UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karen Elizabeth Rivera-Medrano

v. Civil No. 20-cv-194-JD Opinion No.

Chad Wolf, Secretary of the Department of Homeland Security, et al.

O R D E R

Karen Elizabeth Rivera-Medrano, who is being held pending

removal proceedings at the Strafford County Department of

Corrections (“SCDOC”), has filed a petition for a writ of habeas

corpus pursuant to

to require the Department of

Homeland Security to hold a bond hearing.1 The federal

respondents have moved to dismiss the petition. The court

previously granted Rivera-Medrano’s unopposed motion for an

expedited decision on her petition. Therefore, the petition is

addressed and decided on the merits.

1 The petition is brought against the Secretary of the Department of Homeland Security, the Acting Field Office Director, Immigration and Customs Enforcement, Enforcement and Removal Operations, and the Superintendent of the SCDOC. The federal respondents represent that Rivera-Medrano is detained by the Department of Homeland, Immigration and Customs Enforcement. There is no dispute as to the proper party, and the federal respondents are referred as “respondents”. Background

Rivera-Medrano filed a § 2241 petition with supporting

documentation, including her own affidavit. The government

filed the affidavit of David T. Wesling, a Supervisory Detention

and Deportation Officer for the United States Department of

Homeland Security, United States Immigration and Customs

Enforcement, Enforcement and Removal Operations, with its

memorandum in support of the motion to dismiss. The background

information is taken from the facts and documents provided by

the parties.

Rivera-Medrano is twenty years old and is from El Salvador.

She entered the United States from Mexico in November of 2017 at

Brownsville, Texas, and presented herself to Customs and Border

Protection (“CBP”). She sought asylum because she was afraid of

returning to El Salvador due to sexual and physical abuse by her

stepfather, including rape.

She received a “credible fear interview,” and the asylum

officer with the United States Citizenship and Immigration

Service (“USCIS”) made a positive determination of her fear

claim. At the immigration court hearing, Rivera-Medrano was not

represented by counsel, could not afford counsel, and did not

speak English. She gave up her asylum claim because of the

difficulty of representing herself. An order of removal issued

on January 30, 2018, and she was removed back to El Salvador.

2 Because of her fear of her stepfather, Rivera-Medrano left

El Salvador again and went to Mexico where she lived from

October of 2018 to July of 2019. On July 27, 2019, near

Hildago, Texas, Rivera-Medrano crossed the Rio Grande River on a

raft. She then immediately surrendered to CBP authorities.

CBP reinstated Rivera-Medrano’s removal order that was

issued on January 30, 2018. Rivera-Medrano filed a petition for

withholding of removal, and the USCIS Asylum Office held a

reasonable fear interview on August 26, 2019. The USCIS

concluded that Rivera-Medrano’s fear was reasonable and referred

her case to the Boston Immigration Court for withholding

proceedings. The first hearing before an immigration judge was

held on October 9, 2019, and the judge told Rivera-Medrano that

if she could not find a lawyer by October 29, 2019, she would

have to represent herself. The hearing was continued to

November 12, 2019, but Rivera-Medrano was unable to find

representation and proceed pro se.

At the November 12 hearing, Rivera-Medrano submitted her

withholding of removal application to the immigration judge.

Her last hearing was held on November 22, and the immigration

judge denied her application. Still proceeding pro se, Rivera-

Medrano filed an appeal to the Board of Immigration Appeals on

December 9, 2019.

3 The American Civil Liberties Union began representing

Rivera-Medrano on January 9, 2020. She then, through counsel,

moved to amend her notice of appeal. She also asked for a full

decision on the denial of her application for withholding of

removal, rather than just the summary that she had received. In

addition to her appeal, Rivera-Medrano moved to remand her case

to the immigration court to allow her to present new evidence in

support of her application for withholding of removal. She has

also filed a motion to reopen the underlying removal order that

was issued in January of 2018. If these efforts are not

successful, Rivera-Medrano intends to appeal to the First

Circuit Court of Appeals.

Rivera-Medrano has been detained since July 27, 2019. She

has not had a bond hearing, nor is a hearing scheduled. The

respondents’ position is that she is not eligible to be released

from detention.

Discussion

Federal courts have jurisdiction to decide whether the

petitioner is being held “in custody in violation of the

Constitution or laws . . . of the United States.” § 2241(c)(3).

“[Section] 2241 habeas corpus proceedings [are] available as a

forum for statutory and constitutional challenges to post-

4 removal-period detention.” Zadvydas v. Davis,

(2001).

In support of her petition, Rivera-Medrano contends that

her detention is governed by

(a), which entitles

her to a bond hearing. The Department contends that Rivera-

Medrano is detained pursuant to

(a), which does

not give her a right to a bond hearing. Rivera-Medrano responds

that even if § 1231(a) governs her detention, she is entitled to

a bond hearing under the due process clause of the Fifth

Amendment because of the length of her detention. The

respondents disagree.

