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Hernandez-Esquivel v. Castro

United States District Court, W.D. Texas, San Antonio Division

June 22, 2018

JOSE SANTOS HERNANDEZ-ESQUIVEL, A # 078 897 862, Petitioner,



         Petitioner Jose Santos Hernandez-Esquivel, a native of Mexico, is being held at the South Texas Detention Complex pending his removal or deportation from the United States. He has been in custody since at least August 29, 2016, pursuant to an order reinstating a prior order of removal from 2006. Although Hernandez-Esquivel does not challenge the merits of the reinstated removal order, he is administratively seeking collateral relief from removal through a U-Visa request (initially denied and now on administrative appeal) and a claim under the United Nations Convention Against Torture (initially denied by an immigration judge and on appeal with the Board of Immigration Appeals (BIA)).

         In this § 2241 habeas action, Hernandez-Esquivel challenges the propriety of his continued detention during the pendency of the collateral proceedings he has initiated to contest his removability. He cannot be removed while his Convention Against Torture claim is pending. And the proceedings promise to take months, or even longer, to fully resolve. The record reflects, however, that but-for those collateral proceedings, Hernandez-Esquivel would be removed to Mexico forthwith. At issue is whether Hernandez-Esquivel's continued detention, under 8 U.S.C. § 1231(a)(6), violates governing immigration laws or his due process rights. Hernandez-Esquivel seeks either an individualized bond hearing or an order releasing him under reasonable conditions of supervision pending a fully final outcome with respect to his immigration status.

         Thus, before the Court is Hernandez-Esquivel's § 2241 Habeas Corpus Petition challenging his detention by Respondent Bureau of Immigration and Customs Enforcement (ICE). See Dkt. No. 1. Also before the Court are Respondents' Motion to Dismiss Petitioner's Habeas Corpus Petition, Dkt. No. 13; Petitioner's Response to Respondents' Motion, Dkt. No. 14; Respondents' Supplement, Dkt. No. 18; and Petitioner's Reply in Opposition to Respondents' Supplement, Dkt. No. 19. The parties filed the supplemental briefing at the Court's request. This Order is entered pursuant to 28 U.S.C. § 636(c), and the District Court's reassignment of this case to the undersigned following the parties' consent to trial by a U.S. Magistrate Judge. See Dkt. Nos. 8, 9, & 10.

         After careful review of the petition, the motion to dismiss, the responses, the supplemental briefing, the applicable law, and the record in this case that includes a hearing the Court held on this matter, the Court GRANTS the Motion to Dismiss, Dkt. No. 13. Hernandez-Esquivel, however, will have an opportunity to amend the petition to cure the deficiencies outlined in this order.

         I. Factual and Procedural Background

         Petitioner Hernandez-Esquivel is a native-born citizen of Mexico. He first entered the United States illegally with his family in 1994, when he was about 11 years old. He later married a U.S. citizen. He now has three children; all are U.S. citizens. His home is in Austin, Texas.

         A January 5, 2006 order directed Hernandez-Esquivel's removal from the United States. He was later convicted of illegal entry and removed. See Dkt. No. 13-1. Then, on an unknown date, he once again illegally entered the United States. For this he was convicted, on November 14, 2014, of illegal reentry. ICE eventually took him into custody to effect his (re)removal by reinstating the prior 2006 order. But at some point after his illegal reentry, authorities arrested him on state criminal charges. He remained in state custody throughout the resulting state criminal proceedings, until his eventual acquittal on August 29, 2016. Then, on September 2, 2016, ICE once again took him into custody and served him with a Notice of Intent/Decision to Reinstate Prior Order of Removal. Dkt. No. 13-2. The notice alleges Hernandez-Esquivel is removable under § 241(a)(5) of the Immigration and Nationality Act as an alien who illegally reentered the United States after having been previously removed, or who departed voluntarily under an order of exclusion, deportation, or removal and therefore was subject to removal by reinstatement of the prior order. Id.

