Alvarado v. Wamsley

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 JOSE ALVARADO, CASE NO. 2:25-cv-02375-DGE 11 Petitioner, ORDER GRANTING PETITION 12 v. FOR WRIT OF HABEAS CORPUS (DKT. NO. 1) BY ORDERING A 13 CAMMILLA WAMSLEY, et al., REASONABLE FEAR DETERMINATION 14 Respondents. 15

Petitioner Jose Alvarado filed an emergency petition for habeas corpus, seeking to enjoin 16 Respondents from removing him until the Board of Immigration Appeals (“BIA”) ruled on his 17 motion to reopen and Respondents provided him with a reasonable fear determination. (Dkt. No 18 1.) The Court temporarily stayed his removal pending briefing on the issues raised in his habeas 19 petition. (Dkt. Nos. 3, 16.) Respondents filed a return memorandum, arguing that Petitioner’s 20 detention is statutorily authorized and the Court lacks jurisdiction to stay his removal. (Dkt. No. 21 17.) Having reviewed the petition (Dkt. No. 1), the return memorandum (Dkt. No. 17) and 22 supplemental memorandum (Dkt. No. 20), the reply (Dkt. No. 24), and all supporting materials, 23 24 1 the Court GRANTS Petitioner’s writ of habeas corpus by ordering a reasonable fear 2 determination. 3 I BACKGROUND 4 A. Factual Background

5 Petitioner, a citizen of Mexico, entered the United States without inspection on March 20, 6 1987. (Dkt. No. 19-2 at 2.) On June 18, 1996, Petitioner was issued an order to show cause and 7 notice of hearing. (Id. at 2–6.) On August 16, 1996, an immigration judge ordered Petitioner 8 removed in absentia. (Dkt. Nos. 19-1 at 4; 19-3 at 2.) Petitioner filed an appeal with the BIA, 9 which was denied on February 24, 1997. (Dkt. No. 19-1 at 4.) 10 On January 29, 2010, Petitioner surrendered to Immigration and Customs Enforcement 11 (“ICE”) due to an outstanding warrant. (Dkt. No. 19-1 at 4.) On March 26, 2010, Petitioner 12 filed a motion to reopen with the Seattle Executive Office for Immigration Review. (Id.) An 13 immigration judge denied the motion to reopen on April 22, 2010. (Id.) The BIA dismissed 14 Petitioner’s subsequent appeal on July 18, 2011. (Id.; Dkt. No. 19-4 at 3.) On August 21, 2017,

15 Petitioner applied for an I-246 stay of deportation. (Dkt. No. 19-1 at 4.) On June 24, 2019, 16 Petitioner submitted an I-485 application to register permanent residence or adjust status to 17 United States Citizenship and Immigration Services (“USCIS”). (Dkt. No. 19-5 at 2.) On 18 February 7, 2020, USCIS denied Petitioner’s I-485 application because he “was deported from 19 the United States and [he was] not inspected, admitted, or paroled when [he] reentered the 20 United States.” (Id.) On August 1, 2025, USCIS denied Petitioner’s I-246 stay of deportation 21 application. (Dkt. Nos. 19-1 at 4; 19-6 at 2.) 22 On September 2, 2025, Petitioner filed a motion to reopen BIA jurisdiction. (Dkt. Nos. 23 1-4 at 3; 18 at 2.) On September 5, 2025, ICE arrested Petitioner after he reported to the Yakima

24 1 ICE office. (Dkt. No. 18 at 2.) Petitioner was subsequently transferred to the Northwest ICE 2 Processing Center (“NWIPC”), where he remains today. (Id.) While at NWIPC, Petitioner 3 informed ICE that he fears removal to Mexico. (Id.) On November 5, 2025, Petitioner’s counsel 4 emailed ICE Enforcement and Removal Operations (“ERO”) stating Petitioner was awaiting a

5 reasonable fear interview. (Id.) On November 21, 2025, USCIS “informed ERO that Petitioner 6 was not eligible for a credible fear referral because Petitioner had gone through immigration 7 court and a BIA appeal was pending and form I-246 Application for a Stay of Deportation or 8 Removal was denied.” (Id.) On November 28, 2025, Petitioner’s counsel again informed ERO 9 that Petitioner was requesting a reasonable fear interview. (Id.) Between December 10, 2025 10 and December 30, 2025, USCIS provided inconsistent information to ERO as to whether it 11 believed it had jurisdiction to schedule Petitioner for a reasonable fear determination. On 12 December 10, 2025, USCIS informed ERO that Petitioner could not be referred for a fear 13 interview until after the BIA had ruled on the motion to reopen “because the BIA has 14 jurisdiction.” (Id. at 3.) On December 23, 2025, “USCIS stated that after reviewing the

