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Palma-Platero v. Sessions

United States District Court, D. Arizona

September 1, 2017

Marlon Alcides Palma-Platero, Petitioner,
v.
Jeff B. Sessions, III,, Respondents.

          ORDER

          David G. Campbell, United States District Judge.

         On May 16, 2017, Petitioner Marlon Alcides Palma-Platero filed, through counsel, a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and a Motion for Preliminary Injunction and/or Temporary Restraining Order (Doc. 3). On June 5, 2017, the Court entered an Order to Show Cause requiring Respondents Jeff Sessions, III, John F. Kelly, and Enrique Lucero[1] to show cause why the petition should not be summarily granted for the reasons set forth in the order.

         On June 19, 2017, Respondents filed a combined Answer and Response to the Order to Show Cause and Response to the Petition (Doc. 9). On June 20, 2017, Petitioner filed a Reply (Doc. 14), followed subsequently by two Notices of Supplemental Authority and three Motions to Expedite Ruling (Docs. 6, 11, and 13).[2] The Court will grant the Petition and deny as moot Petitioner's Motion for Preliminary Injunction and/or Temporary Restraining Order, as well as the two Motions to Expedite.

         I. Background

         Petitioner is a native and citizen of El Salvador. Petitioner first entered the United States in June 2001 and was subsequently removed in 2011. (Doc. 1 at 5). Sometime thereafter, Petitioner returned to the United States seeking asylum. (Id.). When DHS sought to reinstate Petitioner's prior order of removal, Petitioner claimed a fear of returning to his country of origin and the reinstatement of his removal order was suspended pursuant to 8 C.F.R. § 1208.31. (Id. at 6.) Petitioner was subsequently detained by ICE and given a reasonable fear interview, as a result of which he received “a positive reasonable fear determination” and was placed into “withholding only proceedings” pursuant to 8 C.F.R. § 1208.2(c)(3). (Id.).

         As part of those proceedings, Petitioner applied for Withholding of Removal and relief under the Convention Against Torture Act. (Id.) Petitioner's hearing on his claim for protection from return to El Salvador was scheduled for June 28, 2017. (Id.).

         Meanwhile, on April 27, 2017, Petitioner filed a request for a bond redetermination hearing with the Immigration Judge. (Id.). However, no hearing was held. (Id.). Instead, on April 28, 2017, Immigration Judge Knapp denied the motion on the basis that she lacked jurisdiction to consider the motion because Petitioner “is in Withholding-Only proceedings.” (Id., Doc. 1-7). Petitioner's appeal of that ruling remains pending.

         II. Petition

         Petitioner states that he has now been “detained longer than six months under the authority of either 8 U.S.C. § 1236(a) or 8 U.S.C. § 1231(a).” (Id. at 2.) Petitioner contends that pursuant to Rodriguez v. Robbins (Rodriguez III), 804 F.3d 1060 (9th Cir. 2015), and Diouf v. Napolitano, 634 F.3d 1081 (9th Cir. 2011), mandatory detention under these statutes terminates after six months, at which time the detained alien must be granted a hearing to determine whether he or she may be released from custody on bond. (Id. at 2-3.). Similarly, in his Motion for Preliminary Injunction and/or Temporary Restraining Order, Petitioner seeks an order requiring Respondents to provide him with an individualized bond hearing as soon as possible. (Doc. 3 at 1-2).

         Petitioner acknowledges that he has failed to exhaust his administrative remedies because his challenge to the IJ's decision is still pending. He argues, however, that exhaustion is a prudential rather than a jurisdictional, requirement and the factors favoring application of the exhaustion requirement are not present here. Specifically, Petitioner claims that an administrative appellate record is not material to “the purely legal issue of whether aliens in withholding-only proceedings are entitled . . . to bond hearings after six months of ICE detention” (Doc. 1 at 20); that a decision to waive the exhaustion requirement will not encourage litigants to bypass the administrative review scheme, but will instead prevent this issue from arising in the future; and that BIA review would not preclude the need for judicial review because the parties would undoubtedly seek further review in this Court or in the Court of Appeals.

         III. Response to Order to Show Cause

         Respondents argue that the Petition should be dismissed for lack of jurisdiction because Petitioner has not yet exhausted his administrative remedies. According to Respondents, this action is an improper attempt to circumvent the administrative review process and would, if successful, encourage other litigants to sidestep the administrative review scheme.

         Respondents also argue that the Petition is subject to dismissal on the merits. They claim that the order of reinstatement is a final order and that Petitioner is therefore detained pursuant to 8 U.S.C. § 1231, not § 1226. Thus, according to Respondents, Petitioner is in withholding-only proceedings, not removal proceedings, and the IJ properly held that the immigration court lacked jurisdiction under 8 C.F.R. §§ 1003.19(a) and 1236.1(d) to redetermine Petitioner's custody status. Respondents further allege that the Ninth Circuit's decisions in Diouf II and Rodriguez III do not support Petitioner's claim because those holdings do not apply to aliens subject to reinstated orders of removal.

         IV. ...


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