The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
GILBERTO ALEXANDER LOPEZ
VAZQUES,
Petitioner,
DECISION AND ORDER
v.
1:21-CV-00477 EAW
MR. MERRICK GARLAND, United States
Attorney General, et al.,
Respondents.
____________________________________
INTRODUCTION
Petitioner Gilberto Alexander Lopez Vazques (“Petitioner”), a civil immigration
detainee currently held at the Buffalo Federal Detention Facility (“BFDF”) in Batavia, New
York, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Dkt. 1). Respondents
have moved to dismiss the petition, arguing that it is premature. (Dkt. 4). For the reasons
set forth below, the Court denies Respondents’ motion to dismiss.
BACKGROUND
Petitioner is a native and citizen of Colombia who was admitted to the United States
on or about May 10, 2010, as a lawful permanent resident. (Dkt. 4-1 at ¶ 5). Petitioner
was a minor at the time of his admission. (Id.).
Petitioner was subsequently convicted of multiple drug crimes. (Id. at ¶¶ 6-9). On
February 19, 2020, the Department of Homeland Security (“DHS”) issued an immigration
detainer to the Wyoming Correctional Facility, where Petitioner was then incarcerated,
requiring notification if Petitioner was released from the custody of the New York State
Department of Corrections and Community Supervision. (Id. at ¶ 10). Petitioner was
placed into removal proceedings on March 3, 2020, via service of a Warrant for Arrest of
Alien and Notice to Appear charging Petitioner with being removable pursuant to
§ 237(a)(2)(A)(iii) and(a)(2)(B)(i) of the Immigration and Nationality Act (the “INA”).
(Dkt. 4-1 at ¶ 11).
An immigration judge (“IJ”) ordered Petitioner removed to Colombia on September
24, 2020. (Id. at ¶ 15). Petitioner appealed the IJ’s decision to the Board of Immigration
Appeals (the “BIA”). (Id. at ¶ 17).
Petitioner was transferred into DHS’s custody on September 30, 2020, and advised
that he would be detained during the pendency of his removal proceedings. (Id. at ¶ 16).
The BIA affirmed Petitioner’s removal order on March 25, 2021. (Id. at ¶ 19).
Petitioner filed the instant action challenging his continued detention on April 8, 2021.
(Dkt. 1). Petitioner then filed a petition for review (“PFR”) and a motion for stay of
removal with the Court of Appeals for the Second Circuit, which was docketed on April
15, 2021, two weeks prior to his scheduled removal date. (Dkt. 4-1 at ¶ 24).
Respondents filed the pending motion to dismiss on May 27, 2021. (Dkt. 4).
Petitioner filed his response on June 15, 2021 (Dkt. 6), and Respondents filed a
supplemental memorandum of law on July 8, 2021 (Dkt. 7).
DISCUSSION
Respondents argue that the petition is premature because Petitioner is detained
under 8 U.S.C. § 1231 and the presumptively reasonable six-month period for removal
under that statutory provision has not expired. (See Dkt. 4-3 at 8). Respondents’ motion
to dismiss thus turns on whether Petitioner is currently detained pursuant to 8 U.S.C.
§ 1226 or 8 U.S.C. § 1231. A brief summary of the relevant legal landscape is necessary
to understand the Court’s resolution of this question.
“The distinction between § 1226 and § 1231 essentially comes down to whether an
alien is subject to a final order of removal.” Enoh v. Sessions, 236 F. Supp. 3d 787, 793
(W.D.N.Y. 2017). Section 1231 of the INA addresses detention of “immigrants in the
‘removal period,’ the term used in the statute to describe the 90-day period following an
order of removal during which ‘the Attorney General shall remove the alien.’”
Hechavarria v. Sessions, 891 F.3d 49, 54 (2d Cir. 2018) (quoting 8 U.S.C.
§ 1231(a)(1)(A)). The removal period begins “on the latest of the following”: (1) “[t]he
date the order of removal becomes administratively final”; (2) “[i]f the removal order is
judicially reviewed and if a court orders a stay of the removal of the alien, the date of the
court’s final order”; and (3) “[i]f the alien is detained or confined (except under an
immigration process), the date the alien is released from detention or confinement.” 8
U.S.C. § 1231(a)(1)(B).
In 2012, DHS and the Second Circuit entered into a forbearance agreement wherein
the government “has assured that removal will not occur” while the detainee has a PFR
pending before that court. In re Immigration Petitions for Review Pending in U.S. Court
of Appeals for Second Circuit, 702 F.3d 160, 162 (2d Cir. 2012).