15 procedural history of the case that USCIS would have jurisdiction over a credible fear referral 16 and interview.” (Id.) USCIS concluded on December 30, 2025 that it is unable to accept 17 jurisdiction because Petitioner has a pending motion to reopen before the BIA. (Dkt. No. 21 at 18 2.) 19 B. Procedural Background 20 On November 24, 2025, Petitioner filed an emergency petition for writ of habeas corpus, 21 motion for temporary restraining order (“TRO”), and motion for stay of removal. (Dkt. No. 1.) 22 The Court provisionally granted Petitioner’s TRO and ordered Petitioner to serve process on 23 Respondents. (Dkt. No. 2.) On December 11, 2025, the parties requested expedited briefing on

24 1 the petition, and filed a stipulated motion that Respondents would not effectuate Petitioner’s 2 removal during the pendency of the action. (Dkt. No. 15.) The Court granted the motion. (Dkt. 3 No. 16.) Respondents filed a return memorandum on December 30, 2025. (Dkt. No. 17.) On 4 January 4, 2026, Respondents filed a supplement to their return memorandum. (Dkt. No. 20.)

5 Petitioner filed a response on February 5, 2026. (Dkt. No. 24.) The Court held oral argument on 6 February 17, 2026. (See Dkt. No. 25.) 7 II LEGAL STANDARD 8 A writ of habeas corpus is “available to every individual detained within the United 9 States.” Hamdi v. Rumsfeld, 542 U.S. 507, 525 (2004) (citing U.S. CONST., Art. I, § 9, cl. 2). To 10 succeed on his habeas petition, Petitioner “must show [he] is in custody in violation of the 11 Constitution or laws or treaties of the United States.” Doe v. Bostock, No. C24-0326-JLR-SKV, 12 2024 WL 3291033, at *5 (W.D. Wash. Mar. 29, 2024), report and recommendation adopted, No. 13 C24-0326JLR-SKV, 2024 WL 2861675 (W.D. Wash. June 6, 2024) (citing 28 U.S.C. § 2241). 14 Because habeas proceedings are civil in nature, the “[p]etitioner ‘bears the burden of proving that

15 he is being held contrary to law, . . . [and] he must satisfy his burden of proof by a preponderance 16 of the evidence.’” Aditya W. H. v. Trump, 782 F. Supp. 3d 691, 703 (D. Minn. May 14, 2025) 17 (quoting Freeman v. Pullen, 658 F. Supp. 3d 53, 58 (D. Conn. 2023) (citations omitted)). 18 III ANALYSIS 19 A. Petitioner’s Current Detention is Authorized by 8 U.S.C. § 1231(a) 20 Petitioner requests a stay of removal so he has “time to present and adjudicate” his 21 motion to reopen BIA proceedings. (Dkt. No. 1 at 6.) Pursuant to 8 U.S.C. § 1231(a), the 22 Attorney General is required to detain a noncitizen during the “removal period.” 8 U.S.C. 23 § 1231(a)(2)(A). The removal period is the 90-day period that begins on the latest of the

24 1 following: (i) the date the order of removal becomes administratively final; (ii) if the removal 2 order is judicially reviewed and if a court orders a stay of the removal of the noncitizen, the date 3 of the court’s final order; or (iii) if the noncitizen is detained or confined (except under an 4 immigration process), the date the noncitizen is released from detention or confinement. 8

5 U.S.C. § 1231(a)(1)(A)–(B). Here, ICE denied Petitioner’s stay of deportation application on 6 August 1, 2025. (Dkt. No. 19-6 at 2.) Petitioner’s 90-day removal period thus expired on or 7 about November 1, 2025. 8 Following the expiration of the removal period, the Attorney General has the 9 discretionary authority to detain certain noncitizens, including noncitizens like Petitioner who are 10 ordered removed pursuant to 8 U.S.C. § 1182. 8 U.S.C. § 1231(a)(6) (“An alien ordered removed 11 who is inadmissible under section 1182 of this title . . . may be detained beyond the removal 12 period....”). But the Supreme Court has held that the Immigration and Nationality Act does not 13 authorize “indefinite, perhaps permanent, detention” of noncitizens subject to final orders of 14 removal. Zadvydas v. Davis, 533 U.S. 678, 699 (2001). As the Zadvydas Court recognized, “[a]