A. Statutory Framework

Section 1226(a) provides that “an alien may be arrested and

detained pending a decision on whether the alien is to be

removed from the United States.” See also Jennings v.

Rodriguez,

(2018). An alien detained under

§ 1226(a) is entitled to an individualized bond hearing before

an immigration judge to determine whether continued detention is

necessary. Guzman Chavez v. Hott,

(4th

Cir. 2019); Guerrero-Sanchez v. Warden, York County Prison,

(3d Cir. 2018). Under § 1226(c), certain aliens

may not be released pending a decision on removal because they

have been convicted of particular crimes, and there is no

5 statutory provision for a bond hearing in those circumstances.

Jennings,

; Reid v. Donelan,

(D. Mass. 2019).

An alien who has been removed previously and then reenters

the United States without authorization is subject to the prior

removal order, which is reinstated from its original date.

§ 1231(a)(5); Guzman Chavez,

. “Except as

otherwise provided in [§ 1231], when an alien is ordered

removed, the Attorney General shall remove the alien from the

United States within a period of 90 days (in this section

referred to as the “removal period).” § 1231(a)(1)(A). If the

alien is not removed during the 90-day removal period, he or she

may be released subject to supervision. § 1231(a)(3).

Certain aliens, who are inadmissible under

;

removable under

(a)(1)(C), 1227(a)(2), or

1227(a)(4); or have been determined to be a risk to the

community or unlikely to comply with the removal order, may not

be released as provided in § 1231(a)(3). § 1231(a)(6). There

is no provision in § 1231(a)(6) for release and no explicit

statutory time limit on detention. Zadvydas,

(imposing an implicit time limit on detention “to a period

reasonably necessary to bring about that alien’s removal from

the United States”); Guerrero-Sanchez,

.

6 A reinstated removal order cannot be reopened or reviewed

and removal will occur, under the order, without a hearing

before an immigration judge. Guzman Chavez,

.

Nevertheless, an alien who is subject to a reinstated removal

order can seek protection from the order by asking the

government to withhold removal because she will face persecution

or torture in the country where she would be removed.

. That process is known as a withholding-only proceeding.

.

Rivera-Medrano is an alien who is subject to a reinstated

removal order but is seeking withholding of removal. She has

been detained, now at the SCDOC, for more than eight months.

Rivera-Medrano’s situation raises the issue of whether a

reinstated removal order is final even while the alien is

pursuing a withholding of removal. If a reinstated removal

order is deemed to be final, despite the application for

withholding of removal, § 1231(a) applies. If the reinstated

removal order is not final, then § 1226(a) applies.2

The First Circuit has not addressed this issue. The courts

of appeals that have addressed the issue are split. The Third

and Ninth Circuits have concluded that § 1231(a) applies.

2 Rivera-Medrano is not subject to detention under § 1226(c), and therefore, the different considerations applicable to that statute do not apply here.

7 Guerrero-Sanchez,

; Padilla-Ramirez v. Bible,

(9th Cir. 2017). The Fourth and Second Circuits

have concluded that § 1226(a) applies. Guzman Chavez,

; Guerra v. Shanahan,

(2d Cir. 2016).

The issue is complex and continues to evolve across the

country. See, e.g., Sisiliano-Lopez v. Lowe,

,

at *3-*5 (M.D. Pa. Mar. 25, 2020); Orellana v. Choate,

(D. Colo. Jan. 24, 2020); Orozco Arroyo v. Doll,

, at *4-*5 (M.D. Pa. Oct. 10, 2019); Singh v. Barr,

(W.D.N.Y. Sept. 16, 2019); Martinez v. Clark,

, at *4-*7 (W.D. Wash. May 23, 2019). In this case,

however, it is unnecessary to decide which statute governs

Rivera-Medrano’s detention. Even if § 1231(a) applies, as the

respondents urge, Rivera-Medrano would be entitled to a bond

hearing under the Due Process Clause of the Fifth Amendment.

Therefore, the court will assume, without deciding, that

§ 1231(a) applies to Rivera-Medrano.

B. Due Process Requirement

In Guerrero-Sanchez, the petitioner, like Rivera-Medrano,

was detained under a reinstated order of removal while he was

pursuing withholding-only relief.3

. He

3 While Rivera-Medrano is appealing the decision from the withholding-only proceeding, in Guerrero-Sanchez the petitioner

8 sought a bond hearing under § 1226(a) but argued alternatively,

as Rivera-Medrano does here, that if § 1231(a) applied, the

statute must be construed to require, implicitly, a bond hearing

to avoid a violation of due process. Id. at 219. After

analyzing the legal framework of § 1226(a) and § 1231(a), the

court concluded that the removal order was administratively

final, making § 1231(a) the governing statute. Id. at 217. As

a result, the petitioner was detained under § 1231(a)(6). Id.

