Cristofer Jose Gomez Varela v. Carlos Nunez, et al.

Summary

The court denied a habeas petition challenging the petitioner’s detention without bond during removal proceedings. It held that the petitioner, who entered the United States without inspection, was an applicant for admission subject to mandatory detention under 8 U.S.C. § 1225(b)(2), and that the detention did not violate the INA regulations or due process.

Holdings

1. An alien present in the United States without having been admitted or inspected is an applicant for admission under 8 U.S.C. § 1225 and may be detained under § 1225(b)(2) without release or a bond hearing under § 1226.
2. The Notice to Appear's designation of petitioner as an alien present without admission or parole does not place him under § 1226. Both that designation and the arriving-alien designation describe applicants for admission; only the designation for an alien who has been admitted but is removable requires a § 1226 bond hearing.
3. The Federal Register statement that certain applicants for admission would be eligible for bond was not a codified regulation and did not bind the government or require release. Regulations allowing officers discretion to release aliens under § 1226 do not require release of aliens detained under § 1225.
4. Petitioner's detention without a bond hearing under § 1225(b)(2) did not violate due process.

Questions Presented

1. Whether an alien who entered the United States without inspection is an applicant for admission subject to mandatory detention under 8 U.S.C. § 1225(b)(2), rather than entitled to a bond hearing under § 1226.
2. Whether the Notice to Appear's designation of the alien as present in the United States without admission or parole places the petitioner under § 1226 instead of § 1225.
3. Whether the agency's prior statement in the Federal Register and regulations including 8 C.F.R. §§ 236.1, 1236.1, and 1003.19 require release or a bond hearing for an alien detained under § 1225.
4. Whether detention without a bond hearing under § 1225(b)(2) violated petitioner's due process rights.

Disposition

dismissed