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Acevedo-Rojas v. Clark

United States District Court, Western District of Washington

November 7, 2014

LUCILA ACEVEDO-ROJAS, Petitioner,
v.
LOWELL CLARK, et al., Respondents

Lucila Avevedo Rojas, Petitioner, Pro se, TACOMA, WA.

For Lowell Clark, Warden, Northwest Detention Center, Eric H Holder, Jr, U.S. Attorney General, Jeh Johnson, Secretary, DHS, Thomas S Winkowski, Principle Deputy Assistant Secretary, Nathalie Asher, Field Office Director, ICE, Respondents: U.S. Attorney Habeas, LEAD ATTORNEY.

REPORT AND RECOMMENDATION

Mary Alice Theiler, Chief United States Magistrate Judge.

INTRODUCTION

Petitioner Lucila Acevedo-Rojas, a native and citizen of Mexico, has been detained by U.S. Immigration and Customs Enforcement (" ICE") since June 7, 2014, under a reinstated order of removal. ( See Dkts. 1 & 9-1 at 9-11.) An asylum officer found that petitioner had a reasonable fear of returning to Mexico and placed her in withholding-only proceedings, which are ongoing. (Dkt. 9-1 at 19-21.) During her detention, she has not received an individualized bond hearing before an Immigration Judge (" IJ").

Proceeding pro se, petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking a bond hearing. (Dkt. 1.) Respondents have filed a return memorandum and motion to dismiss, arguing petitioner's detention is statutorily authorized and she is not entitled to a bond hearing. (Dkt. 9.) Petitioner did not file a response. For the reasons discussed below, the Court recommends that respondents' motion to dismiss be granted, petitioner's habeas petition be denied, and this matter be dismissed with prejudice.

BACKGROUND

Petitioner first entered the United States without inspection on May 15, 2014. ( See Dkt. 9-1 at 2-4.) She was encountered by immigration authorities, processed for expedited removal, and removed to Mexico that same day. (Id. at 6-7.) Petitioner returned to the United States, again without inspection, and was encountered by immigration authorities on June 5, 2014. (Id. at 9-11.) On or about June 7, 2014, she was detained by ICE and served with a Notice of Intent/Decision to Reinstate Prior Order. (Id. at 13.)

Petitioner expressed a fear of return to Mexico and was referred to an asylum officer, who found that her fear was reasonable and placed her in withholding-only proceedings. (Id. at 19-21.) Petitioner was scheduled for a withholding-only hearing before an Immigration Judge on October 29, 2014. (Id. at 18.) The parties have not yet apprised the Court of the outcome of that hearing.

DISCUSSION

Petitioner's case raises questions regarding the statutory and regulatory provisions governing reinstatement of removal orders, withholding of removal, and detention of aliens during removal proceedings and after removal has been ordered. The Court must decide (1) the statutory basis for petitioner's detention in light of her reinstated removal order and pending withholding-only proceedings; and (2) whether her detention comports with due process requirements.[1] For the reasons discussed below, the Court concludes that petitioner is lawfully detained pursuant to 8 U.S.C. § 1231(a), and that at this time, she is not entitled to a bond hearing before an IJ.

A. Reinstatement and Withholding-Only Proceedings

If an alien removed pursuant to a removal order subsequently reenters the United States illegally, the original removal order may be reinstated by an authorized official. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 487 (9th Cir. 2007) (en banc); 8 C.F.R. § 241.8. To reinstate a removal order, the Department of Homeland Security (" DHS") must comply with the procedures set forth in 8 C.F.R. § 241.8(a) and (b).[2] Ortiz-Alfaro v. Holder, 694 F.3d 955, 956 (9th Cir. 2012). When DHS reinstates a removal order, " the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this chapter, and the alien shall be removed under the prior order at any time after the reentry." 8 U.S.C. § 1231(a)(5).

Section 241.8(e), however, " creates an exception by which an alien who asserts 'a fear of returning to the country designated' in his reinstated removal order is 'immediately' referred to an asylum officer who must determine if the alien has a reasonable fear of persecution or torture in accordance with 8 C.F.R. § 208.31." Ortiz-Alfaro, 694 F.3d at 956. If the asylum officer finds that the alien has not established a reasonable fear of persecution or torture, and an IJ affirms this determination, the matter is returned to DHS for execution of the reinstated order of removal without the opportunity to appeal to the Board of Immigration Appeals (" BIA"). 8 C.F.R. ยง 208.31(g). On the other hand, if the asylum officer makes a positive reasonable fear determination, as in petitioner's case, the matter is referred to an IJ " ...


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