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Fredy L. B. V. v. Barr

United States District Court, D. New Jersey

April 23, 2019

FREDY L. B. V., Petitioner,
v.
WILLIAM BARR, et al., Respondents.

          OPINION

          VAZQUEZ, DISTRICT JUDGE

         I. INTRODUCTION

         The Petitioner in this matter, Fredy L. B. V., [1] is an immigration detainee currently held at the Essex County Correctional Facility (“ECCF”), in Newark, New Jersey. On April 22, 2019, through counsel, he filed both an initial petition for writ of habeas corpus under 28 U.S.C. § 2241 (at DE 1), and an amended § 2241 petition (at DE 2; hereinafter, the “Petition”). For the reasons detailed below, his Petition is dismissed without prejudice and the emergent relief he requests is denied.

         II. BACKGROUND

         Petitioner is a citizen of Guatemala who illegally entered the United States for the first time - by crossing the border at or near Texas - in February 2006. (See DE 2 at ¶ 8.) “At that time[, ] Petitioner was detained by Border Patrol officials[; he] was returned to Guatemala [on or about March 20, 2006].” (See DE 2 at ¶ 8; accord Pet'r's Apr. 19, 2019 Declar., DE 1-4.) Petitioner's March 2006 removal was effectuated pursuant to an order of removal entered against him on February 23, 2006. (See DE 1-4 at Ex. A.) Petitioner again re-entered the United States without authorization in May 2006; he has resided in New Jersey since that time. (Id. at ¶¶ 10-11.)

         Earlier this month, Petitioner “was arrested at the Union County Municipal Court, where he appeared . . . to address several traffic citations.” (See DE 2 at ¶ 13.) Petitioner has been held at ECCF by United States Immigration and Customs Enforcement (“ICE”) since his April 2019 arrest. On April 9, 2014, the United States Department of Homeland Security (“DHS”) reinstated Petitioner's 2006 removal order and served notice of the same on Petitioner.[2] (DE 1-4 at Ex. A.) Shortly thereafter, on or about April 19, 2019, Petitioner “submitted a Petition I-589 to [United States Citizenship and Immigration Services]” by which he now “seeks protection through asylum, withholding of removal and protections under the Conventions Against Torture [(“CAT”]).” (DE 2 at ¶ 19; accord DE 1-4 at Ex. B.) Petitioner has claimed fear of persecution and torture if he were returned to Guatemala, i.e., he has requested “withholding only” protection. In other words, Petitioner applied for protection against being deported to Guatemala specifically; the application does not challenge the validity of Petitioner's underlying 2006 removal order.

         III. RELEVANT LEGAL STANDARDS

         Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody” and the custody is allegedly “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). Under Rule 4 of the Rules Governing § 2254 Cases (the “Habeas Rules”), applicable to this § 2241 proceeding under Habeas Rule 1(b), the Court is presently required to examine the Petition to determine whether it should be dismissed as plainly unmeritorious.

         IV. ANALYSIS

         a. Petitioner is Subject to a “Final” Order of Removal; He is Accordingly Detained Pursuant to 8 U.S.C. § 1231(a)

         As noted above, Petitioner is subject to a 2006 final order of removal which has now been reinstated. (DE 1-4 at Ex. A.) After being served with notice of that reinstatement (see id.), Petitioner applied for withholding only relief based on his claim that he faces a threat if returned to his native Guatemala. (Id.) To be clear, even if Petitioner prevails on his application, it appears that he will remain subject to removal from the United States; he will be exempt only from deportation to Guatemala. See Reyes v. Lynch, No. 15-0442 2015 WL 5081597, at *3 (D. Colo. Aug. 28, 2015) (“Even if Petitioner prevails on his withholding claim, the United States may remove Petitioner to a country other than Mexico if such country will accept him, and there is no administrative or judicial relief to which Petitioner would be entitled against such a removal.”) (citing 8 C.F.R. § 1208.2(c)(3)(i)); Pina v. Castille, No. 16-4280, 2017 WL 935163, at *2 (D.N.J. Mar. 9, 2017) (same); see also 8 U.S.C. § 1231(a)(5) (where “an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, . . . and the alien shall be removed under the prior order at any time after the reentry.”). Based on these facts, Petitioner - who is subject to “a reinstated order of removal but is also pursuing withholding only relief” - is presently being held as a post-removal order immigration detainee under 8 U.S.C. § 1231(a). Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208, 211 (3d Cir. 2018).

         8 U.S.C. § 1231(a) provides that, “except as otherwise provided in this section, when an alien is ordered removed, the Attorney General shall remove the alien from the United States within a period of 90 days (in this section referred to as the ‘removal period').” Id. at § 1231(a)(1)(A). Aliens must be detained during the ninety-day post-removal order period. See 8 U.S.C. § 1231(a)(2). If the alien is not removed in this ninety-day period, then § 1231(a)(6) authorizes either continued detention or release on bond:

An alien ordered removed [1] who is inadmissible . . . [2] [or] removable [as a result of violations of status requirements or entry conditions, violations of criminal law, or reasons of security or foreign policy] or [3] who has been determined by the Attorney General to be a risk to the community or unlikely to comply with the order of removal, may be detained ...

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