ORDER-
On this day, the Court considered Petitioner Efrain Chavez-MaldonadO’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“Petition”), ECF No. 1. For the reasons set forth herein, the Petition is hereby GRANTED in part.
I. BACKGROUND
Petitioner is a citizen and national of Mexico, residing in Chihuahua, Mexico, from about 2007 until his request for asylum on October 12, 2013. Pet. 2. On October 11,2013, Petitioner witnessed the murder of his twin brother by the Chihuahua State Police, who then kidnapped and beat Petitioner. Pet. 1. On the following day, October 12, 2013, Petitioner arrived from Mexico at the Bridge of the Americas Port of Entry in El Paso, Texas, as an applicant for asylum. Resp. 1; Mem. 8. Upon arriving at the port of entry, Petitioner was deemed to be inadmissible because he was not in possession of a valid entry document, and he was placed in the custody of the United States Immigration and Customs Enforcement (“ICE”). Resp. 1; Pet. 3. On October 30, 2013, Petitioner received a positive credible fear determination by the United States Citizenship and Immigration Services upon his expression of fear of death if he were to return to Mexico. Pet. 4. Removal proceedings were initiated against him on November 1, 2013. Resp. 1.
Petitioner’s first hearing before the Immigration Judge was held on November 19, 2013; he requested and was granted a continuance to seek an attorney. Resp. 1;
The Immigration Judge conducted Petitioner’s merits hearing in three parts — on June 11, June 27, and July, 30, 2014 — due to the busy court schedule. Mem. 9; Reply 9 n.6. On September 4, 2014, the Immigration Judge denied Petitioner’s request for asylum and other relief. Pet. 4. On September 25, 2014, Petitioner appealed the Immigration Judge’s decision to the Board of Immigration Appeals (“BIA”). Pet. 4-5. The deadline for briefs was November 21, 2014. Resp. 2. Petitioner requested an extension of the briefing deadline, which was granted, extending the deadline to December 12, 2014. Resp. 2. On February 10, 2015, the BIA remanded the case to the immigration court, finding that “the Immigration Judge did not adequately consider” certain facts and did not “address whether [Petitioner’s] persecutors (the Chihuahua state police) are ‘a government’ or ‘government-sponsored.’ ” Resp. 2; BIA Opinion, ECF No. 4-2 at 13.
On March 19 and April 15, 2015, the Immigration Judge held additional hearings, and the parties filed briefs on the issues remanded by the BIA. Resp. 3. On June, 2, 2015, the Immigration Judge again denied Petitioner’s request for asylum and other relief. Pet. 5. On July 2, 2015, Petitioner appealed this decision to the BIA. Pet. 5. The deadline for the briefs for this appeal was August 24,2015. Resp. 3.
Since being placed in ICE custody on October 12, 2013, Petitioner has submitted written requests for -parole seeking his release from custody pending removal proceedings on three separate occasions: November 15; 2013; June 16, 2015; and July, 22, 2015. Pet. 3-4. Each-time, Petitioner’s request for paróle was denied. Pet. 4. During the time that Petitioner has been detained, he has not received a bond hearing. Mem. 15.
On July 28, 2015, Petitioner filed the instant Petition, naming Adrian P. Macias, ICE .Field Director; Loretta E. Lynch, United States Attorney General; Jeh Johnson, Secretary of United States Department of Homeland Security; Sarah Salda-na, Director of United States, Immigration and Customs . Enforcement; and Don Franklin, Warden of the West Texas Detention Facility, as Respondents. See Petition, ECF No. 1. On July 31, 2015, he filed a Memorandum in Support of his Petition for Writ of Habeas Corpus (“Memorandum”), ECF No. 3. On July 29, 201.5, the Court ordered Respondents to show cause why the petition should not be granted. See Order, ECF No. 2. On September 11, Respondents filed their Response to Petitioner’s Petition for Writ of Habeas Corpus (“Response”), ECF No. 4, and, on September 25, 2015, Petitioner filed his
Petitioner has been held in immigration detention from October 12, 2013 until this day — more than twenty-six months. See Pet. 2.
