The opinion
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANTONY MARTINEZ, )
) CASE NO. 3:22-CV-00670
Petitioner, )
)
v. ) JUDGE BENITA Y. PEARSON
)
FIELD OFFICE DIRECTOR, )
) MEMORANDUM OF OPINION AND
Respondent. ) ORDER
) [Resolving ECF No. 8]
Pending before the Court are Petitioner Antony Martinez’s Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (ECF No. 1) and the Government’s Answer and Return and Motion
to Dismiss (ECF No. 8). Petitioner filed an Opposition to the Government’s Answer and Return
and Motion to Dismiss. ECF No. 9. The Government then filed a Reply in support of its
Answer and Return and Motion to Dismiss. ECF No. 12. Having reviewed the parties’ briefs
and applicable law, the Court denies Petitioner’s Writ (ECF No. 1) and grants the Government’s
Motion (ECF No. 8).
I. Background and Procedural History
Petitioner Antony Martinez,1 a native and citizen of Honduras, first entered the United
States as an undocumented immigrant in 2015. According to an Immigration and Customs
Enforcement (“ICE”) Detention and Deportation Officer, Petitioner re-entered the United States
1 Petitioner Antony Martinez’s Alien Number is #215679289. ECF No. 1 at PageID
#: 1. According to the U.S. Immigration and Customs Enforcement database, his name is
listed as Adonis Celeo Paisano Martinez, and he is currently detained at Seneca County
Jail. See Online Detainee Locator System, U.S. Immigration and Customs Enforcement,
https://locator.ice.gov/odls/#/index (last visited Dec. 22, 2022).
once again as an undocumented immigrant on May 6, 2018. On November 1, 2018, the
Immigration Court in Eloy, Arizona ordered Petitioner’s removal. On November 7, 2018,
Petitioner appealed the immigration judge’s decision to the Board of Immigration Appeals
(“BIA”). The BIA dismissed Petitioner’s appeal on April 24, 2020.
On October 21, 2021, Petitioner was convicted of criminal damaging or endangering,
assaulting a police dog or horse, and sexual imposition. Following this conviction, ICE detained
Petitioner on October 26, 2021. That same day, the Office of Enforcement and Removal
Operations (“ERO”) of ICE requested travel documents for Petitioner from the Honduran
government. After initially having some difficulty ascertaining Petitioner’s identity, the ERO
was finally able to secure the travel documents on June 14, 2022 and scheduled Petitioner’s
removal date for June 24, 2022.
On June 20, 2022, a few days short of his scheduled removal, Petitioner filed an
Emergency Motion for a Temporary and Permanent Stay of Removal Pending Review in the
Ninth Circuit Court of Appeals, and the Ninth Circuit granted Petitioner a temporary stay of
removal. On August 18, 2022, the Ninth Circuit dismissed Petitioner’s untimely petition for
review in Martinez v. Garland, 22-1072 and denied Petitioner’s motion for a permanent stay of
removal. On October 11, 2022, the Ninth Circuit issued a corresponding mandate lifting the
temporary stay of removal that it initially granted Petitioner.
During the October 26, 2022 telephonic status conference before the undersigned, the
parties informed the Court that Petitioner had a pending motion before the BIA. The
Government also notified the Court that if the BIA denies Petitioner’s motion, it was ready to
remove Petitioner from the United States within the first two weeks of November. Then on
November 18, 2022, the parties filed a joint status report (ECF No. 16) informing the Court that
the BIA granted Petitioner a Stay of Removal on November 16, 2022, based on his filing of a
Motion to Reopen with the BIA.
Parallel to the proceedings before the Ninth Circuit and BIA, Petitioner filed this Writ of
Habeas Corpus arguing that his continued detention violates 8 U.S.C. § 1231(a)(6), 8 C.F.R. §
241.4(e), and the Fifth Amendment’s Due Process Clause. The Government filed an Answer
and Return and Motion to Dismiss claiming that Petitioner failed to establish that his removal is
not reasonably foreseeable. Petitioner filed an Opposition to the Government’s Answer and
Return and Motion to Dismiss. The Government then filed a Reply in support of its Answer and
Return and Motion to Dismiss.
