United States District Court, D. Maryland
K. Bredar, United States District Judge
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.
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.
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.
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.
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.
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.
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. Additional charges, including
first-degree assault and reckless endangerment, were placed
on the stet docket. See State of Maryland v.
Rodriguez-Arias, Case No. 3-D-00318447 (Dist. Ct. Mont.
Co.). 5-1 at p. 3-9.
November of 2015, Rodriquez-Arias ignored a protective order
issued by the Montgomery County District Court, and again
assaulted the mother of his child. 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.).
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.
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.
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. § 1101(a)(47)(B).
Rodriguez-Arias is exercising the first option and is
appealing the IJ's decision before the ...