II. DISCUSSION
In addressing the Petition, the • Court first considers whether it has jurisdiction to decide Petitioner’s claims. Next, the Court considers the Government’s argument that Adrian P. Macias, ICE Field Director, is the only proper respondent. Finally, the Court considers Petitioner’s claims regarding the legality of his continued detention.
A. Jurisdiction
In his Petition and Memorandum, Petitioner seeks habeas relief in the form of immediate release from ICE custody. Pet. '2, 18; Mem. 24. Petitioner claims that his continued detention violates the Fifth and Fourteenth Amendments to the Constitution of the United States. Pet. 12. Petitioner also claims that, his detention violates the Immigration and Nationality Act. Pet. 14. In its Response, the Government argues that Petitioner’s detention is authorized by statute and that “[t]he constitutionality of detention during the pen-dency of removal proceedings has been upheld by the Supreme Court.” Resp. 4, 7.
‘“Federal courts are courts of limited jurisdiction,’ possessing ‘only that power authorized by. Constitution and statute.’ ” Gunn v. Minton, — U.S. -,
Title 28 U.S.'C. § 2241 grants this Court jurisdiction to hear habeas corpus petitions from aliens claiming they are held “in violation of the Constitution or laws or treaties of the’ United States.” See 28 U.S.C. § 2241(c)(3); Zadvydas v. Davis,
The Real ID Act “does not, however, preclude habeas review of challenges to detention that are independent of challenges to removal orders.” Baez v. Bureau of Immigration and Customs Enf't,
Even though this Court has jurisdiction to decide statutory and constitutional challenges to civil immigration detention, this Court does not have jurisdiction to review the discretionary decisions of the Attorney General. Zadvydas,
Petitioner, who is currently held in ICE custody, first claims that his “continued detention is a violation of his constitutionally protected due process rights,” as protected by the Fifth and Fourteenth Amendments to the United States Constitution. Pet. 12. Thus, Petitioner is not attacking the merits of a removal order, but is instead challenging the constitutionality of his detention pending the resolution of his removal proceedings. Pet. 12, 14. Because the constitutionality of Petitioner’s detention can be adjudicated without touching on the merits of any final order of removal, jurisdiction of this claim is not precluded by the REAL ID Act. See Baez,
Secondly, Petitioner claims that his continued detention “violates the [Immigration and Nationality Act] and its implementing regulations.” Pet. 14. Petitioner explains that the law and regulations “impose a presumption in favor of parole if an arriving alien demonstrates that he or she has a credible fear of persecution, that they are not a flight risk, and that they are not a danger to the community.” Pet. 15, ¶ 52. Petitioner asserts that he meets the criteria for this presumption and that he should, likewise, be granted parole. Pet. 15. However, the granting of parole is clearly a discretionary decision under the statute. 8 U.S.C. § 1182(d)(5)(A) (“The Attorney General may ... in his discretion parole into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent
B. Proper Respondent
In its Response, the Government argues that Adrian P. Macias is the only proper respondent because he is in charge of the detention facility where Petitioner is detained and states that “[ajll other named Respondents should be dismissed.” Resp. 4. However, the Government does not argue that Petitioner has failed to name any proper respondent or that this Court’s jurisdiction is in any way affected by Petitioner naming additional,: allegedly improper respondents. See generally■ Resp.
In his Reply, Petitioner argues that all the named Respondents are proper Respondents. Reply 6. Petitioner explains that Macias was in charge of the detention facility where Petitioner was previously held, but that on June 4, ,2015, Petitioner was transferred to a privately-owned facility. Reply 7. Petitioner explains that Warden Don Franklin is in charge of that privately-owned facility. Reply 7.