II. Standard of Review
28 U.S.C. § 2241 confers jurisdiction upon federal district courts to review habeas
petitions and to determine whether detention is “in violation of the Constitution or laws . . . of
the United States.” For undocumented immigrant detainees, 28 U.S.C. § 2241 habeas corpus
proceedings are available to resolve constitutional and statutory challenges to post-removal-
period detention. Zadvydas v. Davis, 533 U.S. 678, 688 (2001). Constitutionally, the Fifth
Amendment’s Due Process Clause, which provides that no person shall be “deprived of life,
liberty, or property, without due process of law,” applies to post-removal-period detention
challenges. Statutorily, 8 U.S.C. § 1231 governs the detention and removal of aliens who are
ordered to be removed, and 8 C.F.R. § 241.4(e) provides criteria considerations for the release of
undocumented immigrant detainees.
The Due Process Clause of the Fifth Amendment safeguards against substantive and
procedural due process violations. U.S. Const. amend. V. In the context of removal of
undocumented immigrants, due process violations may be established when undocumented
immigrants are stuck in a “removable-but-unremovable limbo,” making their removal
unforeseeable. Martinez v. Larose, 968 F.3d 555, 565 (6th Cir. 2020). In Martinez v. Larose,
the Sixth Circuit held that a petitioner who is “‘subject to nearly immediate removal’ once his
appeals are resolved” could not demonstrate a due process violation because his removal was
reasonably foreseeable despite him being in detention for roughly two years already at the time
of the briefing in his case. Id. The Sixth Circuit also determined that in a post-Jennings world, it
would be “out of place” to impose “a general rule that aliens detained under § 1231(a) must
receive a bond hearing after a specific lapse of time” when the statute makes no mention of this.
Id. (Citing Jennings v. Rodriguez, 138 S. Ct. 830, 843 (2018) in which the Supreme Court
cautions that the constitutional avoidance canon “does not give a court the authority to rewrite a
statute as it pleases. Instead, the canon permits a court to ‘choos[e] between competing plausible
interpretations of a statutory text.’”). Therefore, when an undocumented immigrant’s removal
remains reasonably foreseeable, the immigrant’s continued detention and a denial of a bond
hearing are not constitutional violations.
Federal law codified at 8 U.S.C. § 1231 provides that once an alien is ordered to be
removed, the person should be removed from the United States within a period of 90 days.
Following the 90-day removal period, 8 U.S.C. § 1231(a)(6) instructs that an alien may be
“detained beyond the removal period and, if released, shall be subject to the terms of supervision
in paragraph (3)2” if the alien is “inadmissible under section 1182 of this title, removable under
2 8 U.S.C. § 1231(a)(3) provides that an alien “shall be subject to supervision” under
the following provisions: “(A) to appear before an immigration officer periodically for
identification; (B) to submit, if necessary, to a medical and psychiatric examination at the
expense of the United States Government; (C) to give information under oath about the
alien’s nationality, circumstances, habits, associations, and activities, and other
information the Attorney General considers appropriate; and (D) to obey reasonable written
section 1227(a)(1)(C), 1227(a)(2), or 1227(a)(4) of this title or who has been determined by the
Attorney General to be a risk to the community or unlikely to comply with the order of removal.”
Pursuant to 8 U.S.C. § 1231(a)(1)(B), an alien’s 90-day removal period begins on (i) the date the
order of removal becomes administratively final; (ii) the date of the court’s final order if the
removal order is judicially reviewed and if a court orders a stay of the removal of the alien; or
(iii) the date the alien is released from detention or confinement if the alien is detained or
confined. Once the 90-day removal period expires, the post-removal-period begins.
It is unclear, from the plain text of 8 U.S.C. § 1231, exactly how long an undocumented
immigrant may be lawfully detained post-removal-period. The Supreme Court in Zadvydas v.
Davis read an implicit limitation into this statute, determining that a six-month detention post-
removal period is presumptively reasonable. Zadvydas, 533 U.S. at 701. The Supreme Court
clarified, however, that the six-month presumption is not a bright line rule mandating the release
of every undocumented immigrant after six months of detention if they are not removed before
then. Id. Rather, after this six-month period, the undocumented immigrant must first provide
good reason for the reviewing court to believe that there is no significant likelihood of removal
in the reasonably foreseeable future. Id. Only after the undocumented immigrant has established
this fact is the Government required to “respond with evidence sufficient to rebut that showing.”
