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Naranjo v. Spivey

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

January 22, 2018

EVANGELISTA ESPINEL NARANJO, Petitioner,
v.
BILL SPIVEY, et al. Respondents.

         28 U.S.C. § 2241

          REPORT AND RECOMMENDATION

          Stephen Hyles United States Magistrate Judge

         Currently pending before the Court are Petitioner's application for habeas corpus relief (ECF Nos. 1, 5, 20) and his motions seeking an evidentiary hearing (ECF No. 55) and a decision in this case (ECF No. 59). For the reasons explained below, Petitioner's motions are denied and it is recommended that his application for habeas relief be denied.

         BACKGROUND

         Petitioner is a native and citizen of Venezuela. Am. Pet. 12, ECF No. 5. He was first admitted into the United States (U.S.) on January 13, 1982, via a Non-Immigrant F1 student Visa. Id. at 14. His current detention by ICE began on October 7, 2015. Id. Petitioner had a variety of interactions with law enforcement between his first entry into the U.S. and his current period of detention.

         In 1997, Petitioner pled guilty to seven criminal charges in the U.S. District Court for the Southern District of Florida. Resp'ts' Opp'n. to Pet. 2, ECF No. 13. The charges included “Failure to Report International Transportation of Currency” and “Structuring Deposits in Order to Avoid Filing Currency Transaction Reports.” Id. Petitioner was sentenced to seven concurrent 15 month imprisonments. Id. In January 1999, Petitioner was ordered removed from the country and he departed voluntarily in February of that year. Id. at 3.

         Petitioner attempted to re-enter the U.S. in both May 1999 and August 2005.[1] Id. Both times he was found inadmissible and removed under Expedited Removal orders. Id. On June 28, 2006, Petitioner was arrested and detained by ICE after reentering the U.S. a third time. The previous removal order against him was reinstated. Id. Petitioner then pled guilty to one charge of “Being Found in the U.S. After Deportation for an Aggravated Felony” in the U.S. District Court for the Middle District of Florida. In January 2007, he was removed from the U.S. to Venezuela pursuant to an ICE-issued Warrant of Removal. Id. at 4.

         In November 2014, Petitioner again encountered ICE agents in the U.S. Petitioner was detained and held without bail per the order of a U.S. Magistrate Judge in the Middle District of Florida. Id. Petitioner pled guilty to one count of “Being Found in the U.S. After Deportation for Felony Offenses” and one count of “Unlawful Entry, ” and was given two consecutive eleven-month prison sentences. Id. On October 7, 2015, ICE executed an arrest warrant against Petitioner. Id. His current detention and related immigration proceedings arise out of the execution of that warrant.

         An asylum officer determined Petitioner presented a reasonable fear of persecution and his case was referred to the immigration court for review. Id. On February 9, 2016, Petitioner applied for Withholding of Removal and protection under the Convention Against Torture (CAT). Am. Compl. ¶ 34, ECF No. 20. His application was denied on September 12, 2016, following an August 29, 2016, merits hearing before an immigration judge (IJ). Am. Compl. ¶ 30, 36, 37. Petitioner appealed that decision, and the Board of Immigration Appeals (BIA) remanded the case to an IJ for further inquiry. Pet'r's Resp. in Supp. of Am. Compl. Ex. 2 at 5, ECF No. 37-2. Petitioner is currently awaiting the continuation of the remanded immigration proceeding. Meanwhile, he seeks habeas relief under both Zadvydas v. Davis, 533 U.S. 678 (2001) and Sopo v. U.S. Attorney General, 825 F.3d 1199 (11th Cir. 2016), arguing that he is subject to a final order of removal and has been held in detention for over six months with no reasonably foreseeable removal or, alternatively, has not received an administratively final removal order and is thus entitled to seek immediate release or bond hearing.

         DISCUSSION

         Petitioner seeks alternative relief under Zadvydas and Sopo. Because the Court finds that Petitioner is subject to a final order of removal, Sopo is inapplicable. Thus, the following analysis focuses on Petitioner's Zadvydas claim.

         I. Detention Pending Removal

         A Petitioner may receive relief under Zadvydas only after he is subject to a final order of removal. The parties dispute whether Petitioner is subject to such an order. This Court concludes that he is, as his prior final order of removal has been reinstated.[2]

         Petitioner's detention pending removal from the United States is therefore governed by section 241(a) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a). This 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 statute allows for the extension of this removal period “if the alien fails or refuses to make timely application in good faith ...


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