Numerous judges in this Circuit, including the undersigned, have found that the
forbearance agreement amounts to a court-ordered stay of removal and that detainees with
a pending PFR and motion to stay are thus not detained pursuant to § 1231. See, e.g.,
Ranchinskiy v. Barr, 422 F. Supp. 3d 789, 795-96 (W.D.N.Y. 2019) (the undersigned
reaching such a holding); Sankara v. Whitaker, No. 18-CV-1066, 2019 WL 266462, at *4
(W.D.N.Y. Jan. 18, 2019) (collecting cases); Yusuf v. Edwards, No. 18-CV-3605 (GBD)
(BCM), 2019 WL 4198798, at *5 & n.4 (S.D.N.Y. July 2, 2019) (“[B]ecause of the
government’s forbearance policy, an alien who files a PFR and a stay motion in the Second
Circuit obtains ‘the functional equivalent of a stay order,’ such that § 1231 no longer
governs his detention and he ‘may not be denied a bond hearing on that basis.’” (collecting
S.D.N.Y. cases)).
However, some judges in this Circuit have found to the contrary, concluding that
“the forbearance is not a stay.” Brathwaite v. Barr, 475 F. Supp. 3d 179, 186 (W.D.N.Y.
2020); see also Narain v. Searls, No. 19-CV-6361 (CJS), 2020 WL 95425, at *3-4
(W.D.N.Y. Jan. 8, 2020).
Respondents urge the Court to revisit its prior holding regarding whether the
forbearance agreement is the equivalent of a court-ordered stay for purposes of § 1231,
arguing that in its recent decision in Johnson v. Guzman Chavez, 141 S. Ct. 2271 (2021),
the Supreme Court “rejected the same arguments used to support holding that a noncitizen
subject to a forbearance stay is detained pursuant to § 1226.” (Dkt. 7 at 4).
The Court disagrees with Respondents’ analysis of Guzman Chavez. The issue in
that case was whether § 1226 or § 1231 “governs the detention of aliens subject to
reinstated orders of removal” who had “sought withholding of removal based on fear of
persecution in the particular countries designated by their removal orders.” 141 S. Ct. at
2280. The Supreme Court concluded that detention in such cases falls under § 1231,
because such reinstated orders of removal are administratively final, and because “a grant
of withholding-only relief means only that, notwithstanding the order of removal, the
noncitizen may not be removed to the designated country of removal, at least until
conditions change in that country, and . . . the noncitizen still may be removed at any time
to another country.” Id. at 2286 (quotations omitted). In other words, there is no question
as to whether the alien in such a situation can be removed—the question is to where he can
be sent. Id. at 2287 (explaining the “distinction between whether an alien is to be removed
and where an alien is to be sent”). Accordingly, the “decision about whether [the
petitioners in Guzman Chavez] were to be removed” was no longer “pending,” and so their
detention was governed by § 1231. Id. (citation omitted). Unlike the petitioners in Guzman
Chavez, here the question of whether Petitioner can be removed remains pending—indeed,
that is the precise question the Second Circuit must decide. Accordingly, the Court does
not view Guzman Chavez as inconsistent with its prior conclusions regarding the impact of
the forbearance agreement.
It is true that the Supreme Court stated in dicta in Guzman Chavez that the text of
§ 1231 does not suggest that “all legal impediments must be eliminated before the removal
period begins.” Id. at 2291 (emphasis in original). However, this Court’s prior holdings
regarding the forbearance agreement do not rest on the proposition that all legal
impediments to removal must be eliminated—instead, they rest on the much narrower
conclusion that the forbearance agreement is the legal equivalent of a court-ordered stay,
which is one of the three legal impediments to removal specifically listed in § 1231 as
delaying the removal period. See Vides v. Wolf, No. 6:20-CV-06293 EAW, 2020 WL
3969368, at *6 (W.D.N.Y. July 14, 2020) (holding that “the forbearance agreement
effectively constitutes a consent order staying removal”).
In sum, the Court finds no basis in Guzman Chavez to disturb its prior conclusions
regarding the legal impact of the forbearance agreement. The Court continues to find that
individuals, like Petitioner, who have a pending PFR and who cannot be removed pursuant
to the forbearance agreement, are detained under § 1226. As a result, Respondents’ motion
to dismiss, which is premised entirely on their contention that Petitioner is detained under
§ 1231, must be denied, and Respondents must respond to the petition on the merits.
CONCLUSION
For the foregoing reasons, Respondents’ motion to dismiss (Dkt. 4) is denied.
Respondents shall file and serve an answer and memorandum in opposition to the petition
within 30 days of entry of this Decision and Order. Petitioner shall have 20 days upon
receipt of the answer to file a written response.
SO ORDERED.
ELIZABETH A. WOLFORD
Chief Judge
United States District Court
Dated: August 24, 2021
Rochester, New