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Rodriguez-Arias v. Bounds

United States District Court, D. Maryland

September 25, 2017

EDUARDO RODRIGUEZ-ARIAS, A# 206-013-117, Petitioner
v.
WARDEN DONNA BOUNDS, [1]Respondent

          MEMORANDUM

          James K. Bredar, United States District Judge

         Petitioner Eduardo Rodriguez-Arias, a citizen of El Salvador, filed this habeas action pursuant to 28 U.S.C. § 2241, challenging his detention in immigration custody pending completion of proceedings seeking his removal from this country. Rodriguez-Arias seeks immediate release and argues the length of his detention surpasses the presumptively reasonable period of time for detention pending removal under Demore v. Kim, 538 U.S. 510 (2003). ECF 1; ECF 3.[2]

         Respondent, the Warden of the Worcester County Detention Center, through counsel, argues that Rodriquez-Arias has received all the due process and relief to which he is entitled. He seeks dismissal of the petition for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. ECF 5. Rodriquez-Arias has filed an opposition response to the motion (ECF 6), and respondent has filed a reply. ECF 7. Additionally, Rodriguez-Arias argues in his Motion to Renew Habeas Corpus that he is entitled to a ―reasonable bond hearing.- ECF 8.[3]

         A hearing is not needed to resolve the case. See Loc. Rule 105.6 (D. Md. 2016). For reasons stated herein, the petition is DENIED and DISMISSED without prejudice and the motion for a bond hearing is DENIED.

         Background

         The following facts are uncontested. Rodriguez-Arias entered the United States illegally in 2005, and is now the subject of removal proceedings pursuant to § 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA). ECF 5-2; ECF 5-3.

         Rodriguez-Arias was convicted in 2013 in Montgomery County, Maryland, for driving under the influence (DUI) while transporting a minor, for which he received six months of probation. ECF 5-5 at p. 4. He later was arrested in Montgomery County in a separate DUI offense. Id. On March 10, 2014, Rodriquez-Arias was taken into custody by Immigration Customs Enforcement (ICE) personnel and held at the Worcester County Detention Center. ECF 5-3 at p. 2; ECF 5-5 at p. 3. He was released by an Immigration Judge (IJ) on $5, 000.00 bond on April 2, 2014. ECF 5-4 at p. 2.

         While held in ICE custody, Rodriguez-Arias was unable to appear at the hearing for his second DUI arrest. On March 27, 2014, a warrant was issued for failure to appear. On July 11, 2014, he was convicted of DUI and sentenced to 60 days of incarceration with 52 days suspended. He failed to report to his probation officer as required under the terms of his first DUI conviction, and in June of 2014 a violation of probation warrant was issued. He appeared at the parole and probation office on July 17, 2014, where he was arrested and detained by ICE based on his second DUI conviction and because he had been charged with assault on the mother of his child. On August 11, 2014, he was released on $10, 000.00 bond by an IJ. ECF 5-7 at p. 5; ECF 5-6 at p. 2.

         On September 25, 2014, Rodriguez-Arias pleaded guilty to second-degree assault in the District Court for Montgomery County, Maryland, and was sentenced to five years, with four years and 180 days suspended.[4] Additional charges, including first-degree assault and reckless endangerment, were placed on the stet docket.[5] See State of Maryland v. Rodriguez-Arias, Case No. 3-D-00318447 (Dist. Ct. Mont. Co.).[6] 5-1 at p. 3-9.

         In November of 2015, Rodriquez-Arias ignored a protective order issued by the Montgomery County District Court, and again assaulted the mother of his child.[7] Based on his criminal conduct and gang involvement, ICE determined that Rodriquez-Arias was a serious threat to public safety, and on January 28, 2016, recommended that his bond be revoked. ECF 5-7 at p. 5. He was taken into custody that same day and waived his right to appear before an IJ on the custody determination, effectively withdrawing his request for a bond hearing pending the completion of removal proceedings. Id. at p. 6. On March 9, 2016, he pleaded guilty in Montgomery County Circuit Court to second-degree assault/domestic related, and was sentenced to 722 days of incarceration, with all but 60 days suspended and continuance on probation. See State v. Rodriguez-Arias, Case No. 125895-C (Mont. Co. Cir. Ct.).

         On May 16, 2016, the IJ denied all applications for relief from removal and ordered Rodriguez-Arias removed from the United States to El Salvador. ECF 5-2. Rodriguez-Arias's counseled appeal to the Board of Immigration Appeal (―BIA-) of the removal order was remanded to the IJ to address his argument regarding his former membership in a criminal gang in the United States as support for withholding removal. ECF 5-9.

         On remand, the IJ again denied all applications for relief from removal. ECF 5-10. Rodriguez-Arias's appeal of that removal order remains pending before the BIA. ECF 5-11.

         Analysis

         Administrative review of a removal order becomes final either (1) upon a determination by the BIA affirming the IJ's order of removal, or (2) after expiration of the period during which the alien is permitted to seek review of an order of removal by the BIA. See 8 U.S.C. ยง 1101(a)(47)(B). Rodriguez-Arias is exercising the first option and is appealing the IJ's decision before the ...


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