15 statute permitting indefinite detention of an alien would raise a serious constitutional problem 16 [under] . . . [t]he Fifth Amendment’s Due Process Clause.” Id. at 690. “Freedom from 17 imprisonment—from government custody, detention, or other forms of physical restraint—lies at 18 the heart of the liberty that [the Due Process] Clause protects.” Id. The Zadvydas Court 19 concluded, “once removal is no longer reasonably foreseeable, continued detention is no longer 20 authorized by statute.” Id. at 699. The “presumptively reasonable” period for detention 21 following a removal order is six months. Id. at 701. 22 23

24 1 Petitioner entered ICE custody on September 5, 2025; thus, the six-month presumptively 2 reasonable period will not expire until March 5, 2025. Petitioner’s detention therefore is lawful.1 3 See Zadvydas, 533 U.S. at 701. Should Petitioner’s detention continue past the six-month 4 presumptively reasonable period, he may file a new habeas petition and obtain review.

5 B. The Court Lacks Jurisdiction Over Petitioner’s Request to Stay 6 Per 8 U.S.C. § 1252(g), “no court shall have jurisdiction to hear any cause or claim by or 7 on behalf of any alien arising from the decision or action by the Attorney General to commence 8 proceedings, adjudicate cases, or execute removal orders against any alien.” 8 U.S.C. § 1252(g) 9 (emphasis added). The Supreme Court has construed § 1252(g) to apply only to those three 10 specified actions, stressing that the statutory aim is to prevent “attempts to impose judicial 11 constraints upon prosecutorial discretion.” Reno v. Am.-Arab Anti-Discrimination Comm., 525 12 U.S. 471, 482, 485 n.9 (1999); see Arce v. United States, 899 F.3d 796, 800–01 (9th Cir. 2018) 13 (holding that § 1252(g) is limited to the three specific discretionary actions). 14 The Ninth Circuit made clear that § 1252(g) strips district courts of jurisdiction over

15 claims that challenge the decision to execute a removal order, notwithstanding pending 16 applications for relief. See Rauda v. Jennings, 55 F. 4th 773, 778 (9th Cir. 2022). In Rauda, the 17 Ninth Circuit held that § 1252(g) deprived the district court of jurisdiction over the petitioner’s 18 claims. Id. The petitioner in Rauda was a citizen of El Salvador subject to a final removal order, 19 sought to reopen his removal proceedings, and asked the district court to enjoin the government 20 from executing the removal order until the BIA ruled on his motion to reopen. Id. at 776. The 21 Ninth Circuit held that § 1252(g)’s “plain language” barred the district court’s jurisdiction over 22

1 In his reply brief, Petitioner argues the immigration judge erred in concluding the immigration 23 court lacked jurisdiction to consider releasing him on bond. (Dkt. No. 24 at 4–5.) However, Petitioner cites no authority to support his assertion that he was entitled to a bond hearing. 24 1 the petitioner’s claims. Id. at 777–778. It reasoned that “[t]he execution of [the petitioner’s] 2 removal order is precisely what” he challenged, meaning to “enjoin the government from 3 removing him—or in other words, enjoin ‘action by the Attorney General to . . . execute removal 4 orders against [him].’” Id. at 777 (quoting § 1252(g)).

5 Petitioner contends that he is not challenging Respondents’ decision to initiate removal 6 proceedings. (Dkt. No. 24 at 3.) But the execution of his removal order is precisely what 7 Petitioner challenges here. Petitioner “asks to be allowed time to present and adjudicate the 8 [motion to reopen] to the appropriate court or agency.” (Dkt. No. 1 at 6.) “Rauda rejected this 9 very same argument. The petitioner there insisted he was not challenging the removal itself but 10 was only seeking time for the BIA to rule on his motion to reopen. Rauda, 55 F.4th at 777. The 11 Ninth Circuit nonetheless concluded that the petitioner’s challenge fell within § 1252(g)’s 12 jurisdictional bar because it sought to restrain the government from executing a removal order. 13 Id. at 778 (holding that § 1252(g) bars any challenge to the discretionary decision to execute a 14 removal order “[n]o matter how [a petitioner] frames it[.]”). Moreover, the Ninth Circuit has

