Opinion
Case No. 1:14-cv-423
10-15-2014
Alfonso Moreno-Gonzalez, Petitioner, v. Jeh Johnson, et al., Respondents
ORDER
This matter is before the Court on Petitioner Alfonso Moreno-Gonzalez's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. No. 1). For the reasons that follow, Petitioner's petition is not well-taken and is DENIED.
I. Background
The following facts about this case are not in dispute.
Petitioner Alfonso Moreno-Gonzalez is a Mexican national currently detained by the Bureau of Immigration and Customs Enforcement ("ICE") in the Butler County Jail. Petitioner was originally removed from the United States in January 2009 pursuant to a Stipulated Request for Removal. Petitioner re-entered the United States illegally sometime prior to November 2013. Petitioner came to ICE's attention in November 2013 when he was arrested in Franklin County, Ohio for public urination and obstructing official business. Petitioner also has two prior convictions for driving under the influence.
ICE reinstated Petitioner's prior order of removal and he did not contest that decision. Petitioner did, however, file applications for withholding of removal and for withholding of removal pursuant to the United Nations' Convention Against Torture ("CAT"). In March 2014, an immigration judge denied both of Petitioner's applications for withholding of removal. In April 2014, Petitioner appealed the denial of withholding of removal to the Board of Immigration Appeals ("BIA"). The processing of Petitioner's appeal was delayed for several months due an agency-wide computer system failure. The parties did, however, file simultaneous briefs with BIA in July 2014. Petitioner's appeal of the immigration judge's denial of withholding of removal remains pending before the BIA.
Petitioner has been in the Butler County Jail under an ICE detainer since November 25, 2013. On July 16, 2014, ICE reviewed Petitioner's custodial status and confirmed that Petitioner would remain in custody. During the Court's telephone conference with the parties on October 7, 2014, counsel for ICE indicated that ICE had again reviewed Petitioner's custodial status and determined that he would remain in custody. Petitioner, however, has not had an individualized bond hearing before an immigration judge.
Finally, it is not disputed that, other than his pending appeal concerning the denial of withholding of removal, there are no impediments to Petitioner's repatriation to Mexico. In other words, it is not disputed that in the event Petitioner's appeal is ultimately unsuccessful, he could be returned to Mexico relatively expeditiously.
Petitioner contends that his detention by ICE without an individualized bond hearing denies his right to procedural and substantive due process. Petitioner also contends that his de facto indefinite detention by ICE violates his right to substantive due process. Finally, Petitioner contends that his conditions of confinement at the Butler County Jail violate the Eighth Amendment's proscription against cruel and unusual punishment.
In response, the government contends that Petitioner received all the process he was due prior to his detention. The government also argues that Petitioner is not subject to indefinite detention since he can be repatriated to Mexico if his appeal ultimately is denied. Finally, the government contends that Petitioner's Eighth Amendment claim is not cognizable in § 2241 proceedings.
The government also contends that Petitioner's petition names a number of improper parties as respondents, most notably several individual supervisory officers within the Department of Homeland Security, including the Secretary, and other ICE officials. Because the Court will deny Petitioner's petition on the merits, it need not resolve whether these individuals are proper respondents.
II. Analysis
Federal courts have habeas jurisdiction pursuant to 28 U.S.C. § 2241 to examine the statutory and constitutional bases for an alien's detention by the Attorney General. Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir. 2003).
Two statutory provisions provide authority for the Attorney General to detain an alien, with their applicability depending on the procedural posture of the alien's removal proceedings. Before an order of removal has been entered, 8 U.S.C. § 1226 applies. Under § 1226(a), detention of the alien is discretionary:
On a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States. Except as provided in subsection (c) of this section and pending such decision, the Attorney General--8 U.S.C. § 1226(a). Under this section, an alien is entitled to an individualized bond hearing before an immigration judge to determine whether he presents a danger to the community or a risk of flight. Sylvain v. Attorney General of the United States, 714 F.3d 150, 154 (3rd Cir. 2013).
(1) may continue to detain the arrested alien; and
(2) may release the alien on-
(A) bond of at least $1,500 with security approved by, and containing conditions prescribed by, the Attorney General; or
(B) conditional parole[.]
Section 1226(c) requires the Attorney General to detain aliens convicted of certain criminal offenses during the pendency of their removal proceedings. An alien being detained pursuant to § 1226(c) is not entitled to an individualized bond hearing, Demore v. Kim, 538 U.S. 510, 523-32 (2003), although the duration of his detention is not without constitutional limits. Ly v. Hansen, 351 F.3d 263, 267-68, 273 (6th Cir. 2003).
On the other hand, 8 U.S.C. § 1231 controls the detention of an alien subject to a removal order. Section § 1231(a)(1)(A) requires the Attorney General to remove an alien within 90 days after a removal order becomes final. 8 U.S.C. § 1231(a)(1)(A). This is called "the removal period." The Attorney General shall detain an alien during the removal period. 8 U.S.C. § 1231(a)(2). If the alien is not removed during the removal period the Attorney General may release the alien subject to conditions of supervision. 8 U.S.C. § 1231(a)(3). After the statutory removal period expires, the Attorney General may detain the alien for another 90 days without a due process violation. Zadvydas v. Davis, 533 U.S. 678, 701 (2001).
Together, Zadvydas and § 1231(a)(1)(A) provide a six-month period during which the detention of an alien subject to a removal order is presumptively reasonable. See id. After this six-month period has expired, the alien has an opportunity to show that there is not a significant likelihood of his removal in the reasonably foreseeable future. Id. If the alien carries that burden, the government must justify the alien's continued detention by a strong special justification beyond the desire to protect the community or prevent flight. Id. at 690-91. If there is not a significant likelihood the alien will be removed in the reasonably foreseeable future, the court should order his release, subject to appropriate conditions of supervision. Id. at 699-70. However, "an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future." Id. at 701.
