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Rosales-Rubio v. Attorney General of United States

United States District Court, M.D. Georgia, Columbus Division

January 19, 2018

GERSON F ROSALES-RUBIO, Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES, et al., Respondents.

         28 U.S.C. § 2241

          ORDER AND RECOMMENDATION

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE.

         Presently pending before the Court are Petitioner's application for habeas corpus relief (ECF No. 1) and motions seeking appointed counsel (ECF No. 2), a protective order (ECF No. 6), and expedited review of his case (ECF No. 15). For the reasons explained below, Petitioner's motions are denied and it is recommended that his application for habeas corpus relief be dismissed.

         BACKGROUND

         Petitioner is a native and citizen of El Salvador who has been in the custody of U.S. Immigration and Customs Enforcement (“ICE”) since July 2015. Pet. 4, ECF No. 1. He first encountered U.S. law enforcement on July 16, 2015, when he was stopped by U.S. Border Patrol near the border between the U.S. and Mexico. Resp'ts' Resp. to Pet. 1, ECF No. 10. Petitioner was classified as a non-citizen who did not have a right to be in or remain in the U.S, and was detained on July 18, 2015, as “an alien present in the [U.S.] who has not been admitted or paroled.” Id. at 1-2; 8 U.S.C. § 1182(a)(7)(A)(i)(I); 8 U.S.C. § 1226(a)(1).

         Petitioner first appeared before an immigration judge (“IJ”) on October 5, 2015, in Lumpkin, GA. Id. at 2. Two days later, Petitioner appeared for a bond hearing where his request for a change in custody status was denied. Id. An IJ denied Petitioner's second request for a change in custody status on August 4, 2016. Id. The next day, Petitioner appeared before an IJ for a merits hearing; on August 29, 2016, the IJ issued a written decision denying Petitioner relief and ordering him removed to El Salvador. Id.

         Petitioner appealed the IJ's decision to the Board of Immigration Appeals (“BIA”). On February 2, 2017, the BIA dismissed his appeal. Id. at 2-3. However, in April 2017, the BIA granted Petitioner's motion to stay his removal pending their decision on his motion for reopening or reconsideration. Id. at 3. On May 26, 2017, Petitioner appeared for another custody hearing, but his request for a change in custody was again denied. Id. As of October 10, 2017, the BIA had not ruled on Petitioner's motion for reopening or reconsideration of his administrative case.[1] Resp'ts' Resp. to Mot. to Expedite 2, ECF No. 18.

         Petitioner filed his application for habeas relief with this Court on April 17, 2017. (ECF No. 1.) In their response, Respondents argue Petitioner's detention is authorized under 8 U.S.C. § 1231(a)(1)(B)(ii) because he is an alien subject to an administratively final removal order, and he has failed to make a successful claim for relief under Zadvydas v. Davis, 533 U.S. 678, 689 (2001). Resp'ts' Resp. to Pet. 3, 5. The Court addresses the merits of Petitioner's application before considering Petitioner's subsequent motions.

         DISCUSSION

         I. Petition for Writ of Habeas Corpus

         A. Post Final Order Detention

         Petitioner is an alien who is subject to an administratively final order of removal. Petitioner has unsuccessfully appealed the IJ's removal order against him thus that order is administratively final. Resp'ts' Resp. to Pet. 2-3. A removal order issued against an alien “becomes final when the alien's appeal to the [BIA] is unsuccessful or the alien declines to appeal to the [BIA].” Nken v. Holder, 556 U.S. 418, 439, (2009) (Alito & Thomas, JJ., dissenting) (citing 8 U.S.C. § 1101(a)(47)(B); 8 CFR §§ 1241.1, 1241.31.). Therefore, Petitioner's detention pending removal from the United States is governed by section 241(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a).[2]

         That provision grants the Attorney General a ninety-day period to effectuate an alien's removal from the United States following the entry of a final order of deportation or removal. INA § 241(a)(1)(A)-(B); 8 U.S.C. § 1231(a)(1)(A)-(B). Congress mandated detention of the alien ordered removed during this initial ninety-day period. INA § 241(a)(2); 8 U.S.C. § 1231(a)(2). The removal period may be extended “if the alien fails or refuses to make timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal subject to an order of removal.” 8 U.S.C. § 1231(a)(1)(C).

         In Zadvydas, the Supreme Court found that section 241(a) of the INA authorizes detention of an alien following the entry of an administratively final order of deportation/removal, but only for a period “reasonably necessary” to effectuate the alien's removal.[3]Zadvydas, 533 U.S. 678, 699-700 (2001). The Court, recognizing the difficulty of balancing the primacy of the Executive in foreign policy matters with the inherent due process concerns of extensive detention, established a six-month “presumptively reasonable” period for clarity. Id. at 693-95, 700-02. Detention beyond that window may be deemed unreasonable if a Petitioner shows he is unlikely to be removed in the reasonably foreseeable future. Id. at 701 (“After this 6-month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing”). The relationship between the time of confinement and what qualifies as a reasonable period of detention is an inverse one. Id. (“[F]or ...


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