United States District Court, D. Colorado
RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241
B. Shaffer United States Magistrate Judge
the court is a verified petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 filed by pro bono
counsel on behalf of Petitioner Hilaria Aurora Quintana
Casillas (“Petitioner”). Petitioner alleges that
the Bureau of Immigrations and Custody Enforcement
(“ICE”) is detaining her in violation of federal
Judge David M. Ebel referred the Petition to this court for a
recommendation. Doc. 10. The court recommends denying the
first cause of action for failure to state a claim and
recommends dismissing the second cause of action without
prejudice as premature, requiring Petitioner to first pursue
review under 8 C.F.R. § 241.13.
following facts appear to be undisputed.
Hilaria Aurora Quintana-Casillas (the applicant) is a
fifty-five-year-old native and citizen of Mexico. The
applicant was previously removed from the United States in
2002 to Mexico. She reentered the United States without
inspection in December 2013 at El Paso, Texas. On June 2,
2016, the Department of Homeland Security (DHS or the
Department) served the applicant with a Notice of
Intent/Decision to Reinstate Prior Order. The applicant
expressed a fear of returning to Mexico and was referred to
an Asylum Officer (AO) for a reasonable fear interview. The
applicant was interviewed on June 22, 2016. On June 23, 2016,
the AO found that the applicant had not established a
reasonable fear of persecution upon return to Mexico and
referred her case to the Court by filing a Form I-863, Notice
of Referral to the Immigration Judge (I-863). Exh. 1. The
Court vacated the decision of the AO on July 20, 2016, and
the applicant was placed in "withholding-only"
Doc. 1-1 at 1 (In re Quintana-Casillas, File No. A#
090 321 665, Executive Office for Immigration Review, written
decision of Alison R. Kane, Immigration Judge, Feb. 7, 2017).
[Petitioner] became a lawful permanent resident of the United
States in 1989. In 1997, Petitioner was convicted in New
Mexico state court of possession of marijuana with intent to
distribute and conspiracy to distribute marijuana. Petitioner
lost her legal permanent resident status as a result of the
removal proceedings initiated after this conviction and was
removed to Mexico in June 1999. Petitioner illegally
reentered the United States about a month later. In 2001,
Petitioner was convicted in a Colorado state court for
possession of cocaine with intent to distribute a controlled
substance. Petitioner was sentenced to eight years of
imprisonment, and the sentence was suspended after having
credited her with 95 days for time served. Doc. 1-1 at 9.
Petitioner was removed again to Mexico in 2002. Petitioner
illegally reentered the United States in December 2013.
Doc. 14 (the Government's Response, citations to
Declaration of Tracey Cammorto, Doc. 14-1 ¶¶ 3-6
immigration judge denied Petitioner's requests for
withholding of removal, due to her criminal convictions, and
granted her request for deferral of removal. Doc. 1-1 at
7-11. DHS appealed the deferral order to the Board of
Immigration Appeals (“BIA”). Petitioner requested
that an immigration judge hold an individualized bond
hearing; on March 23, 2017, that request was denied for lack
of jurisdiction to conduct a bond hearing in a
“withholding only” proceeding. Doc. 1-3.
point after DHS filed its appeal with BIA, Petitioner
requested that the Enforcement and Removal Operations
(“ERO”) department of ICE exercise
“prosecutorial discretion.” That request is
reflected in in the email response of Tracey Cammorto, Acting
Assistant Field Office Director, DHS/ICE/ERO/GEO:
This response is to your request for ERO to exercise
prosecutorial discretion in the case of your client, Quintana
Casillas, Hilaria Aurora A090 321 665. DHS filed an appeal
with the Board of Immigration Appeals (BIA) on March 8, 2017
which is currently pending, and there is no final order
granting any form of protection. Ms. Quintana Casillas is
subject to a final order of removal and is properly detained
as her criminal history presents concerns for public safety.
Your client is an aggravated felon with convictions for
Controlled Substance Possession W/Intent to Distribute and
sentenced to 8 years in Dept. of Corrections, suspended. She
has another conviction for Felony Conspiracy and Felony
Controlled Substance Distribution and was sentenced to 18
months imprisonment, suspended. Ms. Quintana Casillas'
criminal history warrants continued detention as provided for
in the memo from Michael J. Garcia, former Assistant
Secretary, regarding the detention policy where an
Immigration Judge has granted Asylum and ICE has appealed,
dated February 9, 2004.
Once there is a final decision on the appeal with the BIA, we
will be able to address the custody concerns you have for
Doc. 1-4 (Ex. D to Petition, email of Tracey Cammorto, dated
March 27, 2017).
month later, Petitioner filed her present habeas petition
through pro bono counsel. Doc. 1. On May 10, 2017,
the court found good cause to require the Respondents to show
cause why the petition should not be granted. Doc. 12.