         On February 6, 2017, Hernandez-Esquivel requested a bond hearing before an Immigration Judge. At that time, however, he was also in the process of seeking to withhold his removal under 8 U.S.C. § 1229a, and so the Immigration Judge denied the bond-hearing request for lack of jurisdiction. See App. A to Dkt. No. 1. On March 30, 2017, almost seven months after Hernandez-Esquivel received notice of the reinstated removal order, he invoked the United Nations Convention Against Torture and sought to defer the reinstated order on the basis of his asserted fear of returning to Mexico. See 8 C.F.R. § 1208.16(c)(3). His removal was then deferred, pending a final determination on his claim under the Convention Against Torture. See Id. § 1208.17(a).

         On June 23, 2017, Hernandez-Esquivel filed a Petition for Writ of Habeas Corpus in this Court, challenging his continued detention. Shortly after filing his habeas petition, Hernandez-Esquivel's application for withholding of removal under the Convention Against Torture was denied, and his file was returned to the Department of Homeland Security (DHS) for execution of the reinstated removal order. Dkt. No. 13-3. Hernandez-Esquivel then timely filed a notice of appeal with the BIA, in August of 2017, in which he challenged the disposition of his Convention Against Torture claim. He cannot be removed while this appeal remains pending. See Dkt. No. 13-4; see also 8 U.S.C. § 1231(b)(3). Moreover, Hernandez-Esquivel states in his Response to the Motion to Dismiss that he previously filed an application for a U-Visa. A U-Visa can be available to qualifying victims of certain listed crimes who assist U.S. law enforcement officials in investigating or prosecuting those crimes. See Ordonez Orosco v. Napolitano, 598 F.3d 222, 224 (5th Cir. 2010). The U-Visa application was denied, and Hernandez-Esquivel is administratively appealing that decision as well. See Dkt. No. 14.

         In the instant habeas petition, Hernandez-Esquivel seeks a bond hearing or release, the latter with either reasonable conditions of supervision or on his own recognizance. He also seeks attorney's fees pursuant to the Equal Access to Justice Act, as amended, 28 U.S.C. § 2412.

         II. Discussion

         A. Jurisdiction.

         A brief discussion of the Court's jurisdiction is needed. The REAL ID Act divests federal courts of jurisdiction to consider challenges to removal orders. Moreira v. Mukasey, 509 F.3d 709, 712 (5th Cir. 2007) (citing 8 U.S.C. § 1252(a)(5) and Rosales v. Bureau of Immigration & Customs Enf't, 426 F.3d 733, 735-36 (5th Cir. 2005)). Additionally, federal courts lack jurisdiction to review discretionary decisions of the Attorney General. Zadvydas v. Davis, 533 U.S. 678, 688 (2001) (citing 8 U.S.C. § 1252(a)(2)(B)(ii)); see also Maldonado v. Macias, 150 F.Supp.3d 788, 794 (W.D. Tex. 2015) (citing Kambo v. Poppell, No. SA-07-CV-800-XR, 2007 WL 3051601, at *6, *8 (W.D. Tex. Oct. 18, 2007) (involving discretionary bond determinations)). Federal courts, however, can adjudicate claims challenging the constitutionality of an alien's continued detention. See Abdulle v. Gonzales, 422 F.Supp.2d 774, 776 (W.D. Tex. 2006) (citing Gul v. Rozos, 163 Fed.Appx. 317, 2006 WL 140540, at *1 (5th Cir. 2006)). Indeed, the Supreme Court recognized in Zadvydas that § 1231(a)(6) “contain[s] an implicit ‘reasonable time' limitation, the application of which is subject to federal-court review.” 533 U.S. at 682. A challenge to this limitation is a focus of Hernandez-Esquivel's petition.