In this case, the parties dispute whether a final order of removal has been entered against Petitioner. The government's position is that Petitioner is subject to a final order of removal because he did not challenge the reinstated order of removal. See U.S.C. § 1101(a)(47)(B)(i) ("The order [of removal] shall become final upon . . . the expiration of the period in which the alien is permitted to seek review of such order by the Board of Immigration Appeals."). Petitioner, on the other hand, contends that he is not subject to a final order of removal because his appeal of the immigration judge's denial of his applications for withholding of removal is pending before the BIA. In support of this position, Petitioner cites Ortiz-Alfaro v. Holder, 694 F.3d 955, 958-60 (9th Cir. 2012), which holds that a reinstated removal order does not become final until administrative removal proceedings are completed. Under the government's theory, Petitioner's detention would be controlled by § 1231. Under Petitioner's theory, his detention would be controlled by § 1226.
A reinstated order of removal is usually final upon its reinstatement because the original order is not subject to being reopened or reviewed and the alien is not otherwise permitted to seek relief from the order. 8 U.S.C. § 1231(a)(5). An alien may, however, challenge the validity of the underlying removal order on constitutional grounds. See Shtyllaku v. Gonzales, 252 Fed. Appx. 16, 17-18 (6th Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(D)).
The Court concludes, however, that far as Petitioner's substantive due process claim is concerned, as a practical matter it makes little difference whether his case is in the pre-removal order stage or post-removal order stage. In either case, the likelihood of an alien's removal in the reasonably foreseeable future controls the determination of whether his right to substantive due process is being violated by his continued detention by the Attorney General. Zadvydas, 533 U.S. at 701 (considering an alien's detention pursuant to § 1231); Ly, 351 F.3d at 267-73 (applying Zadvydas to consider an alien's detention pursuant to § 1226(c)); Prieto-Romero v. Clark, 534 F.3d 1053, 1062-63 (9th Cir. 2008) (applying Zadvydas to consider an alien's detention pursuant to § 1226(a)).
In this case, Petitioner's removal to Mexico is likely in the reasonably foreseeable future. In contrast to cases such as Zadvydas and Ly, in which the alien's removal could not be accomplished because there was no country to which he could be removed, here, the only impediment to Petitioner's removal to Mexico is his appeal of the immigration judge's denial of his applications for withholding of removal. If Petitioner's appeal ultimately is denied, it is not disputed that he can be removed to Mexico expeditiously. Even though the exact date on which Petitioner's appeal will be concluded is unknown, his detention by the Attorney General will not be indefinite, which was essentially the situation in both Zadvydas and Ly. Thus, Petitioner is not in the predicament of being "removable-but-unremovable" so as to find a due process violation resulting from his continued detention by the Attorney General. Prieto-Romero, 534 F.3d at 1063-64.
In Zadvydas, the alien was of Lithuanian descent, but was born in Germany after World War II in a displaced persons camp. Germany refused to accept him because he was not a German citizen. Lithuania refused to accept him because he was not a Lithuanian citizen nor a permanent resident of Lithuania. The Dominican Republic (his wife's country) also refused to accept him. 533 U.S. at 684. In Ly, the alien was Vietnamese but could not be removed to Viet Nam because there was no repatriation agreement between Viet Nam and the United States. 351 F.3d at 266, 270.
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The Court also concludes that Petitioner's procedural and substantive due process rights were not violated because he was not provided an individualized bond hearing by the Attorney General. In this regard, the Court concludes that the issue of whether Petitioner is entitled to a bond hearing is controlled by § 1231, which mandates the alien's detention during the removal period and thereafter is discretionary subject to the alien's substantive due process rights. Stated another way, § 1226(a) does not apply to provide an alien subject to a reinstated removal order under § 1231(a)(5) the right to an individualized bond hearing even if he has an application for withholding of removal pending. As indicated above, the issue of Petitioner's removability became administratively final when the prior removal order was reinstated. While Petitioner has an appeal of the denial of his applications for withholding of removal and withholding of removal under CAT pending, his status will not change even if he wins his appeal. Castellano-Chacon v. I.N.S., 341 F.3d 533, 544 (6th Cir. 2003) ("Unlike an application for asylum. . . a grant of an alien's application for withholding is not a basis for adjustment to legal permanent resident status[.]"). He will still be removable from the United States to a country other than Mexico. Id.; 8 C.F.R. § 208.16(f). Consequently, even with an appeal concerning the denial of withholding pending, the Attorney General still has a substantial interest in keeping Petitioner present for his actual removal. Zadvydas, 533 U.S. at 699. Of course, if Petitioner obtains withholding of removal and the Attorney General decides to continue his detention and there is no other country to which he can be removed, he likely would be entitled to relief under Zadvydas. But that is not the case currently before the Court. The Court concludes, therefore, that Petitioner's continued detention by the Attorney General is authorized and controlled by § 1231 and that he is not entitled to an individualized bond hearing. Consequently, he has failed to demonstrate either a procedural due process violation or substantive due process violation.
Finally, to the extent that Petitioner challenges the conditions of his confinement at the Butler County Jail, that claim is not cognizable in these § 2241 proceedings. Allen v. Lamanna, 13 Fed. Appx. 308, 311 (6th Cir. 2001).
Conclusion
For all the reasons stated above, Petitioner's petition for a writ of habeas corpus is not well-taken and is DENIED. To the extent Petitioner asserts an Eighth Amendment claim concerning the conditions of his confinement, that claim is DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED Date October 15, 2014
s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge