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Our Immigration Law Blog

By The Grotas Firm, PC

Is an Immigrant in Reinstatement of Removal Proceedings Subject to Mandatory Detention?

Flores Guerrero v. Aviles

Nery Flores Guerrero was seeking a form of relief called withholding of removal. Immigration and Customs Enforcement (ICE) said that he could be released from jail while a determination was made as to whether he would be deported or granted withholding of removal.

Guerrero is a citizen of Honduras.   In November 1999, an Immigration Judge in Texas ordered him removed to Honduras, and the next month Guerrero was physically removed to Honduras.  Upon his return to Honduras, his life was threatened. As a result, he re-entered the United States. ICE arrested him and refused to release him. Guerrero applied for withholding of removal.

Although an immigrant who re-enters after being deported is expedited removed, there is an exception.  Section 241.8(e) creates an exception to the expedited removal of previously deported immigrants by which an alien who expresses a fear of returning to the country designated in his reinstated removal order is “immediately” referred to an asylum officer, who must determine if the alien has “a reasonable fear” of returning to the country designated in the reinstated order, in accordance with 8 C.F.R. § 208.31.  In these cases, the matter is referred to an asylum officer and then to an Immigration Judge.

This office filed a writ of habeas corpus arguing that Guerrero can be released from jail   because the order of removal was not “administratively final.”  The question in this case was whether Guerrero’s reinstated order of removal to Honduras is administratively final where the Immigration Judge has scheduled a hearing to determine whether  to withhold Guerrero’s removal to Honduras.

Simply put, if the order of removal is administratively final then, Mr. Guerrero has not opportunity to get out of jail. If the order of removal is not administratively final, Mr. Guerrero is eligible for a bond. The removal period, and the six-month presumptively reasonable period of detention under § 1231(a)(6), do not begin until “the order of removal becomes administratively final.”   8 U.S.C. § 1231(a)(1)(B)(i).   Second, courts of appeals have jurisdiction to review orders of removal only where the orders are final (and the alien has exhausted all available administrative remedies).   See 8 U.S.C. § 1252(b)(9) (“Judicial review of all questions of law and fact . . . arising from any action taken or proceeding brought to remove an alien from the United States under this subchapter shall be available only in judicial review of a final order under this section.”); 8 U.S.C. § 1252(d) (“A court [of appeals] may review a final order of removal only if –(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order . . .”).

The District Court Judge cited to the long string of the Circuit Court of Appeals cases which held that an order of removal is not administratively final until the Immigration Judge determined the immigrants application for relief and the Board of Immigration Appeals has ruled on any appeal. Decision at 14.These citations are reinforced by the logic that that a Circuit Court of Appeals can not review a decision until it is final.  Why should the situation be different if an immigrant is in withholding of removal proceedings?

The District Court ruled that the order of removal is not final and the immigrants custody is under 1226(a) and he is entitled to a bond hearing.

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