The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PAVEL ROMERO ROSAS, :
Petitioner :
: No. 1:20-cv-00716
v. :
: (Judge Kane)
WARDEN CLAIR DOLL, :
Respondent :
MEMORANDUM
On April 20, 2020, pro se Petitioner Pavel Romero Rosas (“Petitioner”), who is currently
confined at the York County Prison, initiated the above-captioned action by filing a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the constitutionality of his
detention by the United States Department of Homeland Security (“DHS”), Immigration and
Customs Enforcement (“ICE”). (Doc. No. 1.) Following an Order to show cause (Doc. No. 3),
Respondent filed a response, contending that Petitioner’s detention is lawful (Doc. No. 5).
Petitioner filed his traverse on June 1, 2020. (Doc. No. 6.) Accordingly, Petitioner’s § 2241
petition is ripe for disposition.
I. BACKGROUND
Petitioner is a citizen and native of Mexico who last entered the United States at or near
Douglas, Arizona on an unknown date without being admitted, inspected, or paroled by an
immigration officer. (Doc. No. 5-1 at 4.) On April 14, 2010, Petitioner was apprehended by
agents of the United States Border Patrol near Lordsburg, New Mexico after he illegally entered
the United States. (Id.) Petitioner was subsequently prosecuted for violating 8 U.S.C.
§ 1325(a)(1), unlawful entry into the United States, in the United States District Court for the
District of New Mexico. (Id.) On April 10, 2010, Petitioner was sentenced to time served and
provided an expedited return to Mexico. (Id.) On April 22, 2010, Petitioner was removed to
Mexico on foot via El Paso, Texas. (Id.)
On October 1, 2019, while conducting a targeted enforcement operation for another alien,
ICE agents located Petitioner in the United States and placed him under arrest. (Id. at 4-6.) That
same day, DHS reinstated Petitioner’s prior order of removal from April 15, 2010. (Id. at 8.)
Petitioner expressed a fear of persecution or torture should be he removed to Mexico and
received a reasonable fear interview. (Id. at 10-11.) On October 15, 2019, an asylum officer
concluded that Petitioner had a reasonable fear of persecution and referred the matter to an
immigration judge for further proceedings. (Id.) On January 24, 2020, the immigration judge
denied Petitioner’s applications for withholding of removal, withholding of removal under the
Convention Against Torture (“CAT”), and deferral of removal under the CAT. (Id. at 14-28.)
Petitioner appealed to the Board of Immigration Appeals. (Id. at 31-32.) As of the date of this
Memorandum and Order, Petitioner’s appeal remains pending before the BIA.
On April 16, 2020, an immigration judge conducted a bond hearing for Petitioner
pursuant to Guerrero-Sanchez v. Warden York County Prison, 905 F.3d 208 (3d Cir. 2018).
(Doc. No. 5-1 at 34.) The immigration judge determined that “DHS proved by clear and
convincing evidence that the Petitioner continues to remain a serious risk of flight sufficient to
deny a change in custody.” (Id.) On April 20, 2020, Petitioner appealed the immigration judge’s
bond decision to the BIA. (Id. at 35-36.) That appeal also remains pending before the BIA.
Petitioner filed the instant § 2241 petition on April 30, 2020. (Doc. No. 1.) In his § 2241
petition, Petitioner asserts that his continued detention violates the Fifth Amendment’s Due
Process Clause as well as the Immigration and Nationality Act (“INA”). (Id. at 8-11.) As relief,
Petitioner requests that the Court order Respondent to release him “on his own recognizance,
parole, or reasonable conditions of supervision.” (Id. at 12.)
