United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. Perez-Montes, United States Magistrate Judge.
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).
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.
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).
Law and Analysis
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.
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. §
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
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.
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.
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.
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 ...