The Supreme Court has stated that “the" default rule” in habeas petitions “is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.” Rumsfeld v. Padilla,
C. Petitioner’s Challenge to Detention
Petitioner argues that his detention violates due process and “the [Immigration and Nationality Act] and its implementing regulations.” Pet. 12, 14. Although Petitioner does not clearly state whether he is arguing that his detention violates substantive due process or procedural due process, it appears that he is alleging substantive due process violations because his arguments focus on the length of his detention, not procedural protections that he was denied. See Pet. ¶ 42 (“This detention vastly exceeds the six-month limitation.” (citing Zadvydas,
In response to Petitioner’s arguments that his detention violates substantive due process and the Immigration and Nationality Act, the Government argues that the Attorney General has statutory authority to detain Petitioner-during the pendency of his removal proceedings. Resp. 4. The Government asserts that the Attorney General properly exercised -its- discretion- in deciding to detain Petitioner, explaining that the Attorney General decided to continue to detain Petitioner, even after his request for humanitarian parole, upon “due consideration of Petitioner’s immigration file and the status- of his' removal proceedings.” Resp. 4-5. ■
“Substantive due process analysis must begin with a careful description of the asserted right.” Reno v. Flores,
1. Petitioner is being detained as an arriving alien pursuant to 8 U.S.C. § 1225(b)(2)(A)
Both parties agree that Petitioner is properly classified as an “arriving alien” under the immigration statutes. Pet. 11; Resp. 4. “The term arriving alien means an applicant for admission coming or attempting to come into the United States at a port-of-entry .... ” 8 C.F.R. § 1001.1(q).
According to the statute, arriving aliens are subject to expedited removal and are not entitled to a hearing or appeal on this decision. 8 C.F.R. ■ § 1235.3(b)(l)(i), (b)(2)(h). Generally, aliens subject to expedited removal are to be removed immediately, but arriving aliens who express an intention to apply for asylum or a fear of persecution are referred to an asylum officer for a credible fear interview. 8 U.S.C. § 1225(b)(l)(A)(ii), (b)(l)(B)(i). If the alien is found to have a “credible fear of persecution,” the alien remains detained, subject to the parole provisions for arriving aliens mentioned above, pending consideration of the asylum application. 8 U.S.C. § 1225(b)(l)(B)(ii) (“If the [asylum] officer determines at the time of the interview that an alien has a credible fear of persecution ..., the alien shall be detained for further consideration of the application for asylum.”); 8 U.S.C. § 1182(d)(5)(A) (explaining that the Attorney General may grant parole “for urgent humanitarian reasons or significant public benefit”). Upon a positive credible fear determination, an alien is placed in section 240 removal proceedings,
Pursuant to 8 U.S.C. § 1225(b)(2)(A), arriving aliens — including those with á positive crédible fear determination — are to be detained unless one of the limited statutory exceptions applies, allowing the Government to release the alien on parole. Rodriguez v. Robbins,
As stated above, the parties agree that Petitioner is an arriving alien, and the Court finds this to be accurate, as Petitioner applied for admission to the United States at a port-of-entry. See 8 C.F.R. § 1001.1(q). As such, Petitioner is currently detained pursuant to 8 U.S.C. § 1225(b)(2)(A). See Rodriguez I,
2. Arriving aliens are entitled to some amount of due process
Having determined that Petitioner is an arriving alien detained pursuant to § 1225(b)(2)(A), the Court must decide the amount of due process, if any, to which arriving aliens are entitled. Petitioner is an arriving alien Whom the Government has determined is inadmissible (“inadmissible alien”). Resp. 1; see also 8 U.S.C. § 1182(a)(7)(A)(i)(I) (explaining that an immigrant not in possession of a valid entry document at the time of application for admission is inadmissible). The Supreme Court has stated that inadmissible aliens are not afforded the same breadth of rights as citizens or as aliens who are already present in the United States. See Zadvydas,
The distinction between an alien who has effected an entry into the United States and one who has never entered ruiis throughout immigration law. It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders., But once an alien enters the country, the legal circumstance changes, for the Due, Process Clause applies to all “persons” within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.
Id. Cf. Demore v. Kim,
However, inadmissible aliens seeking entry, such as Petitioner, are subject to the “entry fiction.” See Zadvydas,
Although inadmissible aliens are not entitled to the.full protection of the Constitution, the Supreme Court has also made clear .that “the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Demore,
In Zadvydas, the Court found that indefinite post-removal-period. detention was unconstitutional for “aliens who were admitted to the United States but subsequently ordered removed,” explaining that “[a]liens who have not yet gained initial admission to this country would present a very different question.”
However, at-least one circuit — the Sixth Circuit — has held that the indefinite detention of inadmissible aliens raised the same constitutional concerns as did the indefinite detention of the removable resident aliens in Zadvydas. Rosales-Garcia v. Holland,
If excludable aliens were not protected by even the substantive component of constitutional due process, as the government appears to argue, we do not see why the United States government could not torture or summarily execute them. Because we do not believe that our Constitution could permit persons living in the United States — whether they can be admitted for permanent residence or not — to be subjected to any governmentaction without limit, we conclude that government treatment of excludable ■aliens must implicate the Due Process Clause of the Fifth Amendment.
Id.
In looking at post-removal-period détention, specifically, the Sixth Circuit concluded that the same- constitutional concerns did arise in regard to inadmissible aliens and, consequently, extended the holding of ZoAvydas to inadmissible' aliens. Id. 408-10 (explaining that, in addition to relying on statutory construction to extend the holding of Zadvydas to inadmissible aliens, “constitutional concerns would independently compel us to construe [the statute’s] post-removal-period detention provision to contain a reasonableness limitation for ex-cludable aliens”),
Thus, thé question remains open as to what extent the constitutional dimensions of Zadvydas apply to inadmissible aliens. Even so, it 'is clear that aliens— even 'inadmissible aliens — are entitled to some constitutional protections, including some amount of due process. See Zadvydas,
3. Zadvydas prohibits indefinite ■ detention of aliens
Having determined that Petitioner, even as an inadmissible alien, is entitled to some due process, the Court turns to the merits of Petitioner’s constitutional claim. In support of his constitutional claim, Petitioner argues that the Supreme Court in Zadvy-das “imposed a six-month limit on what may be considered a ‘reasonable’ period of detention to ensure that an alien is available for pending immigration proceedings.” Mem. 12-13; Pet. 12 (citing Zadvy-das in arguing that his current detention “vastly exceeds the six-month limitation”); The Government argues that Zadvydas only applies'to detention after'a final order of removal has been entered, and therefore does not apply to Petitioner because he is still in removal proceedings. Resp. 5.
In Zadvydas, the Supreme. Court of the United States considered substantive due process limitations on the civil detention of aliens. See generally
The Supreme Court noted that “[a] statute permitting indefinite detention of an alien would raise a.serious constitutional problem.” Id. at 690,
Turning to the instant case, as the Government points out, Petitioner is detained during the pendency of his removal proceedings, while the aliens in Zadvydas were detained after receiving a final order of removal. See Resp. 5; see also Zadvydas
4, Demore condones only brief mandatory detention during pending removal proceedings
Subsequent to Zadvydas, in De-more v. Kim, the Supreme Court considered the constitutionality of mandatory detention pending the resolution of removal proceedings under § 1226(c), a statute that provides for mandatory detention of, aliens who have been “convicted of one of a specified set of crimes.” See Demore,
In Demore, the respondent — a resident alien — was undergoing removal proceedings and had not been issued a final order of removal. Id. at 513,
Additionally, the Court distinguished the case from Zadvydas explaining that the detention was “of a much shorter dúration” than the indefinite and potentially permanent’ detention in Zadvydas. Id. Indeed, the Demore Court repeatedly referenced the limited period of time most aliens were detained pending removal proceedings. Id. at 513, 523, 526’, 528, 529 n. 12,
In his concurrence, Justice Kennedy also commented that longer terms of detention might become an issue, explaining that:
Were there to be an unreasonable delay by the INS in pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness,' but to incarcerate for other reasons.