II. LEGAL STANDARD
Under 28 U.S.C. § 2241(c), a prisoner or detainee may receive habeas relief only if he “is
in custody in violation of the Constitution or laws or treaties of the United States.” See 28
U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989). Because Petitioner is
currently detained within the jurisdiction of this Court and asserts that his continued detention
violates due process, this Court has jurisdiction over his § 2241 petition. See Zadvydas v. Davis,
533 U.S. 678, 699 (2001); Spencer v. Kemna, 523 U.S. 1, 7 (1998).
III. DISCUSSION
Respondent asserts that Petitioner is lawfully detained pursuant to 8 U.S.C. § 1231(a)(6)
because he is an alien subject to a final order of removal. (Doc. No. 5 at 4-8.) The Court agrees
with Respondent. Section 1231 provides, in pertinent part, as follows:
If the Attorney General finds that 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, 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). In the instant case, Petitioner is subject to a 2010 order of removal that
was reinstated in 2019 upon his arrest by ICE. (Doc. No. 5-1 at 8.) Petitioner’s applications for
relief in the form of withholding or deferral of removal are currently pending before the BIA.
(Id. at 31-32.) Aliens who are subject to reinstated orders of removal “may seek withholding-
only remedies.” See Guerrero-Sanchez, 905 F.3d at 215. “[W]hen a reinstated order of removal
is in place, withholding-only proceedings do not disturb the underlying order of removal; rather,
they only potentially impede the order’s execution with respect to a specific country.” See id. at
216. Accordingly, Petitioner’s “removal order itself . . . is not at issue in the withholding-only
proceedings, meaning that those proceedings cannot diminish or otherwise affect its finality.”
See Padilla-Ramirez v. Bible, 882 F.3d 826, 832 (9th Cir. 2017). Accordingly, because
Petitioner is subject to an administratively final order of removal, his detention is governed by
§ 1231(a).
Section 1231 provides that “[e]xcept 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.” See 8 U.S.C. § 1231(a)(1)(A). During this ninety (90)-day period, “the
Attorney General shall detain the alien. Under no circumstance during the removal period shall
the Attorney General release an alien who has been found . . . deportable under section
1227(a)(2).” See id. § 1231(a)(2). After the ninety (90)-day period expires, the alien’s detention
may continue, or he may be released on supervision. See id. § 1231(a)(3), (6).
The Supreme Court has concluded, however, that § 1231 “limits an alien’s post-removal-
period detention to a period reasonably necessary to bring about the alien’s removal from the
United States. It does not permit indefinite detention.” See Zadvydas, 533 U.S. at 698. Thus,
“[o]nce removal is no longer reasonably foreseeable, continued detention is no longer authorized
by statute.” See id. at 699. To establish a uniform baseline, the Supreme Court concluded that a
period of six (6) months is a “presumptively reasonable period of detention.” See id. at 701.
Moreover, the United States Court of Appeals for the Third Circuit has concluded that “an alien
detained under § 1231(a)(6) is generally entitled to a bond hearing after six months (i.e., 180
days) of custody.” See Guerrero-Sanchez, 905 F.3d at 226. Following such a hearing, the alien
“is entitled to be released from detention unless the government establishes that the alien poses a
risk of flight or a danger to the community.” See id. at 224 (quoting Diouf v. Napolitano, 634
F.3d 1081, 1092 (9th Cir. 2011)). “The Government must meet its burden in such bond hearings
by clear and convincing evidence.” See id. at 224 n.12.
As noted supra, Petitioner has been detained pursuant to § 1231(a) since October 1, 2019.
As of the date of this Memorandum, therefore, Petitioner has been detained for eight (8) months,
which is beyond the presumptively reasonable six (6)-month period set forth in Zadvydas and
Guerrero-Sanchez. Petitioner now asserts that he is entitled to habeas relief because the
immigration judge erred in determining that he is a flight risk and because he anticipates a
lengthy period of detention pending removal that violates his due process rights. (Doc. No. 1 at
7-10.) The Court considers each argument in turn.
A. Review of Petitioner’s April 16, 2020 Custody Determination
The parties do not dispute that on April 16, 2020, an immigration judge conducted a bond
hearing pursuant to Guerrero-Sanchez and concluded that Petitioner should remain detained
because he “continues to remain a serious risk of flight sufficient to deny a change in custody.”
