United States District Court, W.D. Texas, San Antonio Division
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE
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)).
§ 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.
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, &
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.
Factual and Procedural Background
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.
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.
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).
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.
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.
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 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).
Hernandez-Esquivel is Detained Pursuant to § 1231(a).
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).
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).
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.
removal period begins on the latest of the following:
(i) The date the order of removal becomes administratively
(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.
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,