Id. Until there has been a determination that there is not a significant likelihood of removal in
the reasonably foreseeable future,” the undocumented immigrant may remain detained. Id.
III. Analysis
restrictions on the alien’s conduct or activities that the Attorney General prescribes for the
alien.”
Putting forth three claims for relief in his habeas petition, Petitioner alleges that his post-
removal-period detention violates his statutory, substantive due process, and procedural due
process rights. He contends that in the absence of a “significant likelihood that he will be
removed in the reasonably foreseeable future,” his continued detention violates 8 U.S.C.
§ 1231(a)(6), 8 C.F.R. § 241.4(e), and his substantive due process rights under the Fifth
Amendment. Furthermore, Petitioner alleges that he should have “a meaningful opportunity to
demonstrate that he should not be detained,” and the denial of such an opportunity is a
procedural due process violation under the Fifth Amendment.
Petitioner primarily argues that given his case before the Ninth Circuit, which has since
been dismissed, and his Motion to Reopen currently pending the BIA’s decision, he is unlikely to
be removed in the reasonably foreseeable future; thus, his continued indefinite detention is a
statutory and constitutional violation. Citing Zadvydas v. Davis, Petitioner claims that after the
presumptively reasonable six-month period of detention post-removal-period, a detained
undocumented immigrant must be released unless the Government can rebut the showing that
there is no significant likelihood of their removal in the reasonably foreseeable future. ECF No.
1 at PageID #: 4. Continued detention, Petitioner presses, violates his substantive due process
rights because there is no compelling government interest to continue depriving him of liberty.
The Government moves to dismiss Petitioner’s Writ because it argues that Petitioner is
properly detained under 8 U.S.C. § 1231(a)(6) and is likely to be removed in the reasonably
foreseeable future. ECF No. 8 at PageID #: 28. Although the Government recognizes that
Petitioner’s presumptively reasonably six-month post-removal-period expired in or around April
2022, it argues that Petitioner has not sufficiently met his burden of showing that there is no
significant likelihood of his removal in the reasonably foreseeable future. The Government
provides that ICE has obtained Petitioner’s travel documents and that but for Petitioner’s own
filings with the Ninth Circuit and the BIA, Petitioner would have already been removed to
Honduras.
While currently in his post-removal-period detention, the Court finds that Petitioner has
failed to meet his initial burden of providing “good reason [for the Court] to believe that there is
no significant likelihood of removal in the reasonably foreseeable future.” Zadvydas, 533 U.S. at
701. Prior to the commencement of Petitioner’s Ninth Circuit case, ICE already obtained the
necessary travel documents for his removal and set his removal date for June 2022. After the
Ninth Circuit dismissed Petitioner’s case, the Government once again set another date, this time
in November 2022, for Petitioner’s removal. Each of the Government’s prior attempts to remove
Petitioner have only been unsuccessful due to Petitioner’s own filings. Similar to the petitioner’s
case in Martinez v. Larose, Petitioner in the case at bar is not stuck in a “removable-but-
unremovable limbo,” but rather will be immediately removable as soon as the BIA provides its
determination on Petitioner’s pending Motion to Reopen.
The Government has shown time and time again that it is ready to remove Petitioner as
soon as it is permitted to do so. Petitioner, therefore, has failed to provide good reason for the
Court to believe that his removal will not occur in the reasonably foreseeable future. As a result,
Petitioner’s continued detention is neither a statutory nor substantive due process violation
despite Petitioner’s post-removal-period already exceeding the presumptively reasonable six
months. Additionally, given that Petitioner’s detention is not indefinite, Petitioner’s procedural
due process rights are also not violated by not being granted a bond hearing.
IV. Conclusion
Accordingly, Petitioner’s Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (ECF No.
1) is denied, and the Government’s Motion to Dismiss (ECF No. 8) is granted.
IT IS SO ORDERED.
December 23, 2022 /s/ Benita Y. Pearson
Date Benita Y. Pearson
United States District Judge