         Accordingly, Hernandez-Esquivel maintains that his continued detention violates 8 U.S.C. § 1231(a)(6), as interpreted by Zadvydas and Clark v. Martinez, 543 U.S. 371 (2005), and is excessive, arbitrary, and in violation of his due process rights. See Dkt. No. 19 at 3. He urges that his “petition for habeas relief does not seek resolution of his potential immigration relief and benefits, nor does [it] challenge the [G]overnment's denial of bond.” Dkt. No. 14 at 12. These claims challenge the legality of his continued detention pending resolution of his collateral proceedings and resulting appeals, as well as “‘the statutory framework that permits [his] detention without bail.'” Jennings v. Rodriguez, 138 S.Ct. 830, 841 (2018) (quoting Demore v. Kim, 538 U.S. 510, 516 (2003)). As such, his habeas claims can be adjudicated without addressing the merits of any final order of removal, and they likewise do not involve a challenge to any discretionary decision of the Attorney General or any decision “regarding the detention or release of any alien or the grant, revocation, or denial of bond or parole.” Id. (quotation marks omitted). Accordingly, the Court's jurisdiction is not precluded by the REAL ID Act. See Abdulle, 422 F.Supp.2d at 776 (citing Gul, 2006 WL 140540 at *1).

         B. Hernandez-Esquivel is Detained Pursuant to § 1231(a).

         There is some confusion in the briefing over the statutory basis for Hernandez-Esquivel's detention, which the Court will now dispel. At least one statement by Hernandez-Esquivel appears to request relief from continued detention under 8 U.S.C. § 1226(a). See Dkt. No. 1 at 10 (“Mr. Hernandez-Esquivel's detention is governed by 8 U.S.C. § 1226(a) and he is therefore entitled to a bond hearing.”). Section 1226(a), however, addresses detention prior to the issuance of any order of removal. It does not govern Hernandez-Esquivel's detention, which is pursuant to a reinstated 2006 removal order. Detention here is instead governed by 8 U.S.C. § 1231(a). In his Reply in Opposition to Respondents' Supplement to their Motion to Dismiss, Hernandez-Esquivel acknowledges this. Dkt. No. 19 at 3 (arguing that his continued detention violates 8 U.S.C. § 1231(a)(6), as interpreted by Zadvydas and Clark).

         Section 1231(a), which is entitled, “[d]etention, release, and removal of aliens ordered removed, ” applies to the detention of aliens like Hernandez-Esquivel who have been ordered removed. 8 U.S.C. § 1231(a) (emphasis removed). Subsection (5) of § 1231(a) provides for the reinstatement of a prior order of removal, which once reinstated is not subject to reopening or review:

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). The Court notes that Hernandez-Esquivel's reinstated removal order is sufficiently final and governs here, notwithstanding his pending request for relief under the Convention Against Torture or his U-visa application. See Ramirez-Mejia v. Lynch, 794 F.3d 485, 489 (5th Cir. 2015) (notwithstanding petitioner's subsequent application for relief under the Convention Against Torture, petitioner was subject to the provisions of § 1231(a)(5) based on her previous illegal reentry after having been removed); see also Dos Santos v. Sessions, 706 Fed.Appx. 829, 831 (5th Cir. 2017) (petitioner ordered removed under § 1231(a)(5) pursuant to a reinstated order of removal notwithstanding application for withholding of removal under the Convention Against Torture).

         Typically, aliens who are not subject to a prior order of removal “may be released on bond or paroled” during the pendency of their removal proceedings. Zadvydas, 533 U.S. at 683. But a different rule applies here. Section 1231(a) describes a 90-day “removal period.” And in a case like this under § 1231, “[a]fter entry of a final removal order and during the 90-day removal period, . . . aliens must be held in custody.” Id. (emphasis added and citing 8 U.S.C. § 1231(a)(2), which provides “[d]uring the removal period, the Attorney General shall detain the alien”). Detention during the removal period here, in other words, is mandatory.

         The removal period begins on the latest of the following:

(i) The date the order of removal becomes administratively final.
(ii) If 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.
(iii) If 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). The parties agree that the § 1231(a) removal-period clock started with service to Hernandez-Esquivel of his reinstated order of removal.

         Once the removal period expires, however, § 1231(a)(6) directs that a removable alien who is also inadmissible “may” be detained or released on bond:

An alien ordered removed who is inadmissible . . . 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, may be detained beyond the removal period and, if released, ...

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