United States District Court, E.D. Virginia, Alexandria Division
ROGELIO AMILCAR CABRERA DIAZ, et al. on Behalf of Themselves and All Others Similarly Situated, Petitioners,
RUSSELL HOTT, Field Office Director, U.S. Immigration and Customs Enforcement, et al., Respondents.
M. Brinkema, United States District Judge
the Court is petitioners' Motion to Certify Class [Dkt.
No. 11] and Motion for Summary Judgment [Dkt. No. 16] as well
as respondents' Motion for Summary Judgment [Dkt. No.
21]. For the reasons that follow, petitioners' motions
will be granted and respondents' motion will be denied.
Rogelio Amilcar Cabrera Diaz ("Cabrera Diaz"),
Jennry Francisco Moran Barrera ("Moran Barrera"),
and Rodolfo Eduardo Rivera Flamenco ("Rivera
Flamenco") (collectively, "petitioners") have
filed a class action habeas corpus petition pursuant to 28
U.S.C. § 2241, seeking class action certification and an
order directing respondents Russell Hott ("Hott"),
the Field Office Director for U.S. Immigration and Customs
Enforcement ("ICE"), and Jefferson B. Sessions, III
("Sessions"), the Attorney General of the United
States of America, (collectively, "respondents") to
grant the class members bond hearings.
relevant facts are simple and undisputed. Each individual
petitioner has been removed from the United States under an
order of removal. Second Am. Pet. for Writ of Habeas Corpus
[Dkt. No. 4] ¶¶ 13, 19, 23. When each petitioner
returned to his native country (two of the petitioners are
from El Salvador and one is from Honduras), he received death
threats. Id. ¶¶ 14, 20, 24. As a result,
each petitioner returned to the United States without
permission from the appropriate authorities. Id.
¶¶ 15, 20, 25. Each petitioner has been issued a
Notice of Intent/Decision to Reinstate Prior Order, which
reinstated the prior order of removal and rendered him
deportable, and each has been detained by ICE at Immigration
Centers of America- Farmville (in Farmville, Virginia) since
such issuance. Id. ¶¶ 17, 21-22, 25. Each
petitioner has expressed a fear of returning to his native
country and, after either an asylum officer or an immigration
judge ("IJ") determined that he had a reasonable
fear of persecution or torture, he was placed in
withholding-only proceedings, which remain pending.
Id. ¶¶ 18, 22, 26.
believe that they, and other detainees who are similarly in
withholding-only proceedings, are entitled under the
Immigration and Nationality Act ("INA") to bond
hearings, because they believe that 8 U.S.C. § 1226, not
8 U.S.C. § 1231, provides the source of authority for
their detention. Id. ¶¶ 41-44. This Court
has agreed. See Romero v. Evans, F.Supp.3d, No.
1:17-cv-754, 2017 WL 5560659 (E.D. Va. Nov. 17, 2017).
Accordingly, petitioners seek to represent a class of all
who are in 'withholding-only proceedings, having
established a reasonable fear of persecution or torture, and
such proceedings are not administratively final, or if final,
a stay of removal has been granted by a U.S. Court of
who, as of the time of filing the initial pleading in this
case or at any time thereafter, are detained by, or on the
authority of, U.S. Immigration and Customs Enforcement,
within the state of Virginia.
Id. ¶ 47. Respondents disagree that class
certification is appropriate and that petitioners are being
held pursuant to § 1226. Accordingly, petitioners have
filed a Motion for Class Certification [Dkt. No. 11] and each
party has filed a Motion for Summary Judgment [Dkt. Nos.
Standard of Review
is entitled to summary judgment if the party can show
"that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). A genuine dispute of material
fact exists "if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In general, bare allegations or assertions by the
nonmoving party are not sufficient to generate a genuine
dispute; instead, the nonmoving party must produce
"significantly probative" evidence to avoid summary
judgment. Abcor Corp. v. AM Int'l. Inc., 916
F.2d 924, 929-30 (4th Cir. 1990) (quoting Anderson,
477 U.S. at 242). That being said, in ruling on a motion for
summary judgment, a court should accept the evidence of the
nonmovant, and all justifiable inferences must be drawn in
her favor. Anderson, 477 U.S. at 255.
certification is appropriate under Fed.R.Civ.P. 23 if
petitioners can show that there are sufficiently numerous
parties ("numerosity"); there are questions of law
or fact common to the class ("commonality"); the
claims or defenses of the named petitioners are typical of
the claims or defenses of the class ("typicality");
and the named petitioners will fairly and adequately protect
the interests of the class ("adequacy"). In
addition, a proposed class must qualify under Rule 23(b)(1),
(2), or (3). Petitioners seek certification under Rule
23(b)(2), which permits certification where "the party
opposing the class has acted or refused to act on grounds
that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole." Fed.R.Civ.P. 23(b)(2).
parties agree, all relevant facts in this action are
undisputed and the resolution of the habeas petition turns on
a pure question of law: whether ICE's authority to detain
petitioners arises from 8 U.S.C. § 1226, as petitioners
contend, or 8 U.S.C. § 1231, as respondents contend. If
petitioners are held under § 1226, they are entitled to
a bond hearing under § 1226(a) unless the government
determines that they are criminal aliens subject to mandatory
detention under § 1226(c). If petitioners are held under
§ 1231, they are subject to mandatory detention without
a bond hearing. Petitioners rely on an opinion from this
Court, as well as a Second Circuit opinion, holding that
aliens in petitioners' position are detained under §
1226 and are entitled to bond hearings. See Romero,
__ F.Supp.3d__, 2017 WL 5560659, appeal pending. No.
18-6086 (4th Cir.); see also Guerra v. Shanahan. 831
F.3d 59 (2d Cir. 2016). Respondents rely on Ninth Circuit and
Eastern District of Virginia decisions holding that detainees
in petitioners' position are detained under § 1231
and are not entitled to bond hearings. See
Padilla-Ramirez v. Bible, 862 F.3d 881 (9th Cir.
2017); Crespin v. Evans. 256 F.Supp.3d 641, No.
1:17-cv-140, 2017 WL 2385330 (E.D. Va. May 31, 2017),
appeal dismissed as moot. No. 17-6835 (4th Cir. Feb.
context of petitioners' detention and the legal claims
raised by both parties involve the nature of reinstated final
removal orders and the effect of withholding-only proceedings
on those orders, as well as the statutes governing detention
during and after removal proceedings.
Reinstated Removal Orders and Withholding-Only
an alien who has been ordered removed from the United States
and has either been removed or departed voluntarily under the
order of removal illegally reenters the country, the original
order of removal "is reinstated from its original
date." 8 U.S.C. § 1231(a)(5). Such an order
"is not subject to being reopened or reviewed" and
the alien "may not apply for any relief from that order
under the INA. See Id. In general, this provision
"forecloses discretionary relief from the terms of the
reinstated order, " Fernandez-Vargas v.
Gonzales,548 U.S. 30, 35 (2006); however, there is one
exception to this rule. Congress has provided, consistent
with the United States's obligations under international
law, that the Attorney General may not remove an alien to a
country where the alien's life or freedom would be
threatened. See 8 U.S.C. § 1231(b)(3).This restriction
applies even to aliens with reinstated removal orders. ...