Id. at 532-33,
Justice Kennedy’s concurrence echoes the majority’s concern that while brief detention of aliens under § 1226(c) was constitutional, longer detention might not be. Id. at 530, 532-33,
Indeed, the Demore Court relied heavily on the brevity of the aliente detention even when defining the alien’s claim, repeatedly framing the issue as one involving the alien’s detention for the “limited” or “brief’ period of his removal proceedings. Demore,
Because the Demore Court focused on the brevity of the mandatory detention in finding that.such .detention was constitutional, id. at 513, 531,
By reading a reasonableness limitation into mandatory detention pursuant to § 1226(c), several-courts have found that when detention pursuant to § 1226(c) is not brief, the alien should be granted ha-beas relief in the form of a bond hearing or release fi’om detention. See Diop,
In addition, at least one panel of judges of the Fifth Circuit viewed. Zadvydas and Demore as allowing brief mandatory detention while, at the same time, doubting the' constitutionality of longer detention. Shokeh I,
The Zadvydas Court was troubled by the “potentially permanent” nature of the detention — The Supreme Court again emphasized the importance of the duration of detention in Demore v. Kim. In Kim .the Court upheld mandatory detention during removal proceedings of immigrants previously convicted of certain criminal offences, in part, because of-the ‘very limited time of the detention at stake under [the. challenged statute].’
Id. at 872.
Although Shokeh I was later vacated, it was vacated because the Government had released the alien without bond before the Fifth Circuit’s opinion was filed, rendering the case moot. Shokeh II,
5. Detention under § 1225(b) is subject to a reasonable time limitation
In addition to reasonableness limitations on § 1226(c) detention, courts have
The Ninth Circuit explained its decision to read reasonableness into several immigration detention statutes by comparing civil immigration detention with civil detention due to incompetency, stating that “the state may detain a criminal defendant found incapable of standing trial, but only for ‘the reasonable period of time necessary to determine whether there is a substantial probability that he will attain [the] capacity [to stand trial] in the foreseeable future.’ ” Rodriguez II,
This Court agrees with the circuit and district courts that have found that civil detention of aliens is subject to a reasonable time limitation. See, e.g., Diop,
A reasonable time limitation serves to alleviate the Supreme Court's concern' in Zadvydas of. overbreadth of detention. The Zadvydas Court found that preventing danger to the community was not an adequate justification for indefinite detention of aliens under § 1231 where “the provision authorizing detention does not
One of the issues with placing Petitioner in the same category as aliens who have committed crimes abroad and aliens who have entered illegally or violated the terms of their visas, is that Petitioner — like all aliens detained under § 1225(b)(2)(A) — has no way of obtaining an individualized review of his custody determination. See 8 U.S.C. .§ 1225(b)(2)(A); 8 C.F.R. § 1003.19(h)(2)(i)(B). Both the Zadvydas Court And the Demore Court explained that there are two justifications for immigration detention — (1) ensuring the ' appearance of aliens at future immigration proceedings, and- (2)-preventing danger to the community. Zadvydas,
In finding that indefinite detention without review would invoke constitutional concerns, the Zadvydas Court took into account not' only the justifications for immigration detention, but also looked to the lack of procedural protections for the aliens’ right' to be free from physical restraint.’ See
[T]he sole procedural protections available to the alien aré found in administrative proceedings, where , the alien bears the burden of. proving he .is not dangerous, without (in the Government’s view) significant later judicial .review. This Court has suggested, however, that the Constitution may well preclude granting an administrative body the un-reviewable authority to make determinations implicating fundamental rights. The Constitution demands greater procedural protection even for property. The serious constitutional problem arising out of a statute that, in these circumstances, permits an indefinite, perhaps permanent, deprivation of human liberty without any such protection is obvious.
Id. (internal citations and quotation marks omitted).
