Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cabello-Herrera v. Warden, Lasalle Detention Center

United States District Court, W.D. Louisiana, Alexandria Division

February 21, 2018

JOHN CABELLO-HERRERA
v.
WARDEN, LASALLE CORRECTIONAL CENTER

          DRELL, JUDGE.

          REPORT AND RECOMMENDATION

          Joseph H.L. Perez-Montes, United States Magistrate Judge.

         I. Background

         John Cabello-Herrera (“Cabello-Herrera”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, alleging detention for more than six months pending removal and seeking pre-removal release pursuant to Zadvydas v. Davis, 533 U.S. 678 (2001).

         Cabello-Herrera is a native of Venezuela and a “permanent resident” of Canada. He illegally reentered the United States on about August 10, 2015, after having been twice removed (on October 26, 2005 and July 14, 2011) pursuant to a prior order of removal (Doc. 12). Cabello-Herrera has been detained since August 10, 2015.

         Cabello-Herrera claimed fear of returning to Venezuela and filed an application for deferral of removal. His case was referred to an immigration judge (Doc. 12). Decisions to continue Cabello-Herrera's detention were issued in June 2016, July 2016, and February 2017, while his application for deferral of removal was considered (Doc. 12-6, 12-8, 12-9). In March 2017, Cabello-Herrera's application for deferral of removal was denied, and he waived his right to appeal (Doc. 12). A travel document to Venezuela was requested in March 2017 (Docs. 12, 13).

         II. Law and Analysis

         Respondents answered Cabello-Herrera's petition (Doc. 12), showing through documentary evidence that his removal was delayed due to review of his claim of fear of returning to Venezuela.

         Cabello-Herrera filed his habeas petition prematurely, before a ruling had been issued on his application for deferral of removal due to fear. A final order of removal, pursuant to which an alien was previously removed, is reinstated after the alien illegally reenters the country. See 8 U.S.C. § 1231(a)(5); 8 C.F.R. § 241.8(a). An alien subject to a reinstated removal order is detained pursuant to § 1231, regardless of whether the alien has initiated reasonable fear proceedings. The regulations provide that a removal order may not be executed while withholding of removal and reasonable fear proceedings are pending. See 8 C.F.R. § 241.8(e).

         A decision was issued on Cabello-Herrera's reasonable fear proceeding in March 2017, and he declined to appeal. Cabello-Herrera's removal order became executable in March 2017.

         Although the INS has 90 days to remove an alien after he is ordered removed, 8 U.S.C. § 1231(a)(1)(A), the Supreme Court has held that § 1231 permits the detention of beyond 90 days, for a period reasonably necessary to bring about that alien's removal from the United States. Pursuant to Zadvydas, detention for up to six months after the removal order becomes final is presumptively reasonable. Zadvydas v. Davis, 533 U.S. at 701.

         After six months, however, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. Zadvydas, 533 U.S. at 701.

         Cabello-Herrera contends there is no significant likelihood that he will be removed in the reasonably foreseeable future, but has not offered any facts or evidence to support that contention. Cabello-Herrera's conclusory statement is inadequate to meet his burden of proof. See Andrade v. Gonzales, 459 F.3d 538, 543-44 (5th Cir. 2006), cert. den., 549 U.S. 1132 (2007).

         Cabello-Herrera also alleges he has been denied due process because he has not been afforded a detention hearing. However, he has been afforded periodic reviews of his custody status (Docs. 1, 11). Cabello-Herrera is not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.