Reyes v. Lynch

• Decision Date: 28 August 2015
• Docket Number: Civil Action No. 15-cv-00442-MEH
• Parties: GREGORIO SANCHEZ REYES, Petitioner, v. LORETTA E. LYNCH, ATTORNEY GENERAL, et al., Respondents.
• Court: U.S. District Court — District of Colorado

GREGORIO SANCHEZ REYES, Petitioner, v. LORETTA E. LYNCH, ATTORNEY GENERAL,¹ et al., Respondents.

Civil Action No. 15-cv-00442-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

August 28, 2015

ORDER ON PETITION FOR A WRIT OF HABEAS CORPUS UNDER 28 U.S.C. § 2241

Michael E. Hegarty, United States Magistrate Judge.

Before the Court is Petitioner Gregorio Sanchez Reyes' Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 [filed March 3, 2015; docket #1]. The application is fully briefed, and the Court heard oral argument on August 25, 2015. Based on the argument and the record contained herein, the Court denies the Petitioner's Application.²

BACKGROUND

The parties agree on all of the material facts in this case. Petitioner, a citizen of Mexico, has had several illegal entries into the United States. On one such occasion, he incurred a final order of removal dated January 26, 2007. He re-entered the United States illegally on March 26, 2007. On June 17, 2014, the United States Immigration and Customs Enforcement (ICE) agency issuedPetitioner a Notice to Appear and detained him. His prior order of removal was reinstated that same day pursuant to 8 U.S.C. § 1231(a)(5) and 8 C.F.R. § 241.8. At that time, he expressed a fear of returning to Mexico, which set into motion an administrative process to determine whether the United States should refrain from deporting him to Mexico. That is, an alien who has a reinstated prior order of removal and who expresses a fear of returning to his home country is referred to an asylum officer (and, if unsuccessful, to an immigration judge)³ to determine whether the alien has a reasonable fear of persecution or torture. 8 C.F.R. § 241.8(e). If the alien succeeds in this process, he may obtain "withholding of removal," under which the Department of Homeland Security cannot execute the reinstated removal order to his country of origin. 8 U.S.C. § 1231(b)(3) (an alien may not be removed to his home country if the Attorney General decides that the alien's life or freedom would be threatened in that country due to one of the stated reasons). Even if an alien obtains relief in the reasonable fear proceedings, the reinstated removal order is not vacated or withdrawn; only its execution to the alien's home country is withheld. See Matter of I-S & C-S-, 24 I & N Dec. 432, 433-34 (BIA 2008) (holding that an order granting withholding of removal must include an explicit order of removal because "in order to withhold removal, there must first be an order of removal that can be withheld").

In the present case, Petitioner failed to convince an asylum officer of his reasonable fear, but the immigration judge disagreed with the officer. The immigration judge then placed Petitioner in a "withholding only" proceeding but, on March 10, 2015, found that Petitioner was not eligible for withholding of removal. That decision has been appealed to, and is pending before, the Board ofImmigration Appeals (BIA). In the meantime, Petitioner has been in continuous detention since June 17, 2014.

The only issue before this Court is whether the reinstated removal order is "administratively final" as that term is used 8 U.S.C. § 1231(a)(1) and (2). If administratively final, Petitioner's detention is governed by Section 1231, and such detention is mandatory, at least until it runs afoul of the constitutional prohibition against indefinite detention. If Petitioner's removal order is not administratively final under Section 1231(a)(1), his detention is governed by 8 U.S.C. § 1226, under which he is entitled to a bond hearing utilizing the typical risk of flight or risk to the community analysis.

ANALYSIS

With no circuit opinions directly on point in the context of detention, the several district courts that have considered the question of administrative finality are virtually evenly split, some holding that, during the pendency of a withholding-only proceeding (through the appeal to the BIA), the removal order is not administratively final, and the alien is entitled to a bond hearing under 8 U.S.C. § 1226,⁴ while others finding that the reinstated order is administratively final for purposesof detention.⁵ I find myself in the latter category for the following reasons.