In addition, the Zadvydas Court discussed the importance of. procedural protections when explaining that civil detention based solely on dangerousness — “preventive detention” — had been upheld by the Court “only when limited to specially dangerous individuáis and subject to strong procedural protections.” Id. at 690-91,
The Zadvydas Court certainly saw this lack of individualized determination regarding the appropriateness of detention to be an issue, because the Supreme Court decided such a determination was necessary under § 1231. Id. at 701,
Yet, aliens detained under § 1225(b)(2)(A), such a Petitioner, have no such review process available to them. In fact, Petitioner does not currently have the benefit of any type of.proceedings, much less the type of proceedings now required for those detained over six months under § 1231 or for those detained pursuant to § 1226(c). See Zadvydas,
Because parole decisions under § 1182 are purely discretionary, they cannot be appealed to [Immigration Judges] orcourts. This lack of review haá proven especially problematic when immigration officers have denied parole based on blatant errors: In two separate cases identified by the petitioners, for example, officers apparently denied parole because they had confused Ethiopia with Somalia. And in a third case, an officer denied parole because he had mixed up two1 detainees’ files.'
Rodriguez II,
As .a result, the Ninth Circuit held that “the mandatory provisions of § 1225(b) simply expire at six months, at which point the government’s authority to detain the alien shifts to § 1226(a), which is discretionary and which we have already held requires a bond hearing.” Id. at 1082 (internal quotation marks omitted).
The lack of an adequate process for reviewing decisions to detain aliens has also been central to other courts’ decisions to grant habeas relief to aliens pending the determination of their removal proceedings. See, e.g., Diop,
Likewise, some courts have relied on the availability of a bond hearing in denying habeas relief. See, e.g., Contant v. Holder,
6. Petitioner’s detention is unreasonable
Now that the Court has determined that § 1225(b)(2)(A) detention is subject to a reasonable time limitation, the Court must consider whéther Petitioner’s detention of more than twenty-six months is unreasonable. Petitioner asserts that his
In addition, the Government argues that, “like the alien in Demore, the Petitioner significantly delayed his own removal proceedings by requesting numerous continuances and requesting an extension of the briefing schedule after appealing the Immigration Judge’s decision.” Resp. 6. Petitioner responds, arguing that the delay was caused by the Government’s denial of his requests for parole. Reply 10. Petitioner further argues that his requested continuances, at most, only caused “minimal delay,” and that the continuances “were based on just cause as determined by the presiding immigration judge.” Reply 11'.
The Third Circuit, in finding that the nearly three year detention of an alien was unreasonable, explained that “individual actions by various actors in the immigration system, each of which takes only a reasonable amount of time to accomplish, can nevertheless result in the detention of a removable alien for an unreasonable, and ultimately unconstitutional, period of time.” Diop,
In determining whether the twenty-six month detention of Petitioner is reasonable, the Court looks to see how courts of appeal have made determinations regarding reasonableness of the length of detention. The Ninth Circuit applied the six-month presumptive limit ón civil detention in Zadvydas to detention under § 1225(b), § 1226(a), and § 1226(c). Rodriguez II,
This Court need not decide, and indeed is in no position to decide, whether to apply a bright line reasonableness, limit of six months or whether reasonableness should be evaluated on a case-by-case ba
The “brief’ period of detention of concern in Demore lasted “roughly a month
Sitting in immigration detention for more than two years, having committed no crime in his attempt to seek asylum in this country, and without any opportunity for an individualized review of his detention by an immigration judge, the Court finds Per titioner’s detention to be prolonged. See Chen v. Aitken,
7. The appropriate remedy is a bond hearing
Now that this Court has determined that Petitioner’s twenty-six month mandatory detention pursuant to § 1225(b)(2)(A) is unreasonable, the Court must determine what remedy is appropriate. Petitioner asks this Court to direct the Government to release him from custody and to “[g]rant any additional relief that the Court deems appropriate.” Pet. 18. However, many courts have found that bond hearings — in which the Immigration Judge determines whether the alien will “pose a danger to the community or a flight risk — are appropriate habeas relief when an alien’s detention is prolonged.” See Casas-Castrillon,
Petitioner does not specifically request a bond hearing, but instead requests release from detention. Pet. 17-18. However, this Court find's that a bond hearing before an Immigration Judge is more appropriate than release in this case “to provide a minimal procedural safeguard” because an immigration judge is in a better position to conduct the sort of individualized review that is necessary to determine if Petitioner should be released during the pendency of his asylum case. See Rodriguez II,
Petitioner has been detained! Tor over twenty-six months without a bond hearing or any type of process to determine if the justifications for civil immigration detention-ensuring the appearance of aliens at future immigration proceedings and preventing danger to the community — property apply to him such that continued detention is appropriate. This Court finds that a bond hearing is the appropriate remedy in Petitioner’s case.
