United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Respondents Jefferson B.
Sessions, Kirstjen M. Nielsen,  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) 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.
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.
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).
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.
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).
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).
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.).
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.).
5, 2014, the BIA denied Obando-Segura's second motion to
reopen proceedings as both untimely and
“number-barred.” (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).
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.).
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
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, ...