 8 U.S.C. § 1231(a)(2); Zadvydas, 533 U.S. at 699-701. On the other hand, if the government's ability to detain Fernando-Mateo arises from section1226(a), then Fernando-Mateo must be afforded the opportunity to prove himself eligible for release on bond. See 8 U.S.C. § 1231(a)(2); 8 C.F.R. § 236.1. The Court starts with an overview of the relevant statutory framework.

A. Reinstatement of Removal Orders and Withholding of Removal

When an alien reenters the United States without authorization after he or she was previously removed or voluntarily left the country under a removal order, "the prior order of removal is reinstated from its original date." 8 U.S.C. § 1231(a)(5). Furthermore, the reinstated order "is not subject to being reopened or reviewed," id., and the alien is "generally foreclose[d] [from seeking] discretionary relief from the terms of the reinstated order," Fernandez-Vargas v. Gonzales, 548 U.S. 30, 35 (2006).

A removal order, whether original or reinstated, designates the country to which the alien is to be removed. See 2 Immigr. Law and Defense app. A Form I-851A ("Final Administrative Removal Order" ordering that the alien "be removed from the United States to [the destination country] or to any alternate country prescribed by Section 241 of the Act"); 8 C.F.R. § 238.1 (referring to form). But the government may not remove the alien to the designated country (i.e., must "withhold removal") if the alien can show that his or her life or freedom would be threatened in the designated country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3).5 Once an alien expresses suchfears, such statements trigger a screening process to determine whether the alien may apply for withholding of removal. See Romero, 280 F. Supp. 3d at 844.

As part of this process, the alien first must appear before a DHS officer for a reasonable-fear...

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