Briefing was completed May 19, 2017.
14, 2017, Petitioner filed a status update regarding the
Government's appeal of the deferral order. Doc. 16.
Petitioner's counsel states that upon calling the BIA on
that date, he was informed that the appeal had been remanded
to the immigration judge for further proceedings.
Id. at 2. On July 18, 2017 Petitioner filed a copy
of the BIA's July 13, 2017 order. Doc. 17-1. The BIA
dismissed the Government's appeal and remanded to the
immigration judge pursuant to 8 C.F.R. § 1003.1(d)(6)
for “the purpose of allowing the Department of Homeland
Security the opportunity to complete or update any identity,
law enforcement, or security investigations or examinations,
and further proceedings, if necessary, and for the entry of
an order.” Id. at 2. As far as the court is
aware, Petitioner continues to be detained.
court has jurisdiction to hear the Petition because
Petitioner alleges that she “is in custody in violation
of the Constitution, or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). See also
Zadvydas v. Davis, 533 U.S. 678, 688 (2001)
(“§ 2241 habeas corpus proceedings remain
available as a forum for statutory and constitutional
challenges to post-removal-period detention”). Having
reviewed the court's file including the Petition,
Defendants' response (doc. 14) to the show cause order,
and the Petitioner's reply (doc. 15) in support of her
Petition, the court has determined that it can address the
issues discussed in this recommendation without a hearing. 28
U.S.C. § 2243; Sayed v. Trani, No.
16-cv-00926-RBJ, 2017 WL 698799, at *1 (D. Colo. Feb. 21,
2017) (citing Jeter v. Keohane, 739 F.2d 257, n.1
(7th Cir. 1984) (“An evidentiary hearing is not
necessary when the facts essential to consideration of the
constitutional issue are already before the court.”).
law is distinguished by its complexity more than by its
clarity.” Garcia v. Sessions, 856 F.3d 27, 30
(1st Cir. 2017). At least two statutes govern the detention
of aliens who are present in the United States: 8 U.S.C.
§ 1226 and 8 U.S.C. § 1231. The former addresses
arrest and detention of aliens “pending a decision on
whether the alien is to be removed from the United
States.” 8 U.S.C. § 1226(a). Section 1226 provides
a bond hearing, except for certain “criminal
aliens” whose detention (without a bond hearing or
parole) is mandatory. 8 U.S.C. § 1226(a), (c)(1).
Section 1231 addresses detention of aliens who have been
“ordered removed, ” requires detention during a
90 day removal period (measured from the date the removal
order is “administratively final”), and expressly
provides that detention beyond the 90 day period may be
extended indefinitely for certain criminal aliens. 8 U.S.C.
§ 1231(a)(1)(A), (1)(B), (2), (6). This Petition asks
the court to resolve which of these two statutes applies to
Petitioner and then to hold that her continued detention
violates her due process rights.
first claim, Petitioner alleges that 8 U.S.C. § 1226
governs her detention, subject to due process requirements,
because while the Government's appeal of the deferral
order was pending, she awaited a “decision on whether
[she] is to be removed” within the meaning of §
1226(a). Petitioner admits that subsection (c) of
the statute applies to her and thus her detention is
mandatory without a right of bond hearing or parole. Doc. 1
at 6-7. She argues that § 1226(c) is nonetheless limited
by constitutional due process rights, citing Demore v.
Kim, 538 U.S. 510 (2003). Specifically, Petitioner
argues a right to an individualized bond hearing in front of
an immigration judge after her detention became prolonged.
Demore, the Court held § 1226(c) constitutional
because aliens could “be detained for the brief period
necessary for their removal proceedings, ” which was
“roughly a month and a half in the vast majority of
cases in which [§1226(c)] is invoked, and about five
months in the minority of cases in which the alien chooses to
appeal.” 538 U.S. at 513, 530. For the same
proposition, Petitioner also cites a pending case at the U.S.
Supreme Court, Jennings v. Rodriguez, No. 15-1204,
136 S.Ct. 2489 (2016), and several circuit opinions outside
the Tenth Circuit. Petitioner alleges that her detention
under § 1226(c) has become prolonged, that Respondents
have therefore violated her due process rights by not
granting her request for an individualized bond hearing, and
requests that the court order the immigration judge to hold
such a hearing.
Petitioner also recognizes that she is subject to a removal
order that the Government reinstated pursuant to § 1231:
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) (emphasis added). Thus, Petitioner
has been “ordered removed” within the meaning of
8 U.S.C. § 1231 and is barred from seeking ...