15 made clear that § 1252(g)’s jurisdictional bar “does not include any temporal caveats.” Rauda, 16 55 F.4th at 777. That is, “the discretion to decide whether to execute a removal order includes 17 the discretion to decide when to do it. Both are covered by the statute.” Id. (quoting Tazu v. 18 Att’y Gen. United States, 975 F.3d 292, 297 (3d Cir. 2020)). As in Rauda, Petitioner’s challenge 19 here is foreclosed by § 1252(g)’s plain language. 20 C. Petitioner is Entitled to a Reasonable Fear Interview 21 Respondents argue Petitioner is not eligible for a reasonable fear determination by USCIS 22 because he does not meet the statutory requirements for obtaining an interview. (Dkt. No. 20 at 23

24 1 2.) In so concluding, Respondents contend Petitioner does not have a reinstated order of removal 2 under 8 U.S.C. § 1231(a)(5). (Id.; see also Dkt. No. 21 at 2.) 3 Under 8 U.S.C. § 1231(a)(5) and its implementing regulations, if a noncitizen who has 4 been ordered removed subsequently reenters the United States unlawfully, the original removal

5 order may be reinstated by an authorized official. Morales-Izquierdo v. Gonzales, 486 F.3d 484, 6 487 (9th Cir. 2007) (en banc); 8 C.F.R. § 241.8. Petitioner was subject to a 1996 final order of 7 removal. (Dkt. No. 19-3 at 2.) USCIS’s I-485 denial letter dated February 7, 2020 indicates 8 Petitioner was previously deported from the United States and was neither inspected, admitted, 9 nor paroled when he reentered the United States. (Dkt. No. 19-5 at 2.) There is no evidence in 10 the record that ICE officers issued a new Notice to Appear when they arrested Petitioner on 11 September 5, 2025. And although Respondents assert Petitioner “is not in reinstatement 12 proceedings” (Dkt. No. 21 at 2), Respondents offer no authority to support such a conclusion. 13 Moreover, Respondents’ counsel at the February 17, 2026 hearing was unable to identify the 14 basis for detaining and seeking to remove Petitioner other than the 1996 reinstated order of

15 removal. 16 If a noncitizen whose prior order of removal had been reinstated expresses a fear of 17 returning to the country designated in that order, they “shall be immediately referred to an 18 asylum officer for an interview” to determine whether the noncitizen has “a reasonable fear of 19 persecution or torture pursuant to § 208.31.” 8 C.F.R. § 241.8(e). USCIS shall have “exclusive 20 jurisdiction” in making a reasonable fear determination and such determination “will be 21 conducted within 10 days of the referral.” 8 C.F.R. § 208.31(a)–(b). Thus, because Petitioner is 22 subject to a reinstated order of removal, she is entitled to be referred to an asylum officer for a 23 reasonable fear determination. See id.; 8 C.F.R. § 241.8(e).

24 1 IV CONCLUSON 2 Because the Court lacks jurisdiction over Plaintiff’s request to stay, the Court 3 DISMISSES this claim. However, the Court retains jurisdiction over Petitioner’s request for a 4 reasonable fear determination, and concludes he is entitled to such a determination. Therefore,

5 the Court GRANTS Petitioner’s writ of habeas corpus (Dkt. No. 1) by ordering a reasonable fear 6 determination as follows: 7 1. Respondents shall refer Petitioner to an asylum officer for a reasonable fear 8 determination as required by 8 C.F.R. §§ 241.8(e) and 208.31 within seven (7) days 9 of this Order. 10 2. Respondents are ENJOINED from removing Petitioner from the United States until 11 after a reasonable fear determination has been conducted. 12 3. Respondents shall file a status report within fourteen (14) days of this Order 13 confirming compliance with this Order. The status report shall detail when Petitioner 14 was referred to an asylum officer and when the interview occurred or is scheduled to

15 occur. 16 The Clerk shall enter judgment and close the case. 17 Dated this 18th day of February, 2026. 18 A 19 David G. Estudillo 20 United States District Judge

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