United States District Court, D. Arizona
G. Campbell, United States District Judge.
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 to show cause why the petition should not
be summarily granted for the reasons set forth in the order.
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). 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.
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. §
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.).
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.
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).
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.
Response to Order to Show Cause
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
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.