United States District Court, D. Arizona
David C. Bury, United State District Judge.
the Court are the Plaintiff's Motion for Summary Judgment
and the Defendants' Motion for Summary Judgment. Oral
argument was conducted on January 12, 2018 and the matter was
taken under advisement. The Court now rules.
Jorge Alberto Borjas-Calix is a native and citizen of
Honduras who is subject to an order of removal issued by the
United States Department of Homeland Security (DHS). He filed
a Complaint in federal court seeking Declaratory and
Injunctive Relief in accordance with Federal Rules of Civil
Procedure 8(a), 57, and 65. Plaintiff was ordered released by
an immigration judge (IJ) in Florence, Arizona, pursuant to
controlling authority in this Circuit, but the Department of
Homeland Security (DHS) appealed the IJ's decision to the
Executive Office for Immigration Review (EOIR), Board of
Immigration Appeals (BIA). The BIA reversed the IJ and
vacated the IJ's decision granting Plaintiff's
release on bond. The DHS, Immigration and Customs Enforcement
(ICE), Enforcement and Removal Operations (ERO), now seeks to
re-detain Plaintiff, which Plaintiff claims will deprive him
of his due process rights against unlawful deprivation of
a citizen of Honduras, first entered the United States
without inspection on or about March 16, 1997. On March 20,
1997, an IJ ordered Plaintiff removed from the United States,
which resulted in his deportation on March 25, 1997. Between
June l6, 2008 and July 19, 2011, the ICE reinstated
Plaintiff's previous order of removal twice and deported
him each time.
about March l, 2013, Plaintiff entered the United States
without inspection near Nogales, Arizona. On March 25, 2015,
he was taken into ICE custody. At that time, he indicated he
had no fear of returning to Honduras.
March 25, 2015, ICE-ERO issued Plaintiff a Form 1-871, Notice
of Intent/Decision to Reinstate Prior Order, pursuant to
Section 241(a)(5) of the INA, 8 U.S.C. § 1231(a)(5), as
an alien who has illegally reentered the United States after
being previously removed. This Decision reinstated
Plaintiff's March 25, 1997, order of removal.
about April 22, 2015, Plaintiff was convicted of Illegal
Entry, in violation of Title 8 U.S.C. § 1325(a)(1), and
sentenced to 75 days' incarceration. On or about June 6,
2015, Plaintiff returned to ICE custody at the Florence
Detention Center so he could be removed to Honduras.
about July 21, 2015, an Asylum Pre-Screening Officer found
Plaintiff had a reasonable fear of persecution or torture,
and referred Plaintiff's case to an IJ to allow Plaintiff
to apply for withholding of removal under the Act and
protection under the CAT.
December 2, 2015, Plaintiff filed a motion with the IJ,
requesting a custody redetermination hearing. The IJ denied
the motion on January 12, 2016, finding that the immigration
court lacked jurisdiction.
January 27, 2016, Plaintiff filed a motion to reconsider the
IJ's decision, which was granted on January 28, 2016.
February 9, 2016, the IJ held a custody redetermination
hearing and set a $10, 000 bond.
February 11, 2016, Plaintiff posted bond for his release from