Petitioner has a final order of removal. It was administratively final in 2007, pursuant to 8 U.S.C. § 1101(a)(47)(B). He was removed to Mexico at that time. His reappearance in the United States, without permission of the Department of Homeland Security, made him subject to reinstatement of the prior administratively final order of removal. 8 U.S.C. § 1231(a)(5). He has no avenue of relief, either administratively or judicially, from the legal fact that he has an administratively final order of removal. Id. However, Congress has made the political determination that persons who have been legally ordered removed from the United States should not be sent to a country where they will be tortured. This humanitarian relief comes in the form of withholding of removal. 8 C.F.R. § 208.31 (regulation implementing the Convention Against Torture, a treaty to which the United States is a signatory). Even if Petitioner prevails on his withholding claim, the United States may remove Petitioner to a country other than Mexico if such country will accept him,⁶ and there is no administrative or judicial relief to which Petitioner would be entitled against such a removal. 8 C.F.R. § 1208.2(c)(3)(I) (in a withholding proceeding, "all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, eligibility for waivers, and eligibility for any other form of relief"). If he loses his appeal concerning withholding of removal, he may be removed to Mexicoimmediately, again without any ability to challenge it.⁷ Petitioner has a right of judicial review in the Tenth Circuit Court of Appeals if the BIA affirms the immigration judge's decision. E.g., Batubara v. Holder, 733 F.3d 1040 (10th Cir. 2013). Until Petitioner's appeal to the BIA is concluded, Petitioner may not be removed. 8 C.F.R. § 1003.6. Even thereafter, if a petition for review is filed in the Tenth Circuit, the parties have informed the court that a motion for stay of execution is uniformly filed and, once filed, ICE will not remove an alien until the stay is denied or the appeal is completed.

Petitioner asks that I conflate administrative finality and judicial finality, so that only when Petitioner's appeals of any adverse administrative decision on his withholding claim are complete, the matter is considered "final" for purposes of the detention statutes. I decline to do that, because these two aspects of "finality" are distinct and serve fundamentally different and important purposes.

As a matter of subject matter jurisdiction, federal courts must await exhaustion of all administrative appeals before reviewing immigration decisions, whether by a habeas corpus action or a petition for review. Soberanes v. Comfort, 388 F.3d 1305, 1308-09 (10th Cir. 2004). Thus, in the judicial review context, an immigration decision is final only if the BIA has rendered its decision and, even then, it is only final as to arguments actually made to the BIA. E.g., Calderon-Rodriguez v. Terry, 547 F. App'x 867, 869 (10th Cir. 2013) (citing Soberanes, id.); Garcia-Carbajal v. Holder, 625 F.3d 1233, 1237 (10th Cir. 2010) ("To satisfy § 1252(d)(1), an alien must present the same specific legal theory to the BIA before he or she may advance it in court."). In the present case, no court of appeals will review Petitioner's final order of removal - as noted above, it is not reviewable. The federal courts may only review the BIA's decision on whether Petitioner has established hisclaim for withholding of removal. I do not believe this state of affairs logically renders the final order of removal "administratively non-final" for purposes of detention. Although the Judicial Branch has the constitutional authority to determine finality for judicial review purposes, Congress has the constitutional authority to define administrative finality for purposes of detention, and it has done so. See Wang v. Ashcroft, 320 F.3d 130, 147 (2d Cir. 2003) ("The determination of when an alien becomes subject to detention under INA § 241 rather than INA § 236 is governed by INA § 241(a)(1).").

The decision in Luna-Garcia v. Holder, 777 F.3d 1182 (10th Cir. 2015) is an example of the courts' application of finality for purposes of judicial review, holding that "where an alien pursues reasonable fear proceedings following the reinstatement of a prior order of removal, the reinstated removal order is not final until the reasonable fear proceedings are complete." Id. at 1186. The court's finality analysis was focused on the issue of withholding of removal proceedings and the point at which government action is judicially reviewable. Because, in Luna-Garcia, all administrative and judicial proceedings concerning the issue of withholding (which was the only issue before the court) had not been completed, the removal order was not final. The court stated, "With regard to agency action generally, the Supreme Court has said that to be final, agency action must 'mark the consummation of the agency's decisionmaking process,' and it must determine 'rights or obligations' or occasion 'legal consequences.'" Id. at 1185.

Here, on the other hand, the immigration agency has completed the decisionmaking process on whether the Petitioner has a legal right to remain in the United States and has determined that he does not have that right. What has yet to be determined is whether he can be returned to Mexico, or whether the government must look to another country to which Petitioner will be removed. Huang v. I.N.S., 436 F.3d 89, 95 (2d Cir. 2006) ("[W]ithholding of removal is a 'country-specific'form of relief, i.e., it bars removal to the nation of persecution, but it does not...