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Guerra v. Shanahan

United States District Court, S.D. New York

December 23, 2014

CHRISTOPHER SHANAHAN, Field Office Director, New York Field Office, Immigration And Customs Enforcement, et al., Respondent.


KIMBA M. WOOD, District Judge.

Petitioner Deyli Noe Guerra applies under 28 U.S.C. § 2241 for a writ of habeas corpus releasing him from the custody of the Department of Homeland Security ("DHS"), pending the outcome of removal proceedings against him. In the alternative, Guerra seeks a bond hearing before an immigration judge. For the reasons stated herein, the Court GRANTS Guerra's request for a bond hearing.


Guerra is a native and citizen of Guatemala. See (Pet. [ECF No. 2] at ¶ 24). He first entered the United States without inspection in April 1998. See (Pet. ¶ 24). Guerra states that in Guatemala he was involved in a romantic relationship with his cousin, who later killed herself. See (Pet. ¶ 24); (Pet., Ex. B, Record of Sworn Statement [ECF No. 2] at 3). According to Guerra, his cousin's family blamed Guerra for her death and her father vowed to exact retribution against Guerra. See (Pet. ¶ 24). Guerra claims that this threat caused him to flee Guatemala and enter the United States. See (Pet. ¶ 24-25). After entry, Guerra was apprehended, and on May 1, 1998, an immigration judge ordered him removed. See (Return, Ex. B [ECF No. 9-2]). He was removed to Guatemala in April 2009. See (Pet. ¶ 26); (Return, Ex. E, Notice of Intent/Decision to Reinstate [ECF No. 9-4]).

Guerra asserts that after returning to Guatemala, he faced renewed threats from his cousin's family, as well as new threats from a man named "Cachorro" who was angry that Guerra had started a relationship with his ex-girlfriend. See (Pet. ¶ 27). Guerra fled once again to the United States. See (Pet. ¶ 28). In November 2009, Immigration and Customs Enforcement ("ICE") apprehended Guerra, reinstated his prior removal order, and removed him to Guatemala for a second time in March 2010. See (Return, Ex. E); (Return, Ex. F, Warrant of Removal/Deportation) [ECF No. 9-6]).

Following his second removal, Guerra reentered the United States without inspection for a third time and was arrested in New York on May 5, 2013, for driving while intoxicated. See (Return, Ex. I, Uniform Sentence & Commitment [ECF No. 9-9]). While Guerra was detained on those charges, ICE identified him as a removable alien and again reinstated his prior removal order. (Return, Ex. G, Record and Deportable/Inadmissible Alien [ECF No. 9-7]); (Return, Ex. H, Notice of Intent/Decision to Reinstate [ECF No. 9-8]).

During his detention by ICE, Guerra received a "reasonable fear interview" before a United States Citizenship and Immigration Services asylum officer, who concluded that Guerra had a reasonable fear of returning to Guatemala. See (Pet. ¶ 30-31). The officer referred the matter to an immigration judge on April 8, 2014, to determine whether Guerra was eligible for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3). See (Pet., Ex. C, Reasonable Fear Determination [ECF No. 2] at 6). No determination as to Guerra's eligibility for withholding has yet been made.


The parties dispute whether Guerra has been detained pursuant to 8 U.S.C. § 1226(a), which applies before a removal order becomes administratively final, or § 1231, which applies after an order becomes administratively final.[1] Only § 1226(a) would entitle Guerra to the bond hearing he requests.

To determine which statute applies, the Court must resolve an issue not yet decided by the Second Circuit: whether the pendency of a detainee's withholding application prevents a reinstated removal order from becoming administratively final. After review, the Court agrees with several other federal courts that a reinstated removal order cannot become administratively final until a pending withholding application has been resolved. Guerra's withholding application is pending currently before an immigration judge, and thus Guerra's reinstated removal order is not yet final. Accordingly, the Court holds that Guerra has been detained pursuant to § 1226(a) and is entitled to a bond hearing.[2]

A. Administrative Finality and the Distinction Between § 1226(a) and § 1231

The INA authorizes the Attorney General of the United States to issue a warrant for the arrest and detention of an alien pending a final administrative decision on an alien's removal. See 8 U.S.C. § 1226(a). Alien detention is governed primarily by two sections: 8 U.S.C. § 1226 and 8 U.S.C. § 1231.

8 U.S.C. § 1226. Section 1226 governs the detention of aliens while removal proceedings take place - in other words, while an immigration judge determines whether a given alien should be removed. Section 1226(a), sometimes referred to as the "discretionary detention" provision, see, e.g., Monestime, 704 F.Supp.2d at 457, allows, but does not require, federal immigration authorities to detain an alien during removal proceedings. 8 U.S.C. § 1226(a)(1)-(2). An alien detained pursuant to § 1226(a) is entitled to a bond hearing to determine whether immigration authorities should continue detaining the alien. See, e.g., Straker, 986 F.Supp.2d at 363 ("DHS's authority for detaining Straker during removal proceedings instead lies under § 1226(a), under which he is entitled to a bond hearing."); Sulayao, 2009 WL 3003188, at *2 ("Section 1226(a) affords aliens the possibility of a bond hearing.").

8 U.S.C. § 1231. Section 1231 governs the detention of aliens, inter alia, after a removal order against the alien has become "administratively final." 8 U.S.C. § 1231(a)(1)(B)(i).[3] A removal order becomes administratively final upon the earlier of: "(i) a determination by the Board of Immigration Appeals affirming such order; or (ii) the expiration of the period in which the alien is ...

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