If, as assumed, § 1231(a) applies to Rivera-Medrano, the

court will also assume that she is being detained under

§ 1231(a)(6).4 The similarities between the circumstances and

legal issues presented in Guerrero-Sanchez and in this case make

the cases analogous. Furthermore, the Third Circuit’s detailed

analysis of the due process requirements arising from the lack

of a bond hearing provision in § 1231(a)(6) are persuasive here.

had not yet had the initial hearing. That difference is not material, however, because Rivera-Medrano’s withholding-only proceeding is not yet complete. See Guzman Chavez,

.

4 The respondents do not identify what provision of § 1231(a) applies to Rivera-Medrano and do not suggest that any of the findings under § 1231(a)(6) have been made as to her. Instead, the respondents address the detention issue under Zadvydas, which held that aliens could not be detained indefinitely under § 1231(a)(6) but did not address the specific situation of an alien, like Rivera-Medrano, who has withholding only and other proceedings pending.

9 Therefore, the court will apply and follow the reasoning and

holding in Guerrero-Sanchez.

As is noted above, there is no explicit provision for a

bond hearing under § 1231(a). In addressing due process

concerns implicated by the lack of a bond hearing provision, the

Third Circuit discussed the Supreme Court’s interpretation of

§ 1231(a)(6) in Zadvydas,

. The court

distinguished the circumstances presented in Zadvydas, where the

removal order was final but removal was no longer attainable,

from the petitioner’s situation in Guerrero-Sanchez, where his

withholding-only claim was pending. Guerrero-Sanchez,

. The court concluded that Zadvydas did not “address

or settle the due process concerns raised by the prolonged

detention of an alien like Guerrero-Sanchez, who is still

pursuing a bona fide withholding-claim that could take years to

resolve.”

. The court further held that due

process might prohibit prolonged detention under § 1231(a)(6).

Id. at 223.

Applying the cannon of constitutional avoidance, the court

construed § 1231(a)(6) to include an implicit requirement for a

bond hearing. Id. at 224 (following Diouf v. Napolitano,

(9th Cir. 2011)). The court further concluded,

however, that “aliens detained under § 1231(a)(6) are only

entitled to a bond hearing after prolonged detention.” Id. at

10 225. To determine when prolonged detention occurs, the court

applied the multi-factor test provided by Mathews v. Eldridge,

(1976), and noted the presumption in Zadvydas

that detention up to six months did not violate due process.

Guerrero-Sanchez, 904 F.3d at 225-26. The court concluded that

“an alien detained under § 1231(a)(6) is generally entitled to a

bond hearing after six months (i.e., 180 days) of custody.” Id.

at 226.

The respondents argue, however, that the six-month limit on

detention should not apply to Rivera-Medrano because she has

contributed to the time of her detention by seeking withholding

of removal and filing other motions to challenge her removal.

The respondents have not shown, however, that Rivera Medrano is

pursuing that relief in bad faith or without a legal right to do

so. Courts generally do not consider bona fide immigration

proceedings, initiated by the alien, as grounds to deny a bond

hearing under § 1231(a)(6). See, e.g., Guerrero-Sanchez,

; Sisiliano-Lopez,

, at *5, n.51;

Smith v. Barr,

, at *11 (N.D. Okla. Mar. 16,

2020)(citing cases); Djelassi v. ICE Field Office Director, ---

F. Supp. 3d ---,

(W.D. Wash. Jan. 17, 2020);

Kleinauskaite v. Doll,

, at *6, n.49 (M.D. Pa.

July 23, 2019); Diaz-Ceja v. McAleenan,

, at *10

(D. Colo. July 2, 2019).

11 C. Result

Rivera-Medrano has been detained for more than eight

months. Although the respondents suggest her removal will be

effectuated soon, they acknowledge on going proceedings without

an estimate of when they will conclude. The remedy for a

prolonged detention is a bond hearing before an immigration

judge at which the government bears the burden of proving by

clear and convincing evidence that the alien should not be

released on bond. Guerrero-Sanchez,

; Sisiliano-

Lopez,

, at *2; Hernandez T. v. Warden, Essex

County Jail,

, at *1 (D.N.J. Feb. 11, 2020).

Therefore, applying the Third Circuit’s holding in Guerrero-

Sanchez, Rivera-Sanchez is entitled to a bond hearing before an

immigration judge.

If Rivera-Medrano intends to seek an award of attorneys’

fees under the EAJA, she must file a properly supported motion

for that relief. The schedule is provided below.

Conclusion

For the foregoing reasons, the federal defendants’ motion

to dismiss (document no. 11) is denied.

Rivera-Medrano’s § 2241 petition (document no. 1) is

granted to the extent that the court rules that Rivera-Medrano

12 is entitled to a bond hearing before an immigration judge, to be

held as soon as practicable, and is otherwise denied.

If Rivera-Medrano intends to seek fees under the EAJA she

shall file a properly supported motion on or before April 17,

2020. The respondents will then have fourteen days from the

date the motion is filed to file their response.

SO ORDERED.

______________________________ Joseph A. DiClerico, Jr. United States District Judge

April 4, 2020

cc: Counsel of Record

13