III. CONCLUSION
For the reasons set. forth above, Petitioner’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is GRANTED in part as follows:
1. Within twenty-one days of the date of this order, the Government shall provide Petitioner with a bond hearing before an immigration judge to consider the appropriateness of his release during the pen-dency of his immigration proceedings.
2. If a hearing is not held within twenty-one days, the Government shall release Petitioner from detention under reasonable supervision conditions.
IT IS FURTHER ORDERED that the Government’s request to dismiss as to Respondents Loretta E. Lynch, United States " Attorney General; Jeh Johnson, Secretary of United States Department of Homeland Security; and Sarah Saldana, Director of United States Immigration and Customs Enforcement" is GRANTED. The Government’s request to dismiss as to Respondent Warden Don Franklin, Warden of the West Texas Detention Facility, is DENIED.
SO ORDERED.
Notes
. “Section 240 removal proceedings” are removal proceedings conducted by an immigration judge. See 8 U.S.C § 1229(a)(1) ("An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”). “Section 240” refers to § 240 of the Immigration and Nationality Act, which is codified in 8 U.S.C. § 1229.
. "Before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), aliens ineligible to enter the country were denominated ‘excludable’ and ordered ‘deported.’ Post-IIRIRA, such' aliens are said to be ‘inadmissible’ and held to be ‘removable.’ ” Clark v. Martinez,
. Another difference between the aliens- in Zadvydas and Petitioner is that the aliens in Zadvydas were not eligible for any type of relief from removal; as stated earlier, the Zad-vydas aliens were subject to final orders of removal. See Zadvydas,
Further, .is it noteworthy that an arriving alien who has no possible relief from removal could be released from detention much more quickly than an arriving alien with a successful asylum claim. An arriving alien who was clearly ineligible for any sort of relief from removal, could undergo expedited removal and quickly enter the pos.t-remoyal-order period of detention. Under Zadvydas, after the expiration of six months in the post-removal-order period, this person would receive an individualized determination regarding the appropriateness of continued detention and could, depending on the result of this determination, be released, despite that alien’s ineligibility for any type of relief ;from removal. See id. at 701,
. - Pursuant to § 1225(b)(2)(A), aliens with no criminal history are placed in the same man- ' datory detention category, simply due to their arrival at a port of entry, as aliens who are detained due to their criminal acts; for example, certain resident aliens are considered arriving aliens due to illegal activity that they committed abroad and are detained pursuant to § 1225(b)(2)(A), See Rodriguez I,
. Interestingly, had Petitioner illegally entered the United States prior to applying for asylum, he would not be classified as an arriving alien subject to § 1225(b)(2)(A) detention because he would not be "coming or attempting to come into the United States at a port-of-entry.” 8 C.F.R. § 1001.l(q); see also In Re X-K- 23 I. & N. Dec. 731, 732-33, 36 (BIA 2005) (holding that “certain other aliens”— those "who are encountered by an immigration officer within 100 air miles of any U.S. international land border, and who have not established to the satisfaction of an immigration officer that they have been physically present in the U.S. continuously for the 14-day period immediately prior to the date of ' encounter” — can have a bond hearing before an immigration judge). Instead, had Petitioner illegally entered or overstayed a visa prior to seeking asylum, he would be detained pursuant to § 1226(a), and he would be entitled to a bond hearing before an immigration judge. See 8 U.S.C. § 1226(a) (explaining that the Attorney General may release on bond or parole aliens held under this provision); see also, e.g., Nepomuceno v. Holder, No. CIV. 11-6825 WJM,