Garcia v. Barr
| Decision Date | 03 February 2020 |
| Docket Number | 6:19-CV-06327 EAW |
| Parties | SELVIN FERNANDO GONZALES GARCIA, Petitioner, v. WILLIAM P. BARR, Attorney General, et al., Respondents. |
| Court | U.S. District Court — Western District of New York |
Petitioner Selvin Fernando Gonzales Garcia ("Petitioner"), a civil immigration detainee currently held at the Buffalo Federal Detention Facility in Batavia, New York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Petitioner contends that he is detained pursuant to 8 U.S.C. § 1226(a), and that he is entitled to release, or in the alternative, a bond hearing. (Id. at 2). For the reasons that follow, the Court finds that Petitioner is detained pursuant to 8 U.S.C. § 1225(b) but nonetheless, while not entitled to immediate release, Petitioner is entitled to an individualized bond hearing at which the Government bears the burden of proving by clear and convincing evidence that he poses either a risk of flight or a danger to the community.
Petitioner is a native and citizen of Honduras. (Dkt. 4-1 at ¶ 4). He illegally entered the United States at or around 2:30 a.m. on June 18, 2018, by rafting across the Rio Grande River, and he was in the United States approximately one mile west of the Roma, Texas Port of Entry when he encountered a U.S. Border Patrol agent. (Id.; Dkt. 4-2 at 3). Petitioner admitted to being a citizen and national of Honduras who lacked proper immigration documents, and he was immediately arrested and transported for additional processing. (Dkt. 4-1 at ¶ 4).
Petitioner was processed for expedited removal and was charged with entering the United States without inspection in violation of 8 U.S.C. § 1325(a)(1). (Id. at ¶ 5). The day after his arrest—on June 19, 2018—Petitioner pleaded guilty in the United States District Court for the Southern District of Texas, and he was sentenced to time served. (Id.; Dkt. 4-2 at 6). On September 6, 2018, Petitioner was found to have a credible fear of persecution if returned to Honduras and was referred to the Batavia Immigration Court for further immigration proceedings pursuant to 8 U.S.C. § 1225(b)(1)(B)(ii). (Dkt. 4-2 at 7). He was served with a Notice to Appear on September 12, 2018, and a removal hearing was set for October 31, 2018. (Dkt. 4-1 at ¶ 6). On September 12, 2018, the Department of Homeland Security ("DHS") performed a custody determination pursuant to 8 U.S.C. § 1226, and notified Petitioner that he would be detained pending a final administrative determination in his immigration case. (Id. at ¶ 7). Petitioner requested that the DHS determination be reviewed by an immigration judge ("IJ"). (Id.).
On November 8, 2018, Petitioner appeared with his attorney for a master calendar hearing and a bond hearing, which were adjourned until December 4, 2018. (Id. at ¶ 8). A bond hearing was held on December 4, 2018, and the IJ reserved decision. (Id. at ¶ 9). A master calendar hearing was held the same day, and Petitioner conceded removability and requested a continuance to file an application for relief from removal. (Id. at ¶ 10). The proceedings were continued until February 25, 2019. (Id.). On December 6, 2018, the IJ denied Petitioner's request for bond, finding that he was a flight risk. (Id. at ¶ 9). Petitioner did not appeal the bond decision to the Board of Immigration Appeals ("BIA"). (Id.).
Due to closure of the immigration court for weather conditions, Petitioner's removal hearing was continued until May 3, 2019. (Id. at ¶ 10). Petitioner was ordered removed to Honduras, and his applications for relief from removal were denied. (Id. at ¶ 11). On May 31, 2019, Petitioner appealed the removal order. (Id. at ¶ 11). On October 28, 2019, the BIA found error in Petitioner's removal proceedings and remanded his case to the Immigration Court. (Dkt. 9). The Consulate of Honduras has approved the issuance of a travel document for Petitioner. (Dkt. 4-1 at ¶ 13).
Petitioner filed his Petition pro se on May 3, 2019. (Dkt. 1). Respondents filed their answer and opposition to the Petition on August 12, 2019 (Dkt. 4; Dkt. 5), and no reply was filed. Counsel appeared on Petitioner's behalf on September 30, 2019. (Dkt. 6). Oral argument was held before the undersigned on December 18, 2019, and decision was reserved. (Dkt. 11).
The federal habeas corpus statute gives district courts jurisdiction to hear immigration-related detention cases. See 28 U.S.C. § 2241(c)(3); Demore v. Kim, 538 U.S. 510, 517-18 (2003) (); Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (). District courts do not have jurisdiction over challenges to the legality of final orders of deportation, exclusion, and removal; jurisdiction to review such challenges rests exclusively in circuit courts. See Gittens v. Menifee, 428 F.3d 382, 384 (2d Cir. 2005) ().
Petitioner argues that the Government is detaining him pursuant to § 1226(a), and as a result he is entitled to a bond hearing wherein the Government bears the burden of proving by clear and convincing evidence that Petitioner should be detained. The Government argues Petitioner was and continues to be detained pursuant to § 1225(b). For the following reasons, the Court finds Petitioner is detained pursuant to § 1225(b).
"Section 1225 applies to two types of aliens: 'arriving aliens' and 'certain other aliens.'" Dorval v. Barr, No. 6:19-CV-06545-MAT, 2019 WL 5079566, at *3 (W.D.N.Y. Oct. 10, 2019); see 8 U.S.C. § 1225(b) (). Regulations define an arriving alien as:
[A]n applicant for admission coming or attempting to come into the United States at a port-of-entry, or an alien seeking transit through the United States at a port-of-entry, or an alien interdicted in international or United States waters and brought into the United States by any means, whether or not to a designated port-of-entry, and regardless of the means of transport.
8 C.F.R. § 1001.1(q). Pursuant to § 1225, "arriving aliens" are subject to expedited removal proceedings "without further hearing or review unless the alien indicates either an intention to apply for asylum . . . or a fear of persecution." 8 U.S.C. § 1225(b)(1)(A)(i). If the "arriving alien" does so indicate, "the officer shall refer the alien for an interview by an asylum officer." Id. § 1225(b)(1)(A)(ii).
With regards to "certain other aliens," § 1225(b)(1)(A)(iii), titled "Application to certain other aliens," states:
When the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, was passed, the Attorney General's authority under § 1225(b)(1)(A)(iii)(I) was delegated to the Secretary of DHS. In 2004, DHS used this authority to designate as "certain other aliens" the following:
Aliens determined to be inadmissible under sections 212(a)(6)(C) or (7) of the Immigration and Nationality Act who are present in the U.S. without having been admitted or paroled following inspection by an immigration officer at a designated port-of-entry, who are encountered by an immigration officer within 100 air miles of the U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the fourteen-day (14-day) period immediately prior to the date of encounter.
Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48879 (Aug. 11, 2004) (hereinafter "Certain Other Aliens Rule"). In other words, aliens who illegally entered the United States and are detained within 14 days of entry and within 100 miles of the border are treated the same as "arriving aliens" under the current statutory and regulatory scheme.
If an immigration officer determines during an interview that either an "arriving alien" or "certain other 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); see Certain Other Aliens Rule, 69 Fed. Reg. at 48879 (). This detention places aliens in full removal proceedings pursuant to 8 U.S.C. § 1229a. 8 U.S.C. § 1225(b)(2)(A). If the asylum officer finds the alien does not have a credible fear, the alien can request review of that determination by an IJ. 8C.F.R. § 1208.30(g). Additionally, "[a]liens detained pursuant to Section 1225(b) may be awarded discretionary parole into the country by the Attorney General, pending their application to be...
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