(Doc. No. 5-1 at 34.) Petitioner asserts that the immigration judge erred in making that
determination. (Id. at 7-10.) Respondent asserts that the Court lacks jurisdiction over
Petitioner’s claim because Petitioner failed to exhaust his administrative remedies. (Doc. No. 5
at 9-10.) For the reasons discussed below, the Court agrees with Respondent.
The Third Circuit has noted that requiring exhaustion of administrative remedies for
habeas petitions fosters important goals because: “(1) allowing the appropriate agency to develop
a factual record and apply its expertise facilitates judicial review; (2) permitting agencies to grant
the relief requested conserves judicial resources; and (3) providing agencies the opportunity to
correct their own errors fosters administrative autonomy.” See Moscato v. Fed. Bureau of
Prisons, 98 F.3d 757, 761-62 (3d Cir. 1996). “These very important purposes are frequently
furthered by requiring aliens who receive a bond hearing before the immigration judge to exhaust
their administrative remedies and raise any issues with the BIA prior to seeking federal habeas
corpus relief.” Chajchic v. Rowley, No. 1:17-cv-457, 2017 WL 4401895, at *3 (M.D. Pa. July
25, 2017), report and recommendation adopted, 2017 WL 4387062 (Oct. 3, 2017). In the instant
case, the record before the Court reflects that on April 20, 2020, Petitioner appealed the
immigration judge’s bond decision to the BIA. (Doc. No. 5-1 at 35-36.) That appeal remains
pending before the BIA. Thus, Petitioner’s arguments regarding the alleged deficiencies in the
immigration judge’s order have not yet been exhausted at the administrative level. Accordingly,
to the extent Petitioner requests that the Court review the immigration judge’s April 16, 2020
order denying him bond, the Court lacks jurisdiction to do so at this time. See Umarbaev v.
Lowe, No. 1:20-cv-00413, 2020 WL 1814157, at * (M.D. Pa. Apr. 9, 2020) (concluding the
same regarding a detainee’s request to review the immigration judge’s custody determination
when his motion for reconsideration of that determination was still pending at the time he filed
his habeas petition).
B. Zadvydas Due Process Claim
Petitioner also suggests that his detention violates due process because he “anticipates
lengthy detention during the pendency of a BIA appeal and the case is likely to be remanded
back to immigration court for further proceedings.” (Doc. No. 1 at 9.) Petitioner, however,
presents no evidence to support this assertion. Without any facts or evidence beyond conclusory
allegations to support his Zadvydas claim, the Court will not grant relief on this ground.
Petitioner, however, remains free to file a new § 2241 petition challenging his detention should
he remain detained after he has exhausted his administrative remedies and may raise his
Zadvydas claim again at that time. See Umarbaev, 2020 WL 1814157, at *5 n.1 (concluding
same); Nicole S. A. B. v. Edwards, No. 19-14608 (JMV), 2019 WL 6606864, at *3 (D.N.J. Dec.
5, 2019) (denying relief to a detainee under Zadvydas because she “merely allege[d], in
conclusory fashion, that her detention has been unreasonably prolonged”); Manuel H. v. Green,
No. , 2019 WL 2710676, at *3 (D.N.J. June 28, 2019) (denying relief to a detainee under
Zadvydas because he “provide[d] no evidence in support of his assertion that there is no
significant likelihood of his removal in the reasonably foreseeable future”); DonMartin v. Lowe,
No. 1:17-cv-1766, 2017 WL 5990114, at *2 (M.D. Pa. Dec. 4, 2017) (denying relief to a detainee
who had been detained for eight (8) moths because his argument that “his removal [was] unlikely
because it ha[d] not yet occurred” was insufficient to meet the standard under Zadvydas).
IV. CONCLUSION
For the foregoing reasons, the Court will deny Petitioner’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. (Doc. No. 1.) This denial, however, will be without
prejudice to Petitioner’s right to file a new § 2241 petition should he remain detained after he has
exhausted his administrative remedies regarding his detention. An appropriate Order follows.