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Obando-Segura v. Sessions

United States District Court, D. Maryland

September 14, 2018

JOSE ANDRES OBANDO-SEGURA, [1] Petitioner,
v.
JEFFERSON B. SESSIONS, et al., [2] Respondents.

          MEMORANDUM OPINION

          George L. Russell, III United States District Judge.

         THIS MATTER is before the Court on Respondents Jefferson B. Sessions, Kirstjen M. Nielsen, [3] Thomas D. Homan, Dorothy Herrera-Niles, Charles Lee, and Donna Bounds' Response to the Court's November 6, 2017 Show Cause Order and Motion to Dismiss (ECF No. 6). Petitioner Jose Andres Obando-Segura challenges his detention under 8 U.S.C. § 1226(c) (2018) by the U.S. Department of Homeland Security (“DHS”), Immigration and Customs Enforcement (“ICE”). The Motion is ripe for disposition, and no hearing is necessary at this time. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts (Feb. 1, 2010)[4] and Local Rule 105.6 (D.Md. 2016); see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (Petitioner is not entitled to a hearing under 28 U.S.C. § 2254(e)(2)). For the reasons set forth more fully below, the Court will deny without prejudice Respondents' Motion and require the parties to submit supplemental briefs and supplement the record.

         I. BACKGROUND

         Obando-Segura has been detained at the Worcester County Detention Center in Snow Hill, Maryland since December 7, 2016, pending removal from this country to Colombia, where he is a citizen. (Pet. Writ Habeas Corpus [“Pet.”] at 2-3, ECF No. 1). In 2001, Obando-Segura arrived in the United States, along with his parents, on a B-2 Tourist Visa, along with his parents. (Id. at 4; Resp. Order Show Cause & Mem. Supp. Mot. Dismiss [“Resp.”] Ex. A at 3, ECF No. 6-1). He was eleven years old at the time of his arrival. (Pet. at 4). His parents overstayed their visas, and Obando-Segura never became a citizen of the United States. (See id.).

         On August 19, 2008, Obando-Segura was convicted of “sell/furnish/etc. marijuana/hash, ” in violation of California law. (See Resp. Ex. A at 3; id. Ex. B at 2, ECF No. 6-1). He was sentenced to serve four years in a California state prison. (See Resp. Ex. A at 3; id. Ex. B at 2).

         DHS commenced removal proceedings against Obando-Segura on August 31, 2012. (Resp. Ex. A at 3). DHS asserted that Obando-Segura was “removable” under the Immigration and Nationality Act (“INA”) § 237(a)(2)(B)(i), alien convicted of a controlled substance violation, and § 237(a)(1)(B), alien who remained in the United States longer than permitted. (Resp. Ex. A at 3). On September 9, 2012, DHS notified Obando-Segura that he would be detained pending an Immigration Judge's (“IJ”) determination of his removability. (Resp. Ex. C, ECF No. 6-1).

         On October 11, 2012, an IJ in Florence, Arizona found Obando-Segura removable based on his admission that he was not a citizen of the United States, had overstayed his visa, and had been convicted of a controlled substance offense in 2008. (Resp. Ex. B at 2, 4). The IJ further concluded that Obando-Segura was ineligible for cancellation of removal. (Id.). The IJ ordered Obando-Segura removed to Colombia. (Id. at 5). Obando-Segura appealed to Board of Immigration Appeals (“BIA”). (See Resp. Ex. G, ECF No. 6-1).

         On February 7, 2013, the BIA dismissed Obando-Segura's appeal and denied his motion to remand the proceedings. (Resp. Ex. G, ECF No. 6-1). The BIA observed that the IJ's finding that DHS had met its burden of proof was without error because Obando-Segura admitted that “he was convicted and found guilty” on August 19, 2008, of a controlled substance offense under California law for which he was sentenced to four year's imprisonment. (Id. at 2). Additionally, the IJ's conclusion that Obando-Segura did not fall within the exception to removability for persons convicted of an offense involving possession for one's own use of 30 grams or less of marijuana was correct. (Id. at 3). Obando-Segura was also unable to establish that he was eligible for lawful permanent residence, making him ineligible for cancellation of the removal order. (Id.). Obando-Segura appealed to the United States Court of Appeals for the Ninth Circuit. (See Resp. Ex. K at 1, ECF No. 6-1).

         On March 26, 2013, ICE reviewed Obando-Segura's detention while his appeal was pending with the Ninth Circuit. (See Resp. Ex. E at 1, ECF No. 6-1). ICE determined that Obando-Segura would remain detained because, “[b]ased on [his] criminal history, ” he “failed to establish that [he is] not a danger to the community or a flight risk.” (Id. at 2). ICE further noted that if Obando-Segura's appeal to the Ninth Circuit was unsuccessful, his “removal is reasonably foreseeable in that ICE is able to effectuate removals to Colombia, and there are no known impediments to removal at this time.” (Id.).

         On August 19, 2013, the BIA denied as untimely Obando-Segura's motion to reopen proceedings for purposes of pursuing asylum. (Resp. Ex. H at 2, ECF No. 6-1). The BIA also found that Obando-Segura had not satisfied his heavy burden of establishing a material change in circumstances in Colombia regarding treatment of homosexuals such that his safety would be in jeopardy, which would have excused the untimeliness of his motion and entitled him to review. (Id.). Further, Obando-Segura had not raised an asylum claim in prior proceedings, despite the opportunity to do so. (Id.).

         On June 5, 2014, the BIA denied Obando-Segura's second motion to reopen proceedings as both untimely and “number-barred.”[5] (Resp. Ex. I at 2, ECF No. 6-1). The BIA further observed that it would have denied the motion even if it were not otherwise barred because it represented Obando-Segura's attempt to revisit previously rejected arguments. (Id.). Moreover, the record “refutes the . . . allegation that the IJ failed to permit [Obando-Segura] to apply for asylum or other related relief from removal.” (Id.). On August 22, 2014, the BIA denied Obando-Segura's motion to reconsider its decision on his motion to reopen proceedings and concluded that no errors of fact or law were made in the previous decision. (Resp. Ex. J at 2, ECF No. 6-1).

         On October 28, 2014, an IJ issued an order requiring Obando-Segura's release from immigration detention on $20, 000.00 bond. (Resp. Ex. F, ECF No. 6-1). Obando-Segura posted bond and was released after being detained for more than two years. (Id.).

         On August 25, 2014, the Ninth Circuit remanded Obando-Segura's case on the government's unopposed motion to remand, resulting in the BIA's February 10, 2015 review of his case. (Resp. Ex. K at 2). The BIA remanded proceedings to an IJ to allow for consideration of Obando-Segura's potential eligibility for relief from the order of removal. (Id.). The BIA instructed that “[o]n remand, the parties should have the opportunity to update the evidentiary record.” (Id. at 3). Specifically, Obando-Segura was permitted to submit updated applications for relief, including one for asylum, and DHS was permitted to amend its notice to appear to include additional criminal convictions that made Obando-Segura removable. (Id.)

         On February 23, 2015, DHS moved to change the venue of proceedings from Arizona to Baltimore, Maryland where Obando-Segura was then located. (Resp. Ex. L, ECF No. 6-1). The next day, ...


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